FORM OF
MARKETING SERVICES AGREEMENT
THIS AGREEMENT entered into by and between Sun Life Assurance Company of
Canada (U.S.) ("Sun Life (U.S.)"), a Delaware corporation, and Sun Life of
Canada (U.S.) Distributors, Inc. ("SLD"), a Delaware corporation and Clarendon
Insurance Agency, Inc. ("Clarendon"), a Massachusetts corporation.
WITNESSETH
WHEREAS Sun Life (U.S.) proposes to issue and offer for sale certain life
insurance and annuity contracts (the "Plans") which may or may not be deemed to
be securities under the Securities Act of 1933 ("33 Act"); and
WHEREAS SLD and Clarendon are registered as broker-dealers with the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act
of 1934 ("34 Act") and are members of the National Association of Securities
Dealers, Inc. ("NASD"); and
WHEREAS SLD and Clarendon propose to coordinate the marketing of the
Plans and to perform certain administrative services in conjunction therewith.
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
I
THE PLANS
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A. TYPE OF PLANS
The Plans issued by Sun Life (U.S.) to which this Agreement applies are
listed in Exhibit A. Exhibit A may be amended from time to time as agreed
upon by Sun Life (U.S.), SLD and Clarendon.
B. SUSPENSION/RESTRICTION
Sun Life (U.S.) may, at its option and at its sole discretion, suspend
or restrict in any manner the sale or method of distribution of all or any of
the Plans, including sales by all or any individuals licensed to sell Sun
Life (U.S.)'s products. If any suspension or restriction is required by any
regulatory authority having jurisdiction, written notice shall be given to
SLD and Clarendon immediately upon receipt by Sun Life (U.S.) of notice of
such required suspension or restriction. In all other cases, Sun Life (U.S.)
will provide thirty (30) days' prior notice to SLD and Clarendon of any such
suspension or restriction.
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C. PLAN CHANGES
Sun Life (U.S.) may, at its option and in its sole discretion, amend,
add or delete features of all or any of the Plans. In the event of any such
amendment, addition, or deletion, Sun Life (U.S.) will provide written notice
of such change to SLD and Clarendon. If the change is required by any
regulatory authority having jurisdiction, written notice shall be given to
SLD and Clarendon immediately upon receipt by Sun Life (U.S.) of notice of
such required change. In all other cases, Sun Life (U.S.) will provide
written notice to SLD and Clarendon at least thirty (30) days prior to the
effective date of such change.
II
MARKETING COORDINATION AND SALES ADMINISTRATION
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A. GENERAL DISTRIBUTOR
Clarendon is hereby appointed by Sun Life (U.S.) as the General
Distributor of the Plans. Clarendon shall, at all times, when performing its
functions under this Agreement, be registered as a securities broker-dealer
with the SEC and the NASD and shall be licensed or registered as a securities
broker-dealer and, as applicable, a life insurance agency, in those
jurisdictions where the performance of the duties contemplated by this
Agreement would require such licensing or registration.
B. DISTRIBUTION AGREEMENTS
Clarendon will distribute the Plans pursuant to either a Sales
Operations and General Agent Agreement or a Broker-Dealer Supervisory and
Service Agreement and Registered Representative's Agent Agreement (the
"Distribution Agreements"). [Copies of the Distribution Agreements as
currently in effect are attached as Exhibits B, C, D, and E respectively.]
Clarendon, through SLD shall negotiate all Distribution Agreements on behalf
of Sun Life (U.S.) and all such Distribution Agreements shall be
substantially in the form of the Distribution Agreements attached hereto
unless otherwise agreed to by Sun Life (U.S.). No Commission Schedule
attached to any Distribution Agreement may provide for commission payments in
excess of specified maximums established by Sun Life (U.S.) from time to
time. The originals of such agreements and all correspondence, memoranda and
other documents relating to the Distribution Agreements shall be retained by
Sun Life (U.S.).
