1
EXHIBIT 8.4(B)
Xxxxxxx Investor Services, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
FORM OF
PARTICIPATING CONTRACT AND POLICY AGREEMENT
Ladies and Gentlemen:
We (sometimes hereinafter referred to as "Investor Services") are the
Principal Underwriter of shares of Xxxxxxx Variable Life Investment Fund (the
"Fund"), a no-load, open-end, diversified registered management investment
company established in 1985 as a Massachusetts business trust. The Fund is a
series fund consisting of the Balanced Portfolio, Bond Portfolio, Capital Growth
Portfolio, Global Discovery Portfolio, International Portfolio, Money Market
Portfolio, and Growth and Income Portfolio (individually or collectively
hereinafter referred to as the "Portfolio" or the "Portfolios"). In addition,
each Portfolio, except the Money Market Portfolio, is divided into two classes
of shares of beneficial interest("Shares"). Additional Portfolios and classes
may be created from time to time. The Fund is the funding vehicle for variable
annuity contracts and variable life insurance policies ("Participating Contracts
and Policies") to be offered to the separate accounts (the "Accounts") of
certain life insurance companies ("Participating Insurance Companies"). Owners
of Participating Contracts and Policies will designate a portion of their
premium to be invested in insurance company separate accounts or sub-accounts
which invest in, or represent an investment in, directly or indirectly, Shares
of the Portfolios of the Fund. All Shares of the Portfolios will be sold only to
Participating Insurance Companies which have agreed to participate in the Fund
to fund their separate accounts and/or to qualified plans, all in accordance
with the requirements of Section 817(h) of the Internal Revenue Code of 1986, as
amended ("Code") and Treasury Regulation 1.817-5. Shares of the Portfolios will
not be sold directly to the general public.
You are a registered broker-dealer which intends to offer and sell
Participating Contracts and Policies. In connection with such offer and sale you
will be obligated to deliver the prospectuses of such Participating Contracts
and Policies and, contemporaneously therewith, the prospectus of the Fund. Sales
of Shares to Participating Insurance Companies or their affiliates or the
separate accounts of either shall be effected solely by us as principal
underwriter of the Fund, and not by you. The relationship between us shall be
further governed by the following terms and conditions:
2
1. To the extent, if any, that your activities or the
activities of the Participating Insurance Companies in
connection with the sale of Participating Contracts and
Policies may constitute the sale of Shares, you and we agree
that (i) we are the sole "principal underwriter" of the Fund
and the sole "underwriter" of the Shares as those terms are
defined in the Investment Company Act of 1940 (the "1940 Act")
and the Securities Act of 1933 (the "1933 Act"), respectively,
and (ii) neither you nor the Participating Insurance Companies
or the Accounts shall be deemed to be "principal underwriters"
of the Fund or "underwriters" of the Fund within the meaning
of the 1940 Act and the 1933 Act, respectively.
2. You hereby represent and warrant to us as follows:
(a) You are a corporation duly organized and validly
existing in good standing under the laws of the State
of Delaware and have full power and authority to
enter into this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by you and is a valid and binding
obligation enforceable against you in accordance with
its terms.
(c) Your compliance with the provisions of this Agreement
will not conflict with or result in a violation of
the provisions of your charter or by-laws, or any
statute or any judgment, decree, order, rule or
regulation of any court or governmental agency or
body having jurisdiction.
3. We hereby represent and warrant to you as follows:
(a) A registration statement (File No. 2-96461) on
Form N- IA with respect to the Shares (w) has been
prepared by the Fund in conformity with the
requirements of the 1940 Act and the 1933 Act and
all applicable published instructions, rules and
regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the
"Commission"), (x) has been filed with the
Commission, (y) is currently effective, and (z) will
be amended under the 1933 Act and the 1940 Act from
time to time as required in order to effect the
continuous offering of the Shares. The registration
statement, including financial statements and
exhibits, and the final prospectus, including the
statement of additional information, as subsequently
amended and supplemented, are herein respectively
referred to as the "Registration Statement" and the
"Prospectus".
