UNDERWRITING AGREEMENT
This Agreement is made and entered into this day of
, 1995, by and between Xxxxxxxxx Funds Annuity Company, a Florida
corporation ("Company"), on its own behalf and on behalf of Xxxxxxxxx Retirement
Annuity Separate Account ("Separate Account") and Xxxxxxxxx Xxxxxxxx Investment
Services, Inc., a Delaware corporation ("Distributor").
WHEREAS, Separate Account is a segregated asset account established and
maintained by Company pursuant to the laws of the State of Florida for certain
variable annuity contracts to be issued by Company (the "Contracts"); and
WHEREAS, Separate Account has been registered as a unit investment
trust-type investment company under the Investment Company Act of 1940 (the
"1940 Act"); and
WHEREAS, Distributor has been registered with the Securities and
Exchange Commisson (the "SEC") as a broker-dealer under the Securities Exchange
Act of 1934 (the "1934 Act") and is a member firm of the National Association of
Security Dealers, Inc. (the "NASD"); and
WHEREAS, the Contracts have been registered under the Securities Act of
1933 (the "1933 Act") and Company proposes to issue and sell the Contracts to
the public through Distributor acting as its principal underwriter;
WHEREAS, Company desires to issue such Contracts to the public through
the Distributor acting as the principal underwriter for such Contracts;
NOW, THEREFORE, Company and Distributor, in consideration of the mutual
contracts and covenants contained herein, sufficiency of which is hereby
acknowledged, and subject to the terms and conditions as set forth below,
Company and Distributor hereby mutually agree as follows:
PRINCIPAL UNDERWRITER. Company hereby appoints
Distributor to promote the sale of the Contracts to the public.
Distributor agrees to use its best efforts to distribute the Contracts
and undertakes to perform sales services related to the Contracts.
COMPLIANCE WITH LAWS, RULES AND REGULATIONS.
Distributor represents that, in addition to being registered with the
SEC and the NASD, it shall be duly registered or otherwise qualified
under the securities laws of any state or other jurisdiction, to the
extent necessary to offer the Contracts for sale. The sales
representative of Distributor soliciting applications for the Contracts
shall be duly and appropriately licensed, registered or otherwise
qualified for the sale of such Contracts under federal securities laws,
and any applicable insurance and securities laws of each state or other
jurisdiction in which the Contracts may lawfully be sold and in which
Company is licensed and admitted to sell the Contracts. Distributor
shall be solely responsible for the training, supervision and control
of its sales representatives for the purpose of the NASD Rules of Fair
Practice and for all securities laws applicable in connection with the
offering and sale of the Contracts.
PROSPECTUS. Distributor agrees to offer the
Contracts for sale in accordance with the then-current prospectus and
such other sales literature or advertisements as have been authorized
by Company. Distributor is not authorized to give any information or to
make any representations concerning the Contracts other than those
contained in such prospectus or such other sales literature or
advertisement as authorized by Company.
SUITABILITY. Both Company and Distributor wish to
insure that the Contracts distributed by Distributor will be issued to
purchasers for whom the Contracts are suitable. Distributor shall take
all reasonable steps to insure that its sales representatives shall not
make recommendations to an applicant to purchase a Contract in the
absence of reasonable grounds to believe that the purchase of the
Contract is suitable for such applicant. Such determination will be
based upon, but will not be limited to, information furnished to a
sales representative after reasonable inquiry of such applicant
concerning the applicant's insurance and investment objectives,
financial situation and needs. Further, Distributor agrees that it
shall be subject to a standard of conduct including, but not limited
to, the following:
All Distributor sales representatives shall
accept purchase payments only in the form of a check or money
order payable to "Xxxxxxxxx Funds Annuity Company," signed by
the applicant for the Contract.
All such checks and money orders shall be
rendered promptly to Company, and in any event not later than
two (2) business days, together with and applications, forms
and any other required documentation. All such purchase
payments shall be the property of Company.
No Distributor sales representative shall
have authority to endorse checks or money order payable to
Xxxxxxxxx Funds Annuity Company.
No Distributor sales representative shall
have any authority to alter, modify, waive or change any of
the terms, rates or conditions of the Contracts.
No Distributor sales representative shall
have any authority to advertise for or on behalf of the
Company without the approval and written authorization from
Company.
Distributor sales representatives shall use
only applications and other materials approved by Company for
use in the solicitation activities with respect to the
Contracts.
No Distributor sales representative shall
solicit or participate in the sale of a Contract in any
jurisdiction until such sales representative and Distributor
are fully qualified and licensed as required by applicable law
and regulations.
No Distributor sales representative shall
solicit for the sale of any Contract without delivering the
then-currently effective prospectus and any applicable
supplements to such prospectus.
Distributor agrees to properly review all
applications received from its sales representatives for
completeness and forward them along with any initial premium
payments to Company at its service center.
Distributor intends that no recommendations
will be made to prospective purchasers of the Contracts. To
the extent that Distributor or Distributor sales
represent-atives make recommendations, or to the extent
required by applicable securities laws, Distributor and
Distributor sales representatives will comply with Section 2
of Article III of the NASD Rules of Fair Practice.
During the term of this Agreement, neither
Distributor nor any Distributor sales representative shall
intentionally encourage a Contract owner to exchange his or
her Contract for any other insurance contract except (i) with
the Company's consent or (ii) to comply with applicable laws,
regulations or rules, including but not limited to the NASD
Rules of Fair Practice.
