THE GUARDIAN INSURANCE & ANNUITY COMPANY SELLING AGREEMENT
Exhibit 3(b)
THE GUARDIAN INSURANCE & ANNUITY COMPANY
This Agreement is entered into by and among The Guardian Insurance & Annuity Company, Inc. (“GIAC”), a Delaware corporation, Guardian Investor Services LLC (“GIS”), a registered broker-dealer with the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, a member in good standing of the Financial Industry Regulatory Authority, Inc. (“FINRA”), and (the “Firm”).
Introduction
GIAC has appointed GIS to act as the distributor of certain insurance policies, annuity contracts, funding agreements and any other products issued by GIAC that are specified in Exhibit A (the “Products”).
GIAC has authorized GIS to enter into separate agreements with broker-dealers who wish to participate in the distribution of the Products, and the Firm, through its registered representatives who are licensed insurance agents (“RR/Agents”), desires to solicit sales of the Products and to provide certain administrative services to facilitate such activity.
The parties agree to the following terms.
Appointment of the Firm and RR/Agents
1. GIAC and GIS hereby appoint the Firm, through its RR/Agents, to solicit for and sell the Products in accordance with FINRA rules and guidelines, applicable laws, regulations and regulatory guidelines (collectively, “Applicable Laws”), and GIAC and GIS policies as may be distributed and amended from time to time.
Applications and Payments
2. The Firm and RR/Agents shall offer, solicit, sell and deliver the Products only in those states or jurisdictions where GIS has informed the Firm that the Products may legally be offered for sale and where the Firm and RR/Agents are properly licensed and appointed in accordance with Applicable Laws and GIAC policies.
3. The Firm shall ensure that all applications, along with requisite forms and other documentation, for the Products received by it or an RR/Agent shall be forwarded promptly to GIAC. The Firm shall review all such applications for completeness, and GIAC shall assume that the Firm has reviewed and approved any application submitted to GIAC in compliance with Applicable Laws and GIAC policies.
4. The Firm shall ensure that all payments collected by the Firm and RR/Agents in connection with the Products shall be in accordance with GIAC’s administrative procedures and anti-money laundering protocols. Such monies are the property of GIAC and shall be transmitted to GIAC promptly in full without deduction or offset.
5. GIAC and the Firm, each at its sole discretion, may reject any Product application or payments remitted by RR/Agent through the Firm and may refund payments to the applicant. In the event such refunds are made and if RR/Agent has received compensation based on an applicant’s payment that is refunded, the Firm shall promptly repay such compensation to GIAC. It shall be the Firm’s responsibility to recover any such compensation from RR/Agents. If repayment is not promptly made, GIAC may deduct any amounts due it from future commissions otherwise payable to the Firm or the respective RR/Agent.
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6. Product policies, contracts and forms are the property of GIAC. No person other than GIAC shall have the authority to make, alter, or discharge any Product policy, contract or form issued or prescribed by GIAC, to waive any provision of any Product policy, contract or form, to guarantee dividends, or to enter into any proceeding in a court of law or before a regulatory agency in the name of or on behalf of GIAC. GIAC may amend the Products and Product policies, contracts and forms from time to time, and in its sole discretion and without notice to the Firm, may suspend sales of any Products or may amend any policies or contracts evidencing such Products.
7. The Firm and RR/Agents shall not knowingly offer, sell, or solicit applications for Products which will be subject to or in connection with any so-called “market timing” or “asset allocation” program, plan, arrangement or service. The Firm agrees that, in the event that it should come to the Firm’s attention that any of its customers is engaging in a pattern of purchases, redemptions and/or exchanges of the funds underlying the Products that appears to evidence “market timing,” the Firm shall immediately notify GIAC of such pattern and shall cooperate fully with GIAC in any investigation and, if deemed necessary or appropriate by GIAC, termination of any such pattern of trading, including, without limitation, by refusing such customer’s orders to effect transactions in the funds underlying the Products.