(b) The Registration Statement and the Prospectus
and any amendment or supplement thereto will contain
all statements required to be stated therein and
will comply in all material respects with the
requirements of the 1940 Act, the 1933 Act and the
Rules and Regulations, and the Registration
Statement and any post-effective amendment thereto
will not contain or incorporate by reference any
untrue statement of a material fact or omit to
2
3
state any material fact required to be stated
therein or necessary to make the statements therein,
in light of the circumstances under which they were
made, not misleading, and the Prospectus and any
amendment or supplement thereto will not contain or
incorporate by reference any untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(c) We are a corporation duly organized and validly
existing in good standing under the laws of The
Commonwealth of Massachusetts and have full power and
authority to enter into this Agreement.
(d) This Agreement has been duly authorized, executed and
delivered by us and is a valid and binding obligation
enforceable against us in accordance with its terms.
(e) Our compliance with all of the provisions of this
Agreement will not conflict with or result in a
violation of the provisions of our charter or
by-laws, or any statute or any judgment, decree,
order, rule or regulation of any court or
governmental agency or body having jurisdiction over
us.
4. You hereby covenant and agree with us as follows:
(a) You shall be an independent contractor and neither
you nor any of your directors, partners, officers or
employees as such, is or shall be an employee of us
or of the Fund. You are responsible for your own
conduct and the employment, control and conduct of
your agents and employees and for injury to such
agents or employees or to others through your agents
or employees.
(b) You or one or more Participating Insurance Companies
will be responsible for insuring compliance with all
applicable laws and regulations of any regulatory
body having jurisdiction over you or Participating
Contracts and Policies.
(c) No person is authorized to make any representations
concerning Shares except those contained in the
Registration Statement or Prospectus relating thereto
and in such printed information as issued by us for
use as information supplemental to the Prospectus. In
offering Participating Contracts and Policies you
shall, with respect to the Fund and the Shares, rely
solely on the representations contained in the
Registration Statement, Prospectus and in the
above-mentioned supplemental information.
(d) You are not entitled to any compensation whatsoever
from us or the Fund with respect to offers of
Participating Contracts and Policies.
3
4
(e) With respect to payments to be made to us pursuant
to a Rule 12b-1 Plan for the Fund, you will not seek
reimbursement for administrative and recordkeeping
services under the Fund's Rule 12b-1 Plan that have
been or will be paid for by any fees or charges
imposed on owners of Participating Contracts and
Policies by a Participating Insurance Company for
such services. This provision does not restrict you
from receiving sales charges on purchases and
redemptions, consistent with applicable law, made
under or redemption proceeds from a Participating
Contract or Policy at the same time that you are
seeking reimbursement for expenses under the Fund's
Rule 12b-1 Plan.
5. We hereby covenant and agree with you as follows:
(a) If, at any time when a Prospectus relating to the
Shares is required to be delivered under the 1940
Act, the 1933 Act or the Rules and Regulations, we
become aware of the occurrence of any event as a
result of which the Prospectus as then amended or
supplemented would include any untrue statement of a
material fact, or omit to state a material fact
necessary to make the statements therein, in light
of the circumstances under which made, not
misleading, or if we become aware that it has become
necessary at any time to amend or supplement the
Prospectus to comply with the 1940 Act, the 1933 Act
or the Rules and Regulations, we will promptly
notify you and promptly request the Fund to prepare
and to file with the Commission an amendment to the
Registration Statement or supplement to the
Prospectus which will correct such statement or
omission or an amendment or supplement which will
effect such compliance, and deliver to you copies of
any such amendment or supplement.
(b) We will cooperate with you in taking such action as
may be necessary to qualify the Shares for offering
and sale under the securities or Blue Sky laws of any
state or jurisdiction as you may request and will
continue such qualification in effect so long as is
required by applicable law in connection with the
distribution of Shares.
(c) We shall reimburse you, subject to the minimum
amounts set forth in the attached schedule, for
those distribution and shareholder servicing-related
expenses that are permitted to be paid for by the
Fund under the Fund's Rule 12b-1 Plan and for which
(i) you submit documentation, as may be requested by
us or by the Fund's Board of Trustees, and (ii) we
receive payment for such expenses from the Fund
under the Fund's Rule 12b-1 Plan. We shall remit to
you as promptly as reasonably practicable all
payments received by us from the Fund for remittance
to you pursuant to the Fund's Rule 12b-1 Plan.
