Exhibit 8(f)(1)
Xxxxxxx Investor Services, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PARTICIPATING CONTRACT AND POLICY AGREEMENT
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Ladies and Gentlemen:
We (sometimes hereinafter referred to as "Investor Services") are the
Principal Underwriter of shares of Xxxxxxx Variable Life Investment Fund (the
"Fund"), a no-load, open-end, diversified registered management investment
company established in 1985 as a Massachusetts business trust. The Fund is a
series fund consisting of the Balanced Portfolio, Bond Portfolio, Capital Growth
Portfolio, Global Discovery Portfolio, International Portfolio, Money Market
Portfolio, and Growth and Income Portfolio (individually or collectively
hereinafter referred to as the "Portfolio" or the "Portfolios"). In addition,
each Portfolio, except the Money Market Portfolio, is divided into two classes
of shares of beneficial interest ("Shares"). Additional Portfolios and classes
may be created from time to time. The Fund is the funding vehicle for variable
annuity contracts and variable life insurance policies ("Participating Contracts
and Policies") to be offered to the separate accounts (the "Accounts") of
certain life insurance companies ("Participating Insurance Companies"). Owners
of Participating Contracts and Policies will designate a portion of their
premium to be invested in insurance company separate accounts or sub-accounts
which invest in, or represent an investment in, directly or indirectly, Shares
the Portfolios of the Fund. You are a registered broker-dealer which intends to
offer and sell Participating Contracts and Policies. In connection with such
offer and sale you will be obligated to deliver the prospectuses of such
Participating Contracts and Policies and, contemporaneously therewith, the
prospectus of the Fund. Sales of Shares to Participating Insurance Companies or
their affiliates or the separate accounts of either shall be effected solely by
us as principal underwriter of the Fund, and not by you; provided, however, that
you shall be our agent in connection with the receipt of purchase orders for
Fund Shares and not in connection with their offer and sale. The relationship
between us shall be further governed by the following terms and conditions:
1. To the extent, if any, that your activities or the activities of
the Participating Insurance Companies in connection with the sale
of Participating Contracts and Policies may constitute the sale
of Shares, you and we agree that (i) we are the sole "principal
underwriter" of the Fund and the sole "underwriter" of the Shares
as those terms are defined in the Investment Company Act of 1940
(the "1940 Act") and the Securities Act of 1933 (the "1933 Act"),
respectively, and (ii) neither you nor the Participating
Insurance Companies or the Accounts shall be deemed to be
"principal underwriters" of the Fund or "underwriters" of the
Fund within the meaning of the 1940 Act and the 1933 Act,
respectively.
2. You hereby represent and warrant to us as follows:
(a) You are a corporation duly organized and validly existing in
good standing under the laws of the [STATE OF INCORPORATION]
and have full power and authority to enter into this
Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by you and is a valid and binding obligation
enforceable against you in accordance with its terms.
(c) Your compliance with the provisions of this Agreement will
not conflict with or result in a violation of the provisions
of your charter or by-laws, or any statute or any judgment,
decree, order, rule or regulation of any court or
governmental agency or body having jurisdiction.
3. We hereby represent and warrant to you as follows:
(a) A registration statement (File No. 2-96461) on Form N-1A
with respect to the Shares (x) has been prepared by the Fund
in conformity with the requirements of the 1940 Act and the
1933 Act and all applicable published instructions, rules
and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission"), (y)
has been filed with the Commission, and (z) is currently
effective. The registration statement, including financial
statements and exhibits, and the final prospectus, including
the statement of additional information, as subsequently
amended and supplemented, are herein respectively referred
to as the "Registration Statement" and the "Prospectus".
(b) The Registration Statement and the Prospectus and any
amendment or supplement thereto will contain all statements
required to be stated therein and will comply in all
material respects with the requirements of the 1940 Act, the
1933 Act and the Rules and Regulations, and the Registration
Statement and any post-effective amendment thereto will not
contain or incorporate by reference any untrue statement of
a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, and the Prospectus and any amendment
or supplement thereto will not contain or incorporate by
reference any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in light
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of the circumstances under which they were made, not
misleading.
(c) We are a corporation duly organized and validly existing in
good standing under the laws of The Commonwealth of
Massachusetts and have full power and authority to enter
into this Agreement.