8. The Firm and RR/Agents shall not encourage a prospective purchaser to replace, exchange or surrender an insurance policy or annuity contract in order to purchase a Product or, conversely, to surrender or exchange a Product in order to purchase another insurance policy or annuity contract except in accordance with Applicable Laws. Further, the Firm and its RR/Agents shall not rebate or offer to rebate all or any part of a payment on a Product. If the Firm or any RR/Agent shall at any time induce or endeavor to induce any Product owner to discontinue payments or to relinquish such Product under circumstances where there is reasonable grounds for believing the Product is not suitable for such person, any and all compensation due the Firm hereunder shall cease and terminate.
Compensation
9. In consideration of and as full compensation for the supervision and services provided under this Agreement, GIAC shall pay the Firm compensation as permitted by Applicable Laws in accordance with the current Dealer Concession and Commission Schedule, attached as Exhibit B. GIAC shall pay the Firm, compensation for sales of the Products only for so long as the Firm is broker-dealer of record on such Product. Compensation for the sales of the variable insurance contracts shall be paid in accordance with Applicable Laws and GIAC policies.
10. The Firm shall be responsible for paying compensation to RR/Agents, and neither GIAC nor its affiliates shall have any responsibility for such payment. GIAC shall have the right to seek recovery from the Firm of any chargeback as set forth in Exhibit B.
11. GIAC may change the Dealer Concession and Commissions Schedule at any time and will provide reasonable prior written notice to the Firm. Any such change shall apply to compensation due on applications received by GIAC after the effective date of such notice.
12. Nothing in this Agreement shall be construed as giving the Firm the right to incur any indebtedness on behalf of GIAC or GIS. The Firm authorizes GIAC to set off liabilities of the Firm to GIAC against any and all amounts otherwise payable to the Firm by GIAC.
13. Upon termination of this Agreement, all compensation to the Firm or an Affiliated Insurance Agency, as applicable, hereunder shall cease; however the Firm shall continue to be liable for any chargebacks or payments otherwise due GIAC hereunder.
Licensing and Appointment
14. The Firm shall be solely responsible for maintaining the appropriate registrations, licenses and appointments for itself and RR/Agents required for performance of the activities and obligations in connection with this Agreement.
15. The Firm is authorized to recommend its registered representatives for appointment as licensed agents of GIAC to solicit sales of the Products. The Firm represents that for each person recommended, it has fulfilled all requirements set forth in the General Letter of Recommendation, attached as Exhibit C. GIAC and GIS may rely on the representations made by the Firm with respect to RR/Agents.
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16. GIAC reserves the right to conduct routine investigative reports on RR/Agents for licensing purposes and for initial and renewal state appointments.
17. When GIAC reasonably requests, the Firm shall assist GIAC to obtain any necessary agreements, paperwork or authorization from RR/Agents in the appointment process. Upon request, the Firm shall provide evidence of the maintenance of licenses, registrations and appointments.
18. In the event that the Firm terminates a RR/Agent who has been appointed as an agent of GIAC, the Firm will promptly inform GIAC of such termination.
19. GIAC reserves the right to refuse to appoint any proposed RR/Agent, or once appointed, to thereafter terminate the same at any time with or without cause. GIAC will notify the Firm in writing of any such revocation of authority, and the Firm shall ensure that the subject RR/Agent immediately ceases all solicitation and sales activities in connection with the Products under this Agreement.
Networking Arrangements
20. In the event the Firm utilizes an insurance agency networking arrangement, the Firm and its affiliated insurance agencies (“Affiliated Insurance Agencies”) represent and warrant that, while this Agreement is in effect, they either have received a no-action letter from the SEC or otherwise are in full compliance with the terms and conditions of letters issued by the staff of the SEC with respect to the non-registration of an insurance agency associated with a registered broker-dealer, including but not limited to First of America Brokerage Services, Inc. (available September 29, 1995). The Firm and Affiliated Insurance Agencies shall notify GIAC immediately in writing if the Firm or any Affiliated Insurance Agency fails to comply with such terms and conditions. Further, each Affiliated Insurance Agency shall countersign this Agreement and shall be duly bound hereby.
