Exhibit 3c
Form of Underwriting Agreement
and
Form of Dealer Agreement
UNDERWRITING AGREEMENT
THIS AGREEMENT, made this ____ day of ________, ____, by and among
Phoenix Mutual Life Insurance Company ("Phoenix Mutual"), a Connecticut mutual
life insurance company, Phoenix Mutual Variable Accumulation Account ("VA
Account"), a separate account of Phoenix Mutual, and ▇▇▇▇▇▇▇▇▇ Funds
Distributor, Inc., a Florida corporation ("The Underwriter").
WITNESSETH
WHEREAS, Phoenix Mutual offers for sale certain variable life insurance
and variable annuity contracts listed on Schedule A of this Agreement (the
"Contracts"), and funded through the VA Account, a unit investment trust
registered under the Investment Company Act of 1940 ("1940 Act"), pursuant to an
effective registration statement filed with the Securities and Exchange
Commission under the Securities Act of 1933 ("Securities Act").
NOW THEREFORE, in consideration of the mutual covenants herein
contained, Phoenix Mutual, the VA Account and the Underwriter agree as follows:
1. APPOINTMENT. Phoenix Mutual and the VA Account hereby appoint the
Underwriter as the exclusive Principal Underwriter for the distribution of the
Contracts and grant to it the exclusive right during the term of this agreement
to solicit applications for the purchase of the Contracts. In exercising this
right, the Underwriter may solicit applications from prospective purchasers
through broker-dealer firms with which it has entered into written agreements
complying with the requirements of paragraph 7 hereof.
The Underwriter accepts such appointment and agrees, for the
compensation herein provided, to use its best efforts (in states where the
Contracts are approved or qualified for sale under applicable securities and
insurance law) to obtain from prospective purchasers applications for Contracts
which comply with the then current prospectus for the Contracts, although the
Underwriter is under no obligation to obtain applications for any specified
number of the Contracts. The Underwriter is registered as a broker-dealer under
the Securities Exchange Act of 1934, is and will remain a member in good
standing of the National Association of Securities Dealers, Inc. ("NASD"), and
will promote the Contracts in compliance with all applicable federal and state
law.
2. DOCUMENTS. Phoenix Mutual shall furnish TFD with copies of all
Prospectuses, and other documents which TFD reasonably requests in connection
with the distribution of the Contracts. Phoenix Mutual agrees to advise TFD
immediately in the case of an issuance by the Securities and Exchange Commission
("SEC") of any stop order suspending the effectiveness of the Prospectus, of the
happening of any material event which makes untrue any statement made in the
Registration Statement for the Contracts, or which requires the making of a
change in the Registration Statement in order to make the statements therein not
misleading, and of all action of the SEC with respect to any amendments to the
Registration Statement which may from time to time be filed with the SEC.
3. APPLICATIONS. Phoenix Mutual and the VA Account agree to approve and
accept all applications accompanied by the initial premium payment, tendered to
them by the Underwriter or broker-dealer firm that has entered into a Selling
Agreement with TFD, which comply in all material respects with the terms of the
offering and with all applicable laws, and to issue Contracts to such purchasers
thereof as promptly as practicable thereafter.
4. REGISTRATION. Phoenix Mutual and the VA Account agree to use their
best efforts to effect and maintain the registration of the Contracts under the
Securities Act and of the VA Account under the 1940 Act, and to qualify the
Contracts under the state securities and insurance laws, and to qualify the
Contracts as annuities under the Internal Revenue Code. Phoenix Mutual will pay
or cause to be paid expenses (including the fees and disbursements of its own
counsel) of the registration and maintenance of the Contracts under the
Securities Act and of the VA Account under the 1940 Act, and to qualify the
Contracts under the state securities and insurance laws.
5. EXPENSES. The Underwriter will pay the expenses incurred in
connection with the offering and sale of the Contracts, including but not
limited to, the expenses incurred in connection with printing the prospectus for
▇▇▇▇▇▇▇▇▇ Variable Products Series Fund ("▇▇▇ ▇▇▇▇") to be used in connection
with the sale of the Contracts, and the sales literature and promotional
materials for the Contracts, and for the sale and delivery of the Contracts.
