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EXHIBIT 8a(iii)
Xxxxxxx Investor Services, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PARTICIPATING CONTRACT AND POLICY AGREEMENT
Dear Sirs:
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 Money Market Portfolio, Managed Bond Portfolio,
Managed Capital Growth Portfolio, Managed Diversified Portfolio and the Managed
International Portfolio (individually or collectively hereinafter referred to as
the "Portfolio" or the "Portfolios"). Additional Portfolios 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 beneficial
interest ("Shares") of the Portfolios of the Fund. 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
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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; provided, however, that you shall be our agent in
connection with the receipt of purchase orders for Fund Shares and not in
connection with their offer and sale. The relationship between us shall be
further governed by the following terms and conditions:
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 Washington 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:
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(a) A registration statement (File No. 2-96461) on Form
N-1A with respect to the Shares (x) 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"), and (y) has been filed
with the Commission, and (z) is currently effective.
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 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
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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
prospectus and statement of additional information
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 prospectus and statement of
additional information 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.
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
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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.
6. We reserve the right in our discretion, without notice, to
suspend sales or withdraw the offering of Shares entirely, as
to any person or generally. We reserve the right to amend this
agreement at any time and you agree that the sale of
Participating Contracts and Policies, after notice of any such
amendment has been sent to you, shall constitute your agreement
to any such amendment.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any prospectus
and statement of additional information 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
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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 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
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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 or any such suit, you shall
reimburse Investor Services and such officers,
directors or controlling person or persons, defendant
of 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, 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 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
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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 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 to 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 it, 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 it. Investor Services agrees promptly to
notify you of
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the commencement of any litigation or proceedings
against it in connection with the offer, issue and
sale of any Shares.
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 written notice given to the other party,
provided that 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.
13. Any notice hereunder shall be duly given if mailed or
telegraphed to the other party hereto at the address specified
below. 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.
15. This Agreement may not be modified or amended except by a
written instrument duly executed by the parties hereto.
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XXXXXXX INVESTOR SERVICES, INC.
By: /S/ Xxxxx X. Xxx
------------------
Authorized Officer
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned hereby accepts the
offer set forth in the above
letter.
PNMR SECURITIES INC.
Dated: 12/1/92 By: /S/ R. Xxxx Xxxxxxxxxxx
------------- -------------------------
Authorized Representative
Address: 0000 X.X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
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