METLIFE INVESTORS DISTRIBUTION COMPANY
RETAIL SALES AGREEMENT
TABLE OF CONTENTS
I. DEFINITIONS
II. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
A. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF COMPANY
B. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF BROKER
III. PRINCIPLES OF ETHICAL MARKET CONDUCT
IV. COMPLIANCE WITH APPLICABLE LAWS
V. COMPENSATION
VI. COMPLAINTS AND INVESTIGATIONS
VII. RECORDS AND ADMINISTRATION
VIII. PRIVACY INFORMATION
A. PROPRIETARY INFORMATION
B. RECEIPT OF CUSTOMER NONPUBLIC PERSONAL INFORMATION BY COMPANY FROM
BROKER
C. TREATMENT OF NONPUBLIC PERSONAL INFORMATION DISCLOSED BY COMPANY
D. CONFIDENTIAL INFORMATION
E. PROTECTED HEALTH INFORMATION
IX. INDEMNIFICATION
X. GENERAL PROVISIONS
A. TERM AND TERMINATION
B. ASSIGNABILITY
C. AMENDMENTS
D. NOTICES
E. ARBITRATION
F. GOVERNING LAW; VENUE; JURISDICTION
G. ENTIRE UNDERSTANDING
H. NO THIRD PARTY BENEFICIARIES
I. NON-EXCLUSIVITY
J. NO HIRE
K. WAIVER
L. COUNTERPARTS; FACSIMILE SIGNATURES
M. SEVERABILITY
N. HEADINGS
O. FURTHER ASSURANCES
P. CONSTRUCTION
Q. RECITALS
R. REPRESENTATION BY COUNSEL
S. TRADEMARKS
T. LONG TERM CARE CONTRACTS
METLIFE INVESTORS DISTRIBUTION COMPANY
RETAIL SALES AGREEMENT
THIS AGREEMENT, INCLUDING THE EXHIBITS ATTACHED HERETO (COLLECTIVELY, THE
"AGREEMENT") IS MADE, ENTERED INTO AND EFFECTIVE AS OF _________, 20__
("EFFECTIVE DATE") BY AND AMONG METLIFE INVESTORS DISTRIBUTION COMPANY, A
MISSOURI CORPORATION (THE "COMPANY") AND (BDNAME), (THE "BROKER") THAT, FOR THE
________ DISTRIBUTION OF FIXED INSURANCE PRODUCTS ONLY, IS OR IS AFFILIATED WITH
ONE OR MORE VALIDLY LICENSED INSURANCE AGENCIES, OR FOR THE DISTRIBUTION OF
REGISTERED PRODUCTS, IS REGISTERED AS A BROKER-DEALER WITH THE SECURITIES AND
EXCHANGE COMMISSION ("SEC") UNDER THE 1934 ACT (AS HEREAFTER DEFINED) AND IS A
MEMBER OF THE NATIONAL ASSOCIATION OF SECURITIES DEALERS ("NASD") AND IS ALSO
EITHER LICENSED AS OR AFFILIATED WITH ONE OR MORE VALIDLY LICENSED INSURANCE
AGENCIES.
RECITALS
A. COMPANY AND ITS AFFILIATES (AS HEREAFTER DEFINED) ISSUE OR PROVIDE ACCESS
TO CERTAIN CONTRACTS (AS HEREAFTER DEFINED).
B. COMPANY, ON BEHALF OF ITSELF AND EACH AFFILIATE THAT ISSUES OR PROVIDES
ACCESS TO THE CONTRACTS, IS AUTHORIZED TO ENTER INTO THIS AGREEMENT WITH BROKER
AND OTHER UNAFFILIATED BROKER-DEALERS OR SELLING GROUPS, AS THE CASE MAY BE, TO
DISTRIBUTE THE CONTRACTS.
C. COMPANY PROPOSES TO COMPENSATE BROKER FOR THE SALE AND SERVICING OF
CONTRACTS IN ACCORDANCE WITH THE COMPENSATION SCHEDULES SET FORTH IN EXHIBITS A
AND B, WHICH BY THIS REFERENCE ARE HEREBY INCORPORATED IN, AND MADE A PART OF
THIS AGREEMENT.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS
CONTAINED HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE PARTIES HERETO
AGREE AS FOLLOWS:
I.DEFINITIONS.
ALL CAPITALIZED TERMS USED IN THIS AGREEMENT SHALL HAVE THE MEANINGS DEFINED
BELOW, OR IF NOT DEFINED IN THIS SECTION, AS SET FORTH ELSEWHERE IN THIS
AGREEMENT:
AFFILIATE - ANY ENTITY THAT DIRECTLY OR INDIRECTLY CONTROLS, IS CONTROLLED
BY OR IS UNDER COMMON CONTROL WITH COMPANY OR BROKER, AS APPLICABLE,
INCLUDING, WITHOUT LIMITATION, ANY ENTITY THAT OWNS 25% OR MORE OF THE
VOTING SECURITIES OF ANY OF THE FOREGOING AND ANY ENTITY THAT IS A
SUBSIDIARY OF ANY OF THE FOREGOING.
AGENCY - ONE OR MORE ASSOCIATED INSURANCE AGENCIES OF BROKER, IDENTIFIED ON
EXHIBIT D HERETO, WHICH ARE PROPERLY LICENSED TO PARTICIPATE IN THE BUSINESS
OF INSURANCE, FOR THE DISTRIBUTION OF THE CONTRACTS.
APPLICABLE LAWS - SHALL HAVE THE MEANING GIVEN TO SUCH TERM IN SECTION IV OF
THIS AGREEMENT.
CONFIDENTIAL INFORMATION - SHALL HAVE THE MEANING GIVEN TO SUCH TERM IN
SECTION VIII(D) OF THIS AGREEMENT.
CONTRACTS - THOSE FIXED CONTRACTS, VARIABLE CONTRACTS AND OTHER PRODUCTS
THAT ARE IDENTIFIED ON EXHIBITS A AND B ATTACHED HERETO.
FIXED CONTRACTS - CONTRACTS THAT ARE NOT VARIABLE CONTRACTS AND INCLUDE,
WITHOUT LIMITATION, FIXED RATE ANNUITIES, FIXED LIFE INSURANCE AND OTHER
FIXED INSURANCE CONTRACTS, ISSUED OR OFFERED BY COMPANY OR ITS AFFILIATES,
AS MORE FULLY DESCRIBED IN EXHIBIT B.
HIPAA - THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, AS
NOW IN FORCE OR HEREAFTER AMENDED, AND ALL RELATED REGULATIONS.
NONPUBLIC PERSONAL INFORMATION - FINANCIAL OR HEALTH RELATED INFORMATION BY
WHICH A FINANCIAL INSTITUTION'S CONSUMERS AND CUSTOMERS ARE INDIVIDUALLY
IDENTIFIABLE, INCLUDING BUT NOT LIMITED TO NONPUBLIC PERSONAL INFORMATION AS
DEFINED BY TITLE V OF THE ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ACT AND REGULATIONS ADOPTED
PURSUANT TO THAT ACT.
PROSPECTUS - THE PROSPECTUSES, SUPPLEMENTS TO PROSPECTUS(ES), AND STATEMENTS
OF ADDITIONAL INFORMATION INCLUDED WITHIN THE REGISTRATION STATEMENTS
REFERRED TO HEREIN OR FILED PURSUANT TO THE 1933 ACT AND THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED.
PROTECTED HEALTH INFORMATION OR PHI - 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 ALSO 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. PHI FURTHER INCLUDES, BUT IS NOT LIMITED TO,
INFORMATION PROVIDED BY AN INDIVIDUAL ON AN APPLICATION FOR A LONG TERM CARE
INSURANCE POLICY OR OTHER HEALTH CARE PLAN ISSUED OR OFFERED BY COMPANY OR
AN AFFILIATE OF COMPANY; INFORMATION RELATED TO THE DECLINATION OR ISSUANCE
OF, OR CLAIM UNDER, A LONG TERM CARE INSURANCE POLICY ISSUED OR OFFERED BY
COMPANY OR AN AFFILIATE; OR INFORMATION DERIVED THEREFROM.
REGISTRATION STATEMENTS - REGISTRATION STATEMENTS AND AMENDMENTS THERETO
FILED WITH THE SEC RELATING TO THE VARIABLE CONTRACTS, INCLUDING THOSE FOR
ANY UNDERLYING INVESTMENT VEHICLE OR VARIABLE INSURANCE RIDER.
REPRESENTATIVES - THOSE INDIVIDUALS, ACCEPTED BY COMPANY OR ITS AFFILIATES
TO SOLICIT AND SELL CONTRACTS UNDER THE TERMS OF THIS AGREEMENT, WHO ARE
DULY CONTRACTED AND APPOINTED AS LIFE INSURANCE AGENTS OF COMPANY OR ITS
AFFILIATES AND, WITH RESPECT TO REGISTERED PRODUCTS, ARE ALSO DULY
REGISTERED, INDIVIDUALLY, WITH THE NASD IN COMPLIANCE WITH THE 1934 ACT.
VARIABLE CONTRACTS - CONTRACTS THAT ARE NOT FIXED CONTRACTS AND INCLUDE,
WITHOUT LIMITATION, VARIABLE LIFE INSURANCE POLICIES, VARIABLE ANNUITY
CONTRACTS, VARIABLE INSURANCE RIDERS AND OTHER VARIABLE INSURANCE CONTRACTS,
ANY OF WHICH MAY OR MAY NOT HAVE A FIXED COMPONENT, ISSUED OR OFFERED BY
COMPANY OR ITS AFFILIATES, AS MORE FULLY DESCRIBED IN EXHIBIT A.