Compliance With Law
21. The Firm shall fully comply with Applicable Laws and GIAC and GIS policies with respect to the performance of the obligations and duties in connection with this Agreement.
22. The Firm represents that it maintains and shall maintain such books and records concerning the activities of the RR/Agents, including but not limited to applications, complaint files, supervisory and inspection procedures, and suitability reviews, as may be required by Applicable Laws and by the appropriate securities and insurance regulatory agencies that have jurisdiction. The Firm shall make such books and records available to GIAC or GIS at any time upon reasonable request by GIAC or GIS. GIAC and GIS may retain copies of any such records which GIAC and GIS, in their discretion, deem necessary or desirable to keep. The Firm further agrees to submit any such records to all administrative and regulatory bodies that have jurisdiction.
23. The Firm will establish such policies and procedures as may be necessary to cause diligent supervision of the activities of its RR/Agents with respect to activities performed under this Agreement in connection with registered and non-registered Products.
24. The Firm shall have full responsibility for the training, supervision and control of RR/Agents and shall supervise RR/Agents’ conduct, sales practices and compliance with Applicable Laws.
25. The Firm shall ensure that its RR/Agents shall not make recommendations to an applicant to purchase a Contract in the absence of reasonable grounds to believe that the purchase is suitable for such applicant, as required by Applicable Laws. The Firm shall ensure that each application obtained by its RR/Agents is reviewed and approved for suitability in accordance with Applicable Laws.
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26. In the event a RR/Agent fails or refuses to submit to supervision of the Firm or otherwise fails to meet the rules and standards imposed by the Firm on its RR/Agents, the Firm shall immediately notify GIAC and immediately inform such RR/Agent that s/he is no longer authorized to offer, sell or service the Products, and the Firm shall take whatever additional action may be necessary to terminate the sales activities of such RR/Agent relating to the Products.
27. The Firm shall comply with all requirements to provide specific disclosures to its customers, including but not limited to any disclosures regarding fees or other compensation paid by GIAC to The Firm.
28. The Firm agrees to cooperate fully with any request made pursuant to Rule 22c-2 of the Investment Company Act of 1940, including but not limited to providing shareholder and transactional information and executing instructions to restrict or prohibit future purchases.
29. The Firm agrees to cooperate fully with GIAC and GIS to enable GIAC’s and GIS’s compliance with Applicable Laws, including but not limited to certifications and testing regarding suitability and anti-money laundering.
30. The Firm represents and warrants that it is a registered broker-dealer with the SEC under the Securities Exchange Act of 1934, as amended, a member in good standing of FINRA, and possesses the appropriate insurance licenses. Notwithstanding Section 55, the Firm agrees that this Agreement shall terminate without notice upon the Firm’s: (a) expulsion from FINRA; (b) filing of a petition in bankruptcy or a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any applicable law; or (c) seeking the appointment of any trustee, conservator, receiver, custodian or liquidator for the Firm or for all or substantially all of the Firm’s properties. Likewise, notwithstanding Section 55, the Firm agrees that this Agreement shall terminate without notice: (a) if a proceeding is commenced against the Firm seeking relief or an appointment of a type described in the immediately preceding sentence; or (b) if an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970 shall have been filed against the Firm; or (c) if the Firm is a registered broker-dealer and (i) the SEC shall revoke or suspend the Firm’s registration as a broker-dealer, (ii) FINRA shall revoke or suspend the Firm’s membership, or (iii) under any applicable net capital rule of the SEC, the Firm’s aggregate indebtedness shall exceed 1,000% of the Firm’s net capital. The Firm agrees that it will immediately advise GIAC and GIS of any such proceeding, appointment, application, revocation, suspension or indebtedness level.
Prospectuses and Marketing
31. The Firm shall ensure that RR/Agents offer the Products by the use of currently effective Prospectuses. Within this Agreement, references to a “Prospectus” shall mean the prospectus and related statement(s) of additional information for the applicable Contract as in effect from time to time.
