METLIFEINVESTORS
MetLife Investors Insurance Company
MetlLife Investors Insurance Company of California
MetLife Investors USA Insurance Company
First MetLife Investors Insurance Company
AMENDMENT TO SELLING AGREEMENT
This Amendment is made as of October 1, 2003, to the Selling Agreement(s)
("Selling Agreement") among Life Company, Distributor, Broker Dealer, and
General Agency, as the parties are described in the Selling Agreement.
1. The Selling Agreement is amended by adding the following new sections:
Money Laundering, Foreign Assets Control. Company, Distributor and
----------------------------------------
Broker Dealer agree to comply with all applicable anti-money laundering
laws, regulations, rules and government guidance, including the
reporting, recordkeeping and compliance requirements of the Bank Secrecy
Act ("BSA"), as amended by The International Money Laundering Abatement
and Financial Anti-Terrorism Act of 2002, Title III of the USA PATRIOT
Act ("the Act"), its implementing regulations, and related SEC and SRO
rules. These requirements include requirements to identify and report
currency transactions and suspicious activity, to implement a customer
identification program to verify the identity of customers, and to
implement an anti-money laundering compliance program. As required by
the Act, each party represents that it has a comprehensive anti-money
laundering compliance program that includes, policies, procedures and
internal controls for complying with the BSA; policies, procedures and
internal controls for identifying, evaluating and reporting suspicious
activity; a designated compliance officer or officers; training for
appropriate employees; and an independent audit function.
Customer Identification Program. Broker Dealer certifies, and will
-------------------------------
certify to Distributor annually as requested, that it has established
and implemented a Customer Identification Program, in compliance with
applicable regulations, as part of its anti-money laundering compliance
program that, at a minimum, requires (i) the verification of the
identity of any customer who opens an account within a reasonable time
after account opening; (ii) the retention of a record of the information
used to verify each customer's identity; and (iii) the determination,
within a reasonable time before or after the account is opened, as to
whether the customer appears on any lists of known or suspected
terrorists or terrorist organizations as provided to it by any
government agency. Broker Dealer agrees that it will verify the identity
of each customer that it introduces to Distributor, whether through
documentary or non-documentary means, and that Distributor will rely
upon such verification, as prescribed by the regulations promulgated
under Section 326 of the Act in accordance with the safe-harbor provided
in Section 103.122(b)(6) of the regulations under the Act.
2. To the extent that there is a conflict between the language of the
Selling Agreement and the terms of this Amendment, the terms of this
Amendment shall prevail.
3. Except as amended hereby, the terms of the Selling Agreement shall
remain in full force and effect.
In Witness Whereof, the parties have executed this Amendment as of the date
first above written.
LIFE COMPANY
MetLife Investors Insurance Company
MetLife Investors Insurance Company of California
First MetLife Investors Insurance Company
MetLife Investors USA Insurance Company
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President
DISTRIBUTOR
MetLife Investors Distribution Company
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
President
XXXXXXX LYNCH, PIERCE, XXXXXX AND XXXXX INCORPORATED
By /s/ Illegible
--------------------------
Title: First X.X
XXXXXXX XXXXX LIFE AGENCY
By /s/ Illegible
--------------------------
Title: Vice President
THIRD AMENDMENT TO AGREEMENT
----------------------------
Effective December 5, 2008, the Agreement dated September 1, 2002, as
amended, (the "Agreement"), by and among First MetLife Investors Insurance
Company, Metropolitan Life Insurance Company and MetLife Investors Distribution
Company (collectively "the Company") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Broker Dealer") and its duly licensed insurance affiliate(s),
Xxxxxxx Xxxxx Life Agency Inc., and the corporations listed together with their
respective states of incorporation on the signature pages hereof (collectively
"General Agent"), is amended as follows:
1. The third paragraph of the Agreement is deleted and replaced with the
following:
"The Company represents that it is the issuer of those fixed and variable
products listed on Appendix A. The Company further represents that all variable
products listed on Appendix A are properly registered under the Securities Act
of 1933 and the Investment Company Act of 1940, that the registration
statements and prospectuses comply in all material respects with the applicable
provisions of such acts, and do not contain any untrue statement of material
fact nor omit to state a material fact required to be stated therein, or
necessary to make the statements therein not misleading."
2. Except as amended hereby, all other terms and provisions of the Agreement
and of its earlier amendments, including the October 1, 2003 amendment
regarding anti-money laundering, shall remain in full force and effect.
IN WITNESS WHEREOF, the Company and General Agent have caused this
instrument to be signed by their duly authorized officers.
First MetLife Investors Insurance MetLife Investors Distribution Company
Company
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- -------------------------------
Date: 2/12/09 Date: 2/12/09
Metropolitan Life Insurance Company
By: /s/ Illegible
-------------------------------
Date: 2/12/09
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx, Incorporated
By: /s/ Illegible
-------------------------------
Date: 2/23/09
Xxxxxxx Xxxxx Life Agency Inc.
A Montana Corporation
00-0000000
Xxxxxxx Xxxxx Life Agency Inc.
A Washington Corporation
00-0000000
Xxxxxxx Xxxxx Life Agency Inc.
A Puerto Rico Corporation
00-0000000
Xxxxxxx Xxxxx Life Agency Inc.
A Virgin Islands Corporation
00-0000000
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
Senior Vice President &
Secretary
Date: 2/20/2009
SECOND AMENDMENT TO AGREEMENT
This Amendment effective as of November 16, 2004 shall be made part of and
incorporated with the Agreement, effective as of the 1st day of September,
2002, as amended, is made by and among First MetLife Investors Insurance
Company ("First MLI"), Metropolitan Life Insurance Company ("MetLife") and
MetLife Investors Distribution Company ("Distributor") (hereinafter referred to
collectively as the "Company") and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Broker/Dealer") and its duly licensed insurance affiliate(s),
Xxxxxxx Xxxxx Life Agency Inc., a Washington corporation, and the corporations
listed together with their respective states of incorporation on the signature
pages hereof (hereinafter referred to collectively as "General Agent") with the
Broker Dealer.
WHEREAS, MetLife and Broker/Dealer intend to enter into an arrangement (the
"Master Marketing and Services Agreement") relating to the sale and servicing
of a deferred fixed income annuity contract knowns as Personal Pension Builder
and a variable income annuity product known as Personal IncomePlus, both issued
by MetLife;
NOW THEREFORE,
(1) All terms, conditions and provisions under the Agreement shall remain in
full force and effect, except that whenever the provisions of the Agreement and
the provisions of the Master Marketing and Services Agreement shall conflict,
the provisions of the Master Marketing and Services Agreement shall control but
only with respect to the products specifically covered under the Master
Marketing and Services Agreement.
1
(2) Section 8 H of the Agreement is amended by adding a new subsection (3) with
respect to products covered under Master Marketing and Services Agreement to
read as follows:
(3) IF TO METLIFE, TO
METROPOLITAN LIFE INSURANCE COMPANY
ONE METLIFE PLAZA
00-00 XXXXXX XXXXX XXXXX
XXXX XXXXXX XXXX, XXX XXXX 00000
ATTENTION: XXXXXX X. XXXXXX
VICE PRESIDENT AND SENIOR ACTUARY
IN WITNESS WHEREOF, the Company and General Agent have caused this Amendment
to be signed by their duly authorized officers effective as of the day and year
first above written.
First MetLife Investors USA Insurance Metropolitan Life Insurance Company
Company
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President
Date: 10/9/04 Date: 11/16/04
MetLife Investors Distribution Company Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx, Incorporated
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Executive Vice President First Vice President &
Assistant General Counsel
Date: 10/9/04 Date: 10/7/04
2
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
An Alabama Corporation A Nevada Corporation
00-000-0000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
An Illinois Corporation A New Mexico Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Massachusetts Corporation An Ohio Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Montana Corporation An Oklahoma Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Washington Corporation A Virgin Islands Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc.
A Wyoming Corporation
00-0000000
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Vice President
Date: 10/07/04
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AMENDMENT TO AGREEMENT
This Amendment effective as of February 6, 2004 shall be made part of and
incorporated with the Agreement, effective as of the 1st day of September, 2002,
is made by and among ("First MLI"), and MetLife Investors Distribution
Company ("Distributor") (hereinafter referred to collectively as "the Company")
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Broker/Dealer") and its
duly licensed insurance affiliate(s), Xxxxxxx Xxxxx Life Agency Inc., a
Washington corporation, and the corporations listed together with their
respective states of incorporation on the signature pages hereof (hereinafter
referred to collectively as "General Agent") with the Broker Dealer.