6. COMPENSATION. Phoenix Mutual shall pay to the Underwriter an amount
equal to 5.50% of the premium payments paid under Contracts sold during the term
of this Agreement. However, in the alternative, Phoenix Mutual shall, at the
option of the Underwriter and to the extent permissible under federal securities
laws, pay to the Underwriter an amount equal to 5.00%, and to such entity
designated by TFD to perform wholesaling services, a wholesaling fee equal to
0.50%, of the premium payments paid under Contracts sold during the term of this
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Agreement. TFD will, in turn, compensate broker-dealer firms with which TFD has
entered into an Agreement pursuant to Section 7 in an amount mutually agreed
upon between the parties.
7. BROKER-DEALERS. The Underwriter may enter into written agreements
with broker-dealers for the purpose of soliciting applications for the purchase
of the Contracts on such terms and conditions as the Underwriter may determine
not inconsistent with this agreement. Any such broker-dealer must:
(a) be a registered broker-dealer under the Securities Exchange Act
of 1934 and a member of the National Association of Securities
Dealers, Inc.; and
(b) agree that, in connection with the solicitation of applications
for the purchase of Contracts, the broker-dealer will in all
respects conform to the requirements of all state and federal
laws and the Rules of Fair Practice of the National Association
of Securities Dealers, Inc., relating to the sale of the
Contracts and will indemnify and hold harmless the Underwriter
from any damage or expense on account of the negligence,
misconduct or wrongful act of such broker-dealer or any employee,
representative or agent of such broker-dealer.
8. INSURANCE AGENTS. Phoenix Mutual and the VA Account will permit
selected agents of a broker-dealer firm which have entered into a Selling
Agreement with the Underwriter to be licensed and appointed as life insurance
agents of Phoenix Mutual. Phoenix Mutual shall pay all fees to regulatory
authorities associated with the appointment of such selected agents as insurance
agents of Phoenix Mutual.
9. INDEMNIFICATION. Phoenix Mutual will indemnify and hold harmless the
Underwriter, for any expenses, losses, claims, damages or liabilities (including
attorneys fees) incurred by reason of any material misrepresentation or omission
in a registration statement, or prospectus for the Contracts, or on account of
any other misrepresentation, wrongful or unauthorized act or omission,
negligence of, or failure of Phoenix Mutual including any employee of Phoenix
Mutual, to comply with the terms of this Agreement, but Phoenix Mutual shall not
be required to indemnify for any expenses, losses, claims, damages or
liabilities which have resulted from the negligence, misconduct or wrongful act
of the party seeking indemnification.
In soliciting applications for the purchase of Contracts, the
Underwriter will in all respects conform to the requirements of all state and
federal law, and the Rules of Fair Practice of the NASD relating to such
solicitation. Underwriter will indemnify and hold harmless Phoenix Mutual and
the VA Account
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from expenses, losses, claims, damages or liabilities (including attorneys fees)
incurred by reason of any material misrepresentation or omission in a
registration statement or prospectus for the Fund, or in sales literature or
promotional materials developed by Underwriter for the Contracts, or on account
of any other misrepresentation, wrongful or unauthorized act or omission,
negligence of, or failure of Underwriter, or any employee of the Underwriter to
comply with the terms of this Agreement. Underwriter shall also hold harmless
and indemnify Phoenix Mutual and the VA Account for any expenses, losses,
claims, damages, or liability (including attorneys fees) arising from any
misrepresentation, wrongful or unauthorized act or omission, negligence of, or
failure of a broker-dealer or its employees, agents or registered
representatives, to comply with the terms of the Selling Agreement entered into
with the Underwriter, but only to the extent that Underwriter is indemnified by
the broker-dealer for the expense, loss, claim, damage or liability of Phoenix
and the VA Account, pursuant to the terms of the Selling Agreement between the
two parties.