32. The Firm will deliver or cause to be delivered to each customer a copy of the current Prospectus for the applicable Product, and, if requested by a customer, the Statement of Additional Information, within the time periods prescribed by Applicable Laws.
33. The Firm and RR/Agents shall not make any representations concerning the Products other than those contained in the current Prospectus for a Product, in any current printed materials or sales literature furnished to the Firm by GIAC or GIS, or in any piece relating to the Products created or modified by the Firm that has been approved by GIS prior to dissemination.
34. GIS shall furnish to the Firm, at no expense to the Firm, reasonable quantities of Prospectuses for the Products and such other material as necessary or desirable for use in connection with sales of the Products. Neither the Firm nor RR/Agents shall print, publish or distribute any advertising, sales literature, marketing or other materials relating to the Products, GIAC or GIS unless GIS has granted prior written approval for such materials. The Firm shall return or destroy any materials provided by GIS promptly upon request by GIS.
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35. Neither party shall use the name of the other party in any manner without the other party’s written consent, except as required by Applicable Laws and except pursuant to any mutually agreed upon promotional program.
36. Nothing herein shall prohibit the Firm from advertising life insurance and annuities in general or on a generic basis.
Cooperation
37. The parties jointly agree to cooperate fully with respect to any complaint, inquiry, investigation or proceeding (customer, regulatory, judicial or otherwise) arising in connection with this Agreement, including but not limited to, any related customer complaint, securities or insurance regulatory investigation or proceeding, or judicial proceeding.
38. The Firm will promptly provide copies to GIAC of any written complaint, inquiry or claim or notice of any investigation or proceeding (customer, regulatory, judicial or otherwise) received by the Firm that relates to the services contemplated under this Agreement or the Products offered or sold pursuant to this Agreement as well as copies of any subsequent resolution to such matters.
Confidentiality
39. The names and addresses and other information concerning the Firm’s customers are and shall remain the Firm’s sole property, and neither GIAC, GIS nor their affiliates shall use such names, addresses or other information for any purpose except in connection with the performance of GIAC’s and GIS’s duties and responsibilities hereunder and except for servicing and informational mailings relating to the Products. Notwithstanding the foregoing, this Section 39 shall not prohibit GIAC, GIS or their affiliates from utilizing for any purpose the names, addresses or other information concerning any of the Firm’s customers if such names, addresses or other information are obtained in any manner other than from the Firm pursuant to this Agreement. The provisions of this Section 39 shall survive the termination of this Agreement.
Privacy
40. GIAC, GIS and the Firm agree to comply with all applicable federal, state and/or local laws or regulations related to privacy. Notwithstanding anything in this Agreement to the contrary, the parties agree that any Nonpublic Personal Information, as defined under Section 248.3(t) of Regulation S-P (“Regulation S-P”), promulgated under the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (“GLB Act”), disclosed in connection with the transactions and services contemplated under this Agreement is for the specific purpose of permitting each party to perform the services set forth in this Agreement. The parties agree that, with respect to such information, each party will comply with Regulation S-P and the GLB Act and that the parties will not disclose any Nonpublic Personal Information received in connection with this Agreement, to any other party, except to the extent as necessary to carry out the services set forth in this Agreement or as otherwise permitted by Regulation S-P or the GLB Act.
41. Further, the Firm represents and warrants that they have implemented and currently maintain an effective information security program to protect customer information, which program includes administrative, technical and physical safeguards to ensure the security and confidentiality of such Nonpublic Personal Information, to protect against any threats or hazards to the security and integrity of such Nonpublic Personal Information, and to protect against unauthorized access to or use of such Nonpublic Personal Information.