1933 ACT - THE SECURITIES ACT OF 1933, AS AMENDED.
1934 ACT - THE SECURITIES EXCHANGE ACT OF 1934,AS AMENDED.
II. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
A. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF COMPANY
1) AUTHORIZATION. COMPANY REPRESENTS THAT IT IS DULY AUTHORIZED, ON BEHALF
OF ITSELF AND EACH AFFILIATE THAT ISSUES OR PROVIDES ACCESS TO THE
CONTRACTS, TO ENTER INTO THIS AGREEMENT WITH BROKER TO DISTRIBUTE SUCH
CONTRACTS.
2) APPOINTMENT. COMPANY, SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, HEREBY APPOINTS BROKER, ON BEHALF OF ITSELF AND ITS
AFFILIATES, TO SOLICIT, SELL AND PROVIDE SERVICES TO THE CONTRACTS ON A
NON-EXCLUSIVE BASIS.
3) SOLICIT APPLICATIONS - FIXED CONTRACTS. COMPANY AUTHORIZES BROKER,
THROUGH ITS REPRESENTATIVES, TO SOLICIT APPLICATIONS FOR THE FIXED
CONTRACTS LISTED IN EXHIBIT B, PROVIDED THAT: (a) BROKER SHALL SOLICIT
APPLICATIONS FOR FIXED CONTRACTS ONLY IN THOSE STATES WHERE IT AND ITS
REPRESENTATIVES ARE APPROPRIATELY LICENSED, AND IN WHICH THE FIXED
CONTRACTS ARE QUALIFIED FOR SALE UNDER APPLICABLE LAWS; AND (b) BROKER
COMPLIES IN ALL OTHER RESPECTS WITH THE PUBLISHED POLICIES AND
PROCEDURES OF COMPANY AND/OR ITS AFFILIATES, AS APPLICABLE, AND WITH THE
TERMS OF THIS AGREEMENT.
4) SOLICIT APPLICATIONS - VARIABLE CONTRACTS. COMPANY AUTHORIZES BROKER,
THROUGH ITS REPRESENTATIVES, TO OFFER AND SELL THE VARIABLE CONTRACTS
LISTED IN EXHIBIT A, PROVIDED THAT: (a) BROKER SHALL SOLICIT
APPLICATIONS FOR VARIABLE CONTRACTS ONLY IN THOSE STATES WHERE IT AND
ITS REPRESENTATIVES ARE APPROPRIATELY LICENSED; (b) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT RELATING TO EACH SUCH VARIABLE
CONTRACT; (c) EACH SUCH VARIABLE CONTRACT IS QUALIFIED FOR SALE UNDER
APPLICABLE LAWS IN SUCH STATE IN WHICH THE SALE OR SOLICITATION IS TO
TAKE PLACE; AND (d) BROKER COMPLIES IN ALL OTHER RESPECTS WITH THE
PUBLISHED POLICIES AND PROCEDURES OF COMPANY AND/OR ITS AFFILIATES, AS
APPLICABLE, AND WITH THE TERMS OF THE AGREEMENT. COMPANY SHALL NOTIFY
BROKER OR ITS DESIGNEE OF THE ISSUANCE BY THE SEC OF ANY STOP ORDER WITH
RESPECT TO A REGISTRATION STATEMENT OR THE INITIATION OF ANY PROCEEDING
BY THE SEC RELATING TO THE REGISTRATION AND/OR OFFERING OF VARIABLE
CONTRACTS AND OF ANY OTHER ACTIONS OR CIRCUMSTANCES THAT MAKES IT NO
LONGER LAWFUL FOR COMPANY OR ITS AFFILIATES TO OFFER OR ISSUE ONE OR
MORE OF THE VARIABLE CONTRACTS LISTED IN EXHIBIT A. COMPANY SHALL ADVISE
BROKER OF ANY REVISION OF, OR SUPPLEMENT TO, ANY PROSPECTUS RELATED TO
THE VARIABLE CONTRACTS OR UNDERLYING INVESTMENTS OF SUCH VARIABLE
CONTRACTS.
5) RIGHTS OF COMPANY. COMPANY AND ITS AFFILIATES MAY, IN THEIR RESPECTIVE
DISCRETION:
a) REFUSE FOR ANY REASON TO APPOINT A REPRESENTATIVE AND CANCEL ANY
EXISTING APPOINTMENT AT ANY TIME;
b) DIRECT THE MARKETING OF ITS INSURANCE PRODUCTS AND SERVICES;
c) REVIEW AND APPROVE ALL ADVERTISING REFERRING TO ITS INSURANCE
PRODUCTS AND SERVICES;
d) UNDERWRITE ALL INSURANCE POLICIES ISSUED BY IT;
e) CANCEL RISKS;
f) HANDLE ALL MATTERS INVOLVING CLAIMS AND PAYMENT;
g) PREPARE ALL POLICY FORMS AND AMENDMENTS;
h) MAINTAIN CUSTODY OF, RESPONSIBILITY FOR AND CONTROL OF ALL
INVESTMENTS; AND
i) WITHDRAW A FORM OF CONTRACT FROM SALE OR CHANGE OR AMEND A FORM OF
CONTRACT FOR ANY REASON.
6) AMENDMENTS TO EXHIBITS. EXHIBITS A AND B MAY BE AMENDED BY COMPANY IN
ITS SOLE DISCRETION FROM TIME TO TIME, WITHOUT PRIOR NOTICE, TO DELETE
OR ADD CONTRACTS. THE PROVISIONS OF THIS AGREEMENT SHALL APPLY TO SUCH
EXHIBITS, AS THEY MAY FROM TIME TO TIME BE AMENDED, UNLESS THE CONTEXT
OTHERWISE REQUIRES. IN ADDITION, THE COMPENSATION SCHEDULES THAT ARE
PART OF EXHIBITS A AND B MAY BE AMENDED, MODIFIED AND/OR REPLACED BY
COMPANY IN ITS SOLE DISCRETION, FROM TIME TO TIME, WITHOUT PRIOR NOTICE.
7) BROKER'S ACCESS TO COPIES OF DOCUMENTS. DURING THE TERM OF THIS
AGREEMENT, COMPANY SHALL PROVIDE BROKER, AS APPLICABLE AND WITHOUT
CHARGE, WITH AS MANY COPIES OF THE CONTRACT PROSPECTUS(ES), CURRENT
UNDERLYING MUTUAL FUND PROSPECTUS(ES), STATEMENTS OF ADDITIONAL
INFORMATION AND APPLICATIONS FOR THE CONTRACTS, AS BROKER MAY REASONABLY
REQUEST. UPON RECEIPT FROM COMPANY OF UPDATED COPIES OF THE CONTRACT
PROSPECTUS(ES), CURRENT UNDERLYING MUTUAL FUND PROSPECTUS(ES),
STATEMENTS OF ADDITIONAL INFORMATION AND APPLICATIONS FOR THE CONTRACTS,
BROKER SHALL PROMPTLY DISCARD OR DESTROY ALL COPIES OF SUCH DOCUMENTS
PREVIOUSLY PROVIDED TO IT, EXCEPT SUCH COPIES AS ARE NEEDED FOR PURPOSES
OF MAINTAINING PROPER RECORDS. UPON TERMINATION OF THIS AGREEMENT,
BROKER SHALL PROMPTLY RETURN TO COMPANY ALL CONTRACT PROSPECTUS(ES),
CURRENT UNDERLYING MUTUAL FUND PROSPECTUS(ES), STATEMENTS OF ADDITIONAL
INFORMATION AND APPLICATIONS FOR THE CONTRACTS AND OTHER MATERIALS AND
SUPPLIES FURNISHED BY COMPANY TO BROKER OR TO ITS REPRESENTATIVES,
EXCEPT FOR COPIES REQUIRED FOR MAINTENANCE OF RECORDS.
8) ADVERTISING MATERIAL. SUBJECT TO THE PROVISIONS OF SECTION VIII(D)(4),
DURING THE TERM OF THIS AGREEMENT, COMPANY OR ITS AFFILIATES SHALL BE
RESPONSIBLE FOR APPROVING ALL PROMOTIONAL, SALES AND ADVERTISING
MATERIAL TO BE USED BY BROKER. COMPANY OR ITS AFFILIATES SHALL FILE SUCH
MATERIALS OR SHALL CAUSE SUCH MATERIALS TO BE FILED WITH THE SEC, NASD,
AND ANY APPLICABLE STATE INSURANCE AND SECURITIES REGULATORY
AUTHORITIES, AS REQUIRED.
B. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF BROKER
1) Appointment of Broker. Broker, subject to the terms and conditions
of this Agreement, hereby accepts appointment to solicit, sell and
provide services to the Contracts and agrees to use its best efforts
to find suitable purchasers for the Contracts. Broker represents and
warrants that it shall offer Contracts only in those states where it
or an Agency is appropriately licensed and that it has obtained any
other appointments, approvals, licenses, authorizations, orders or
consents that are necessary to enter into this Agreement and to
perform its duties hereunder. Broker further represents that its
Representatives who shall be soliciting applications for Contracts
shall at all times be appropriately licensed under Applicable Laws
and such solicitations shall be in accordance with Applicable Laws
including, without limitation, the NASD Conduct Rules and all
insurance replacement regulations and regulations prohibiting the
rebating of commissions.
2) Licenses and Approvals. For the sale of Variable Contracts, Broker
represents and warrants that it is a registered broker-dealer under
the 1934 Act, has all necessary broker-dealer licenses, is a member
in good standing with the NASD, and has obtained any other
approvals, licenses, authorizations, orders or consents which are
necessary to enter into this Agreement and to perform its duties
hereunder. Broker further represents that its Representatives who
shall be soliciting applications for Variable Contracts, shall at
all times as required by Applicable Laws be appropriately registered
and/or licensed under such laws and shall comply with Applicable
Laws, including without limitation, the NASD Conduct Rules and all
insurance replacement regulations and regulations prohibiting the
rebating of commissions.
3) Investigations of Broker or Representative. Broker represents that
neither it nor any of its Representatives is currently under
investigation by any insurance regulator, the NASD or SEC, any other
self-regulatory organization or other governmental authority (except
for any investigations of which it has notified Company in writing).
Broker further agrees that, if a formal or informal investigation of
Broker or any of its Representatives is commenced by any insurance
regulator, the NASD or SEC, any other self regulatory organization
or other governmental authority, whether or not in connection with
the sale of the Contracts, Broker shall notify Company of the
existence and subject matter of such investigation. Broker shall
further take all steps necessary to assure that no subagent of an
Agency shall be appointed to solicit and procure Contracts if that
subagent is prohibited by 18 U.S.C. (S) 1033(e) from engaging in the
business of insurance. Broker further represents that it shall
immediately notify Company in writing if it or any of its
Representatives have any of their respective licenses, which are
required under this Agreement for the solicitation, sale or
provision of services to the Contracts, surrendered, removed,
revoked, cancelled or suspended, whether voluntarily or
involuntarily.
4) Requirements to Solicit Applications. Commencing at such time as
Company and Broker shall agree, Broker shall find suitable
purchasers for the Contracts that Representatives are licensed and
authorized to solicit and sell under Applicable Laws. In meeting its
obligation to solicit applications for the Contracts:
a) Broker shall use only those training, sales, advertising and
promotional materials with respect to the Contracts that have
been pre-approved in writing by Company for use at that time;
b) Broker shall establish and implement reasonable procedures for
periodic inspection and supervision of sales practices of its
Representatives, and shall, upon a reasonable written request
from Company, provide a report to Company on the results of
such inspections and the compliance with such procedures;
provided, however, that Broker shall retain sole responsibility
for the supervision, inspection and control of its
Representatives;
c) Broker shall take reasonable steps to ensure that its
Representatives shall not make recommendations to an applicant
to purchase a Contract in the absence of reasonable grounds to
believe that the purchase of a Contract is suitable for such
applicant including those reasonable steps and reasonable
grounds required by Applicable Laws. Broker shall be solely
responsible for determining the suitability of recommendations
to purchase a Contract made by its Representatives.
d) Broker shall review diligently all Contract applications for
accuracy and completeness and for compliance with the
conditions herein, including the suitability and Prospectus
delivery requirements, and shall take all reasonable and
appropriate measures to assure that applications submitted
under this Agreement are accurate, complete, compliant with the
conditions herein and, in addition, for Variable Contracts are
approved by a qualified registered principal of Broker as
required by Applicable Laws. Broker shall ensure that all
applications relating thereto have been provided to Broker for
its review and approval by a qualified registered principal of
Broker as required by Applicable Laws.
e) Broker shall train, supervise and be solely responsible for the
conduct of its Representatives in their solicitation activities
in connection with the Contracts, and shall supervise
Representatives' strict compliance with applicable laws, rules
and regulations of any governmental or other insurance
authorities that have jurisdiction over insurance contract
activities, as well as the rules and procedures of Company
pertaining to the solicitation, sale and submission of
applications for the Contracts and the provision of services
relating to the Contracts. Broker shall conduct and be solely
responsible for background investigations of its current and
proposed new Representatives to determine their qualifications,
good character and moral fitness to sell the Contracts and will
provide the Company with copies of such investigations upon its
request. Likewise, Broker hereby acknowledges and agrees that
it shall be solely liable for the acts and omissions of its
Representatives in the course of conducting its business.
5) Collection of Payments. To the extent permitted by Applicable Laws,
only the initial purchase payments for the Contracts may be
collected by Representatives of Broker. All such initial purchase
payments shall be remitted promptly in full (and in no event later
than the time permitted under Applicable Laws or the rules of the
NASD), together with any related application, forms and any other
required documentation to Company or the appropriate Affiliate. The
Broker shall make such remittances in accordance with any and all
policies and procedures described in the Contract, insurance policy,
Prospectus, if appropriate, any collateral documents associated with
such Contracts or as otherwise directed by Company or its
Affiliates.
6) Rejection and Return of Contracts. Company and/or its Affiliates
shall have the unconditional right to reject, in whole or in part,
any application for a Contract. If Company and/or its Affiliates
reject an application, Company or its Affiliate, as applicable,
shall promptly return any purchase payments received directly to the
purchaser or to the Broker, and, in the latter case, Broker shall be
responsible for promptly returning such payments to the purchaser.
If any purchaser of a Contract elects to return such Contract
pursuant to any law or contractual provision, any purchase payment
made or such other amount, as the Contract or Applicable Laws shall
specify, shall be returned by Company or its Affiliate to the
purchaser or to the Broker, and, in the latter case, the Broker
shall be responsible for promptly returning such payments to the
purchaser. Except as may otherwise be provided in Exhibits A and/or
B, if a purchase payment is either refunded or returned to the
purchaser, no commission shall be payable to Broker hereunder, and
any commission received by Broker shall be returned promptly to
Company or its Affiliates where applicable. Company and its
Affiliates, where applicable, may, at their option, offset any such
amounts against any other amounts due to Broker as referenced in
V(B).
7) Independent Contractor. With respect to the Contracts, neither
Broker nor its agents, designees or Representatives is a principal,
underwriter or agent of Company or its Affiliates, or any separate
account of Company or its Affiliates, provided that Broker's
designees, or agent's representatives may be appointed by Company
and its Affiliates for the sale of the Contracts. Nothing contained
in this Agreement shall be construed (a) to create any relationship,
partnership, employment or joint venture between or among Company or
any Affiliate of Company and Broker or its agents or Representatives
other than that of independent contractors, or (b) to alter any
relationship between or among Company or any Affiliate of Company
and Broker or its agents or Representatives that may otherwise exist
on and as of the Effective Date. Except as expressly set forth
herein, each party shall be solely responsible for the respective
fees, costs and expenses incurred in connection with the operation
of its business and the fulfillment of its obligations hereunder.
With respect to the Contracts, neither Broker nor its agents,
designees or Representatives shall (a) hold themselves out to be
employees of Company in any dealings with the public, (b) alter or
amend any Contract or form related to a Contract, (c) adjust or
settle any claim or commit Company with respect thereto, (d) expend
or contract for the expenditure of funds on behalf of Company or its
Affiliates, or (e) assume or create any obligation or
responsibility, express or implied, on behalf of Company or bind
Company in any manner except as expressly permitted hereunder.
8) Promotional Materials. Any material Broker develops, approves or
uses for sales, training, explanatory or other purposes in
connection with the solicitation of applications for the Contracts
hereunder, other than generic advertising material which does not
make specific reference to Company, its Affiliates or the Contracts,
shall not be used without the prior written consent of Company.
9) Payment of Commissions. Broker represents and covenants, that to the
extent required by Applicable Laws, that no commissions, or portions
thereof, or other compensation for the sale of the Contracts, shall
be paid to any person or entity that is not duly licensed and
appointed by Company or its Affiliates as required by Applicable
Laws. Broker shall ensure that Representatives fulfill any training
requirements necessary to be licensed or otherwise qualified to sell
the Contracts.
10) Contract Disclosures. Neither Broker nor any of its Representatives,
are authorized by Company or its Affiliates to give any information
or make any representation in connection with this Agreement or the
offering of the Contracts other than those contained in the
Contract, policy, Prospectus, or solicitation material authorized
for use in writing by Company or its Affiliates. Broker shall not
make any representations or give information that is not contained
in the contract, policy, Prospectus or solicitation material of the
Contracts.
11) Instructions by Representative. Broker and Agency shall be solely
responsible for the accuracy and propriety of any instruction given
or action taken by a Representative on behalf of an owner or
prospective owner of a Contract. Company shall have no
responsibility or liability for any action taken or omitted by it in
good faith in reliance on or by acceptance of such an instruction or
action.
12) Forms. Broker shall use Company forms or prepare any forms necessary
to comply with Applicable Laws or as otherwise required in
connection with the sale of the Contracts, either as an initial
transaction or as a replacement for other insurance or annuity
products, and Broker shall send prepared forms to Company or the
appropriate Affiliate. In the alternative, if such forms are not
required, but information with respect to a transaction or
replacement is required, Broker shall transmit or cause to be
transmitted such information in writing to Company or the
appropriate Affiliate. Broker shall further notify Company or the
appropriate Affiliates in writing when sales of the Contracts are
replacement contracts, as defined by the Company. Such notification
shall not be later than the time that Broker submits applications
for such Contracts to Company or the appropriate Affiliate.
13) Furnishing of Information. To the extent permitted by Applicable
Laws, Broker shall furnish Company and any appropriate regulatory
authority with any information, documentation, or reports prepared
in connection with or related to this Agreement which may be
requested by Company or an appropriate regulatory authority in order
to ascertain whether the operations of Company or Broker related to
the Contracts are being conducted in a manner consistent with
Applicable Laws.
14) Authority. Broker represents that it has full authority to enter
into this Agreement and that by entering into this Agreement it
shall not impair any other of its contractual obligations.
15) Insurance Coverage.
a) Fidelity Bond. Broker shall secure and maintain a fidelity bond
(including coverage for larceny and embezzlement), issued by a
bonding company acceptable by Company, covering all of its
directors, officers, agents, Representatives, associated
persons and employees who have access to funds of Company or
its Affiliates. This bond shall be maintained at Broker's
expense in at least the amount prescribed under Rule 3020 of
the NASD Conduct Rules and future amendments thereto. Broker
shall provide Company with satisfactory evidence of said bond
upon Company's reasonable request. Broker hereby assigns any
proceeds received from a fidelity bonding company, or other
liability coverage, to Company, for itself or on behalf of its
Affiliates, as their interests may appear, to the extent of its
loss due to activities covered by the bond, policy or other
liability coverage.
b) Plan of Insurance. Broker shall maintain in full force and
effect during the term of this Agreement a plan of insurance,
which may be a plan of self-insurance, which shall provide
coverage for errors and omissions of the Broker, an Agency,
representatives and agents, including Representatives, in such
amounts and scope of coverage as are acceptable to Company in
its sole discretion. If such insurance plan terminates for any
reason during the term of this Agreement, Broker shall
immediately notify Company in writing of such termination. If
requested by Company, Broker shall provide evidence of coverage
under an insurance policy satisfactory to Company, in its sole
discretion, showing the amount and scope of coverage provided.
c) Loss of coverage. The authority of any Representative to
solicit and procure Contracts hereunder shall terminate
automatically upon the termination of such Representative's
coverage under the Broker's fidelity bond or plan of insurance
referred to in subsections (a) and (b) above.
d) Company's Interest. All policies of liability insurance
maintained hereunder shall name Company as an additional
insured. All policies of insurance maintained hereunder shall
contain a clause providing that such policies may not be
cancelled, reduced in coverage or otherwise modified without at
least thirty (30) days prior written notice to Company, except
for failure to pay any premium, in which case said policy of
insurance shall provide for at least ten (10) days prior
written notice prior to said policy being cancelled or
otherwise modified. Broker shall upon the request of Company at
any time furnish to Company updated certificates or other
evidence of insurance acceptable to Company, in its reasonable
discretion.
16) Agency Distribution of Variable Contracts. In such cases in which
Broker intends to distribute the Variable Contracts in association
with an Agency, Broker further makes the following representations
on its behalf and on behalf of that Agency:
a) Broker shall operate and be responsible for all
securities-related services arising from the offer, sale and/or
servicing by Representatives of the Variable Contracts;
b) Agency shall engage in the offer or sale of Variable Contracts
only through persons who are Representatives of the Broker.
Unregistered employees, agents or others shall not engage in
any securities activities or receive any compensation based on
transactions in securities or the provision of securities
advice;
c) Broker shall be responsible for the education, training,
supervision and control of its Representatives, as required
under the 1934 Act and other Applicable Laws, including, but
not limited to, principal review, approval of all sales
literature and advertisements, periodic compliance audits and
maintaining the ability to appoint and terminate registered
persons;
d) Representatives shall be licensed under the insurance laws of
the states in which they do business and shall be appointed
agents by Agency for which the Representatives may solicit
applications in connection with the offer and sale of Variable
Contracts;
e) Broker and/or Agency, as applicable, shall maintain the books
and records relating to the sale of Variable Contracts and the
receipt and disbursement of insurance commissions and fees
thereon. Such books and records shall be maintained and
preserved in conformity with the requirements of Section 17(a)
of the 1934 Act and the Rules thereunder, to the extent
applicable, and shall at all times be compiled and maintained
in a manner that permits inspection by supervisory personnel of
the Broker, the SEC, the NASD and other appropriate regulatory
authorities; and
f) All premiums derived from the sale of the Variable Contracts
shall be made payable to and sent directly to Company or the
appropriate Affiliate, or shall be sent by purchasers to the
Broker for timely forwarding to Company or the appropriate
Affiliate. Agency shall not receive, accumulate or maintain
custody of premium payments.
17) Agency Distribution of Fixed Contracts. In cases in which Broker
intends to distribute Fixed Contracts through an Agency, before a
subagent is permitted to solicit Contracts, Broker or that Agency
shall have entered into a written agreement with the subagent
pursuant to which the subagent: (a) is authorized to deliver
policies only upon the payment to Company or the appropriate
Affiliate, or Broker of the premiums due thereon and upon compliance
with the terms, conditions and provisions of such policies; (b)
shall promptly remit to the Broker or the Agency all funds collected
on Company's or its Affiliates' behalf; (c) shall otherwise act only
pursuant to the limited authority granted to that Agency hereunder
and shall comply with all of the duties and obligations of the
Broker hereunder and the rules of Company or its Affiliates; and (d)
agrees to Company's right to offset from any compensation due the
subagent any indebtedness due from the subagent to Company or its
Affiliates and to chargeback compensation under Company's or its
Affiliates' rules. The Broker shall promptly remit to Company all
funds collected on behalf of Company or its Affiliates.
18) Policies and Procedures. Broker shall comply with the policies and
procedures of Company and its Affiliates with respect to the
solicitation, sales and administration of the Contracts and services
that Broker and Representatives are authorized to sell and service
under this Agreement, including, but not limited to, privacy
policies and procedures, as set forth in this Agreement, as they may
be amended, modified and/or replaced, and as they may be provided to
Broker by Company or its Affiliates from time to time.
19) Prohibited Solicitation With Policyholders. For a period of 12
months after termination of this Agreement, Broker shall not, and
Broker shall take all steps necessary to ensure that its
Representatives and any Agency shall not, directly or indirectly,
contact the policyholders of Company or its Affiliates for the
purpose of inducing any such policyholders to lapse, cancel, fail to
renew or replace any Contract. If Company, in its sole discretion,
determines that Broker, its Representatives or an Agency has engaged
in such prohibited activity, then Company shall have the right to
declare the Broker's or the Agency's claims for compensation or any
other benefit under this Agreement to be forfeited and void.
Company, on behalf of itself and its Affiliates, may also pursue all
remedies, whether at law or in equity, including injunctive relief
and/or damages, to assure compliance with the covenants in this
section and shall, if successful, be entitled to recover from Broker
or an Agency all costs and expenses incurred in pursuing such
remedies, including reasonable attorneys' fees, court costs and
expenses.
20) Market Timing. Broker shall not, and Broker shall take all steps
necessary to ensure that its Representatives and any Agency shall
not, (a) solicit, offer or sell Variable Contracts in connection
with or to facilitate any program, plan or arrangement involving
market timing transactions in underlying mutual funds within
Variable Contracts, or (b) take any other actions that would
promote, encourage or facilitate market timing transactions in the
underlying mutual funds within Variable Contracts. Notwithstanding
the foregoing, Broker and its Representatives may provide incidental
services in the form of guidance to applicants and owners of
Variable Contracts regarding the allocation of premium and Variable
Contract value, provided that such services are (a) solely
incidental to Broker's activities in connection with the sales of
the Variable Contracts, (b) subject to the supervision and control
of Broker, (c) furnished in accordance with any rules and procedures
that may be prescribed by Company, and (d) not promoting,
encouraging or facilitating market timing transactions in the
underlying mutual funds within Variable Contracts.
III.PRINCIPLES OF ETHICAL MARKET CONDUCT
As a member of the Insurance Marketplace Standards Association ("IMSA"),
Company expects that the Broker, Representatives, Agency and its subagents
shall abide by the principles of ethical market conduct set forth by IMSA in
connection with all Contracts sold pursuant to this Agreement. Broker shall
furnish information, documentation and reports to Company as Company may
reasonably request to permit Company to ascertain whether Broker is
conducting its operations in accordance with the principles of ethical
market conduct as set forth in this Section III.
IV. COMPLIANCE WITH APPLICABLE LAWS
Company and Broker shall comply with all applicable state and federal
statutes, laws, rules and regulations, including without limitation, state
insurance laws, rules and regulations, and federal and state securities
laws, rules and regulations ("Applicable Laws"). Applicable Laws include,
without limitation, applicable rulings of federal and state regulatory
organizations, agencies and self regulatory agencies (e.g. state insurance
departments, the SEC, the NASD), consumer privacy laws, HIPAA and any other
state or federal laws, rules or regulations and decisions, orders and
rulings of state and federal regulatory agencies that are now or may
hereafter become applicable to the parties hereto and the transactions that
are the subject of this Agreement. The compliance obligations, also
includes, but are not limited to the following:
A. ANTI-MONEY LAUNDERING. Company and Broker shall comply with all
applicable anti-money laundering laws, regulations, rules and government
guidance, including the reporting, record keeping 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 "Patriot Act"), its
implementing regulations, and related SEC and Self-Regulatory
Organization 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 Patriot Act, Broker certifies 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.
B. CUSTOMER IDENTIFICATION PROGRAM. Broker certifies, and shall certify
to Company or its Affiliates, where applicable, annually hereafter, that
it has established and implemented a customer identification program, in
compliance with Applicable Laws, as part of its anti-money laundering
compliance program that, at a minimum, requires: (i) the verification of
the identity of any customer seeking to open an account; (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 shall verify the
identity of each customer that it introduces to Company, whether through
documentary or non-documentary means, and hereby acknowledges that
Company shall rely upon such verification, as prescribed by the
regulations promulgated under Section 326 of the Patriot Act in
accordance with the safe-harbor provided in Section 103.122(b)(6) of the
regulations under the Patriot Act.
C. INSURANCE REPLACEMENT. Broker certifies on behalf of itself, its
Representatives and an Agency that it shall adhere to all applicable
SEC, NASD, federal and state statutes, laws, rules and regulations
regarding insurance replacement before it receives or solicits any
applications for Contracts.