Metropolitan Life Insurance Company ("MetLife") is an affiliate of the
Company and it issues certain annuity contracts, including variable annuities,
as well as long-term care insurance.
The Agreement is hereby amended to add MetLife as a party to the Agreement.
All terms, conditions and provisions under the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the Company and General Agent have caused this
instrument to be signed by their duly authorized officers effective as of the
day and year first above written.
First MetLife Investors Insurance Metropolitan Life Insurance Company
Company
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx Xxxxxxx
Executive Vice President Senior Vice President
Date: 2/6/04 Date: 2/6/04
1
MetLife Investors Distribution Company Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx, Incorporated
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
President First Vice President &
Assistant General Counsel
Date: 2/6/04 Date: 2/26/04
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
An Alabama Corporation A Nevada Corporation
00-000-0000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
An Illinois Corporation A New Mexico Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Massachusetts Corporation An Ohio Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Montana Corporation An Oklahoma Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Washington Corporation A Virgin Islands Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc.
A Wyoming Corporation
00-0000000
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Vice President
Date: 2/26/04
2
LONG-TERM CARE RIDER TO AGREEMENT
This Rider effective as of February 6, 2004 shall be made part of and
incorporated with the Agreement dated as of the 4/th/ day of March, 2002,
amended as of February 6, 2004 (the "Agreement") made by and among First
MetLife Investors Insurance Company ("FMLI"), Metropolitan Life Insurance
Company ("MetLife") and MetLife Investors Distribution Company ("Distributor"),
(hereinafter referred to collectively as "the Company") and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Broker/Dealer") and its duly licensed
insurance affiliate(s), Xxxxxxx Xxxxx Life Agency Inc., a Washington
corporation, and the corporations listed together with their respective states
of incorporation on the signature pages hereof (hereinafter referred to
collectively as "General Agent") with the Broker/Dealer.
General Agent wishes to offer long-term care insurance products ("LTCI
Products") offered by MetLife and MetLife desires that General Agent sell its
LTCI Products.
MetLife represents that it is the issuer of LTCI Products listed in Exhibit
A to this Rider and that these products, including rates and any required
documents and brochures, have been filed and approved in accordance with state
insurance laws, regulations, bulletins and notices.
MetLife agrees to appoint General Agent and its subagents in accordance with
the terms of the Agreement. General Agent represents that it is duly licensed
to transact long-term care insurance business.
The Company, at its own expense, shall obtain basic underwriting
requirements and all health and medical information. Any fees or expenses
charged for obtaining such
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inspection reports, medical records, attending physician statements or any
other health or medical information shall be the full responsibility of the
Company.
PRIVACY
In addition to the privacy provisions stated in the Agreement, the following
shall apply with regard to sales of LTCI Products. To the extent that either
party receives, creates, has access to or use protected health information
regarding individuals who are applicants for, owners of or eligible for
benefits under certain health insurance products and optional riders offered by
or through MetLife ("MetLife PHI"), in accordance requirements of the federal
Health Insurance Portability and Accountability Act of 1996 and related
regulations ("HIPAA"), as may be amended from time to time, the parties agree:
a. Not to use or disclose MetLife PHI except i) to perform functions,
activities, or services for, or on behalf of, the parties as specified
in this Rider and consistent with applicable laws, or ii) to the extent
that such use or disclosure is required by law. Any such use or
disclosure shall be limited to that required to perform such services or
to that required by relevant law.
b. Not to disclose MetLife PHI to any third party, including, without
limitation, their respective third party service providers except to the
extent necessary to carry out their obligations under this Rider and
then only with an agreement in writing from the third party to use or
disclose such MetLife PHI only to the extent necessary to carry out
their respective obligations under this Rider and for no other purposes.
The parties shall maintain, and shall require all third
2
parties approved to maintain effective information security measures to
protect MetLife PHI from unauthorized disclosure or use.
c. To use appropriate safeguards to prevent use or disclosure of MetLife
PHI other than as permitted by this Rider and to implement
administrative, physical and technical safeguards to reasonably protect
the confidentiality, integrity and availability of any electronic
MetLife PHI that each party creates, receives, maintains or transmits on
behalf of the other.
d. The parties shall provide each other with information regarding such
security measures upon the reasonable request of the other party and
promptly provide the other with information regarding any failure of
such security measures or any security breach related to MetLife PHI.
Each party shall attempt to mitigate any harmful effect of any use or
disclosure that is made in violation of the requirements of this Rider.
e. To, within 15 days of either party's request, provide the other party
with any MetLife PHI or information relating to MetLife PHI as deemed
necessary by the party to provide individuals with access to, amendment
of, and an accounting of disclosures of MetLife PHI.
f. To make records relating to use or disclosure of MetLife PHI available
to the Secretary of the United States Department of Health and Human
Services at his/her request to determine MetLife's compliance with HIPAA.
g. To, upon termination of the Rider, in accordance with either party's
wishes, either return or destroy all MetLife PHI maintained in any form
and retain no copies. If the parties agrees that such return or
destruction is not feasible, the
3
parties shall extend the protections of this Rider to the MetLife PHI
beyond the termination of this Rider, in which case any further use or
disclosure of the MetLife PHI will be solely for the purposes that make
return or destruction infeasible. Destruction without retention of
copies is deemed "infeasible" if prohibited by the terms of this Rider
or by applicable law, including record retention requirements of various
state insurance laws.
Notwithstanding any of the above, the Company shall be solely responsible
for providing Privacy Notices and obtaining HIPAA Authorizations from
applicants. The Company shall also be solely responsible for keeping and
maintaining all records required under law in connection with the application
and issuance of long-term care policies.
For these purposes, PHI means individually identifiable information that is
transmitted or maintained in any medium and relates to the past, present or
future physical or mental health or condition of an individual; the provision
of health care to an individual; or future payment for the provision of health
care to the individual. PHI includes demographic information about individuals,
including names; addresses; dates directly related to an individual, including
but not limited to birth date; telephone numbers; fax numbers; E-mail
addresses; Social Security numbers; policy numbers, medical record numbers;
account numbers; and any other unique identifying number, characteristic, or
code. MetLife PHI also includes, but is not limited to, information provided by
an individual on an application for a MetLife Long-Term Care Insurance Policy
or other health care plan; information related to the declination or issuance
of, or
4
claim under, a MetLife Long-Term Care Insurance Policy; or information derived
therefrom.
Breach of any of these provisions by either party shall constitute a
material breach of this Rider and provide grounds for immediate termination of
this Rider by the breached party, notwithstanding any other provisions of this
Rider.
This Privacy provision will survive the termination of this Rider.
APPLICATION SUPPORT
The Company shall provide full administrative support to General Agent,
including a detailed walk-through of the application with the agent and
applicant/client. It shall provide all necessary support required to assist
General Agent in obtaining information for the preliminary request for
long-term care insurance.
The Company shall be responsible for delivering all required regulatory
documents and information about the long-term care policy directly to the
client. The Company shall follow up to ensure that it has all required
authorizations from the client prior to processing the application. MetLife's
registered nurse shall call the client to complete a full application via
telephone.
ILLUSTRATIONS/TECHNOLOGY REQUIREMENT
MetLife shall make available its web-based illustration system to General
Agent. MetLife shall design a separate home page for access by the General
Agent and its designated producers and access must be made available via a
browser neutral platform. All requirements under the Future Enhancements
section of Exhibit B of the Agreement
5
shall be incorporated in full hereto with respect to the web-based illustration
provided by MetLife. MetLife shall ensure that any MetLife PHI information as
discussed above is encrypted and secure. MetLife shall use best efforts to
update any regulatory requirements, illustration system upgrades and all
applicable rate changes immediately.
Company shall assure that all illustration software to be utilized by
General Agent and its designated brokers comports with General Agent mandates
and is compliant with: (1) the National Association of Insurance Commissioners
Model Act for long-term care insurance products; and (2) all applicable state
law, regulations, bulletins and notices for long-term care insurance products.