6. Sales of Shares may be suspended or the offering of Shares
withdrawn without notice (i) if the continued offering or sale
of Shares would violate any applicable
4
5
statute or regulation, order or decree of any court,
governmental agency or self-regulatory organization having
jurisdiction, or (ii) if in the sole discretion of the
Trustees of the Fund, including a majority of those Trustees
who are not "interested persons" (as defined in the 0000 Xxx)
of the Fund acting in good faith and in light of their duties
under federal and any applicable state laws, such action is
determined to be necessary in the best interests of the
Shareholders of any Portfolio.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any Prospectus
relating to the Shares and printed information supplemental
thereto, we shall furnish you with such copies as you
reasonably request upon the payment of reasonable charges
therefor by you or one or more Participating Insurance
Companies. If we elect not to provide such copies of such
documents, you or one or more Participating Insurance
Companies shall bear the entire cost of printing copies for
your use. You shall not use such copies of such documents
printed by you or one or more Participating Insurance
Companies until you shall have furnished us with a copy
thereof and we either have given you written approval for use
or twenty days shall have elapsed following our receipt
thereof and we have not objected thereto in writing.
8. (a) You will indemnify and hold harmless Investor Services
and each of its directors and officers and each person,
if any, who controls Investor Services within the
meaning of Section 15 of the 1933 Act, against any loss,
liability, damages, claim or expense (including the
reasonable cost of investigating or defending any
alleged loss, liability, damages, claim or expense and
reasonable counsel fees incurred in connection
therewith), arising by reason of any person's acquiring
any Shares, which may be based upon the 1933 Act or any
other statute or common law, and which (i) may be based
upon any wrongful act by you, any of your employees or
representatives, any affiliate of or any person acting
on behalf of you, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact
contained in a Registration Statement or Prospectus
covering Shares or any amendment thereof or supplement
thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading
if such a statement or omission was made in reliance
upon information furnished to us or the Fund by you, or
(iii) may be based on any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement or prospectus covering insurance
products sold by you, or any amendments or supplement
thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statement or statements therein
not misleading, unless such statement or omission was
made in reliance upon information furnished to you or a
Participating Insurance Company by or on behalf of
Investor Services or the Fund; provided, however, that
in no case (i) is the indemnity by you in favor of any
person indemnified to be deemed to
5
6
protect Investor Services or any such person against
any liability to which Investor Services or any such
person would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the
performance of its or his duties or by reason of its or
his reckless disregard of its obligations and duties
under this Agreement, or (ii) are you to be liable under
your indemnity agreement contained in this paragraph
with respect to any claim made against Investor Services
or any person indemnified unless Investor Services or
such person, as the case may be, shall have notified you
in writing within a reasonable time after the summons or
other first legal process giving information of the
nature of the claim shall have been served upon Investor
Services or upon such person (or after Investor Services
or such person shall have received notice of such
service on any designated agent), but failure to notify
you of any such claim shall not relieve you from any
liability which you may have to Investor Services or any
person against whom such action is brought otherwise
than on account of your indemnity agreement contained in
this paragraph. You shall be entitled to participate, at
your own expense, in the defense, or, if you so elect,
to assume the defense of any suit brought to enforce any
such liability, but, if you elect to assume the defense,
such defense shall be conducted by counsel chosen by you
and satisfactory to Investor Services, or to its
officers or directors, or to any controlling person or
persons, defendant or defendants in the suit. In the
event that you assume the defense of any such suit and
retain such counsel, Investor Services or such officers
or directors or controlling person or persons, defendant
or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them,
but, in case you do not elect to assume the defense of
any such suit, you shall reimburse Investor Services and
such officers, directors or controlling person or
persons, defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained by
them. You agree promptly to notify Investor Services of
the commencement of any litigation or proceedings
against it in connection with the offer, issue and sale
of any Shares.