V. COMPENSATION
A. PAYMENT UNDER COMPENSATION SCHEDULES. Company shall pay Broker or an
Agency, as applicable, compensation for the sale of each Contract sold
by a Representative of Broker as set forth in the then applicable
Compensation Schedules that are part of Exhibits A and B, as such
Compensation Schedules may be from time to time amended, modified and/or
replaced in Company's sole discretion. Company shall use commercially
reasonable efforts to provide prior notice of changes to the
Compensation Schedules. Company shall identify to Broker or an Agency,
as applicable, with each such payment the name or names of the
Representative(s) of Broker who solicited each Contract covered by the
payment. Broker or an Agency, as applicable, shall be responsible for
issuing checks, statements or forms for tax purposes and other
administrative duties connected with compensation of such
Representatives. Unless otherwise agreed upon by the parties, Company
shall have no obligation to any of the employees, agents or
Representatives of Broker or an Agency for the payment of any
compensation. Any amendment to Exhibits A or B shall be applicable to
any Contract for which any application or premium is received by Company
on or after the effective date of such amendment. Company, however,
reserves the right to amend (i) Exhibits A and/or B with respect to
subsequent premiums and renewal commissions, and (ii) such Exhibits
pursuant to this subsection even after termination of this Agreement.
B. OFFSET. Company may at any time offset against any compensation
payable to (1) Broker, an Agency or their respective successors or
assigns, any indebtedness however or wherever incurred due from the
Broker or an Agency to Company or its Affiliates, and (2) the subagents
of any Agency or their successors or assigns any indebtedness however or
wherever incurred due from Broker, an Agency or a subagent to Company or
its Affiliates. Nothing contained herein shall be construed as giving
Broker, an Agency or Representative the right to incur any indebtedness
on behalf of Company or its Affiliates. Company shall have, and is
hereby granted, a first lien on any and all compensation payable under
this Agreement as security for the payment of any and all remaining
indebtedness of Broker to Company or its Affiliates arising under this
Agreement and not offset as provided herein. The right of Broker, or any
person claiming through Broker, to receive any compensation provided by
this Agreement shall be subordinate to the right of Company to offset
such compensation against any such indebtedness of the Broker, an
Agency, a subagent or a Representative to Company or its Affiliates.
C. NO WITHHOLDING OF PREMIUMS. Neither Broker nor any of its
Representatives shall withhold or deduct any part of any premium or
other purchase payment it shall receive with respect to the Contracts
covered by this Agreement for purposes of payment of compensation or
otherwise.
D. COMPENSATION NOT PAYABLE. No compensation shall be payable, and any
compensation already paid shall be returned to Company immediately on
request, under each of the following conditions:
1) if Company or its Affiliates, in their sole discretion,
determine not to issue the Contract applied for;
2) if Company or its Affiliates refund the premium paid by the
applicant, upon the exercise of applicant's right of withdrawal
pursuant to any "free-look" privilege;
3) if Company or its Affiliates refund the premium paid by
applicant as a result of the resolution of a consumer
complaint, recognizing that Company and its Affiliates have
sole discretion to refund premiums paid by applicants; or
4) if Company or its Affiliates determine that any person signing
an application who is required to be registered and/or licensed
or any other person or entity receiving compensation for
soliciting purchases of the Contracts is not duly registered
and/or licensed to sell the Contracts in the jurisdiction of
such attempted sale.
E. COMPENSATION AND TERMINATION OF AGREEMENT. Company shall pay the
compensation to Broker or an Agency, as applicable, for Contracts
credited prior to the termination date of this Agreement, as set forth
in the then applicable Compensation Schedules that are part of Exhibits
A and B. Such compensation shall be payable when the premium is due and
paid to Company, subject to the provisions of this Agreement and the
then applicable Compensation Schedule.
F. COMPANY PAYMENT OF COMPENSATION; DISCHARGE OF OBLIGATION. Broker, on
its behalf and on behalf of each Agency, hereby agrees and acknowledges
that compensation attributable to the sale of any Contract issued by an
Affiliate of Company may be payable directly by Company, in its
discretion, to Broker or an Agency, where permitted, and not by the
Affiliate. Broker, on its behalf and on behalf of each Agency, further
agrees and acknowledges that such payment of compensation by Company
attributable to the sale of such Contracts shall constitute a complete
discharge of the obligation to pay compensation by the Affiliate issuer
under this Agreement. Such payment of compensation shall not affect the
right of offset or chargeback as referred to in Sections V(B) and V(D)
of this Agreement, or such other compensation rules as may be set forth
in this Agreement, the Compensation Schedules or the rules of Company or
its Affiliates.
G. VIOLATION OF APPLICABLE LAWS. Company shall not be obligated to pay
any compensation that would violate any Applicable Laws of any
jurisdiction, anything in this Agreement notwithstanding.
H. EXPENSES. Unless otherwise agreed to by Company, Broker, either
directly or by reimbursing Company on request, shall pay for expenses
incurred by such Broker in connection with the solicitation, offer and
sale of the Contracts.
I. REPLACEMENTS. In addition to the conditions and limitations elsewhere
contained in this Agreement and the Compensation Schedules, no first
year commission shall be payable on replacements or switches of any
Contract with another Contract, which are undisclosed, and which
otherwise requires disclosure by Applicable Laws or Company's or its
Affiliates' rules on replacement transactions. Specific replacement or
switching rules of each applicable Affiliate are described on Exhibit C
which is attached hereto and incorporated herein by reference, which
Exhibit may be from time to time amended, modified and/or replaced in
Company's sole discretion.
J. CONFLICT. In the event that anything contained in this Section V
conflicts with the terms of the compensation described in the
Compensation Schedules, the terms contained in the applicable
Compensation Schedules shall prevail.
VI. COMPLAINTS AND INVESTIGATIONS
A. CUSTOMER COMPLAINTS. Both the Broker and Company shall investigate
any customer complaint in connection with the Contracts. The term
"customer complaint" shall mean an oral or written communication either
directly from the purchaser of or applicant for a Contract covered by
this Agreement or his legal representative, or indirectly from a
regulatory agency to which he or his legal representative has expressed
a grievance.
B. COOPERATION. Broker and Company shall cooperate fully in any
regulatory investigation or proceeding or judicial proceeding arising in
connection with the offer, sale and/or servicing of the Contracts. This
cooperation shall include, but is not limited to, each party promptly to
the other of the receipt of notice of any such investigation or
proceeding, and forwarding to the other a copy of any written materials
in connection with the matter and such additional information as may be
necessary to furnish a complete understanding of same. In the case of a
customer complaint, Broker and Company shall promptly refer such
complaint to the other party for handling where appropriate and provide
the other party with customer complaint information and documentation
upon request.
C. RIGHT TO SETTLE. Company reserves the right to settle on behalf of
itself, and on behalf of itself and Broker collectively, if Broker
agrees, any claims, complaints or grievances made by applicants,
policyholders or others in connection with the Contracts, and concerning
any conduct, act or omission by the Broker or its agents or
Representatives with respect to the Contracts or any transactions
arising out of this Agreement. If Broker does not agree to a collective
settlement with Company and Company, on behalf of itself, settles the
matter, Broker shall indemnify, defend and hold harmless Company from
any and all claims, complaints or grievances made by Broker or any
applicant, policyholder or other person or entity made in connection
with such matter.
VII. RECORDS AND ADMINISTRATION
A. DELIVERY OF CONTRACTS. Unless otherwise requested by Broker and
agreed to by Company, once a Contract has been issued, it shall be
delivered to Broker and, after being reviewed by Broker, shall be timely
delivered by Broker to the purchaser, accompanied by any documents
required to be delivered by Applicable Laws and any additional documents
deemed appropriate. Company shall confirm or cause to be confirmed to
customers all Contract transactions, to the extent required by
Applicable Laws, and shall administer the Contracts after they have been
delivered, but may from time to time require assistance from Broker.
Consistent with its administrative procedures, Company shall assume, and
shall rely on the assumption, that a Contract it, or its Affiliates,
issues shall be promptly delivered by Broker to the purchaser of such
Contract. As a result, if a purchaser exercises a "free look" right
under such Contract, Broker shall indemnify Company for any loss Company
incurs resulting from Broker's failure promptly to deliver such Contract
to its purchaser.
B. BOOKS AND RECORDS. Broker shall maintain all books and records as
required by Rules 17a-3 and 17a-4 under the 1934 Act, as such rules may
be amended, succeeded or replaced, except to the extent that Company may
agree to maintain any such records on Broker's behalf. Records subject
to any such agreement shall be maintained by Company as agent for Broker
in compliance with said rules, and such records shall be and remain the
property of Broker and be at all times subject to inspection by the SEC
in accordance with Section 17(a) of the 1934 Act. Nothing contained
herein shall be construed to affect Company's or its Affiliates' right
to ownership and control of all pertinent records and documents
pertaining to its business operations including, without limitation, its
operations relating to the Contracts, which right is hereby recognized
and affirmed. Company and Broker shall each retain all records related
to this Agreement as required by the 1934 Act, and the rules and
regulations thereunder, and by any other Applicable Laws, as
Confidential Information as described in Section VIII(D) of this
Agreement, and neither party shall reveal or disclose such Confidential
Information to any third party unless such disclosure is authorized by
the party affected thereby or unless such disclosure is expressly
required by applicable federal or state regulatory authorities. Nothing
contained herein, however, shall be deemed to interfere with any
document, record or other information which, by law, is a matter of
public record.
VIII. PRIVACY INFORMATION
A. PROPRIETARY INFORMATION
Any and all account records developed by Company or its Affiliates,
or provided to Company or its Affiliates by Broker or Broker's
Affiliates, including but not limited to customer files, sales aids,
computer software, customer names, addresses, telephone numbers and
related paperwork, literature, authorizations, manuals and supplies of
every kind and nature relating to the Contracts and the servicing of the
Contracts are and shall remain the property of Company or its
Affiliates. Such proprietary information and materials shall be treated
as Nonpublic Personal Information and/or Confidential Information (as
hereafter defined in Section VIII(D)), as appropriate, pursuant to
Sections VIII(A), (B), (C) and (D) of this Agreement.