The illustration format to be utilized for General Agent and General Agent's
designated brokers shall be a customized illustration format as dictated and
approved by General Agent prior to any use with General Agent and designated
brokers. Such illustration software shall illustrate General Agent-approved
products and features only. The Company will pay all maintenance costs
applicable to updating and upgrading illustrations for the Company's products
to the General Agent and the General Agent's designated brokers through such
web-based illustration system. The Company will make any changes to the
illustration software required to comply with regulatory requirements as well
as those changes necessitated resulting from outside counsel's review of the
Products, and the parties further agree that the illustration format referenced
in this Agreement shall be modified as necessary to conform to applicable state
regulations governing the illustration of long-term care products.
If the Company has a website for producer access that contains pending and
in-force policy information, the Company shall design a separate home page for
access by the General Agent and its designated producers as dictated by General
Agent. This home
6
page will contain links to the following sections of the Company's website:
General Agent-approved policy forms and marketing materials, pending case
status, in-force policy information, state availability grids/charts, producer
licensing status and underwriting requirements. Access to pending case status
and in-force policy information shall be limited on a producer-level basis,
with full access being granted to General Agent home office staff. The Company
shall employ all appropriate measures to ensure that this separate home page is
accessible only to General Agent and its designated producers as dictated by
General Agent and inaccessible to unauthorized third parties.
All other terms and provisions under the Agreement shall remain in full
force and effect.
This Rider may be executed in one or more counterparts, each of which shall
be deemed in all respects an original.
IN WITNESS WHEREOF, the Company and General Agent have caused this
instrument to be signed by their duly authorized officers effective as of the
day and year first above written.
First MetLife Investors Insurance Metropolitan Life Insurance Company
Company
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx Xxxxxxx
Executive Vice President Senior Vice President
Date: 2/6/04 Date: 2/6/04
7
MetLife Investors Distribution Company Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
President First Vice President & Assistant
General Counsel
Date: 2/6/04 Date: 2/26/07
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
An Alabama Corporation A Nevada Corporation
00-000-0000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
An Illinois Corporation A New Mexico Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Massachusetts Corporation An Ohio Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Montana Corporation An Oklahoma Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc. Xxxxxxx Xxxxx Life Agency Inc.
A Washington Corporation A Virgin Islands Corporation
00-0000000 00-0000000
Xxxxxxx Xxxxx Life Agency Inc.
A Wyoming Corporation
00-0000000
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Vice President
Date: 2/26/04
8
SERVICE ONLY ADDENDUM
This Schedule effective as of the 1st day of September, 2002, is incorporated
into and made part of the Selling Agreement made by and among First MetLife
Investors Insurance Company ("First MLI"), and MetLife Investors Distribution
Company ("Distributor"), selling products listed on the attached Appendix A
(hereinafter referred to collectively as "the Company") and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Broker/Dealer") and its duly licensed
insurance affiliate(s), Xxxxxxx Xxxxx Life Agency Inc., a Washington
corporation, and the corporations listed together with their respective states
of incorporation on the signature pages hereof (hereinafter referred to
collectively as "General Agent") with the Broker Dealer. This Schedule is
subject to all of the provisions of the Agreement except as modified herein.
General Agent is hereby authorized to the extent outlined in the Agreement to
act as a dealer of Distributor and as agent of Company for the sale of certain
annuity contracts and/or life insurance policies. No other authority is granted.
General Agent may become the agent of record in connection with Company annuity
contracts or life insurance policies that Company does not offer to General
Agent for new sales and which were solicited by representatives of other
agencies or dealers for which General Agent became Agent of Record after issue
("Service Only Contracts"). Unless otherwise agreed by the Company to the
contrary, Company will pay General Agent any applicable compensation
attributable to service compensation, including, but not limited to subsequent
premiums, in connection with such Service Only Contracts. The parties
understand and agree that for those Service Only Contracts subject to exchanges
in accordance with Section 1035 of the Internal Revenue Code, compensation will
be paid as set forth in the attached Summary of Exchange Rules provided by
Company.
Company shall indemnify, defend, and hold General Agent, its officers,
employees and agents harmless against all liability, including attorneys' fees
and costs of investigation and defense incident thereto arising as a result of
errors, omissions, negligence, misrepresentation, fault, wrongful action or
breach of any representation or warranty by the Company, its affiliates, agents
(other than General Agent), or any officer, director or employee of Company or
said affiliates or agents (including, but not limited to, the failure to
provide adequate tax disclosure concerning the Service Only Contracts contained
in the prospectus or to properly administer the Service Only Contracts and
failure to comply with any applicable federal law or regulation, state law or
regulation, administrative or exchange rule or regulation, or rule of any
applicable self-regulatory organization) arising from, relating to or in
connection with the solicitation or sale of the Service Only Contracts.
General Agent shall indemnify, defend, and hold the Company, its officers,
employees and agents harmless against all liability, including attorneys' fees
and costs of investigation and defense incident thereto arising as a result of
errors, omissions, negligence, misrepresentation, fault, wrongful action or
breach of any representation or warranty by General Agent, its affiliates,
agents, or any officer, director or employee of General Agent or said
affiliates or agents (including, but not limited to, failure to comply
9
with any applicable federal law or regulation, state law or regulation,
administrative or exchange rule or regulation, or rule of any applicable
self-regulatory organization) arising from, relating to or in connection with
the solicitation of premiums or purchase payments or other acts or omissions
arising after General Agent becomes broker of record for a Service Only
Contract.
The undersigned hereby acknowledge receipt and understanding of the above
Schedule to the referenced Agreement.
First MetLife Investors Insurance Xxxxxxx Lynch, Pierce, Xxxxxx &
Company Xxxxx, Incorporated
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Executive Vice President First Vice President and
Assistant General Counsel
Date: 9/13/02 Date: 9/10/02
MetLife Investors Distribution Company
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
President
Date: 9/13/02
10
Xxxxxxx Xxxxx Life Agency Inc.
A New York Corporation
00-0000000
By: /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
Vice President
Date: 9/10/02
11
AGREEMENT
---------
This Agreement, effective as of the 1st day of September, 2002, is made by
and among First MetLife Investors Insurance Company (" "), and MetLife
Investors Distribution Company ("Distributor"), selling products listed on the
attached Appendix A (hereinafter referred to collectively as "the Company") and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Broker/Dealer") and its
duly licensed insurance affiliate(s), Xxxxxxx Xxxxx Life Agency Inc., a
Washington corporation, and the corporations listed together with their
respective states of incorporation on the signature pages hereof (hereinafter
referred to collectively as "General Agent") with the Broker Dealer.
Where applicable, any reference in this Agreement to General Agent or the
Company, while defined collectively, will be deemed to refer to the individual
entity liable for the stated act.
The Company represents that it is the issuer of those products listed on
Appendix A The Company further represents that the products listed on Appendix
A are properly registered under the Securities Act of 1933 and the Investment
Company Act of 1940, that the registration statements and prospectuses comply
in all material respects with the applicable provisions of such acts, and do
not contain any untrue statement of material fact nor omit to state a material
fact required to be stated therein, or necessary to make the statements therein
not misleading.
Broker/Dealer and Distributor each represent that it is registered as a
broker and dealer under the Securities Exchange Act of 1934, as amended, and is
a member in good standing of the National Association of Securities Dealers,
Inc. ('"NASD")
General Agent and Broker Dealer represent and warrant that with respect to
Securities and Exchange Commission-registered contracts sold under this
Agreement, its brokers shall be registered
1
representatives of Broker/Dealer. General Agent represents and warrants that it
is an insurance agency or insurance agencies duly licensed to sell variable
life insurance and fixed and variable annuities in any state or other
jurisdiction in which General Agent intends to perform hereunder and that each
of the General Agent's brokers appointed to the Company are duly licensed
(including any special variable licensing) under insurance laws in any state or
other jurisdiction in which the broker offers or sells the Products hereunder.
I. Appointment
-----------
Subject to all the terms of this Agreement, and to the applicable state laws
regarding licensing insurance agents, General Agent is hereby appointed by the
Company to represent it and any subsidiary, agency or company designated by it
in writing, only in accordance with the terms of this Agreement, in the sale of
insurance products set forth in Appendix A, attached to and made a part of this
Agreement and in any written amendment thereto, (hereinafter referred to as
"Products" or "the Products"), in any jurisdiction in which General Agent is
validly licensed and in good standing and in which the Products may be legally
sold and while any applicable registration under the Securities Act of 1933, as
amended, is in effect. General Agent hereby accepts such appointment. The
Company and General Agent agree that this Agreement is not an exclusive
Agreement and no rights of exclusivity arise herefrom in favor of either party.