C. AGENTS/REGISTERED REPRESENTATIVES ("AGENTS")
1. APPOINTMENT AND TERMINATION OF AGENTS
(a) Sun Life (U.S.) will appoint and dismiss individuals as its
agents in those jurisdictions in which Sun Life (U.S.) transacts an
insurance business. Sun Life (U.S.) reserves the right to terminate
any and all such appointments as its agent and will provide written
notice of any such termination to the appropriate regulatory
authority.
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2. TRAINING OF AGENTS
SLD shall train agents of Sun Life (U.S.) who have been appointed to
properly solicit applications for the Plans in accordance with
guidelines established by Sun Life (U.S.).
3. SUPERVISION OF AGENTS
SLD shall coordinate the supervision of the agents of Sun Life (U.S.)
associated with broker-dealers in connection with the offering and
sale of the Plans. SLD will establish and Sun Life (U.S.) will approve
such rules and procedures as may be necessary to insure proper
supervision of the agents.
4. SALES ASSISTANCE TO AGENTS
SLD shall provide sales assistance to agents of Sun Life (U.S.). This
sales assistance shall include, but not be limited to, assistance from
SLD's field representatives as well as from SLD's home office
personnel. SLD shall also prepare sales promotional programs for the
Plans and assist the agents in utilizing the programs. In addition,
SLD shall provide broker-dealers and agents with sufficient quantities
of any applicable sales promotional materials, prospectuses, sample
Plans, applications and service forms.
5. PAYMENT OF COMMISSIONS TO AGENTS
All commission payments required to be made pursuant to the
Distribution Agreements shall be made by Sun Life (U.S.).
D. SALES MATERIALS AND OTHER DOCUMENTS
1. SLD'S RESPONSIBILITIES
SLD shall be responsible for the design, preparation and printing of
all promotional material to be used in the distribution of the Plans
and the approval of such promotional material by the SEC and the NASD
where required.
2. SUN LIFE (U.S.)'S RESPONSIBILITIES
a) Sun Life (U.S.) or its agent shall be responsible for the
design, preparation and printing of Plans, applications for Plans and
forms becoming part of the Plans and service forms.
b) Sun Life (U.S.) shall provide SLD with sufficient quantities of
any prospectuses for the Plans and the separate accounts, applications
and sample Plans (including any endorsements).
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c) Sun Life (U.S.) shall obtain sufficient quantities of
prospectuses of the mutual funds underlying any Plans for distribution
to broker-dealers, agents, and Plan purchasers.
d) Sun Life (U.S.) shall be responsible for the approval of
promotional material by insurance regulatory authorities, if required.
3. SUN LIFE (U.S.)'S RIGHT TO APPROVE
Sun Life (U.S.) shall review and approve or disapprove, in writing,
PRIOR TO ITS USE, all sales promotional material proposed by SLD or
in use. Sun Life (U.S.) reserves the right to require modification or
withdrawal from use of any such material to comply with applicable
laws, rules and regulations.
E. ADVERTISING
Neither SLD nor any of its agents or affiliates shall print, publish or
distribute any advertisement, circular or any document relating to the Plans
or relating to Sun Life (U.S.) unless such advertisement, circular or
document shall have been approved by Sun Life (U.S.). Neither Sun Life (U.S.)
nor any of its agents or affiliates shall print, publish or distribute any
advertisement, circular or any document relating to the Plans or relating to
SLD unless such such advertisement, circular or document shall have been
approved in writing by SLD. However, nothing herein shall prohibit any person
from advertising annuities in general or on a generic basis.
F. SALES RECORDS - PRODUCTION REPORTS
Sun Life (U.S.) shall establish and maintain sales records in such form
as it may deem appropriate, and shall provide SLD with such reports and
materials relative to the marketing and distribution of Plans as may
reasonably be required by SLD.
G. BOOKS, RECORDS, AND SUPERVISION
1. BOOKS AND RECORDS
Clarendon may request that all or some of the books and records
required to be maintained by it as a registered broker-dealer in
connection with the offer and sale of the Plans be prepared and
maintained by Sun Life (U.S.) or SLD. Sun Life (U.S.) and SLD agree
to prepare and maintain such books and records at their respective
costs upon request, and agree that such books and records are the
property of Clarendon, that they will be made and preserved in
accordance with Rules 17a-3 and 17a-4 under the 34 Act and that they
will be subject to examination by the SEC in accordance with Section
17(a) of the 34 Act.
