EXHIBIT 6(f)
Xxxxxxx Investor Services, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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, International Portfolio and Money Market 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 Policies and, contemporaneously therewith, the prospectus of the Fund. Sales
of Shares to Participating Insurance
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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 ________________
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-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
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"Commission"), (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
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.
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(b) You or one or more Participating Insurance Companies will be
responsible for insuring compliance with 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 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
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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 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
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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 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
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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 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
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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.
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.
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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.
XXXXXXX INVESTOR SERVICES, INC.
By:
-----------------------------------
Xxxxx X. Xxx
President
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned hereby accepts the
offer set forth in the above letter.
[Participating Insurance Company's
Registered Broker-Dealer]
Dated: By:
---------------- -----------------------------------
Authorized Representative
Address:
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