10. RECORDKEEPING AND REGULATORY INVESTIGATION. Phoenix Mutual and TFD
shall cause to be maintained and preserved such accounts, books, and other
documents as are required of them by the 1940 Act, the Securities and Exchange
Act of 1934, and any other applicable laws and regulations. The books, accounts
and records of Phoenix Mutual, of the VA Account, and of TFD as to transactions
hereunder, shall be maintained so as to disclose clearly and accurately the
nature and details of the transactions. Phoenix Mutual and TFD agree that all
records relating to transactions hereunder shall be subject to reasonable
periodic, special or other audit or examination by the SEC, NASD, or any state
insurance commissioner or any other regulatory bodies having jurisdiction.
Phoenix Mutual and TFD agree to cooperate fully in any securities, insurance or
judicial regulatory investigation, inspection, inquiry or proceeding arising in
connection with the Contracts distributed under this Agreement, or with respect
to Phoenix Mutual, TFD, or their affiliates, to the extent related to the
distribution of the Contracts. Phoenix Mutual and TFD will notify each other
promptly of any customer complaint or notice of any regulatory proceeding with
respect to each other, and, in the case of a customer complaint, will cooperate
in arriving at a mutually satisfactory response.
11. TERMINATION. This agreement shall become effective on the
date of this agreement and shall continue to be in effect, except that:
(a) Any party hereto may terminate this agreement on any date by
giving the other party at least thirty (30) days' prior written
notice of such termination specifying the date fixed therefor.
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(b) This agreement may not be assigned by the Underwriter without the
consent of Phoenix Mutual.
12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have hereunto met their hands on the
date first above written.
PHOENIX MUTUAL LIFE INSURANCE COMPANY
AND
PHOENIX MUTUAL VARIABLE ACCUMULATION
ACCOUNT
By_________________________________
Title:
▇▇▇▇▇▇▇▇▇ FUNDS DISTRIBUTOR, INC.
By_________________________________
Title:
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SELLING AGREEMENT
-----------------
▇▇▇▇▇▇▇▇▇ Funds Distributor, Inc. ("TFD"), the exclusive principal underwriter
for the Contracts hereunder described and __________, (the "Dealer") enter into
this Agreement this _____ day of _____, 19__, for the purpose of authorizing the
Dealer to offer and sell the Contracts hereunder described, subject to the
following provisions:
1. TFD hereby appoints Dealer to act as a nonexclusive distributor for the sale
of and solicitation of applications for certain variable annuity contracts
and/or variable life insurance policies ("Contracts") issued by Phoenix
Mutual Life Insurance Company ("Phoenix Mutual") through the Phoenix Mutual
Variable Accumulation Account or other segregated asset account of Phoenix
Mutual, listed on schedule A of this Agreement. Dealer accepts such
appointment and agrees to use its best efforts to find purchasers acceptable
to Phoenix Mutual. Dealer shall deliver the policies, collect the first
premiums thereon, and service said business subject to the terms of this
Agreement. The Dealer is authorized to recruit Registered Representatives to
carry out the purposes of this Agreement.
2. The Dealer will promptly forward to Phoenix Mutual, Variable Annuity Service
Unit, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or its authorized
designee, all Contract applications along with other documents if any, and
any payments received with such applications, without deductions for
compensation. Pursuant to an Underwriting Agreement dated __________, by and
between TFD and Phoenix Mutual, Phoenix Mutual has agreed to approve and
accept all applications, accompanied by the initial payment, tendered to
them which comply in all material respects with the terms of the offering
and with all applicable laws and to issue Contracts to such purchasers
thereof as promptly as practicable thereafter. Any Contract application
which is rejected, together with any payment made and other documents
submitted, shall be returned to the Dealer. TFD will cause Phoenix Mutual,
on behalf of the Dealer, to confirm the issue of the Contract to the
Contract Owner.
3. TFD shall pay the Dealer within fifteen (15) days after the end of the
calendar month in which purchase payments were received under Contracts sold
through the Dealer, an amount equal to 5.00% of purchase or premium payments
made under the Contracts.