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H. ASSIGNMENT OF DUTIES
Sun Life (U.S.) acknowledges that Clarendon may assign all or part of
its duties under this Agreement to SLD or to Sun Life (U.S.) or to another
affiliate of Sun Life (U.S.). No other assignment of Clarendon's duties under
this Agreement is permitted.
I. SUPERVISION
To extent permitted by law, Clarendon has delegated in full to SLD its
responsibility for the securities activities of all persons associated with
Sun Life (U.S.) and SLD who maintain books and records on behalf of Clarendon.
Sun Life (U.S.) and SLD acknowledge that Clarendon has full responsibility
for all such persons in connection with their training, supervision and
control as contemplated by the 34 Act.
III
COMPENSATION
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A. GENERAL
For performing marketing coordination and sales administration services
under this Agreement, SLD and Clarendon will be compensated by Sun Life
(U.S.), as may be agreed to from time to time.
B. TIME OF PAYMENT
Sun Life (U.S.) will pay all compensation due SLD and Clarendon
hereunder on a ____________________ basis.
C. CHANGES IN COMPENSATION
Compensation payable under this Agreement may be increased or decreased
to reflect any change in marketing coordination responsibilities. Such
increase or decrease will be mutually agreed upon by the parties hereto in
writing.
D. INDEBTEDNESS
Nothing in this Agreement shall be construed as giving SLD or Clarendon
the right to incur any indebtedness on behalf of Sun Life (U.S.). However, Sun
Life (U.S.) may offset amounts owed it by SLD or Clarendon under this
Agreement against amounts payable to SLD or Clarendon for any reason; and SLD
and Clarendon may offset amounts owed to them by Sun Life (U.S.) under this
Agreement against any amounts payable to Sun Life (U.S.) for any reason,
provided that no such offset is permitted in connection with Plan premiums or
purchase payments and payments under the Plans.
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IV
OTHER PROVISIONS
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A. PRODUCT DEVELOPMENT
SLD shall assist Sun Life (U.S.) or its agent in the design and
development of life insurance and annuity products for distribution pursuant
to the Distribution Agreements. This assistance may include conducting market
research studies as reasonably requested by Sun Life (U.S.), consulting with
respect to product design, and assisting in the development of sales training,
sales promotional and advertising material relating to new insurance and
annuity products. SLD acknowledges that all such studies and materials are
the property of Sun Life (U.S.).
B. OWNERSHIP OF BUSINESS RECORDS
Sun Life (U.S.) shall own all business records maintained by SLD or
Clarendon pertaining to the duties and responsibilities of SLD and Clarendon
under this Agreement. Such records shall be delivered to Sun Life (U.S.)
promptly upon reasonable request or upon termination of this Agreement. SLD
and Clarendon will maintain all records and accounts in accordance with Sun
Life (U.S.)'s standards or requirements, or otherwise, with generally
accepted procedures as they apply to the accounting and insurance industry.
SLD and Clarendon will also at Sun Life (U.S.)'s request make any such
records available to Sun Life (U.S.)'s auditors or to any governmental
authority having jurisdiction over Sun Life (U.S.), and such records shall be
open to inspection at all times by Sun Life (U.S.) or its designees.
C. APPROVAL OF PRACTICES AND PROCEDURES
Sun Life (U.S.) shall have the right to review and approve the
standards, practices and procedures utilized by SLD and Clarendon in
fulfilling their obligations under the Agreement. Sun Life (U.S.) reserves
the right, from time to time, to prescribe rules and regulations respecting
the conduct of the business covered hereby.
D. COMPLAINTS
1. SLD shall immediately forward to Sun Life (U.S.) any material
received by SLD or Clarendon relating to any complaint concerning
Sun Life (U.S.) or the Plans.