(d) This Agreement has been duly authorized, executed and
delivered by us and is a valid and binding obligation
enforceable against us in accordance with its terms.
(e) Our compliance with all of the provisions of this Agreement
will not conflict with or result in a violation of the
provisions of our charter or by-laws, or any statute or any
judgment, decree, order, rule or regulation of any court or
governmental agency or body having jurisdiction over us.
4. You hereby covenant and agree with us as follows:
(a) You shall be an independent contractor and neither you nor any of
your directors, partners, officers or employees as such, is or
shall be an employee of us or of the Fund. You are responsible
for your own conduct and the employment, control and conduct of
your agents and employees and for injury to such agents or
employees or to others through your agents or employees.
(b) You or one or more Participating Insurance Companies will be
responsible for insuring compliance with all applicable laws and
regulations of any regulatory body having jurisdiction over you
or Participating Contracts and Policies.
(c) No person is authorized to make any representations concerning
Shares except those contained in the Prospectus relating thereto
and in such printed information as issued by us for use as
information supplemental to the prospectus. In offering
Participating Contracts and Policies you shall, with respect to
the Fund and the Shares, rely solely on the representations
contained in the Prospectus and in the above-mentioned
supplemental information.
(d) You are not entitled to any compensation whatsoever from us or
the Fund with respect to offers of Participating Contracts and
Policies.
(e) With respect to payments to be made to us pursuant to a Rule
12b-1 Plan for the Fund, you will not seek reimbursement for
administrative and recordkeeping services under the Fund's Rule
12b-1 Plan that have been or will be paid for by any fees or
charges imposed on owners of Participating Contracts and Policies
by a Participating Insurance Company for such services. This
limitation does not, however, apply to profits that you earn from
fees and charges under Participating Contracts and Policies for
your nondistribution-related costs and expenses, such as
mortality and expense risk charges under Participating Contracts
and Policies, which profits may be available for your use to pay
distribution and other expense incurred by you. Further, this
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provision does not restrict you from receiving sales charges on
purchases and redemptions, consistent with applicable law, made
under or redemption proceeds from a Participating Contract or
Policy at the same time that you are seeking reimbursement for
expenses under the Fund's Rule 12b-1 Plan.
5. We hereby covenant and agree with you as follows:
(a) If, at any time when a Prospectus relating to the Shares is
required to be delivered under the 1940 Act, the 1933 Act or
the Rules and Regulations, we become aware of the occurrence
of any event as a result of which the Prospectus as then
amended or supplemented would include any untrue statement
of a material fact, or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which made, not misleading, or if we
become aware that it has become necessary at any time to
amend or supplement the Prospectus to comply with the 1940
Act, the 1933 Act or the Rules and Regulations, we will
promptly notify you and promptly request the Fund to prepare
and to file with the Commission an amendment to the
Registration Statement or supplement to the Prospectus which
will correct such statement or omission or an amendment or
supplement which will effect such compliance, and deliver to
you copies of any such amendment or supplement.
(b) We will cooperate with you in taking such action as may be
necessary to qualify the Shares for offering and sale under
the securities or Blue Sky laws of any state or jurisdiction
as you may request and will continue such qualification in
effect so long as is required by applicable law in
connection with the distribution of Shares.
(c) We shall reimburse you, subject to the minimum amounts set
forth in the attached schedule, for those distribution and
shareholder servicing-related expenses that are permitted to
be paid for by the Fund under the Fund's Rule 12b-1 Plan and
for which (i) you submit documentation, as may be requested
by us or by the Fund's Board of Trustees, and (ii) we
receive payment for such expenses from the Fund under the
Fund's Rule 12b-1 Plan. We shall remit to you as promptly as
reasonably practicable all payments received by us from the
Fund for remittance to you pursuant to the Fund's Rule 12b-1
Plan.