Except as otherwise required by Applicable Laws, any and all
proprietary information and material developed and provided by Company
and its Affiliates shall be returned to Company (including all copies
made by the Broker or its Affiliates) upon termination of this
Agreement. Any materials developed by the Broker or its Affiliates in
support of the marketing, sales, advertising or training related to
Company or its Contracts shall be destroyed upon the termination of this
Agreement.
B. RECEIPT OF CUSTOMER NONPUBLIC PERSONAL INFORMATION BY COMPANY FROM BROKER
1) Confidentiality. Company and its Affiliates shall treat all
Nonpublic Personal Information regarding Broker's customers provided
to it by Broker under this Agreement as Confidential Information,
except that such provisions shall not apply to such information
regarding customers of Broker who were, are or become policyholders
or customers of Company or any of its Affiliates other than by
reason of the services provided by Broker under this Agreement.
2) Right to Disclose. Notwithstanding the foregoing, Company and its
Affiliates shall have the right to use or disclose such Nonpublic
Personal Information: (a) to the full extent required to comply with
Applicable Laws or requests of regulators; (b) as necessary in
connection with any of Company's or its Affiliates' audit, legal,
compliance or accounting procedures; (c) as necessary or permitted
by Applicable Laws in the ordinary course of business (for example
to administer Contracts and provide customer service to purchasers
of Contracts under this Agreement); (d) as authorized by such
customer; or (e) to protect against or prevent fraud.
3) Offering Products Outside Agreement. Company and its Affiliates may
market, offer, sell or distribute insurance products, including, but
not limited to, the Contracts, or any of their other products and
related services, outside of this Agreement to customers of Broker
provided they do not use Nonpublic Personal Information regarding
Broker's customers provided by Broker to specifically target those
customers, and such marketing, offering, selling or distributing by
Company and its Affiliates of insurance (including but not limited
to the Contracts) or any of their other products or services shall
not be subject to the terms of this Agreement.
C. TREATMENT OF NONPUBLIC PERSONAL INFORMATION DISCLOSED BY COMPANY TO
BROKER Broker shall treat Nonpublic Personal Information regarding
Broker's customers provided to it by Company or its Affiliates under
this Agreement as Confidential Information and shall use such
information only to solicit sales of and to provide service with respect
to Contracts sold pursuant to this Agreement. Notwithstanding the
foregoing, Broker shall have the right to use or disclose Nonpublic
Personal Information provided to it by Company or its Affiliates to the
extent permitted by Applicable Laws and Company's or its Affiliates'
privacy policy(ies) (for example, to comply with Applicable Laws or
requests of regulators) in connection with Broker's audit procedures, as
authorized by such customers or to protect against or prevent fraud.
D. CONFIDENTIAL INFORMATION
1) Disclosure of Confidential Information. Company and Broker and their
respective Affiliates shall maintain the confidentiality of
Confidential Information disclosed by either party to the other
party under the terms of this Agreement and shall use such
Confidential Information solely for the purposes contemplated by
this Agreement. Except as otherwise provided in Sections VIII(A),
VIII(B) and VIII(C), neither Company, nor Broker and their
respective Affiliates shall disclose any Confidential Information
that is covered by this Agreement to any person or entity other than
to their respective employees, representatives or agents who need to
know such Confidential Information for the performance of their
work, unless 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. "Confidential Information" means: (a) any
information that this Agreement specifies shall be treated as
"Confidential Information" under this Section VIII; (b) Nonpublic
Personal Information; (c) information required to be treated as
confidential under Applicable Laws; and (d) any information of
Broker and its Affiliates that is disclosed by Broker or its
Affiliates to Company or its Affiliates through the course of
business during the term of this Agreement, or any information of
Company and its Affiliates that is disclosed by Company or its
Affiliates to Broker or its Affiliates through the course of
business during the term of this Agreement, including but not
limited to, new products, marketing strategies and materials,
development plans, customer information, client lists, pricing
information, rates and values, financial information and computer
systems, in each such case if such information is clearly identified
as and marked "CONFIDENTIAL" by the disclosing party.
Notwithstanding the foregoing, "Confidential Information" does not
include (a) 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; (b) information that is
disclosed to the receiving party by a third party without violation
by such third party of an independent obligation of confidentiality
of which the receiving party is aware; or (c) information that the
disclosing party consents in writing that the receiving party may
disclose.
2) Right to Disclose; No Liability. The disclosing party warrants that
it has the right to provide access to, disclose and use the
Confidential Information to be provided hereunder. The receiving
party shall not be liable to the disclosing party for:
a) inadvertent use, publication, or dissemination of the
Confidential Information received hereunder provided that: (i)
it uses the same degree of care in safeguarding such
information as it uses for its own information of like
importance; (ii) it has complied with Applicable Laws; and
(iii) upon discovery of such, it shall take steps to prevent
any further inadvertent use, publication or dissemination; or
b) unauthorized use, publication or dissemination of the
Confidential Information received hereunder by persons who are
or have been in its employ unless it fails to safeguard such
information with the same degree of care as it uses for its own
proprietary information of like importance and provided that
the receiving party uses such Confidential Information in
accordance with Applicable Laws.
3) Independent Development. Any similarity between the Confidential
Information and any other information, regardless of medium, whether
oral or written, as well as contracts and/or services acquired from
third parties or developed by the receiving party, or Affiliates
independently through its or their own efforts, thought, labor and
ingenuity, in each case without violating the provisions hereof,
shall not constitute any violation of this Agreement and shall not
subject the receiving party to any liability whatsoever.
4) No Representation. Neither the disclosing party nor any of its
employees, representatives or designees has made or makes any
representation or warranty as to the accuracy or completeness of the
Confidential Information, including but not limited to, any
promotional, sales or advertising material provided or approved by
Company or its Affiliates to be used by Broker.
E. PROTECTED HEALTH INFORMATION OR PHI
To the extent that Broker or its Affiliates or their respective
Representatives receive, create, have access to or use PHI, regarding
individuals who are applicants for, owners of or eligible for benefits
under certain health insurance products and optional riders offered by
or through Company or any of its Affiliates, in accordance with the
requirements of HIPAA, Broker shall:
1) Not use or disclose PHI except (a) to perform functions, activities
or services for, or on behalf of, Company or its Affiliates as
specified in this Agreement and consistent with Applicable Laws, or
(b) to the extent that such use or disclosure is required by
Applicable Laws. Any such use or disclosure shall be limited to that
required to perform such services or to that required by relevant
law;
2) Use appropriate safeguards to prevent use or disclosure of PHI other
than as permitted by this Agreement;
3) Promptly report to Company any use or disclosure of PHI not
permitted by this Agreement of which Broker becomes aware and
mitigate any harmful effect of any use or disclosure that is made by
Broker or its Representatives in violation of the requirements of
this Agreement;
4) Ensure that any third party with whom Broker contracts or who is
hired by Broker and who may, under that arrangement, receive or have
access to PHI agrees to the same restrictions and conditions that
apply to Broker with respect to PHI under this Agreement;
5) Within 15 days of Company's request, provide Company with any PHI or
information relating to PHI as deemed necessary by Company to
provide individuals with access to, amendment of and an accounting
of disclosures of their PHI;
6) Make Broker's records relating to use or disclosure of PHI available
to the Secretary of the United States Department of Health and Human
Services at his request to determine Company's, or one of its
Affiliate's, compliance with HIPAA; and
7) Upon termination of this Agreement and in accordance with Company's
instructions, either return or destroy all PHI Broker maintains in
any form, and retain no copies. If Company agrees that such return
or destruction is not feasible, Broker shall extend these
protections to the PHI beyond the termination of the Agreement, in
which case any further use or disclosure of the PHI shall be solely
for the purposes that make return or destruction infeasible.
Destruction without retention of copies is deemed not feasible if
prohibited by the terms of the Agreement or by Applicable Laws,
including record retention requirements of the various applicable
state insurance laws.
IX. INDEMNIFICATION
A. INDEMNIFICATION PROVISIONS The following indemnification provisions
shall apply:
1) Company Indemnification. Company shall indemnify, defend and hold
harmless Broker from any and all losses, claims, judgments, fines,
penalties, damages, liabilities or amounts paid in a settlement
consented to by the Company (or any actions or threatened actions in
respect of any of the foregoing) (collectively, the "Claims"), to
which Broker may become subject, insofar as such Claims: (a) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus,
Registration Statements or any other sales or offering materials
furnished or approved in writing by Company for any of the
Contracts; or (b) arise out of or result from any breach of any
representation or warranty, covenant, agreement obligation or
undertaking in this Agreement by Company or by any person or entity
acting on behalf of or under the control of Company. Company shall
further reimburse Broker for any legal fees or other expenses
actually and reasonably incurred by it in connection with
investigating, defending, being a witness in or participating in
(including an appeal) any Claim for which indemnification is
provided hereunder. Notwithstanding anything contained herein to the
contrary, Company shall not indemnify, defend or hold harmless
Broker against any Claim: (a) to the extent that any such Claim
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made by Broker or any of
its Affiliates or any of their respective agents, Representatives,
officers, directors or employees when referring to or explaining a
Prospectus, Registration Statement or any other sales or offering
materials; (b) where an applicant for any of the Contracts was not
furnished or sent or given, at or prior to written confirmation of
the sale of a Contract, a copy of the appropriate Prospectus(es),
any statement of additional information, if required or requested,
and any supplements or amendments to either furnished to Broker by
Company or its Affiliates; or (c) if a judgment or other final
adjudication adverse to the Broker establishes that Broker's acts
were committed in bad faith, were the result of active and
deliberate dishonesty, were the result of willful misconduct or
gross negligence, or the Broker gained, in fact, a financial profit
or other advantage to which Broker was not legally entitled. The
foregoing indemnities shall, upon the same terms and conditions,
extend to and inure to the benefit of each director, trustee,
officer, agent and employee of Broker and any of its Affiliates, and
the foregoing exclusions from indemnification shall, upon the same
terms and conditions, extend to and inure to the benefit of each
director, trustee, officer, agent and employee of Company and any of
its Affiliates.