2. In the case of complaints or inquiries relating to the Plans
distributed pursuant to the Distribution Agreements, Sun Life (U.S.)
may, at its option, request SLD to investigate such complaints or
inquiries. In such instances, SLD shall promptly forward to Sun Life
(U.S.) copies of all material relating to such investigations.
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E. LIMITATIONS ON AUTHORITY
SLD and Clarendon shall have authority only as expressly granted in this
Agreement. No party to this Agreement shall enter into any proceeding in a
court of law or before a regulatory agency in the name of any other party,
without the express written consent of that party. Further, if any legal or
administrative proceedings are commenced against any party arising out of the
obligations, duties or services performed under this Agreement by any third
party or any federal, state or other governmental or regulatory authority,
that party, as the case may be, shall immediately notify the other parties of
this fact.
F. ARBITRATION
Any controversy or claim arising out of any matter relating to this
Agreement or the breach of this Agreement shall be determined by arbitration
in accordance with the rules then in existence of the American Arbitration
Association, and judgment upon any award rendered in any such arbitration
proceeding may be entered in any court having jurisdiction thereof. The Board
of Arbitration shall be composed of three persons selected in the following
manner: Sun Life (U.S.) shall have the right to select one arbitrator, SLD
and Clarendon shall have the right to select the second arbitrator, and the
two arbitrators thus selected shall have the right to select an umpire. In
the event that the parties cannot agree upon the selection of an umpire, the
parties shall agree to delegate the authority of such election to the then
President of the American Council of Life Insurance.
G. REIMBURSEMENT
To the extent that this Agreement provides for any reimbursement of
expenses, the basis for reimbursement shall be reviewed from time to time by
the parties to this Agreement, and the books, accounts and records of each
party to this Agreement shall be so maintained as to clearly and accurately
disclose the nature and details of each transaction between the parties,
including such accounting information as is necessary to support the
reasonableness of the charges made hereunder.
V
GENERAL PROVISIONS
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A. WAIVER
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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▇. ▇▇▇▇
SLD and Clarendon will maintain whatever bond may be required by Sun
Life (U.S.) and such bond shall be of a type and amount and issued by a
reputable company, all as approved by Sun Life (U.S.).
C. BINDING EFFECT
This Agreement shall be binding on and shall inure to the benefit of the
parties to it and their respective successors and assigns.
D. INDEMNIFICATION
Each party hereby agrees to release, indemnify and hold harmless the
other party, its officers, directors, employees, agents, servants,
predecessors or successors from any claims or liability to third parties
arising out of the breach of this Agreement or arising out of the acts or
omissions of a party to this Agreement not authorized by this Agreement.
E. NOTICES
All notices, requests, demands and other communication under this
Agreement shall be in writing, and shall be deemed to have been given on the
date of service if served personally on the party to whom notice is to be
given, or on the date of mailing, if sent by First Class Mail, Registered or
Certified, postage prepaid and properly addressed as follows:
TO SUN LIFE (U.S.)
Sun Life Assurance Company of Canada (U.S.)
One Sun Life Executive Park
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
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TO SLD
Sun Life of Canada (U.S.) Distributors, Inc.
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
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TO CLARENDON
Clarendon Insurance Agency, Inc.
One Sun Life Executive Park
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
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F. GOVERNING LAW
This Agreement shall be construed in accordance with and governed by the
Commonwealth of Massachusetts.
G. COMPLIANCE
All parties agree to observe and comply with the existing laws and rules
or regulations of applicable local, state or federal regulatory authorities,
and with those which may be enacted or adopted during the term of this
Agreement regulating the business contemplated hereby in any jurisdiction in
which business described herein is to be transacted.
H. TERMINATION
This Agreement may be terminated by any of the parties upon six (6)
months' prior written notice to the other party.
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Executed this day of January, 1998.
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SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
By
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By
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SUN LIFE OF CANADA (U.S.) DISTRIBUTORS, INC.
By
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By
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CLARENDON INSURANCE AGENCY, INC.
By
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By
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EXHIBIT A
THE PLANS
Futurity Combination Variable/Fixed Annuity Contract
Exhibits B - E = Current Distribution Agreements