WHOLESALE BROKER-DEALER SUPERVISORY AND SALES AGREEMENT
The brokerage general agents listed on Schedule 1 attached hereto (the "BGA's")
have entered into Brokerage General Agent Agreements with the Distributor and
certain affiliates authorizing them to distribute Traditional Company Products
(as such terms and all other terms used herein are defined below). The BGA's
also wish to distribute Variable Company Products to Qualified Retailers, and
the Distributor has agreed, provided that they agree to distribute such Products
jointly with you and provided further that you enter into this Agreement.
Now therefore:
1. AUTHORIZATION
The Distributor authorizes you on a non-exclusive basis to act as a
Broker-Dealer for the purpose of soliciting purchasers for and servicing
Variable Company Products through Qualified Retailers, subject to the terms and
conditions of this Agreement.
2. RELATIONSHIP
As a Broker-Dealer, you will be an independent contractor with full freedom to
determine the time, place and method of performance and agree that neither this
Agreement nor any related dealings with the Company or the Distributor hereafter
will create a relationship of employee and employer between you and the
Distributor or the Company.
3. UNDERTAKINGS
(a) Registered Broker-Dealer. You will, at all times when performing services
under this Agreement, be registered as a securities broker/dealer under the 1934
Act, be a member in good standing of the NASD and be licensed or registered as a
securities broker/dealer in the states that require such licensing or
registration in connection with the services to be provided under this
Agreement.
(b) Joint Performance: You will perform your obligations under this Agreement
jointly with the BGA's.
(c) Qualified Retailers. In performing your obligations under this Agreement,
you will deal exclusively with Qualified Retailers and registered
representatives of Qualified Retailers who are licensed insurance agents
appointed to the Company ("Qualified Representatives").
(d) Your Representatives. All your dealings with Qualified Retailers and
Qualified Representatives with respect to Variable Company Products will be
conducted on your behalf by individuals who are both registered with the NASD as
your representatives and are licensed insurance agents affiliated with a BGA and
appointed to the Company (your "Representatives").
(e) No Retail Sales. You will not contact, solicit purchasers for Variable
Company Products from, or provide services to, clients of Qualified Retailers or
any other members of the public pursuant to this Agreement.
(f) Networking Agreement. You warrant and represent that you have a Networking
Agreement with each BGA and such Networking Agreement is in full force and
effect and satisfies the conditions set forth in the Letter Ruling. You will
comply with all obligations on your part under each such Networking Agreement.
(f) Supervision. You will be responsible for the training, supervision, control
and conduct of your officers, directors, employees, agents and representatives,
including your Representatives, in connection with the solicitation of
purchasers for and/or servicing of Variable Company Products pursuant to this
Agreement to assure compliance with all applicable federal and state laws and
regulations (including without limitation, securities laws), NASD requirements
and the procedures from time to time issued to
you by the Distributor. You will not instruct, direct or permit any of your
Representatives to take any action or to fail to take any action which if taken
or not taken by you would be a default hereunder.
(g) No Market Timing. You will not adopt, implement, offer or participate in any
program, plan, arrangement or service to allocate premiums, considerations or
investments with respect to any Variable Company Product for market timing,
asset allocation or other purposes, whether conducted under powers of attorney
or otherwise, without the prior written consent of the Distributor in each
instance.
(h) Prospectuses. The Distributor will, at your request, provide you with copies
of the Prospectuses without expense. You will provide Prospectuses without
expense to Qualified Retailers writing business through you for delivery to
prospective purchasers of Variable Company Products.
(i) No Misrepresentations. You will not make any oral or written statement
concerning a Variable Company Product which is contrary to or inconsistent with
the policy or contract therefore, the Prospectuses or the Approved Sales
Materials with respect thereto.
(j) No Suitability Advice. You will not give any advice to a Qualified Retailer
or a Qualified Representative concerning suitability.
(k) Limited Authorization. The authorization granted in this Agreement will not
be effective with respect to any BGA until the BGA's Brokerage General Agent
Agreement has been amended to include Variable Company Products, and your
authority to distribute Variable Company Products jointly with any BGA will
terminate at any time that (1) the BGA's Brokerage General Agent Agreement is
terminated, (2) the BGA is no longer authorized to distribute Variable Company
Products thereunder or (3) the Distributor gives notice that the BGA is in
default under its Brokerage General Agent Agreement (unless the Distributor has
subsequently given written notice to you that the default has been cured).
4. LIMITS OF AUTHORITY
(a) No Modification of Terms. You will not alter, modify, waive or change any of
the terms, rates, or conditions of any Company Product.
(b) Compliance with Laws, etc. You will comply with all applicable federal and
state laws and regulations (including without limitation, securities laws and
regulations), NASD rules and Distributor Policies relating to the services to be
provided by you pursuant to this Agreement. You will promptly notify the
Distributor in writing if you receive notice of any governmental inquiry
concerning compliance by you, any of your Representatives or any Qualified
Retailer with any laws or regulations or NASD rules.
(e) Premium Checks. You will not accept any sums on behalf of the Company other
than checks in payment of the first premium signed by an applicant. You will not
endorse checks payable to the Company or pay premiums out of your account.
(f) No Replacements. You will not encourage a prospective purchaser to surrender
or exchange an insurance policy or contract issued by a Company in order to
purchase a Company Product without the prior written consent of the Company
issuing the original policy or contract. No compensation will be paid on
unauthorized surrenders or exchanges.
(g) No Bank Sales. You will not, without the prior written consent of the
Distributor, (1) solicit purchasers for Company Products on or from the premises
of a banking, savings, or similar institution ("Bank") or (2) utilize Bank
contacts, referrals or lists of customer or employees to solicit purchasers for
Company Products.
(h) Delivering Applications. You will forward all completed applications, checks
and supporting materials to the Distributor promptly following receipt thereof.
The Company reserves the right to accept or reject any application in its sole
discretion.
(i) Delivering Policies. You will deliver policies and contracts issued by the
Company to purchasers promptly following receipt thereof. You will not deliver a
policy or contract (1) until all outstanding requirements have been satisfied
and the initial premium has been paid or (2) if there has been a change in the
health, avocation, or occupation of the proposed insured since the date of the
original application.
(j) Approved Sales Materials. The Distributor will, on request, provide you with
copies of Approved Sales Materials, and you will deliver the same to the
Qualified Retailers writing through you. You will
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not use or distribute any other illustrations, brochures, sales scripts, seminar
or other types of presentations, advertising, direct mailing or other sales
materials relating to the Company or the Company Products without the prior
written approval of the Company or the Distributor.
(k) Protecting Names and Trademarks. You will not use the name of the
Distributor or the Company or any trademark, service xxxx, symbol or trade style
of the Distributor or the Company without the express written consent of the
Distributor or the Company, as the case may be.
(l) Fidelity Bond. You will, at all times during the term hereof, maintain a
blanket fidelity bond, including coverage for larceny and embezzlement, issued
by a reputable bonding company covering all your directors, officers, employees,
representatives and agents, including your Representatives, who have access to
funds. Such bond shall be, at least, of the form, type and amount required under
the NASD Conduct Rules. The Distributor may from time to time require evidence,
satisfactory to them, that such coverage is in force, and you will give prompt
written notice to the Distributor of any cancellation or change of coverage. You
assign all proceeds received from the fidelity bonding company to the
Distributor and the Company to the extent of any loss realized or incurred by
the Company due to activities covered by the bond. If there is any deficiency
amount, as a result of a deductible provision or otherwise, you will promptly
pay to the Company such amount on demand.
(m) Books and Records. You will keep full and accurate books and records of the
business you transact pursuant to this Agreement in accordance with the
requirements of the SEC, NASD and any other regulatory agency having
jurisdiction over such activities. You will make all such books and records
available for inspection by representatives of the Distributor and the Company
at your offices on reasonable demand at any time during normal business hours.
(n) Cooperation. You will cooperate with the Distributor and the Company in any
judicial or regulatory investigation, proceeding or inquiry relating to the
solicitation of purchasers for and/or servicing of the Variable Company Products
and promptly advise the Distributor of any notice or communication you may
receive in connection therewith.
(o) Complaints. You will promptly forward to the Distributor a copy of each
complaint received from a customer, a Qualified Retailer or a regulatory agency
concerning the solicitation of purchasers for and/or servicing of the Variable
Company Products pursuant to this Agreement. You will provide such information
with respect to each complaint as the Distributor may request and cooperate with
the Distributor in resolving the same.
5. COMPENSATION
(a) Compensation Paid to BGA. No compensation will be due and payable under this
Agreement. You will look solely to the BGA's for payment of compensation in
connection with the performance of your obligations hereunder, and neither you
nor any of your Representatives will have any claim against the Distributor or
the Company in connection therewith. The agreement of the Distributor to pay
compensation to the BGA's in connection with the sale and servicing of Variable
Company Products in accordance with the terms and condition of their respective
Brokerage General Agent Agreements will constitute consideration to you
hereunder.
(b) Expenses. Except as otherwise provided in this Agreement, you will pay all
expenses incurred by you and your Representatives in the performance of your
obligations hereunder.
6. CONFIDENTIALITY
(a) Confidential Information. You will keep confidential all information
provided by the Distributor or the Company about them or the Company Products,
including without limitation business practices, marketing strategies, computer
programs, rate manuals and printed and electronic data. You will only use such
information for the purposes contemplated herein and shall not disclose any such
information to third parties, including without limitation Qualified Retailers
writing through you, except to the extent otherwise provided herein.
(b) Nonpublic Personal Information. You will not use any "nonpublic personal
information" as defined in the Xxxxx-Xxxxx-Xxxxxx Act (the "GLB") or any other
information subject to privacy laws or regulations
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for any purpose or disclose such information to any other person except as
otherwise permitted by the GLB or such other law or regulation.
(c) Return of Information. Upon termination of this Agreement, you will promptly
return to the Distributor all information, whether in written or electronic
form, provided by the Distributor or the Company or developed from such
information, all of which are and shall be throughout the term hereof property
of the Distributor and/or the Company.
7. INDEMNITY
You will indemnify and hold the Company and the Distributor harmless from and
against any actual or threatened liabilities, losses, costs, claims and damages,
including reasonable legal fees and expenses, arising out of or based upon any
default hereunder, negligence or misconduct on its part or by any its officers,
employees, representatives or agents, including your Representatives. The
Distributor will indemnify and hold you harmless from and against any actual or
threatened liabilities, losses, costs, claims and damages, including reasonable
legal fees and expenses, arising out of or based upon any default hereunder,
negligence or misconduct on its part or by any its officers, employees,
representatives or agents.
8. TERMINATION
(a) Either party may terminate this Agreement without cause on not less than
thirty (30) days prior written notice.
(b) This Agreement will terminate if you dissolve or become bankrupt or
insolvent.
(c) This Agreement will terminate at such time as the last remaining General
Agent Agreement with a BGA terminates. The Distributor and its affiliates
reserve the right in their sole discretion to determine whether or not to
terminate any General Agent Agreement with or without cause.
(d) This Agreement may be terminated by either party upon the giving of written
notice following any default of the material provisions of this Agreement by the
other in the performance of its obligations hereunder.
(e) Upon the termination of this Agreement, neither party shall have any rights
or obligations hereunder except that Articles 5, 6, 7 and 9 will survive
termination.
9. ARBITRATION
Any controversy, claim or dispute of any kind whatsoever arising out of or
relating to this Agreement or any actual or alleged breach thereof shall be
resolved by submitting such controversy, claim or dispute to binding arbitration
administered by the NASD under the arbitration rules of the NASD then in effect.
In the event the NASD declines to hear such controversy, claim or dispute, it
shall be resolved by submitting the same to binding arbitration administered by
the American Arbitration Association under its Commercial Arbitration Rules then
in effect. Judgment on any award rendered by the arbitrators may be entered in
any court, state or federal, having jurisdiction thereof. It is agreed by the
parties hereto that exemplary damages and/or punitive damages will not be
recoverable and will not be requested by any party hereto.
10. GENERAL PROVISIONS
(a) Assignments. You may not assign any rights or delegate any obligations
hereunder without the prior written consent of the Distributor, which shall not
be unreasonably withheld.
(b) Entire Agreement. This Agreement contains the entire agreement between the
parties.
(c) Amendments. Except as otherwise provided herein, this Agreement may not be
altered, interpreted, amended, or modified except by a writing signed by the
Broker-Dealer and the Distributor.
(d) No Waiver of Provisions. The failure of any party to enforce any provision
of this Agreement does not constitute a waiver of that provision. No waiver of
any provision shall be effective unless such waiver is stipulated in writing and
signed by the Distributor and shall not constitute a waiver of such provision in
the future except as specifically provided therein.
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(e) Prior Agreements. This Agreement replaces all prior agreements between you
and the Distributor and/or the Company as to the future solicitation of
purchasers for and servicing of life insurance and annuity products of the
Company. Prior agreements, if any, will continue in effect as to the servicing
of prior sales and your right to compensation thereunder.
(f) Counterparts. This Agreement may be executed in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
(g) Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
(h) Notices. All notices under this Agreement shall be given in writing. Each
such notice shall be either hand delivered or transmitted by overnight carrier
or certified United States mail, return receipt requested, to the last known
address of the addressee and shall be effective upon delivery.
(i) Authorized Representative. No writing shall be of any force or effect as
against the Distributor or the Company unless signed on its behalf by Xxxxxxx
Xxxxx or such other person as may be designated in writing by a Senior Vice
President thereof.
(j) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(k) Effective Date. This Agreement will take effect on the date, following
receipt by the Distributor of a signed counterpart of this Agreement from you,
on which the Distributor enters into this Agreement, as set forth below.
11. DEFINITIONS
(a) "Approved Sales Materials" means illustrations, brochures, sales scripts,
seminar or other types of presentations, advertising, direct mailings and any
other sales materials relating to the Company or the Company Products provided
to you by the Company or the Distributor.
(b) "Company" means AXA Equitable Life Insurance Company, MONY Life Insurance
Company, MONY Life Insurance Company of America or an insurance company
affiliate or subsidiary of any of the foregoing, as the case may be, which is
the issuer of a particular policy or contract.
(c) "Company Products" means the life insurance and annuity products which a BGA
is authorized to distribute from time to time pursuant to its General Agent
Agreement.
(d) "Compensation" means compensation of any kind, whether called
commissions, fees or any other name.
(e) "Distributor" means AXA Distributors, LLC.
(f) "Distributor Policies" means the rules and procedures issued by the
Distributor or the Company from time to time with respect to the solicitation
and/or servicing of the Company Products.
(g) "General Agent Agreement" means the General Agent Agreement with a BGA, as
now or hereafter modified and amended.
(h) "Letter Ruling" means the letter ruling issued by the staff of the
Securities and Exchange Commission to Xxxxxx & Xxxxxx (sub. nom. First of
America Brokerage Services, Inc.) (avail. Sept. 28, 1995) or any successor
letter ruling with respect to the non-registration as a broker-dealer of an
insurance agency associated with a registered broker-dealer.
(i) "NASD" means the National Association of Securities Dealers.
(j) "Networking Agreement" means a written agreement between a BGA and you which
complies with the terms and conditions of the Letter Ruling.
(k) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(l) "Prospectuses" shall mean all product prospectuses, trust prospectuses and
statements of additional information relating to the Variable Company Products
and such other materials as the Distributor shall determine to be necessary or
desirable to distribute to prospective purchasers of the Variable Sales
Products.
(m) "Qualified Retailer" means (1) a broker-dealer who is also an
insurance agency or (2) a broker-dealer and its associated insurance agency, as
the case may be, authorized to distribute Company Products pursuant to a Broker
Dealer and General Agent Sales Agreement with the Distributor.
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(n) "Traditional Company Products" means the Company Products that are not
subject to regulation by the Securities and Exchange Commission.
(o) "You" shall mean the entity entering into this Agreement as the
Broker-Dealer below.
(p) "Variable Company Products" means the Company Products that are subject to
regulation by the Securities and Exchange Commission.
This Agreement is entered into as of ---------------------------, 2005.
(Distributor to insert date)
Broker-Dealer: Distributor:
----------------------------- AXA Distributors, LLC
[Insert name of Broker-Dealer]
By: ------------------------------ By: -------------------------------
Name: ------------------- Name: ----------------------------
Title: Vice President
Title: -------------------
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Schedule 1
to
Wholesale Broker-Dealer Supervisory And Sales Agreement
List of BGA's
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