2) Broker Indemnification. Broker shall indemnify, defend and hold
harmless Company and its Affiliates against any Claims to which
Company or its Affiliates may become subject, insofar as such
Claims: (a) result from Company improperly paying any compensation
under this Agreement; (b) arise out of or are based upon any
negligent, improper, fraudulent or unauthorized acts or omissions by
Broker, its employees, agents, trustees, Representatives, officers
or directors, including but not limited to improper or unlawful
sales practices, any untrue statement or alleged untrue statement of
any material fact, any omission or alleged omission, any
unauthorized use of sales materials or advertisements and any oral
or written misrepresentations; or (c) arise out of or result from
any breach of any representation or warranty, covenant, agreement,
obligation or undertaking in this Agreement by Broker, its
Representatives, or by any other person or entity acting on behalf
of or under the control of Broker. Broker shall further reimburse
Company and its Affiliates for any legal fees or other expenses
actually and reasonably incurred by them in connection with
investigating, defending, being witness in or participating in
(including an appeal) any Claim for which indemnification is
provided hereunder. Notwithstanding anything contained herein to the
contrary, Broker shall not indemnify, defend or hold harmless
Company and its Affiliates if an improper payment of any
compensation under this Agreement or a judgment or other final
adjudication adverse to Company or its Affiliates establishes that
Company `s or its Affiliates' acts were committed in bad faith, were
the result of active and deliberate dishonesty, were the result of
willful misconduct or gross negligence, or Company or its Affiliates
gained, in fact, a financial profit or other advantage to which
Company or its Affiliates were not legally entitled. The foregoing
indemnities shall, upon the same terms and conditions, extend to and
inure to the benefit of each director, trustee, officer, agent and
employee of Company and its Affiliates, and the foregoing exclusions
from indemnification shall, upon the same terms and conditions,
extend to and inure to the benefit of each director, trustee,
officer, agent and employee of Broker and its Affiliates.
B. NOTICE Promptly after receipt by an indemnified party (the
"Indemnitee") of notice of the commencement of any action, such
Indemnitee shall, if a Claim in respect thereof is to be made against
the indemnifying party (the "Indemnitor"), notify the Indemnitor in
writing of the commencement thereof; but the omission to notify the
Indemnitor shall not relieve the Indemnitor from any liability which the
Indemnitor may otherwise have to any Indemnitee.
C. PARTIAL INDEMNIFICATION In the event a party is entitled to
indemnification under this Agreement for some or a portion of Claims,
but not, however, for all of the total amount thereof (as finally
determined in an action for which indemnification is permitted
hereunder), then the Indemnitor shall indemnify the Indemnitee for the
portion thereof to which the Indemnitee is entitled.
D. CONDUCT OF DEFENSE With respect to any Claim as to which an
Indemnitee notifies an Indemnitor of the commencement thereof:
1) Participation. Indemnitee shall be entitled to participate
therein at the Indemnitee's own expense; and
2) Assumption of Defense. Except as otherwise provided below, to the
extent that the Indemnitor may wish, Indemnitor shall be entitled to
assume the defense thereof, with counsel selected by Indemnitor. After
notice from Indemnitor to Indemnitee of the Indemnitor's election to
assume the defense thereof, Indemnitor shall not be liable to Indemnitee
under this Agreement for any legal or other expenses subsequently
incurred by Indemnitee in connection with the defense thereof except as
otherwise provided below. Indemnitee shall have the right to employ
Indemnitee's own counsel in matters giving rise to such Claim, but the
fees and expenses of such counsel incurred after notice from Indemnitee
of its assumption of the defense thereof shall be at the expense of
Indemnitee unless (a) the employment of counsel by Indemnitee has been
authorized by Indemnitor in writing, (b) Indemnitee's counsel shall have
reasonably concluded that there may likely be a conflict of interest
between Indemnitor and Indemnitee in the conduct of the defense of
matters giving rise to such Claim, or (c) Indemnitor shall not in fact
have employed counsel to assume the defense of such Claim, in each of
which cases the fees and expenses of counsel shall be at the expense of
Indemnitor. Indemnitor shall not be entitled to assume the defense of
any Claim brought by or on behalf of Indemnitor; and
3) Settlement. Indemnitor shall not be liable to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of
any Claim effected without Indemnitor's written consent. Indemnitor
shall not settle any Claim in any manner which would impose any penalty
or limitation on Indemnitee without Indemnitee's written consent.
Indemnitee shall not unreasonably delay or withhold its consent to any
proposed settlement.
E. SUBROGATION In the event of any indemnification payment under this
Agreement, Indemnitor shall be subrogated to the extent of such payment
to all the rights of recovery of Indemnitee, who shall execute all
papers required and shall do everything that may be necessary to secure
such rights, including the execution of such documents necessary to
enable Indemnitor to effectively bring suit to enforce such rights.
F. RECEIPT OF PAYMENT Anything to the contrary notwithstanding,
Indemnitor shall not be liable under this Agreement to make any payment
in connection with any Claim made against Indemnitee to the extent
Indemnitee has otherwise actually received payment of the amounts
otherwise indemnifiable hereunder.
G. PROVISIONS NOT TO CONTROL Notwithstanding anything in this Section IX
to the contrary, the terms and provisions of Section VI(C) shall control
in the event of any conflict or alleged conflict with this Section IX.
X. GENERAL PROVISIONS
A. TERM AND TERMINATION
1) Term. This Agreement shall continue in force for a term of one year
from the Effective Date and thereafter shall automatically be
renewed each year for a further one-year period, unless otherwise
terminated pursuant to Section X(A)(2) of this Agreement.
2) Termination. This Agreement shall terminate immediately upon (a)
Company or Broker ceasing to be a registered broker-dealer or a
member of the NASD or, (b) the termination of the legal existence of
Broker or an Agency, or the merger, consolidation, reorganization,
dissolution, receivership or bankruptcy of either, or whenever the
Broker or an Agency is no longer licensed under Applicable Laws to
solicit and procure applications for Contracts, unless that Broker
or Agency notifies the Company in writing at least thirty (30) days'
prior to the occurrence of any of the above events and obtains
written permission to continue on a basis approved by the Company
or, (c) Company or Broker unilaterally terminating this Agreement
with or without cause upon thirty (30) days' prior notice of
termination to the other party.
3) Continuing Obligations. Upon termination of this Agreement, all
agreements, authorizations, rights and obligations shall cease
except (a) those contained in Sections II(B)(19), V(A), VI, VIII,
IX, X(D), X(E), X(F), X(J), X(K), and X(S) hereof; and (b) the
obligation to settle accounts hereunder. Except with respect to
records required to be maintained by Broker pursuant to Rules 17a-3
and 17a-4 under the 1934 Act or other Applicable Laws, Broker shall
return to Company, within 30 days after the effective date of
termination, any and all records in its possession which have been
specifically maintained in connection with Company's operations
related to the Contracts.
B. ASSIGNABILITY
This Agreement shall not be assigned by either party without the
written consent of the other; provided, however, that Company may assign
this Agreement to any of its Affiliates at any time without notice or
consent. Any purported assignment in violation of this Section shall be
void.
C. AMENDMENTS
No oral promises or representations shall be binding nor shall this
Agreement be modified except by an agreement in writing that expressly
refers to this Agreement and that has been executed on behalf of the
parties by a duly authorized officer of each of them. Notwithstanding
the foregoing, Company has the right to amend, modify and /or replace
Exhibits A and/or B at any time, to be effective as Company may direct,
in its sole discretion and without prior notice.
D. NOTICES
Any notice or consent required by this Agreement shall be in writing
and either (i) mailed by certified or registered mail, postage-prepaid,
return receipt requested, or (ii) sent by telefacsimile transmission and
followed by delivery via First Class U.S. mail, to such party at its
address and facsimile number set forth on the signature page below or to
such other address and/or facsimile number as such party may designate
by notice given in accordance herewith. Such notices or consents shall
be deemed duly delivered upon the date earlier of (i) two (2) Business
Days after having been deposited in the United States mail as
hereinbefore set forth, or (ii) upon sender's production of electronic
confirmation of transmission by telefacsimile. As used herein, the term
"Business Day" means each day of the week other than Saturdays, Sundays
or federal legal holidays.
E. ARBITRATION
1) When Arbitration Required. All disputes and differences between the
parties, other than those seeking injunctive relief or a restraining
order under this Agreement must be decided by arbitration, in
accordance with the rules of arbitration of the NASD, regardless of
the insolvency of either party, unless the conservator, receiver,
liquidator or statutory successor is specifically exempted from an
arbitration proceeding by Applicable Laws.
2) Initiation of Arbitration. Either party may initiate arbitration by
providing written notification to the other party ("Arbitration
Demand"). Such Arbitration Demand shall set forth (a) a brief
statement of the issue(s), and (b) the failure of the parties to
reach agreement.
3) Arbitration Panel. The arbitration panel shall consist of three (3)
arbitrators. The arbitrators must be impartial and must be or must
have been officers of life insurance and/or securities companies
other than the parties or their affiliates.
4) Selection of Arbitrators. Each party shall select an arbitrator
within thirty (30) days from the date of the Arbitration Demand. If
either party shall refuse or fail to appoint an arbitrator within
the time allowed, the party that has timely appointed an arbitrator
may notify the other party that, if it has not appointed its
arbitrator within the following ten (10) days, an arbitrator shall
be appointed on its behalf. The two (2) arbitrators shall select the
third arbitrator within thirty (30) days of the appointment of the
second arbitrator. If the two (2) arbitrators fail to agree on the
selection of the third arbitrator within the time allowed, each
arbitrator shall submit to the other a list of three (3) candidates.