4. The Dealer agrees to return promptly to TFD, all amounts received under
paragraph 3 above for any Contract tendered for redemption within ten (10)
days after the delivery of the Contract to the Contract Owner or within such
longer period as specified in the Contracts' "free look" provision (prorata
return for partial redemption).
5. Both the Dealer and TFD represent that they are a registered broker/dealer
under the Securities Exchange Act of 1934 and members of the National
Association of Securities Dealers, Inc. ("NASD") and agree to abide by all
rules and regulations of the NASD, including its Rules of Fair Practice, and
to comply with all applicable state and Federal laws and the rules and
regulations of authorized regulatory agencies affecting the sale of the
Contracts, including the prospectus delivery requirements under the
Securities Act of 1933 for the Contracts and any underlying mutual fund. The
Dealer agrees to notify TFD promptly of any change, termination, or
suspension of its status.
6. Any indebtedness or obligation of the Dealer to TFD or Phoenix Mutual,
whether arising hereunder or otherwise, and any liabilities incurred or
monies paid by TFD or Phoenix Mutual to any person as a result of any
misrepresentation, wrongful or unauthorized act or omission, negligence of,
or failure of Dealer or its employees, agents, and Registered
Representatives to comply with this Agreement, shall be set
off against any compensation payable under this Agreement with TFD. The
Dealer shall further indemnify and save harmless TFD and Phoenix Mutual for
any losses or indebtedeness described hereunder not previously reimbursed.
The terms of this provision shall not be impaired by termination of this
Agreement.
7. The Dealer will select persons associated with it who are to be trained and
qualified agents to solicit applications for the Contracts in conformance
with applicable state and Federal laws. Any such persons shall be registered
representatives of the Dealer in accordance with the rules of the NASD, be
licensed to offer the Contract in accordance with the insurance laws of
jurisdictions where the Contract may be lawfully sold, and be licensed with
and appointed by Phoenix Mutual as a contracted insurance agent to solicit
applications for the Contracts. Dealer will train and supervise agents to
insure that purchase of a Contract is not recommended to an applicant in the
absence of reasonable grounds to believe that the purchase of a Contract is
suitable for that applicant.
8. The activities of all agents referred to in Paragraph 7 will be under the
direct supervision and control of the Dealer. The right of such agents to
sell the Contracts is subject to their continued compliance with the rules
and procedures which may be established by the Dealer or TFD, including
those set forth in this Agreement.
9. The Dealer will offer and sell the Contracts only in states where the
Contracts are qualified for sale, and only in accordance with the terms and
conditions of the then current prospectus applicable to the Contracts and
will make no representations not included in the prospectus, Statement of
Additional Information, or in any authorized supplemental material supplied
by TFD. With regard to the Contracts, the Dealer shall not use or permit its
agents to use any sales promotion materials or any form of advertising other
than that supplied or approved by TFD.
10. The Dealer understands and agrees that in performing the services covered by
this Agreement, it is acting in the capacity of an independent contractor
and not as an agent or employee of TFD, and that it is not authorized to act
for TFD except as specified herein nor make any representations on behalf of
TFD or Phoenix Mutual.
11. This agreement may not be assigned by the Dealer without the consent of TFD.
Any party hereto may cancel this Agreement upon ten days written notice.
This Agreement shall automatically terminate if the Dealer voluntarily or
involuntarily ceases to be, or is suspended from being, an NASD member or a
registered broker/dealer. Furthermore, TFD reserves the right to revise the
sales commissions set forth in paragraph 3 at any time upon the mailing of
written notice of the Dealer. Failure of any party to terminate this
Agreement for any of the causes set forth in this Agreement shall not
constitute a waiver of the right to terminate this Agreement at a later time
for any such causes.
12. This Agreement shall be governed by and construed in accordance with the
laws of the State of Florida. This Agreement shall become effective upon
execution as of the day and year written above.
Dealer _____________________________ ▇▇▇▇▇▇▇▇▇ Funds Distributor, Inc.
By: ________________________________ By: ________________________________
Title: _____________________________ Title: _____________________________
(Seal) Attest:______________________ (Seal) Attest:______________________