42. If (i) a person or entity obtains unauthorized access to any such Nonpublic Personal Information or (ii) the Firm intentionally or unintentionally disclose any such Nonpublic Personal Information to another person or entity and such disclosure violates any federal, state and/or local law or regulation, then the Firm shall immediately disclose to GIAC the details regarding the unauthorized access or disclosure. To the extent that any duties and responsibilities under the Agreement are delegated to an agent or other subcontractor, the party shall take reasonable steps to ensure that such agents and subcontractor adhere to the same requirements.
| 43. | The parties’ obligations pursuant to Sections 40-42 shall survive the termination of this Agreement. |
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Anti-Money Laundering (“AML”)
44. GIAC, GIS and the Firm acknowledge that each is a financial institution subject to the Bank Secrecy Act (“BSA”), Money Laundering Abatement Act, USA PATRIOT Act of 2001 (“PATRIOT Act”) and any other anti-money laundering law, rule or regulation appropriate to them (“AML Requirements”).
45. GIAC requires that RR/Agents who are appointed with GIAC be trained in GIAC’s AML policies and procedures; however GIAC recognizes that the Firm has its own AML training for RR/Agents. To satisfy GIAC’s training requirement and to avoid imposing conflicting or duplicative obligations on RR/Agents under the Firm’s AML program, GIAC will rely on the Firm’s AML program to provide training to RR/Agents. The Firm agrees that it will provide GIAC, upon reasonable request, with a description of the training provided to RR/Agents and evidence that its training program encompasses RR/Agents who are appointed with GIAC.
46. The Firm represents and warrants that it has adopted and implemented, and agrees that it will maintain policies, procedures and internal controls reasonably designed to comply with applicable AML Requirements, including but not limited to rules requiring the Firm to implement an anti-money laundering program, training of appropriate employees, and a customer identification program (“CIP”).
47. As required by the PATRIOT Act, the Firm certifies to the extent applicable 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. The Firm also certifies that it is in compliance with the economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) and have an OFAC compliance program that satisfies all Applicable Laws.
48. The Firm agrees to cooperate fully with any testing reasonably requested by GIAC or GIS as to the effectiveness of the Firm’s anti-money laundering program.
49. The Firm agrees that any submission of an application for a Product shall constitute its continued certification of the matters certified in this Section.
50. The Firm understands that GIAC and GIS will be relying on the foregoing representations and certifications in Sections 46-47 in administering GIAC’s and GIS’s AML programs. The Firm will notify GIAC promptly if any of the foregoing representations and certifications ceases to be true and correct for any reason.
Indemnifications
51. The Firm shall indemnify and hold harmless GIAC, GIS and their affiliates, officers, trustees, directors, employees, shareholders, and agents, and any funds underlying the Products against any claims, losses, costs, or liabilities, including attorneys’ fees, that may be assessed against, suffered, or incurred by any of them, howsoever they may arise which relate in any way to: (a) any breach of the representations, warranties, covenants or other obligations of the Firm in this Agreement, including but not limited to sales practices concerning the Products, any use of unauthorized sales materials, any material misrepresentations or material omissions with respect to the Products or any information contained in the Prospectuses or other promotional materials or sales literature provided by GIAC or GIS; (b) bad faith, gross negligence or willful misconduct by the Firm or RR/Agents; and (c) any actions or omissions of GIAC, GIS, any fund underlying a Product , and their subsidiaries, affiliates, officers, directors, agents and employees in reliance upon any oral, written or computer or electronically transmitted instructions believed to be genuine and to have been given by the Firm or on behalf of the Firm. Notwithstanding the above, the Firm will not be responsible for any damages caused by the conduct of GIAC or GIS.
52. GIAC agrees that GIAC shall indemnify and hold harmless the Firm, and the Firm’s affiliates, officers, trustees, directors, employees, shareholders and agents against any claims, losses, costs or liabilities, including attorneys’
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fees, that may be assessed against, or suffered or incurred by any of them, howsoever they arise and as they are incurred, which relate in any way to: (a) any breach of GIAC’s representations or warranties or failure to comply with GIAC’s obligations as set forth in this Agreement, (b) bad faith, gross negligence or willful misconduct by GIAC or its representatives; or (c) any material misrepresentation or material omission concerning the Products contained in a Prospectus or other promotional materials or sales literature provided by GIAC or GIS. Notwithstanding the above, GIAC will not be responsible for any damages caused by the Firm’s conduct.