Each arbitrator shall select one name from the list submitted by the
other and the third arbitrator shall be selected from the two (2)
names chosen by drawing lots.
5) Procedure. The arbitrators shall interpret this Agreement as an
honorable engagement rather than merely as a legal obligation and
shall consider practical business and equitable principles as well
as industry custom and practice regarding the applicable insurance
and securities business. The arbitrators are released from judicial
formalities and shall not be bound by strict rules of procedure and
evidence.
6) Rules; Place for Meetings; Majority Vote. To the extent permitted
under the NASD rules of arbitration, the arbitrators shall determine
all arbitration schedules and procedural rules. Organizational and
other meetings will be held in Newport Beach, California, unless the
arbitrators select another location. The arbitrators shall decide
all matters by majority vote.
7) Decision Final. The decisions of the arbitrators shall be final and
binding on both parties. The arbitrators may, at their discretion,
award costs and expenses, as they deem appropriate, including but
not limited to legal fees and interest. The arbitrators may not
award exemplary or punitive damages. Judgment may be entered upon
the final decision of the arbitrators in any court of competent
jurisdiction.
8) Fees and Expenses. Unless the arbitrators shall provide otherwise,
each party shall be responsible for (a) all fees and expenses of its
respective counsel, accountants, actuaries and any other
representatives in connection with the arbitration and (b) one-half
(1/2) of the expenses of the arbitration, including the fees and
expenses of the arbitrators.
F. GOVERNING LAW; VENUE; JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to California choice
of law provisions.
G. ENTIRE UNDERSTANDING
This Agreement and the Exhibits and Schedules referenced and
incorporated herein constitute the complete understanding of the parties
and supersede in their entirety any and all prior agreements among the
parties with respect to the subject matter discussed herein. No oral
agreements or representations shall be binding.
H. NO THIRD PARTY BENEFICIARIES
Company's and Broker's respective Affiliates shall each be third
party beneficiaries of this Agreement, entitled to enforce the
provisions hereof as if they were parties to this Agreement. Except as
otherwise provided in the preceding sentence, nothing in the Agreement
shall convey any rights upon any person or entity who or which is not a
party to this Agreement.
I. NON-EXCLUSIVITY
Broker, on its behalf and on behalf of each Agency, agrees that no
territory or product is assigned exclusively hereunder and that Company
and its Affiliates reserve the right in their discretion to enter into
selling agreements with other broker-dealers, and to contract with or
establish one or more insurance agencies in any jurisdiction in which
Broker transacts business hereunder. Broker's relationship with Company
is non-exclusive, and Broker is free to sell or solicit insurance and
other products issued or sold by other companies.
J. NO HIRE
For purposes of this Sub-section J only, the term "agent" shall
include all appointed agents and Representatives. The parties to this
Agreement acknowledge that each may have access to the names and
identities of agents of each party as a result of performing their
respective obligations under this Agreement, and that each may establish
close working relationships with such persons. Therefore, Broker for
itself and for each Agency on the one hand (for purposes of this
Sub-section J, "Selling Group"), and Company on the other hand, agree
that while an agent maintains his/her affiliation with each and for
twelve (12) months after such agent's termination of the affiliation for
any reason:
1) Selling Group shall not in any way, directly or indirectly, for its
own behalf or on behalf of any other person or entity, solicit,
entice, hire, employ or endeavor to employ or associate with for
business purposes any agent of Company. In addition Selling Group
acknowledges that Company's agents hold important contractual and
business relationships with Company and Selling Group shall not (a)
interfere in any way with the relationships, contractual or
otherwise, between Company and Company's agents, or (b) induce or
encourage, or attempt to induce or encourage, any agent of Company
to terminate or change his/her relationship with Company.
2) Company shall not in any way, directly or indirectly, for its own
behalf or on behalf of any other person or entity, solicit, entice,
hire, employ or endeavor to employ or associate with for business
purposes any agent of Selling Group. In addition Company
acknowledges that Selling Group's agents hold important contractual
and business relationships with Selling Group and Company shall not
(a) interfere in any way with the relationships, contractual or
otherwise, between Selling Group and Selling Group's agents, or (b)
induce or encourage, or attempt to induce or encourage, any agent of
Selling Group to terminate or change his/her relationship with
Selling Group.
K. WAIVER
The failure of either party to strictly enforce any provision of
this Agreement shall not operate as a waiver of such provision or
release either party from its obligation to perform strictly in
accordance with such provision or any other provision of this Agreement.
L. COUNTERPARTS; FACSIMILE SIGNATURES
This Agreement may be executed in counterparts, each of which when
so executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute one and the same
instrument. A signature transmitted by facsimile machine or telecopier
shall be deemed to be an original signature hereunder.
M. SEVERABILITY
If any provision of this Agreement is declared null, void or
unenforceable in whole or in part by any court, arbitrator or
governmental agency, said provision shall survive to the extent it is
not so declared and all the other provisions of the Agreement shall
remain in full force and effect unless, in each case, such declaration
shall serve to deprive any of the parties hereto of the fundamental
benefits of this Agreement.
N. HEADINGS
The various section headings used in this Agreement are for
convenience of reference only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement
or any of its provisions.
O. FURTHER ASSURANCES
Each of the parties shall from time to time at the reasonable
request of the other party and without further cost or expense to such
other party, execute and deliver or cause to be executed and delivered
such other instruments and take such other related action, as may be
necessary, to more effectively consummate the terms and provisions of
this Agreement.
P. CONSTRUCTION
Whenever the singular number is used in this Agreement and when
required by the context, the same shall include plural and vice versa,
and the masculine gender shall include the feminine and neuter genders
and vice versa.
Q. RECITALS
The Recitals set forth in this Agreement are hereby deemed to be
material provisions of this Agreement and are hereby incorporated into
and made a part of this Agreement.
R. REPRESENTATION BY COUNSEL
All parties hereto have been represented or have had the opportunity
to be represented by counsel in connection with the negotiation and
preparation of this Agreement. Therefore, this Agreement shall be
construed without regard to any presumption against the party drafting
the same.
S. TRADEMARKS
Neither party may use the other party's trademarks, service marks,
trade names, logos, or other commercial or product designations
(collectively, "Marks") for any purpose whatsoever without the prior
written consent of the other party.
1) Permission not Implied. Nothing in this Agreement shall be construed
as prior written consent to permit (i) any party to use the Marks of the
other party, or (ii) any other individual or entity to use the Marks of
any party.
2) UFS. Nothing contained in this Agreement shall be construed as
conferring upon Broker or Representatives any right to use or refer to
in advertising, publicity, promotion, marketing or other activities, any
Marks, or any other designation or likeness of any of the Peanuts(R)
characters or any other character licensed by United Feature Syndicate
(including any contraction, abbreviation or simulation of any kind of
the foregoing) without prior express permission from United Feature
Syndicate, which Broker and Representatives must obtain through Company.
T. LONG TERM CARE
Notwithstanding anything contained in the Agreement to the contrary,
the following shall apply to Contracts that are long term care insurance
products (LTC products):
1) Broker agrees to deliver LTC products to purchasers no later than 30
days after the policy is approved by the issuer.
2) Broker agrees that it will not, nor will it permit its subagents to,
solicit the sale of other products based solely upon a customer's
purchase of an LTC product.
3) LTC products shall not be deemed to be covered by the provisions of
Rewritten Business Rules described in Exhibit C of the Agreement.
In reliance on the representations set forth and in consideration of the
undertakings described, the parties represented below do hereby contract and
agree.
"COMPANY"
METLIFE INVESTORS DISTRIBUTION COMPANY
By
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ - Executive Vice President
Date
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Address:
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax #: ▇▇▇-▇▇▇-▇▇▇▇
"BROKER"
(BDNAME)
By
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Print Name & Title
Date
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Address:
(Address 1)
(Address 2)
(City), (State) (Postal Code)
Fax #: (Fax)
EXHIBIT A
SCHEDULE OF VARIABLE PRODUCT AND COMPENSATION
[TO BE INSERTED]
MLIDC Retail Sales
EXHIBIT B
SCHEDULE OF FIXED PRODUCT AND COMPENSATION
[TO BE INSERTED]
EXHIBIT D
ASSOCIATED INSURANCE AGENCY
The Broker/Dealer named below ("Broker"), having executed a Sales Agreement
(the "Agreement") by and between Broker, and MetLife Investors Distribution
Company and MetLife General Insurance Agency, Inc. (collectively "Company")
dated____that, among other things, provides for sales of Company's or its
Affiliates' Variable Contracts through a designated associated insurance agency
or agencies, hereby designates the associated insurance agency (the "Associated
Insurance Agency") named below as its Agency (as that term is defined in the
Agreement) pursuant to Section II(B) thereof. By signing this Exhibit D, each of
Broker and the Associated Insurance Agency hereby represents and warrants that
the Associated Insurance Agency is and will remain qualified to serve as an
Agency in accordance with the terms of the Agreement. The Associated Insurance
Agency hereby acknowledges that it has received a copy of the Agreement, that it
has reviewed the Agreement and understands all of its terms, covenants and
agreements, that it has had the opportunity to consult with counsel of choice
relative thereto and that it agrees to be bound by and subject to the terms of
the Agreement.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT MAY BE ENFORCED
BY THE PARTIES
(BDNAME)
Broker/Dealer
By:
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Print Name & Title
(Tax Identification Number)
(GANAME) (GANAMEII)
Associated Insurance Agency Name Associated Insurance Agency Name
By: By:
----------------------------------------------------- ------------------------------------------------------
Print Name & Title Print Name & Title
(Tax Identification Number) (Tax Identification Number)