II. Authorization
-------------
General Agent is authorized to:
A promote, market, solicit, sell and deliver the Products, receive, and
forward initial premiums thereon, and perform any other act specifically
authorized by this Agreement or in writing by the Company; and
2
B. designate its brokers, subject to the approval by the Company, which
approval may be withdrawn subject to the limitations of Section VII herein, as
General Agent deems necessary to conduct the General Agency business under this
Agreement. Any such brokers that General Agent designates to sell the Products
or to whom General Agent pays commissions under this Agreement shall also be
licensed and appointed as required by law and securities registered as required
by law and the rules of the National Association of Securities Dealers ("NASD").
III. Relationship
------------
General Agent and Broker Dealer shall freely exercise their own judgment as
to the time, place and means of exercising authority under this Agreement.
General Agent and Broker Dealer shall not possess or exercise any authority on
behalf of the Company other than that expressly conferred on General Agent and
Broker Dealer by this Agreement unless otherwise agreed to by the parties.
General Agent and Broker Dealer are independent contractors and nothing in this
Agreement shall create the relationship of employer and employee between the
Company and General Agent or Broker Dealer and their brokers and employees.
Nothing contained in this Agreement shall restrict General Agent and Broker
Dealer from acting as an agent or broker for other insurance companies.
IV. General
-------
The Company shall maintain an administrative office for annuity Products and
an administrative office for life Products to which all policy applications,
premiums and policy service requests shall be referred by General Agent. The
Company shall designate dedicated service personnel to support General Agent's
business. Only business from General Agent's brokers properly licensed and
appointed to sell the Products for which applications are submitted by such
brokers shall be acceptable to the Company. In the event that any of the
Products are not approved products of General Agent prior to General Agent's
execution of this Agreement, they must be so approved prior to this Agreement's
effective date. Should General Agent determine it necessary to obtain outside
counsel's review of any such products in order to
3
provide approval, the Company shall be permitted to pre-approve an estimate to
perform such review, and provided that General Agent and the Company have
mutually agreed to such expense, the Company will thereafter reimburse General
Agent the actual cost of such review upon General Agent's documentation of said
costs Except as otherwise provided herein and subject to the limitations set
forth in Section XI. herein, the Company may, in its discretion, withdraw from
sale any of the Products described in Appendix A, as amended from time to time.
General Agent will obtain and transmit promptly to the Company all
applications and premiums for the Products. All premiums shall be submitted to
the Company by check payable to the Company or by wire transfer directly to the
Company's designated account. For purposes of this provision, "promptly" shall
be deemed to mean not later than two (2) business days for variable Products
and five (5) business days for fixed Products.
General Agent shall promptly provide the Company with any necessary license
information required by the Company or state insurance departments in order to
appoint General Agent or designated brokers with the Company and will cooperate
with the Company upon reasonable notice in the event that the Company is
required by law to obtain a background investigation of a broker, and the
Company shall use best efforts to forward all appointment paperwork to state
insurance departments within two (2) business days of receipt of all necessary
information in proper order from General Agent. Company and General Agent will
use their best efforts to effectuate a "paperless appointment" of all of
General Agent's brokers in accordance with applicable law.
Upon issuance of a Product, unless otherwise delivered to General Agent's
broker at General Agent's request, the Company shall promptly deliver such
Product to its purchaser by first class mail to the purchaser's last known
address of record. In the event that a Product is delivered to the General
Agent's broker, General Agent's broker shall cause the Product to be promptly
delivered to the Purchaser. For purposes of this provision, "promptly" shall be
deemed to mean not later than five (5) business days in the case of variable
annuities or variable life policies and twenty (20) business days in the case
of fixed annuities.
4
V. Unauthorized Acts
-----------------
Unless specifically authorized in writing by the Company or otherwise agreed
upon by the parties, General Agent shall not on behalf of the Company a) waive,
alter, add or omit any provision or part of any Product issued by the Company;
b) extend the time for the payment of any premium or contract consideration; c)
incur any debt or liability in the Company's name; or d) bind the Company by
any contract, promise or agreement, oral or written.
VI. Expenses
--------
General Agent shall pay all expenses whatsoever connected with operating its
insurance business except that the Company shall pay those expenses which it
expressly assumes under this Agreement or otherwise in writing.
VII. Compliance
----------
A. The Company agrees that during the continuance of this Agreement it will
take all action which is required for it to comply and for all Products
marketed hereunder to comply, and to continue to comply with all applicable
federal and state laws and regulations, and the rules and regulations of all
appropriate self-regulatory organizations. The Company represents that all
Products marketed hereunder as well as any prospectus for any Products marketed
hereunder and all advertising or sales promotional material provided by the
Company hereunder have been reviewed and approved, as applicable, by the
Company's legal and/or compliance personnel, including the Distributor's NASD
Registered Principal.
B. The Company shall, at its expense, appoint prior to any solicitation of
the Products, the brokers designated by General Agent hereunder. Such
appointments shall be in any and all states where General Agent indicates a
designated broker will be doing insurance business under this Agreement and
shall be at the expense of the Company. Throughout the term of this Agreement,
each of General Agent's
5
District Annuity Specialists and any other of General Agent's insurance
specialists shall be appointed at the Company's expense in all states where
such District Annuity Specialist or insurance specialist holds an insurance
license and in all states included in their respective territories as
designated by General Agent. Company shall appoint at its expense all of
General Agent's designated brokers doing insurance business under this
Agreement in any and all jurisdictions for which such brokers are duly licensed
and request appointment. Company shall use its best efforts to appoint brokers
based upon electronic transmissions of licensing information from General
Agent. The Company shall provide General Agent with an electronic file to the
designated General Agent data center, updating the appointment status of
General Agent's designated brokers on a daily basis or as otherwise reasonably
requested by General Agent.
C. Except as otherwise specified herein, regardless of individual
production, Company shall renew at the Company's expense all appointments of
General Agent's insurance specialists (currently District Annuity Specialists
and their assistants). Further, regardless of individual production, the
Company shall also renew at the Company's expense for not less than twenty-four
(24) months from their original appointment date all appointments of General
Agent's other brokers. Thereafter, the Company shall continue to renew at its
expense all appointments of General Agent's other brokers who have made a sale
under this Agreement within the year prior to any renewal date. Company shall
not terminate or fail to renew any designated broker's appointment for
non-production without thirty (30) days prior written notice to General Agent.
If Company does not renew any designated broker's appointment for
non-production, Company shall notify said broker directly and indicate said
non-renewal on its daily electronic appointment file provided to General Agent.
Notwithstanding anything contained herein, Company, upon consultation with
General Agent, shall have the right to terminate the appointment of any of
General Agent's brokers, District Annuity Specialists or insurance specialists
if any such individual violates any applicable state insurance law, rule or
regulation, state securities law or Federal securities law, rule or regulation
or upon a determination by the Company in its discretion that
6
the individual is not of good character and may harm its public image or
reputation. If Company determines to terminate the appointment of any such
individual based upon such violation or determination, Company must immediately
notify General Agent of such determination and General Agent, in turn, shall
notify said individual.
D. To facilitate the appointment of General Agent's brokers, the Company
will not require copies of the brokers' state insurance licenses, provided
that: (1) the Company receives accurate licensing information as to each
broker, and (2) General Agent shall provide a copy of a broker's license (or a
copy of information received/downloaded from the National Insurance Producer
Registry ("NIPR") database within two (2) business days of the Company's
request if requested as a result of a regulatory, audit (whether external or
internal) or judicial inquiry. The parties understand that NIPR is provided
directly from state insurance departments who participate in NIPR.
E. Broker-Dealer and Distributor each represent and warrant 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 and Distributor must, at all times
when performing their respective functions and fulfilling their respective
obligations under this Agreement, be duly registered as a broker-dealer under
the Securities Exchange Act of 1934 ("34 Act") and, as required by applicable
law, in each state or other jurisdiction in which Broker-Dealer and Distributor
intend to perform their respective functions and fulfill their respective
obligations hereunder, and be a member in good standing of the NASD.
VIII. Notice and Required Regulatory Reports
--------------------------------------
A. The Company will give General Agent notice in advance of any changes made
with regard to the Products marketed under this Agreement. If the decision to
make changes with regard to such Products is not in response to legal or
regulatory mandate, thirty (30) days prior written notice to General Agent is
required. Should General Agent, in its sole discretion, determine it necessary
to obtain outside
7
counsel's review of any indicated changes, the Company shall reimburse General
Agent the actual costs of such review upon receipt of documentation of such
cost.