(b) Investor Services will indemnify and hold harmless
you and each of your directors and officers and each
person, if any, who controls you within the meaning of
Section 15 of the 1933 Act, against any loss, liability,
damages, claim or expense (including the reasonable cost
of investigating or defending any alleged loss,
liability, damages, claim or expense and reasonable
counsel fees incurred in connection therewith), arising
by reason of any person's acquiring any Shares, which
may be based upon the 1933 Act or any other statute or
common law, and which (i) may be based upon any wrongful
act by Investor Services, any of its employees or
representatives, any affiliate of or any person acting
on its behalf, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact
contained in a Registration Statement or Prospectus
covering Shares or any amendment thereof or supplement
thereto or the omission or
6
7
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading unless such statement
or omission was made in reliance upon information
furnished to Investor Services or the Fund by you or
(iii) may be based on any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement or prospectus covering insurance
products sold by you, or any amendment or supplement
thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statement or statements therein
not misleading, if such statement or omission was made
in reliance upon information furnished to you by or on
behalf of Investor Services or the Fund; provided,
however, that in no case (i) is the indemnity by
Investor Services in favor of any person indemnified to
be deemed to protect you or any such person against any
liability to which you or any such person would
otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of your
or his duties or by reason of your or his reckless
disregard of your or his obligations and duties under
this Agreement, or (ii) is Investor Services to be
liable under its indemnity agreement contained in this
paragraph with respect to any claim made against you or
any person indemnified unless you or such person, as the
case may be, shall have notified Investor Services in
writing within a reasonable time after the summons or
other first legal process giving information of the
nature of the claim shall have been served upon you or
upon such person (or after you or such person shall have
received notice of such service on any designated
agent), but failure to notify Investor Services of any
such claim shall not relieve Investor Services from any
liability which Investor Services may have to you or any
person against whom such action is brought otherwise
than on account of its indemnity agreement contained in
this paragraph. Investor Services shall be entitled to
participate, at its own expense, in the defense, or, if
it so elects, to assume the defense of any suit brought
to enforce any such liability, but, if it elects to
assume the defense, such defense shall be conducted by
counsel chosen by Investor Services and satisfactory to
you, or to your officers or directors, or to any
controlling person or persons, defendant or defendants
in the suit. In the event that Investor Services assumes
the defense of any such suit and retains such counsel,
you or such officers or directors or controlling person
or persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel
retained by you, but, in case Investor Services does not
elect to assume the defense of any such suit, Investor
Services shall reimburse you and such officers,
directors or controlling person or persons, defendant or
defendants in such suit, for the reasonable fees and
expenses of any counsel retained by you. Investor
Services agrees promptly to notify you of the
commencement of any litigation or proceedings against it
in connection with the offer, issue and sale of any
Shares.
7
8
9. The indemnities, representations, warranties, covenants and
agreements of each party to this Agreement as set forth in
this Agreement will remain in full force and effect regardless
of any investigation made by or on behalf of either of such
parties or any of their respective officers, directors,
partners or any controlling person, and will survive delivery
of and payment for the Shares.
10. Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, each
party hereto waives any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
11. This Agreement constitutes the entire agreement among the
parties concerning the subject matter hereof, and supersedes
any and all prior understandings.
12. This Agreement shall automatically terminate in the event of
its assignment. This Agreement may be terminated at any time
by either party by 30 days' written notice given to the other
party, except that the Agreement may be terminated by Investor
Services without notice (i) if the continued offering or sale
of Shares would violate any applicable statute or regulation,
order or decree of any court, governmental agency or
self-regulatory organization having jurisdiction, or (ii) if
in the sole discretion of the Trustees of the Fund, including
a majority of those Trustees who are not "interested persons"
(as defined in the 0000 Xxx) of the Fund, acting in good faith
and in light of their duties under federal and any applicable
state laws, such action is determined to be necessary in the
best interests of the Shareholders of any Portfolio. The
obligation of each party to indemnify the other party pursuant
to paragraph 8 hereof shall apply with respect to any Shares
sold before or after such termination. To the extent we
receive payments under any provision of this Agreement
pursuant to a Rule 12b-1 Plan for the Fund, both you and we
understand and agree that this Agreement will be subject to
the applicable approval, reporting and termination
requirements as set forth in Rule 12b-1.
13. Any notice hereunder shall be duly given if mailed or
telegraphed to the other party hereto at the address specified
below or at such other address as such party may from time to
time specify in writing to the other party. This Agreement
shall be governed by and construed in accordance with the laws
of The Commonwealth of Massachusetts.
14. This Agreement may be executed in any number of counterparts
which, taken together shall constitute one and the same
instrument. This Agreement shall become effective upon receipt
by us of your acceptance hereof.
8
9
15. This Agreement may not be modified or amended except by a
written instrument duly executed by the parties hereto.
XXXXXXX INVESTOR SERVICES, INC.
By:_______________________________
Xxxxx X. Xxx
President
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned hereby
accepts the offer set forth
in the above letter.
INVESTORS BROKERAGE SERVICES, INC.
Dated:___________________ By:_______________________________
Xxxx X. Xxxxxxx, Xx.
President
Xxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
9