6. We reserve the right in our discretion, with 30 days' written
notice, to suspend sales or withdraw the offering of Shares
entirely, as to any person or generally, except that sales of
Shares may be suspended or the offering of Shares withdrawn
without notice (i) if the continued offering or sale of Shares
would violate any applicable statute or regulation, order or
decree of any court, governmental agency or self-regulatory
organization having jurisdiction, or (ii) if in the sole
discretion of the Trustees of the Fund, including a majority of
those Trustees who are not "interested persons" (as defined in
the 0000 Xxx) of the Fund or of its investment adviser, such
action is determined to be necessary in the best interests of the
Shareholders of any Portfolio. We reserve the right to amend this
Agreement at any time, and you agree that the sale of
Participating Contracts and Policies, after notice of any such
amendment has been sent to you, including a written notice from
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Investor Services stating that the amendment is necessary to
prevent the continued offering or sale of Shares from violating
any applicable statute or regulation, order or decree of any
court, governmental agency or self-regulatory organization having
jurisdiction, shall constitute your agreement to any such
amendment.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any Prospectus
relating to the Shares and printed information supplemental
thereto, we shall furnish you with such copies as you reasonably
request upon the payment of reasonable charges therefor by you or
one or more Participating Insurance Companies. If we elect not to
provide such copies of such documents, you or one or more
Participating Insurance Companies shall bear the entire cost of
printing copies for your use. You shall not use such copies of
such documents printed by you or one or more Participating
Insurance Companies until you shall have furnished us with a copy
thereof and we either have given you written approval for use or
twenty days shall have elapsed following our receipt thereof and
we have not objected thereto in writing.
8. (a) You will indemnify and hold harmless Investor Services and
each of its directors and officers and each person, if any,
who controls Investor Services within the meaning of Section
15 of the 1933 Act, against any loss, liability, damages,
claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees
incurred in connection therewith), arising by reason of any
person's acquiring any Shares, which may be based upon the
1933 Act or any other statute or common law, and which (i)
may be based upon any wrongful act by you, any of your
employees or representatives, any affiliate of or any person
acting on behalf of you, or (ii) may be based upon any
untrue statement or alleged untrue statement of a material
fact contained in a registration statement or prospectus
covering Shares or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading if such a
statement or omission was made in reliance upon information
furnished to us or the Fund by you, or (iii) may be based on
any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or
prospectus covering insurance products sold by you, or any
amendments or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statement or
statements therein not misleading, unless such statement or
omission was made in reliance upon information furnished to
you or a Participating Insurance Company by or on behalf of
Investor Services or the Fund; provided, however, that in no
case (i) is the indemnity by you in favor of any person
indemnified to be deemed to protect Investor Services or any
such person against any liability to which Investor Services
or any such person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its or his duties or by reason of its or his
reckless disregard of its obligations and duties under this
Agreement, or (ii) are you to be liable under your indemnity
agreement contained in this paragraph with respect to any
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claim made against Investor Services or any person
indemnified unless Investor Services or such person, as the
case may be, shall have notified you in writing within a
reasonable time after the summons or other first legal
process giving information of the nature of the claim shall
have been served upon Investor Services or upon such person
(or after Investor Services or such person shall have
received notice of such service on any designated agent),
but failure to notify you of any such claim shall not
relieve you from any liability which you may have to
Investor Services or any person against whom such action is
brought otherwise than on account of your indemnity
agreement contained in this paragraph. You shall be entitled
to participate, at your own expense, in the defense, or, if
you so elect, to assume the defense of any suit brought to
enforce any such liability, but, if you elect to assume the
defense, such defense shall be conducted by counsel chosen
by you and satisfactory to Investor Services, or to its
officers or directors, or to any controlling person or
persons, defendant or defendants in the suit. In the event
that you assume the defense of any such suit and retain such
counsel, Investor Services or such officers or directors or
controlling person or persons, defendant or defendants in
the suit, shall bear the fees and expenses of any additional
counsel retained by them, but, in case you do not elect to
assume the defense or any such suit, you shall reimburse
Investor Services and such officers, directors or
controlling person or persons, defendant of defendants in
such suit, for the reasonable fees and expenses of any
counsel retained by them. You agree promptly to notify
Investor Services of the commencement of any litigation or
proceedings against it in connection with the offer, issue
and sale of any shares.