B. The Company will notify General Agent within ten (10) days of its
obtaining knowledge of any actual or impending material adverse change in the
Company's financial condition, the financial condition of any subsidiary,
parent company or reinsurer, or if any published rating of the Company, any
subsidiary, parent or reinsurer has been or is to be lowered. The Company will
also notify General Agent within ten (10) days of its obtaining knowledge of
any actual or impending material adverse change in the financial condition of
any reinsurer if such change has or could have a material effect on the
financial condition of the Company or its affiliates.
C. (1) Within twenty (20) days after the Company has sent or delivered the
following reports to the pertinent regulatory agency, the Company agrees to
send or furnish General Agent a copy of each such report actually filed. The
reports are.
(a) The Annual Statement of the Company filed with the Company's state
of domicile.
(b) The Quarterly Convention Statement of the Company filed with the
Company's state of domicile.
(2) If the Company is part of an insurance holding company system under
the laws of its state of domicile and subject to said laws, the Company
agrees to send (or give notice to the extent that the document is available
on the internet) within twenty (20) days of delivery to the pertinent
regulatory agency, copies of the following:
(a) Any amendments to the Company's Registration Statement.
(b) The Company's Annual Report describing transactions during the prior
year with entities within the holding company system.
(c) Any requests for approval filed by the Company with said regulatory
agency
8
with respect to any proposed transaction(s) between the Company and any
entity within the holding company system.
(d) If applicable, the 10K report of the Company's parent filed with the
United States Securities and Exchange Commission ("SEC").
(e) If applicable, the 10-Q report of the Company's parent filed with
the SEC.
D. The General Agent will notify the Company within ten (10) days of its
obtaining knowledge of any actual or impending material adverse change in the
General Agent's financial condition, the financial condition of any subsidiary
or parent company( including without limitation the Broker Dealer), or if any
published rating of the General Agent, any subsidiary or parent (including
without limitation the Broker Dealer) has been or is to be lowered.
E. Each party will notify the other of any regulatory or administrative
investigation or inquiry, claim or judicial proceeding which may affect
Products marketed or services rendered under this Agreement within ten
(10) days of knowledge of such, excluding, however, claims for benefits under a
policy or application or contests regarding the validity, enforceability, or
construction of any policy, contract or application issued by the Company.
(1) Within ten (10) days after receipt by either party of notice of any
such investigation or proceeding, the party in receipt thereof will notify
the other party by forwarding a copy of all documents received in connection
with the matter and will communicate to the other party additional
information it deems necessary to furnish the other party a complete
understanding of the same.
(2) In the case of a customer complaint with respect to General Agent,
any designated broker or any company or person affiliated with General Agent
or any designated broker, the Company shall not take any final action with
respect to such complaint without prior consultation with General Agent.
This Subparagraph E (2) shall survive termination of this Agreement.
9
(3) For the purposes of this Agreement, the term "customer complaint"
shall mean a written communication either directly from a purchaser or a
purchaser's representative or indirectly from a regulatory agency to which a
purchaser or a purchaser's representative has written expressing a grievance.
(4) Each party agrees to cooperate fully with the other in any regulatory
investigation, administrative or judicial proceeding or customer complaint
regarding products marketed or services rendered under this Agreement. This
Subparagraph E(4) shall survive termination of this Agreement.
F. Distributor agrees that it shall act as Broker/Dealer's agent in
providing customer confirmations pursuant to Rule 10b-10 under the 1934 Act and
shall confirm or cause to be confirmed to customers of Broker-Dealer all
Product transactions, as and to the extent legally required. Distributor either
directly or through the services of the Company shall maintain as agent for
Broker/Dealer in compliance with Rules 17a-3 and 17a-4 under the 1934 Act all
books and records concerning such customer confirmations.
G. If applicable, Company shall confirm to General Agent either
electronically or in writing any change in interest rates for new contracts,
additional premiums or renewals as soon as Company becomes aware or receives
notice of any such change. At all times Company shall provide General Agent
with access to current interest rates for Products marketed under this
Agreement.
H. All communications under this Agreement shall be in writing and shall be
mailed by certified mail, postage prepaid, sent by recognized overnight courier
service, or transmitted by facsimile, with receipt confirmed by the transmitter
via telephone within twenty-four (24) hours of transmission, provided a
duplicate copy thereof is mailed by certified mail or sent by courier service,
as indicated above;
10
(1)if to General Agent, to:
Xxxxxxx Xxxxx Life Agency Inc
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxx Xxxxxxxxx
with a copy to:
Xxxxxxx Xxxxx Insurance Group, Inc.
X.X. Xxx 0000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Barn Xxxxxxxx, Senior V. P. & General Counsel
(2)if to the Company, to:
First MetLife Investors Insurance Company
00 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Chief Executive Officer
with a copy to:
First MetLife Investors Insurance Company
00 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Executive Vice President and General Counsel
Notice will be deemed to have been effected once the certified mail or courier
package has been delivered or once receipt of the facsimile has been confirmed
in accordance with instructions, above. Either party may change the address
indicated herein by written notice to the other.
I. For the purposes of this Agreement, the term "days" shall refer to
calendar days unless otherwise specifically indicated.
11
IX.Litigation
----------
Neither party shall institute any legal proceedings against a third party
regarding or affecting Products marketed or services rendered under this
Agreement without first consulting with the other party to the Agreement and
providing such party with at least fifteen (15) business days prior written
notice
X. Limitation
----------
A. The Company has the right to reject any applications or premiums received
by it and to return or refund to an applicant such applicant's premium. In the
event that the Company rejects an application, it will return any premium paid
by the applicant to such applicant and will promptly notify General Agent of
such action. In the event that a purchaser exercises his or her "free look"
right under a Product, any amount to be refunded will be so refunded to the
purchaser by the Company.
B. Subject to Section VIIA hereof, the Company may limit the amount and type
of policies and contracts it shall distribute or issue and the amount of
premium or deposit it shall accept.
XI.Territory, Withdrawal of Business and Policy Forms
--------------------------------------------------
The Company, upon thirty (30) days prior written notice to General Agent,
may stop doing business in any state or territory or withdraw any Products from
sale by General Agent. The foregoing notwithstanding, the Company may
immediately suspend the sale of any Products and may cease doing business in
any state upon notice to General Agent when such suspension or such cessation
of business is in response to regulatory authority. The Company may
additionally resume the offer of Products for sale by General Agent at any time
upon thirty (30) days prior written notice to General Agent, or such lesser
period of time as agreed to by General Agent. In such event, the Company shall
specifically advise General Agent of any modifications or changes to the
resumed Products and provide General Agent with complete copies of any changed
forms at the time notice is given to resume sales of the Products.
12
XII. Compensation
------------
A. The Company will pay General Agent compensation hereunder as provided in
the Commission Schedule attached to and made a part of this Agreement. The
payment of such compensation shall be subject to the terms and conditions of
this Agreement and those set forth on Commission Schedule. Compensation will be
paid on premiums received by the Company for issued Products which are produced
in accordance with this Agreement and are accepted by the proposed owners, and
are not refunded during any "free look" period required by law or permitted
under a Product and shall be subject to such chargebacks, refunds and other
terms as are set forth in the Commission Schedule. The Company may alter or
amend the Commission Schedule for all Products upon thirty (30) days prior
written notice to General Agent. Changes or amendments to the rate of
compensation payable on premiums or on asset-based compensation become
effective for Products issued on or after the effective date of such changes
unless otherwise agreed to in writing by General Agent and the Company. Changes
or amendments to the rate of compensation payable on premiums or asset-based
compensation will not apply to Products issued prior to the effective date of
such change, unless otherwise agreed in writing by General Agent and the
Company. Changes or amendments to the Commission Schedule that do not relate to
rate of compensation may be applied to Products issued prior to the effective
date of the change.
Initial and trail commissions are vested to General Agent when earned under
the applicable Commission Schedule. The terms of said Commission Schedule
notwithstanding, all commissions or other compensation payable based on the
production of designated brokers hereunder shall be paid and reported only to
General Agent. The parties understand and agree that when a
contract/policyowner terminates the General Agent and Broker/Dealer, any
commissions or compensation due on existing Products after termination shall be
payable and vest to General Agent or Broker/Dealer. This provision with regard
to vesting shall not be applied or enforced with regard to annuity compensation
payable until
13
the later of such time as similar limitations apply to all insurers then
offering annuity products or April 1, 2003, such enforcement date to be
modified if mutually agreed by the parties.