All solicitation sales activities engaged
in by Distributor and Distributor sales representatives in
regard to the Contracts shall be in compliance with all
applicable federal and state securities laws and regulations,
as well as all applicable insurance laws and regulations. No
Distributor sales representative shall solicit a sale of a
Contract unless at the time of the solicitation such
individual is (i) properly licensed by the NASD and all
applicable state insurance and securities regulatory
authorities; and (ii) appointed as an insurance agent of
Company.
Neither Distributor nor any Distributor
sales representative shall give any written information or
make any written or oral representation in regard to the
Contracts that is inconsistent with the then-currently
effective prospectus or statement of additional information
for the Contracts, or in advertising material for the
Contracts which have been authorized by Company.
Neither the Distributor nor any Distributor
sales representative shall offer, attempt to offer, or solicit
applications for the Contracts or deliver the Contracts, in
any state or other jurisdiction as to which Company has
notified Distributor that the Contracts may not legally be
sold or offered for sale.
5. REPORTS. Distributor shall have the responsibility for
maintaining the records of sales representatives licensed, registered
or otherwise qualified to sell the Contracts and for furnishing
periodic reports thereof to Company. Company agrees to maintain all
required books of accounts and related financial records on behalf of
Distributor. All such books and records hall be maintained and
preserved pursuant to Rules 17a-3 and 17a-4 under the 1934 Act (or any
corresponding provision of any future federal securities law
regulations) and the rules of the NASD. All such books and records
shall be maintained by Company solely on behalf of as agent for
Distributor. Such books and records shall remain the sole property of
Distributor for all purposes, and shall at all times be subject to
reasonable periodic, special or other examination by the SEC and all
other regulatory bodies having jurisdiction. Company further agrees to
send Distributor's customers all required confirmations on customer
transactions.
6. MATERIALS AND EXPENSES.
Company shall furnish Distributor with
copies of all prospectuses, financial statements and other
documents and materials which Distributor reasonably requests
for use in connection with the distribution of the Contracts.
Company shall have responsibility for the preparation, filing
and printing of all required prospectuses and registration
statements in connection with the Contracts and the payment of
all related expenses.
Distributor and Company agree to cooperate
fully in designing, drafting and reviewing all sales
promotional materials. Distributor shall use only such
materials as are provided, or approved in writing in advance,
by Company. Company shall be responsible for the costs of any
promotions, sales and advertising materials, including
applications and any other materials included in the
fulfillment kit.
Company shall be responsible for filing all
sales and advertising materials, including applications, with
all applicable state insurance regulatory authorities, to the
extent such materials are required to be filed with such
bodies.
Distributor shall be responsible for filing
all sales and advertising materials with the NASD to the
extent such materials are required to be filed.
7. RIGHT OF REJECTION. Company shall have the right at
its sole discretion to reject any application or premium payment
received by it and to return or refund an applicant's premium payment
to the applicant.
8. COMPLAINTS AND INVESTIGATIONS. Company and Distributor
agree to cooperate fully in any insurance regulatory investigation or
proceeding or any judicial proceeding arising in connection with the
Contracts offered and sold under this Agreement. Company and
Distributor further agree to cooperate fully in any securities
regulatory investigation or judicial proceeding with respect to
Company, Distributor, their affiliates and their representatives to the
extent that such investigation or proceeding is in connection with the
Contracts distributed under this Agreement.
Without limiting the foregoing:
Distributor will be promptly notified of
any customer complaint or notice of any regulatory inspection,
inquiry, investigation or proceeding or judicial proceeding
received by Company with respect to Distributor or any
representative of Distributor which may effect Company's
issuance of any Contract offered and sold pursuant to this
Agreement.
Distributor will promptly notify Company of
any customer complaint or notice ofregulatory inspection,
inquiry, investigation or proceeding received by Distributor
in connection with any Contract offered and sold pursuant to
this Agreement.
In case of a customer complaint, Distributor and
Company agree to cooperate in investigating such complaint and arriving
at a mutually satisfactory response to such complaint.
9. TERMINATION. This Agreement shall be effective
upon its execution. It may be terminated at any time by either party on
30 days written notice to the other party, without the payment of any
penalty. This Agreement shall terminate automatically if it is
assigned. Upon termination of this Agreement, all authorizations,
rights and obligations shall cease except (i) the obligation to settle
accounts hereunder, including commissions on premiums subsequently
received for Contracts in effect at the time of termination or issued
pursuant to applications received by Company prior to termination and
(ii) the agreements contained in paragraph 8.
10. REGULATION OF THIS AGREEMENT. This Agreement shall be
subject to the provisions of the Investment Company Act of 1940, the
1934 Act and the rules, regulations, and rulings thereunder and of the
NASD, from time to time in effect, including such exemptions from the
Investment Company Act of 1940 as the SEC may grant. Distributor shall
submit to all regulatory and administrative bodies having jurisdiction
over the operation of the Company or Separate Account, present or
future, any information, reports or other material which any such body
by reason of this Agreement may request or require pursuant to
applicable laws and regulations.
11. COMPLETENESS OF AGREEMENT. This Agreement
supersedes all prior agreements, verbal or written, between the parties
relating to the Contracts and may not be modified in any way
unless by written agreement, duly executed by the parties hereto.
12. APPLICABLE LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first above written.
XXXXXXXXX FUNDS ANNUITY COMPANY
By:
XXXXXXXXX XXXXXXXX INVESTMENT
SERVICES, INC.
By:
