AMENDED AND RESTATED
UNDERWRITING AND INDEMNITY AGREEMENT
By and Among
XXXX XXXXXXX VARIABLE SERIES TRUST I,
SIGNATOR INVESTORS, INC.,
and
XXXX XXXXXXX LIFE INSURANCE COMPANY
Agreement made as of March 24, 2004, among Xxxx Xxxxxxx Variable Series
Trust I, an open-end investment company organized as a business trust under the
laws of Massachusetts (the "Series"), Signator Investors, Inc., a registered
broker-dealer organized under the laws of Delaware ("Signator"), and Xxxx
Xxxxxxx Life Insurance Company, a life insurance company organized under the
laws of Massachusetts and a registered investment adviser ("JHLICO").
WHEREAS, the Series has agreed to sell its shares to the Separate Accounts
of JHLICO and of its wholly-owned subsidiary, Xxxx Xxxxxxx Variable Life
Insurance Company ("Separate Accounts"), in order to fund the Separate Accounts
and the variable annuity contracts and variable life insurance policies issued
by them, and
WHEREAS, pursuant to an Underwriting and Indemnity Agreement dated as of
May 1, 1997, the Series appointed Signator, an indirect wholly-owned subsidiary
of JHLICO, as the principal underwriter of the Series' shares that the Series
sells to the Separate Accounts, and
WHEREAS, the parties thereto now desire to amend and restate that
Agreement, and
WHEREAS, JHLICO has accepted its appointment by the Series to serve as
investment adviser to the Series pursuant to several Investment Management
Agreements (together with any amendments thereto, the "Investment Management
Agreements"), and
WHEREAS, pursuant to the Investment Management Agreements, the Series
agrees to assume, or provide for others to assume, certain expenses for Series
operations and activities, and
WHEREAS, pursuant to the Investment Management Agreements, JHLICO agrees to
perform certain administrative functions and services on behalf of the Series
and also to assume certain of the expenses of the Series.
NOW, THEREFORE, WITNESSETH: That it is hereby agreed among the parties as
follows:
1. APPOINTMENT OF SIGNATOR AS UNDERWRITER.
The Series hereby appoints Signator to continue as the principal
underwriter and distributor of the Series to sell its shares to the Separate
Accounts and Signator hereby accepts such appointment. The Series, during the
term of this Agreement, shall sell its shares to the Separate Accounts at net
asset values as set forth in the Series' applicable Prospectus and Statement of
Additional Information, as in effect from time to time (collectively hereinafter
the "Prospectus"), and upon the terms and conditions set forth below.
2. EXCLUSIVE NATURE OF DUTIES.
Signator shall be the exclusive representative of the Series to act as
principal underwriter and distributor for sales of shares to the Separate
Accounts. However, the Series may appoint other principal underwriters and
distributors with respect to sales of Series shares to other parties.
3. SALE AND REDEMPTION OF SHARES OF THE SERIES.
(a) Sales, redemptions and repurchases shall be effected directly by the
transfer agent of the Series, as such, according to the terms of the Series'
transfer agency agreement, and payment for shares shall be transmitted by the
transfer agent directly to the Series' custodian.
(b) The Series shall have the right to suspend the redemption of shares of
any of its Portfolios pursuant to the conditions set forth in the Prospectus.
The Series shall also have the right to suspend the sale of shares of any or all
of its Portfolios at any time when it is authorized to suspend redemption of
such shares, or at any other time when there shall have occurred an
extraordinary event or circumstances which, in the reasonable judgment of the
Series, makes it impractical or inadvisable to continue to sell any such shares.
(c) The Series will give Signator prompt notice of any such suspension and
shall promptly furnish such other information in connection with the sale and
redemption of Series shares as Signator reasonably requests.
4. DUTIES OF THE SERIES.
(a) The Series shall furnish to Signator copies of all information,
financial statements and other documents or papers which it may reasonably
request for use in connection with the distribution of shares of the Series.
(b) The Series shall take, from time to time, but subject to any necessary
approval of its shareholders, all necessary action to register shares under the
Securities Act of 1933 (the "1933 Act"), to the end that there will be available
for sale such number of shares in each Portfolio as may reasonably be expected
to be sold and issued.
(c) The Series shall use its best efforts to qualify and maintain the
qualification of an appropriate number of shares of each of its Portfolios for
sale under the securities laws of such states as Signator may reasonably
require.
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(d) The Series will furnish to Signator upon request copies of annual and
interim reports of the Series.
(e) The Series shall promptly notify Signator if the registration or
qualification of any Series shares under any state or Federal securities laws,
or the Series' registration under the Investment Company Act of 1940 (the "1940
Act"), is suspended or terminated, or if any government body or agency
institutes proceedings to terminate the offer and sale of any Series shares in
any jurisdiction.
5. DUTIES OF SIGNATOR.
(a) Signator shall be subject to the direction and control of Series in the
sale of its shares. Signator shall not be obligated to sell any specific number
of shares in any Portfolio.
(b) In selling the shares of the Series, Signator shall use its best
efforts in all respects duly to conform with the requirements of all Federal and
state laws and regulations and the requirements of the National Association of
Securities Dealers, Inc. (the "NASD"), relating to the sale of such securities.
Neither Signator nor any other person shall make any representations or give any
information regarding the Series which is not contained in the registration
statement or related Prospectus or sales or advertising material approved by
Signator.
(c) Signator shall act as an independent contractor and nothing herein
contained shall constitute Signator, its agents or representatives, or any
employees thereof as employees of the Series in connection with the sale of
shares of the Series. Signator assumes full responsibility for its agents and
employees under applicable statutes.
No commission shall be paid to any person or entity in connection with the
sale of Series shares hereunder to the Separate Accounts, provided, however,
that this shall not preclude the making of any payments pursuant to and in
accordance with any plan adopted by the Series pursuant to Rule 12b-1 under the
1940 Act or any agreement related thereto.
(d) Signator shall keep records showing the amount of any significant
contribution to or withdrawal from any Separate Account subaccount investing in
the Series which does not reflect an automatic transaction under an annuity or
insurance contract (such as investments of net premiums, deaths of insureds,
deductions of fees and charges, transfers, surrenders, loans, loan repayments,
deductions of loan interest, lapses, reinstatements, and similar automatic
transactions), which record shall also include the name of the person ordering
the transaction and the date and time of day the transaction was ordered. It is
hereby agreed that any issuance, redemption or repurchase of Portfolio shares
relating to any such non-automatic transaction shall be at the Portfolio's net
asset value per share next computed after the time of said order, and said order
shall become irrevocable at the time as of which such value is next determined.
Signator shall also maintain records of the dates and times of day at which all
transactions were effected, showing the share and dollar amounts of such
transactions, and all other records required by the Securities Exchange Act of
1934 ("1934 Act") and rules thereunder with respect to the issuance, redemption
or repurchase of Series shares. All records required by this paragraph to be
maintained by Signator may be maintained by the transfer agent of the Series on
behalf of Signator, but at all times such records (i) will be maintained and
preserved in conformity with
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the requirements of Rules 17a-3 and 17a-4 under the 1934 Act, (ii) shall be and
remain the property of Signator, and (iii) be all times subject to inspection by
the Securities and Exchange Commission in accordance with Section 17(a) of the
1934 Act.
6. INDEMNIFICATION.
Signator and JHLICO (together, the "Indemnitors" herein), jointly and
severally, hereby indemnify and hold harmless the Series and each of its
trustees and officers (or former officers and trustees) (collectively,
"Indemnitees") against any loss, liability, claim, damage, or expense (including
the reasonable cost of investigating and defending against the same and any
counsel fees reasonably incurred in connection therewith) incurred by any
Indemnitees under the 1933 Act or under common law or otherwise which arise out
of or are based upon (1) any untrue or alleged untrue statement of a material
fact contained in information furnished by Signator or JHLICO for use in the
Series' registration statement, Prospectus, or annual or interim reports to
shareholders, (2) any omission or alleged omission to state a material fact in
connection with such information furnished by Signator or JHLICO which is
required to be stated in any of such documents or necessary to make such
information not misleading, (3) any misrepresentation or omission or alleged
misrepresentation or omission to state a material fact on the part of Signator
or JHLICO or any of their respective agents, officers or employees unless such
misrepresentation or omission or alleged misrepresentation or omission was made
in reliance on written information furnished by the Series, or (4) the willful
misconduct or failure to exercise reasonable care and diligence on the part of
any such persons with respect to services rendered under this Agreement. This
indemnity provision, however, shall not operate to protect any officer or
trustee of the Series from any liability to the Series or any shareholder by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of his or her duties.
In case any action shall be brought against any Indemnitee, the Indemnitors
shall not be liable with respect to any claim made against any Indemnitee,
unless the Indemnitee shall have notified Signator and JHLICO 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 the
Indemnitee (or after the Indemnitee shall have received notice of such service
on any designated agent), but failure to notify the Indemnitors of any such
claim shall not relieve them from liability which they may have to the person
against whom such action is brought otherwise than on account of this
indemnification. The Indemnitors will be entitled to participate at their own
expense in the defense, or, if they so elect, to assume the defense of any suit
brought to enforce any such liability, but if the Indemnitors elect to assume
the defense, such defense shall be conducted by counsel chosen by them and
satisfactory to the Indemnitees which are defendants in the suit.
The Indemnitors shall promptly notify the Series of any litigation or
proceedings in connection with the issuance or sale of the shares.
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7. DURATION AND TERMINATION OF AGREEMENT.
This Agreement shall become effective as of the date first above written
and shall remain in force from year to year thereafter, but only so long as such
continuance is specifically approved at least annually by (i) the Board of
Trustees of the Series, or by the vote of a majority of the outstanding voting
securities of the Series, cast in person or by proxy, and (ii) a majority of
those trustees who are not parties to this Agreement or interested persons of
any such party cast in person at a meeting called for the purpose of voting upon
such approval.
The Agreement may be terminated at any time without the payment of any
penalty, by the Board of Trustees of the Series, by vote of a majority of the
outstanding voting securities of the Series, or by Signator, or by JHLICO as to
its obligations hereunder, on sixty days written notice to the other parties.
This Agreement shall automatically terminate in the event of its assignment. The
termination or amendment of this Agreement shall not affect the Indemnitors'
indemnity obligations under Section 6 above with respect to any claim or dispute
arising out of transactions or occurrences happening prior to said termination
or amendment.
The terms "assignment," "vote of a majority of the outstanding voting
securities" and "interested person," when used in this Agreement, shall have the
respective meanings specified in the 1940 Act and rules thereunder.
8. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts and the applicable provisions of the 1940 Act and
rules thereunder.
9. MISCELLANEOUS.
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
Neither Signator nor JHLICO shall disclose or use any records or
information obtained hereunder in any manner whatsoever, except as expressly
authorized hereunder, and each shall keep confidential any information obtained
pursuant to its relationship with the Series set forth herein, and disclose such
information only if the Series has authorized such disclosure, or if such
disclosure is expressly required by appropriate federal or state regulatory
authorities. Signator and JHLICO shall furnish state insurance regulatory
authorities with any information or reports in connection with the services they
provide to the Series hereunder which such authorities may request in order to
ascertain whether the variable insurance product operations of any insurance
company are being conducted in a manner consistent with applicable law or
regulations.
10. LIMITATION OF LIABILITY.
It is expressly agreed that the obligations of the Series hereunder shall
not be binding upon any of the trustees, shareholders, officers, agents or
employees of the Series personally, but only bind the trust property of the
Series, as provided in the Series' Declaration of Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above.
XXXX XXXXXXX VARIABLE SERIES TRUST I
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
---------------------------------
Title: President
---------------------------------
SIGNATOR INVESTORS, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
---------------------------------
Title: President
---------------------------------
XXXX XXXXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxx Xxxx
---------------------------------
Name: Xxxxxxx X. Xxx Xxxx
---------------------------------
Title: Senior Vice President
---------------------------------
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