B. The Company will send electronically a Statement of Account referencing
all compensation payable hereunder for the preceding week to General Agent on a
weekly basis. Any and all compensation payable hereunder will be paid only to
General Agent, on an automated basis, every week.
C. With respect to commissions or compensation owed by the Company or any
affiliate to the General Agent, the Company shall have the right to set off
against such amounts any chargebacks payable by the General Agent under this
Agreement, to the extent permitted by applicable law.
D. Brokers shall have no interest in this Agreement or right to any
compensation to be paid by the Company to Genera! Agent. General Agent shall be
solely responsible for the payment of any commission or consideration of any
kind to brokers.
E. General Agent shall be solely responsible under applicable tax laws for
reporting of compensation paid to brokers and for any withholding of taxes from
compensation paid to brokers, including, without limitation. FICA, FUTA, and
federal, state and local income taxes.
F. This Section XII shall survive termination of this Agreement
XIII. Books, Records
--------------
A. Each party hereto shall have the right, during normal business hours and
upon ten (10) days prior written notice, to audit and inspect the books and
records of the other party relating solely to the business contemplated by this
Agreement. Such books and records will be complete and available for review at
each party's business offices in a good and legible condition for a period of
three (3) full
14
calendar years after the year of termination of this Agreement, during which
time this audit right shall continue.
B. The Company shall furnish General Agent with all necessary forms required
by regulations, such as replacement analysis forms, disclosure material etc.
required for use in connection with the sale of the Products.
C. To the extent permitted by law or as otherwise limited by the terms of
the Agreement if more stringent than applicable law, the Company shall furnish
General Agent with pending and in-force current customer data and contract
information as to which General Agent is broker of record on the books of the
Company through electronic means in a manner and format as specified in
Appendix B.
D. Any unused contracts, forms, applications and other supplies furnished by
the Company to General Agent shall always remain the property of the Company
and shall be accounted for and returned to the Company or destroyed by General
Agent on demand.
E. The Company will provide General Agent, on at least a quarterly basis,
with the following statistical information: dollar amount of business
generated; number and accumulated value of contracts in force and number and
dollar amount of surrenders to date.
XIV. Product Names
-------------
A. The Company hereby represents and warrants that the Company, together with
its affiliates, has exclusive right, title and interest in all Products' names.
B. The Company shall indemnify and defend General Agent from and against any
and all claims (including the costs of reasonable attorneys' fees,
investigation and defense of such claims)
15
relating to General Agent's use hereunder of any Products' names.
C. Each party shall notify the other promptly in writing of any and all
allegations or claims by others of which it may become aware that the use of
any Products' names infringes any trademark or service xxxx, violates any
property right of a third party, or violates or is contrary to any law,
regulation, order, consent, or the like. The Company shall notify General Agent
of the settlement or outcome of any such claim or suit.
XV. Customer Information, Privacy
-----------------------------
X. Xxxxx-Xxxxx-Xxxxxx Compliance
The parties hereby acknowledge that they arc subject to the privacy regulations
under Title V of the Xxxxx-Xxxxx-Xxxxxx Act, 15 U.S.C. (S) 6801 et seq.,
pursuant to which regulations the parties are required to obtain certain
undertakings from each other with regard to the privacy, use and protection of
nonpublic personal financial information of Broker/Dealer's and/or General
Agent's clients or prospective clients or Company's insureds or prospective
insureds. Therefore, notwithstanding anything to the contrary contained in this
Agreement, the parties agree that: (1) they shall not disclose or use any
Customer Data except to the extent necessary to carry out their obligations
under this Agreement and for no other purpose, (2) they shall not disclose
Customer Data to any third party, including, without limitation, their
respective third party service providers except to the extent necessary to
carry out their obligations under this Agreement and then only with an
agreement in writing from the third party to use or disclose such Customer Data
only to the extent necessary to carry out their respective obligations under
this Agreement and for no other purposes, (3) they shall maintain, and shall
require all third parties approved under subsection (2) to maintain effective
information security measures to protect Customer Data from unauthorized
disclosure or use, and (4) they shall provide each other with information
regarding such security measures upon the reasonable request of the other party
and promptly provide the other with information regarding any failure of such
security measures or any security breach related to Customer
16
Data. The obligations set forth in this Section shall survive termination of
the Agreement. For the purposes of this Agreement, Customer Data means the
nonpublic personal information (as defined in 15 U.S.C. (S) 6809(4)) of the
parties' customers or prospective customers or insureds or prospective insureds
received by the other party in connection with the performance of its
obligations under the Agreement, including, but not limited to (i) an
individual's name, address, e-mail address, IP address, telephone number and/or
social security number, (ii) the fact that an individual has a relationship
with the other party and their parents, affiliated or subsidiary companies, or
(iii) an individual's account information.
B. The Company will treat Customer Data provided to it by General Agent or
its brokers under this Agreement as Confidential Information under Section XVI
of this Agreement. The Company agrees that the names and addresses of all
customers and prospective customers of General Agent, of General Agent's parent
company and of any affiliated company which may come to the attention of the
Company or any company or person affiliated with the Company as a result of
this Agreement are confidential. Such Customer Data shall not be used, without
the prior written consent of General Agent, by the Company or any company or
person affiliated with the Company for any purpose whatsoever except as set
forth herein.
In no event shall the names and addresses of such customers and prospective
customers that constitute confidential information under this Agreement be
furnished by the Company to any other company or person including, but not
limited to: (1) any of such company's managers, agents or brokers which arc not
designated brokers of General Agent, (2) any company affiliated with the
Company or any manager, agent or broker of such company, or (3) any securities
broker-dealer or any insurance agent affiliated with such broker-dealer other
xxxx Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc.
The Company agrees that neither the Company nor any company or person
affiliated with the Company shall solicit directly any customers whose names
constitute confidential information pursuant to this Section.
The intent of this paragraph is that the Company shall not utilize, or
permit to be utilized, its
17
knowledge of General Agent, of its parent company or of any affiliated
companies or of the customers of any of the foregoing for the solicitation of
sales of any products or services
C. Notwithstanding the foregoing, the Company and its affiliates shall have
the right to use General Agent Customer Data:
(1) To the full extent required to comply with laws, rules and
regulations or requests of regulators;
(2) As necessary in connection with any of the Company's compliance or
accounting procedures; and
(3) As may be necessary in connection with the administration and
servicing of Products sold by or through General Agent under this Agreement.
D. This Section shall survive termination of the Agreement
XVI. Confidentiality
---------------
A. The Company and General Agent shall not disclose any Confidential
Information that is covered by this Agreement, and shall only disclose such
information if authorized in writing by the affected party or if expressly
required under the terms of a valid subpoena or order issued by a court of
competent jurisdiction or regulatory body or applicable laws and regulations.
"Confidential Information" under this Section XVI means.
(1) Any information that this Agreement specifics will be treated as
"Confidential Information" under this Section XVI;
(2) Any information of General Agent disclosed to the Company through the
course of business during the term of this Agreement, or any information of
the Company that is disclosed to General Agent through the course of
business during the term of this Agreement, such information includes, but
is not limited to, new products, marketing strategies and materials,
development plans,
18
customer information (including but not limited to customer name, address,
taxpayer identification number, and the fact that customer maintains an
account with General Agent), client lists, pricing information, rates and
values, financial information, and computer systems; and
(3) Information required to be treated as confidential under applicable
laws, rules and regulations "Confidential Information" does not include
(i) information which is now generally available in the public domain or
which in the future enters the public domain through no fault of the
receiving party; (ii) information that is disclosed to the receiving party
by a third parts, other than a customer or prospective customer when
applying for a Product, without violation by such third party of an
independent obligation of confidentiality of which the receiving party is
aware; or (iii) information that the disclosing party consents in writing
that the receiving party may disclose.
B. Warranties and Limitations on Liability.
(1) The disclosing party warrants that it has the right to provide access
to, disclose and use, the Confidential Information to be provided hereunder.
(2) The receiving party shall use the Confidential Information solely for
purposes contemplated by this Agreement and shall not disclose the
Confidential Information except as expressly provided herein.