(b) Investor Services will indemnify and hold harmless you and
each of your directors and officers and each person, if any,
who controls you within the meaning of Section 15 of the
1933 Act, against any loss, liability, damages, claim or
expense (including the reasonable cost of investigating or
defending any alleged loss, liability, damages, claim or
expense and reasonable counsel fees incurred in connection
therewith), arising by reason of any person's acquiring any
Shares, which may be based upon the 1933 Act or any other
statute or common law, and which (i) may be based upon any
wrongful act by Investor Services, any of its employees or
representatives, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering
Shares or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading unless such statement or
omission was made in reliance upon information furnished to
Investor Services or the Fund by you or (iii) may be based
on any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or
prospectus covering insurance products sold by you, or any
amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statement or
statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to
you by or on behalf of Investor Services or the Fund;
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provided, however, that in no case (i) is the indemnity by
Investor Services in favor of any person indemnified to be
deemed to protect you or any such person against any
liability to which you or any such person would otherwise be
subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of your or his duties by
reason of your or his reckless disregard of your or his
obligations and duties under this Agreement, or (ii) is
Investor Services to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made
against you or any person indemnified unless you or such
person, as the case may be, shall have notified Investor
Services in writing within a reasonable time after the
summons or other first legal process giving information of
the nature of the claim shall have been served upon you or
upon such person (or after you or such person shall have
received notice of such service on any designated agent),
but failure to notify Investor Services of any such claim
shall not relieve Investor Services from any liability to
which Investor Services may have to you or any person
against whom such action is brought otherwise than on
account of its indemnity agreement contained in this
paragraph. Investor Services shall be entitled to
participate, at its own expense, in the defense, or, if it
so elects, to assume the defense of any suit brought to
enforce any such liability, but, if it elects to assume the
defense, such defense shall be conducted by counsel chosen
by Investor Services and satisfactory to you, or to your
officers or directors, or to any controlling person or
persons, defendant or defendants in the suit. In the event
that Investor Services assumes the defense of any such suit
and retains such counsel, you or such officers or directors
or controlling person or persons, defendant or defendants in
the suit, shall bear the fees and expenses of any additional
counsel retained by you, but, in case Investor Services does
not elect to assume the defense of any such suit, Investor
Services shall reimburse you and such officers, directors or
controlling person or persons, defendant or defendants in
such suit, for the reasonable fees and expenses of any
counsel retained by you. Investor Services agrees promptly
to notify you of the commencement of any litigation or
proceedings against it in connection with the offer, issue
and sale of any Shares.
9. The indemnities, representations, warranties, covenants and
agreements of each party to this Agreement as set forth in this
Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of either of such parties or
any of their respective officers, directors, partners or any
controlling person, and will survive delivery of and payment for
the Shares.
10. Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, each
party hereto waives any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
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11. This Agreement constitutes the entire agreement among the parties
concerning the subject matter hereof, and supersedes any and all
prior understandings.
12. This Agreement shall automatically terminate in the event of its
assignment. This Agreement may be terminated at any time by
either party by 30 days' written notice given to the other party,
except that the Agreement may be terminated by Investor Services
without notice (i) if the continued offering or sale of Shares
would violate any applicable statute or regulation, order or
decree of any court, governmental agency or self-regulatory
organization having jurisdiction, or (ii) if in the sole
discretion of the Trustees of the Fund, including a majority of
those Trustees who are not "interested persons" (as defined in
the 0000 Xxx) of the Fund or of its investment adviser, such
action is determined to be necessary in the best interests of the
Shareholders of any Portfolio. The obligation of each party to
indemnify the other party pursuant to paragraph 8 hereof shall
apply with respect to any Shares sold before or after such
termination. To the extent we receive payments under any
provision of this Agreement pursuant to a Rule 12b-1 Plan for the
Fund, both you and we understand and agree that this Agreement
will be subject to the applicable approval, reporting and
termination requirements as set forth in Rule 12b-1.
13. Any notice hereunder shall be duly given if mailed or telegraphed
to the other party hereto at the address specified below. This
Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts.
14. This Agreement may be executed in any number of counterparts
which, taken together shall constitute one and the same
instrument. This Agreement shall become effective upon receipt by
us of your acceptance hereof.
15. This Agreement may not be modified or amended except by a written
instrument duly executed by the parties hereto.
XXXXXXX INVESTOR SERVICES, INC.
By:
____________________________
Xxxxx X. Xxx
President
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned hereby accepts
the offer set forth in the above
letter.
[REGISTERED BROKER-DEALER]
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Dated:_______ By:________________________
Authorized Representative
Address:
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