53. GIS agrees that GIS shall indemnify and hold harmless the Firm, and the Firm’s affiliates, officers, trustees, directors, employees, shareholders and agents against any claims, losses, costs or liabilities, including attorneys’ fees, that may be assessed against, or suffered or incurred by any of them, howsoever they arise and as they are incurred, which relate in any way to: (a) any breach of GIS’s representations or warranties or failure to comply with GIS’s obligations as set forth in this Agreement, (b) bad faith, gross negligence or willful misconduct by GIS or its representatives; or (c) any material misrepresentation or material omission concerning the Products contained in a Prospectus or other promotional materials or sales literature provided by GIAC or GIS. Notwithstanding the above, GIS will not be responsible for any damages caused by the Firm’s conduct.
54. Nothing in these Sections 51-53 shall be deemed to preclude an indemnified party from seeking monetary damages and/or injunctive relief in connection with such claims, losses and liabilities. Sections 51-51 shall survive the termination of this Agreement.
Termination
55. Either party shall have the right to cancel this Agreement at any time upon written notice given to the other parties.
General Provisions
56. GIAC and GIS reserve the right to amend this Agreement at any time and the Firm agrees that the submission of an application for a Product by RR/Agents after notice of any such amendment has been sent to the Firm shall constitute the Firm’s acceptance of such amendment.
| 57. | The Firm and RR/Agents are independent contractors with respect to GIAC and GIS. |
58. The Firm represents that it maintains adequate liability coverage and, upon GIAC’s request, shall provide satisfactory evidence that such coverage is in force. The Firm shall give prompt, written notice to GIAC of any notice of cancellation or change of coverage. The Firm agrees to assign any proceeds received from its liability insurer to GIAC to the extent of GIAC’s loss due to activities covered by the liability coverage. If there is any deficiency amount, whether due to a deductible or otherwise, the Firm shall promptly pay GIAC such amount on demand and the Firm hereby indemnifies and holds harmless GIAC from any such deficiency and costs of collection (including reasonable attorneys’ fees).
59. This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective successors and assigns. Neither this Agreement nor any of its rights, obligations or benefits may be assigned by the Firm, any Affiliated Insurance Agency or any RR/Agent without the written consent of GIAC and GIS, and any assignment of this agreement, compensation or other benefits or obligations hereunder shall not be valid if made without such consent.
60. This Agreement shall be construed in accordance with applicable federal law and the laws of the State of New York. If any provision of this Agreement shall be held or made invalid by a court decision, state, rule, requirement of applicable law or otherwise, then the remainder of this Agreement shall not be affected
61. Failure of any party to insist upon strict compliance with any of the conditions of this Agreement shall not be construed as a waiver of any of the conditions, but the same shall remain in full force and effect. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver.
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62. All notices or communications shall be sent to the addresses set forth below or to such other address as the party may request by giving written notice to the other parties.
63. This Agreement supersedes any and all prior agreements between us, shall be executed by the duly authorized representative of the parties hereto and shall become effective upon the date executed by GIS.
FIRM#:
Accepted and agreed to by:
| FIRM: | The Guardian Insurance & Annuity Company, Inc.: | |||
| BY: | BY: | |||
| Authorized Representative | D. ▇▇▇▇▇ ▇▇▇▇▇ President | |||
| NAME/TITLE: | ||||
| DATE: | DATE: | |||
| Name of Firm: | Guardian Investor Services LLC: | |||
| Street Address: | BY: | |||
| City: State: Zip: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Executive Vice President, Individual Products Distribution | |||
| TIN# | DATE: | |||
| Affiliated Insurance Agency/Agencies, if any, with TINs | ||||
| Name of Firm: | ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 1-800-650-6505
| |||
| Street Address: | ||||
| City: State: Zip: | ||||
| TIN# | ||||
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