(3) In the event the receiving party receives a request to disclose all
or any part of the Confidential Information under the terms of a valid
subpoena or order issued by a court of competent jurisdiction or by a
governmental body, the receiving party agrees to: (i) notify the disclosing
party promptly of such request; and (ii) provide the disclosing party with
reasonable assistance in obtaining an order or other reliable assurances
that confidential treatment will be accorded to such portion of the
Confidential Information that the disclosing party so designates.
C. The receiving party understands that neither the disclosing party nor any
of its representatives or designees have made or make any representation or
warranty as to the accuracy or completeness of the Confidential Information.
19
D. This Section shall survive termination of the Agreement,
XVII. Advertising Approval
--------------------
A. The Company agrees that it will make available to General Agent for
General Agent's review and prior approval any advertising or sales promotional
material to be sent to or used by General Agent's designated brokers,
employees, representatives, and/or customers which relates to the sale of the
Products, at least thirty (30) days prior to the scheduled release of such
information or material directly to General Agent's designated brokers,
employees, representatives, and/or customers. Such material shall have been
reviewed and approved by the Company's legal and/or compliance personnel,
including a Registered Principal of Distributor. Such material will not be
released to General Agent's designated brokers, employees, representatives,
and/or customers without General Agent's approval. Should General Agent
determine it necessary to obtain outside counsel's review of said advertising
or sales promotional material, the Company shall be permitted to pre-approve an
estimate to perform such review, and provided that General Agent and the
Company have mutually agreed to such expense, the Company will thereafter
reimburse General Agent the actual cost of such review upon receipt of
documentation of such costs. The Company shall maintain product-specific
advertising or sales promotional materials on an up-to-date basis and shall
immediately notify General Agent when any previously- approved materials arc
withdrawn or are no longer accurate.
B. General Agent and Broker Dealer shall use their best efforts to ensure
that its brokers shall not give any information or make any representations or
statements, written or oral, concerning the Products, the Company or its
separate accounts other than information or representations contained in the
Products' Prospectuses, the prospectuses of the underlying mutual funds,
statements of additional information and Product Registration Statements, or in
reports or proxy statements therefore, or in promotional, sales or advertising
material or other information supplied by the Company. General Agent shall
neither use nor
20
authorize the use of any promotional, sales or advertising material relating to
the Products, the Company, its separate accounts or the underlying mutual funds
without the prior approval of the Company. General Agent agrees that neither it
nor its designated brokers or employees shall use in any way, print, publish,
disseminate, or otherwise make available to its designated brokers, employees
or customers any press release, advertising or sales promotional material which
refers to the Company (or any affiliate thereof) or Products or contains any of
the Company's trademarks without the prior consent of the Company.
C. The Company agrees that neither it nor its agents, or employees shall use
in any way, print, publish, disseminate, or otherwise make available to its
agents, employees, or customers any press release, advertising or sales
promotional material which refers to General Agent or contains any of General
Agents trademarks without the prior consent of General Agent.
D. "Advertising or Sales Promotional Material" for the purpose of this
contract shall include:
(1) printed and published material, audiovisual material, billboards and
similar displays, descriptive literature used in direct mail, newspapers,
magazines, radio and television scripts;
(2) descriptive literature and sales aids of all kinds including but not
limited to circulars, leaflets, booklets, marketing guides, seminar
material, computer print-outs, depictions, illustrations and form letters;
(3) material used for the training and education of designated brokers
which is designed to be used or is used to induce the public to purchase or
retain Products, and
(4) prepared sales talks, presentations and material for use by
designated brokers.
E. Any sales or promotional materials developed by one party and delivered
to the other will be owned solely by the party that developed the materials.
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F. Any unused materials furnished by one party to the other shall always
remain the property of the party who furnished such materials and shall be
accounted for and returned to the owner on demand.
XVIII. Software
--------
A. From time to time the Company may develop and make available to General
Agent computer software or related materials ("Software") in magnetic, written,
or other form, to be used in connection with the sale of the Products. The
Company hereby grants General Agent a non-exclusive royalty-free license to use
any such Software. The Company warrants that all such Software is and shall
remain its exclusive property, free from all third party claims. The Company
shall indemnify and defend General Agent from and against any and alt losses or
claims (including the costs of reasonable attorneys' fees, investigation and
defense of such claims) relating to General Agent's authorized use of such
Software. General Agent agrees not to copy such Software, except as required to
perform its obligations hereunder, nor to generate or obtain written copies of
Software supplied in magnetic form and to return all such Software and all
copies upon demand or upon written termination of this Agreement.
The Company represents, warrants, and covenants that (i) all Software shall be
free from significant programming errors and defects; and (ii) all Software
(and all updates thereto) shall be delivered free of any "worm", "virus", "lock
out", or "self destruct" devices, as such terms are understood in the computer
industry.
B. This Section XVIII shall survive termination of this Agreement.
XIX. Training
--------
The Company will provide the necessary personnel to provide training
sessions to General Agent's, employees and representatives in order to
familiarize them with the Products and to introduce new Products to be marketed
hereunder. The Company will additionally provide initial training at
22
General Agent's Jacksonville, Florida location to General Agent's licensing,
commission and marketing operations. Training sessions shall be conducted
thereafter at locations as mutually agreed between the parties on at least a
semi-annual basis, or as otherwise mutually agreed between the parties.
XX. Processing Standards
--------------------
The Company will implement reportable processing standards with regard to
supporting new business and in-force servicing of General Agent's business.
During and after the term of this Agreement, the Company shall use its best
efforts to meet processing standards as identified in Appendix C for business
sold under this Agreement. During the term of this Agreement, the Company shall
measure and report to General Agent, as reasonably requested, actual
performance against these standards.
XXI. Amendment; Assignment
---------------------
This Agreement may be amended, modified or waived, in whole or in part, only
by a writing signed by the party against whom enforcement thereof is sought.
This Agreement may be assigned by either party only with the prior written
consent of the other party. This Agreement shall be binding on the parties'
respective successors and assigns.
XXII. Indemnification
---------------
A. The Company shall indemnify and hold General Agent, each person who
controls or is associated with General Agent and its directors, officers,
employees and agents harmless against all losses, claims, damages or
liabilities, joint or several, (including attorneys' fees and costs of
investigation and defense incident thereto and any reasonable amounts paid in
settlement of, any action, suit or proceeding or any claim asserted) arising as
a result of errors, omissions, negligence, misrepresentation, fault, wrongful
action or breach of any covenant, representation or warranty under the
Agreement by the Company, its affiliates, agents (other than General Agent), or
any officer, director or employee of the
23
Company or said affiliates or agents (including failure to provide adequate
disclosure including, but not limited to tax disclosure, concerning the
Products or to properly administer the Products and failure to comply with any
applicable federal law or regulation, state law or regulation, administrative
or exchange rule or regulation, or rule of any applicable self-regulatory
organization) in the performance of obligations hereunder
B. General Agent shall indemnify and hold the Company, each person who
controls or is associated with the Company and its directors, officers,
employees and agents harmless against any and all losses, claims, damages or
liabilities, joint or several, (including attorneys' fees and costs of
investigation and defense incident thereto and any reasonable amounts paid in
settlement of any action, suit or proceeding or any claim asserted), arising as
a result of errors, omissions, negligence, misrepresentation, fault, wrongful
action or breach of any covenant, representation or warranty under the
Agreement by the General Agent or its affiliates, or of any officer, director,
employee, agent of General Agent or sales persons associated with General
Agent, in the performance of obligations hereunder.
C. This Section shall survive the termination of this Agreement.
XXIII. Arbitration
-----------
A. Any and all disputes arising under this agreement shall be settled by
arbitration in New York City, NY or such other place as may be mutually agreed
upon by the parties, under the then current rules of the American Arbitration
Association, and judgment may be entered upon the award in any court of
competent jurisdiction.
B. The determination of the arbitrators shall be final and binding on all
parties to the extent that arbitrator(s) do not exceed their statutory
authority. The costs of arbitration shall be equally borne by the Company and
General Agent provided, however, that the arbitrators may assess one party more
heavily than the other for these costs upon a finding that the party did not
make a good faith effort to settle the dispute informally when it first arose.
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XXIV. Termination
-----------
A. Termination
-----------
After the initial annual term of this Agreement, it may be terminated at any
time, with or without cause, by either party upon ninety (90) days prior
written notice of such termination to the other party. This Agreement will
additionally terminate automatically without notice: (1) if either party ceases
to exist (this shall not apply to General Agent unless all of the separate
corporations referred to collectively as General Agent cease to exist) or
either party becomes bankrupt or insolvent; (2) if this Agreement is assigned
by either party without the consent of the other party, voluntarily or
involuntarily; (3) as to any Products, if the Company ceases to issue all or
substantially all of such Products pursuant to the terms of this Agreement or
if General Agent provides the Company with written notice that it will no
longer market such Products; and (4) in any jurisdiction in which either the
Company or General Agent no longer has all necessary licenses to perform its
duties under this Agreement. Should either party lose a license to perform its
duties hereunder, said party shall promptly advise the other.
B. Consequences of Termination
---------------------------
In the event of termination, compensation on business previously written
hereunder, or business submitted to the Company through General Agent prior to
the date of such termination and then issued, shall be payable as it becomes
due in accordance with the terms of this Agreement. No new applications shall
be submitted by General Agent, and General Agent shall return or destroy all
property of the Company unless otherwise agreed between the parties. If such
property is destroyed, General Agent shall furnish the Company with written
verification. Each party will promptly pay the other any fees, commissions, or
other monies owed hereunder, and all obligations of each party to the other
shall terminate other than as specifically otherwise indicated herein.
Outstanding initial and subsequent compensation shall be paid in the event of
termination as indicated below:
25
(1) Initial Premiums. All commissions, trails, overrides and allowances
----------------
for Products in the process of delivery, or for Products which may be
subsequently issued on applications then pending, shall be payable to
General Agent according to the applicable compensation schedules in effect
at the time the properly completed application was submitted to the Company.
(2) Subsequent Payments. All commissions, trails, overrides and
-------------------
allowances shall be payable to General Agent unless otherwise prohibited by
law, according to the applicable compensation schedules in effect at the
time the contract was issued.
In the event of termination, the Company shall continue to provide General
Agent with current customer information regarding continued in-force business
pursuant to Section XIII C.
XXV. Waiver
------
Forbearance, neglect or failure of either party to enforce strict compliance
with any or all provisions of this Agreement shall not waive any such provision
or release the other party hereto in any way. A waiver of a past act or
circumstance shall not constitute or be a course of conduct or waiver of any
subsequent action or circumstance.
XXVI. Complete Agreement
------------------
This Agreement, together with its attachments contains the entire Agreement
between the parties concerning any transactions entered into on or after the
date hereof and replaces and supersedes all other Agreements (written and oral)
between the parties with regard to the subject matter.
XXVII. Rules of Ethical Conduct
------------------------
A. General Agent shall use its best efforts to comply with the Principles of
Ethical Market Conduct, as currently adopted by the Insurance Marketplace
Standards Association (IMSA) as set forth below, and General Agent shall upon
at least 30 days prior written notice provide to the Company reasonable
information, as the parties shall mutually agree, on its compliance with said
Principles. The
26
Company subscribes to the Principles of Ethical Market Conduct and the Code of
Ethical Market Conduct in all matters affecting the sale of the Products.
Currently, the Principles of Ethical Market Conduct are:
(1) To conduct business according to high standards of honesty and fairness
and to render service to its customers which, in the same circumstances, it
would apply to or demand for itself;
(2) To provide competent and customer-focused sales and service;
(3) To engage in active and fair competition;
(4) To provide advertising and sales materials that are clear as to purpose
and honest and fair as to content;
(5) To provide for fair and expeditious handling of customer complaints and
disputes;
(6) To maintain a system of supervision and review that is reasonably
designed to achieve compliance with the aforementioned Principles of Ethical
Market Conduct.
XXVIII. Miscellaneous
-------------
A. This Agreement incorporates by reference all of its attachments and their
terms and conditions. In the event of a conflict between the terms and
conditions of this Agreement and any of its attachments, the terms and
conditions of the Agreement shall govern.
B. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
C. This Agreement shall be construed and enforced according to the laws of
the State of New York.
27
D. For convenience, this instrument may be executed in one or more
counterparts, each of which shall be deemed in all respects an original.
IN WITNESS WHEREOF, the Company and General Agent have caused this
instrument to be signed by their duly authorized officers effective as of the
day and year first above written.
First MetLife Investors Insurance Xxxxxxx Lynch, Pierce, Xxxxxx &
Company Xxxxx, Incorporated
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Executive Vice President First Vice President and
Assistant General Counsel
Date: 9/13/02 Date: 9/10/02
MetLife Investors Distribution Company
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
President
Date: 9/13/02
28
Xxxxxxx Xxxxx Life Agency Inc.
A New York Corporation
00-0000000
By: /s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
Vice President
Date: 9/10/02
APPENDIX A -
----------
AVAILABLE PRODUCTS & COMMISSION/COMPENSATION SCHEDULE
First MetLife Class VA
First MetLife Class XC
First MetLife Class L
First MetLife Class C
29
APPENDIX B -- COMMUNICATION AND DATA EXCHANGE STANDARDS
-------------------------------------------------------
Company will provide electronic means for data communication with General Agent
in a mutually agreed upon manner and form as set forth herein.
DEPOSITORY TRUST & CLEARING CORPORATION ("DTCC") INTERFACE
The parties intend that the DTCC Insurance Processing System (IPS) Commissions
and Positions interfaces will be used to transmit inforce policy/contract
values and commission information to General Agent.
To the extent possible, the DTCC IPS and the electronic file formats defined by
that system, shall be used by all companies for the transmission of in-force
policy/contract information/positions and Commission information to the General
Agent. Once a Company has implemented the IPS, Company shall provide daily
commission feeds to General Agent. Company shall also support additional
functions, such as Financial Activity Reporting (FAR), Licensing and
Appointments, and Electronic Applications using the DTCC processing capability,
as those capabilities are developed by the General Agent in the future
Settlement of cash associated with transactions processed through the DTCC
system will be made using the money settlement services of the DTCC. To the
extent that the Company is not currently able to support the DTCC Commissions
and Positions interfaces at this time, it shall take all steps necessary to
develop those capabilities no later then three (3) months from the date of this
agreement. During the interim period, prior to implementation of the DTCC
interfaces for Commissions and Positions, the Company shall provide the
required Commission, Positions and Appointment information using the
proprietary file formats defined by the General Agent. These files will be
transmitted directly to the General Agent's West Street data center via
electronic file transfer.
ELECTRONIC ORDER ENTRY FOR NEW ANNUITY SALES
General Agent seeks to implement an electronic order entry system for all new
sales of annuity contracts. Once implemented, General Agent will require that
Company issue new annuity contracts based upon the electronic transmission of
such annuity applications in accordance with General Agent specifications.
APPOINTMENT PROCESSING
General Agent requires that the appointment process between the Jacksonville
servicing location and the Company home office be automated within thirty
(30) days of introducing the Company into the General Agent distribution
channel.
Daily appointment file to be downloaded to the West Street Data Center by 9:00
a.m., each day the New York Stock Exchange is open. General Agent will provide
file specifications.
COMMISSIONS PROCESSING
Weekly electronic feed of all commissions payable to General Agent provided via
DTCC interface. The parties understand that as soon as practicable Company will
implement a daily electronic feed of all commissions payable to General Agent
via DTCC interface.
30
IN-FORCE POLICY/CONTRACT INFORMATION/POSITIONS
Daily Feed of in-force policy/contract information/positions provided via DTCC
interface.
E-MAIL CONNECTIVITY
E-mail connectivity is required between the Company and General Agent through a
standard Internet process. Both parties will provide appropriate e-mail
addresses.
FUTURE ENHANCEMENTS
If Company has a website that is accessible by producers that contains pending
and inforce policy information, Company shall design a separate home page for
access by the General Agent and its designated producers. The technological,
security protection and access specifications as well as the aesthetic
considerations of this General Agent home page will be dictated by General
Agent. Company shall employ all appropriate measures to ensure that this
separate home page is accessible only to General Agent and its designated
producers as dictated by General Agent and inaccessible to any unauthorized
third party. This General Agent home page will contain links to the following
sections of the Company's website: General Agent-approved policy forms and
marketing materials, pending case status, inforce policy information, state
availability grids/charts, producer licensing status and underwriting
requirements. Access to pending case status and inforce policy information
shall be limited on a producer-level basis, with full access being granted to
General Agent home office staff. Company shall employ all encryption methods
required by General Agent in connection with accessing and transmitting
information.
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