BROKER-DEALER AND GENERAL AGENT
SALES AGREEMENT
AGREEMENT, by and among EQ Financial Consultants, Inc. ("Distributor"),
__________________________ ("Broker-Dealer") and ___________________________
("General Agent").
W I T N E S S E T H :
WHEREAS, the Distributor and the Broker-Dealer are both broker-dealers
registered with the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended ("1934 Act"), and members of the National
Association of Securities Dealers, Inc.;
WHEREAS, the General Agent, which is an Affiliate of, or the same person
as, the Broker-Dealer, or whose employees are also employees of the
Broker-Dealer, is an insurance agency duly licensed to sell variable life
insurance and variable annuities in any state or other jurisdiction in which the
General Agent intends to perform hereunder;
WHEREAS, The Equitable Life Assurance Society of the United States
("Equitable") has appointed the Distributor as principal underwriter or
distributor of the Variable Accounts and the MVA Interests and as distributor of
the Contracts and has authorized the Distributor to recommend persons for
appointment as agents of Equitable to solicit applications for the sale of the
Contracts;
WHEREAS, it is intended that the General Agent shall be authorized to offer
and sell the Contracts to the general public subject to the terms and conditions
set forth more fully herein;
WHEREAS, Equitable has authorized the Distributor to enter into separate
written agreements with broker-dealers registered under the 1934 Act which agree
to participate in the distribution of the Contracts, and the parties hereto
desire that the Broker-Dealer be authorized to solicit applications for the sale
of the Contracts;
WHEREAS, Contracts may be issued by an insurance company which is an
Affiliate of Equitable and the Distributor may be authorized to promote the
offer and sale of such Contracts in the same manner that Equitable has
authorized the Distributor to act, as described above.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and promises herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
ss.1.1 Defined Terms. In addition to any terms defined elsewhere in this
Agreement, the terms defined in this Section 1.1, whenever used in this
Agreement (including in the Schedules and Exhibits), shall have the respective
meanings indicated.
a. Affiliated Person or Affiliate -- With respect to a person,
any other person controlling, controlled by, or under common control with, such
person.
b. Agent -- An individual associated with the General Agent and
registered with the NASD as a representative of the Broker-Dealer who is
appointed by an Equitable Life Company as an insurance agent for the purpose of
soliciting applications for the Contracts.
c. Broker-of-Record -- The party designated in the Equitable
Life Companies records as the person, with respect to a Contract, who is
entitled to receive compensation payable with respect to such Contract and who
is authorized to contact directly the owner of such Contract. In the case of
compensation payable with respect to a Premium, the Broker-of-Record shall be
the party designated as such in the records of an Equitable Life Company, at the
time such Premium is accepted by such Equitable Life Company. In the case of any
payment of compensation payable with respect to Contract value or client
services, the Broker-of-Record shall be the party designated as such in the
records of an Equitable Life Company, in accordance with the rules and
procedures of the Equitable Life Companies at the time any such payment is
payable. In the case of compensation payable on annuitization of a Contract, the
Broker-of-Record shall be the party designated as such in the records of an
Equitable Life Company on the annuity commencement date specified in such
Contract.
d. Contract Prospectus -- The prospectus for the interests under
the Contracts included within a Contract Registration Statement and including
any Contract prospectus or supplement separately filed under the 1933 Act. The
Contract Prospectus also shall include the statement of additional information
which is part of the Contract Registration Statement, unless the context
otherwise requires.
e. Contract Registration Statements -- The most recent effective
registration statements, or most recent effective post-effective amendments
thereto, relating to interests under the Contracts and in the Variable Accounts,
as required by the 1933 Act and the 1940 Act, including financial statements
therein and all exhibits thereto.
f. Contracts -- All classes of life insurance policies and
annuity contracts, including certificates, issued by Equitable or by an
Affiliate of Equitable distributed by the Distributor, except those which are
identified in Schedule I. Schedule I may be modified from time to time, as
provided in Section 2.6.
g. Equitable Life Companies or, individually, an Equitable Life
Company -- Equitable and any Affiliate of Equitable which is an insurance
company.
h. MVA Interests -- The market value adjustment interests, if
any, under the Contracts.
i. NASD -- National Association of Securities Dealers, Inc.
j. 1940 Act -- Investment Company Act of 1940, as amended.
k. 1934 Act -- Securities Exchange Act of 1934, as amended.
l. 1933 Act -- Securities Act of 1933, as amended.
m. Premium -- Any premium, contribution or other consideration
relating to the Contracts.
n. SEC or Commission -- Securities and Exchange Commission.
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o. Trust -- The Xxxxxx River Trust and any other entity available
for investment through the Variable Accounts under the Contracts.
p. Trust Prospectus -- The prospectus for the Trust included
within the Trust Registration Statement and including any Trust prospectus or
supplement separately filed under the 1933 Act. The Trust Prospectus also shall
include the statement of additional information which is part of the Trust
Registration Statement, unless the context otherwise requires.
q. Trust Registration Statement -- The most recent effective
registration statement or most recent effective post-effective amendment thereto
relating to the Trust as required by the 1933 Act and the 1940 Act, including
financial statements therein and all exhibits thereto.
r. Variable Accounts -- Segregated asset accounts, each of which
has been established by an Equitable Life Company pursuant to state law as a
funding vehicle for the Contracts. The Variable Accounts are divided into
divisions that invest in shares of the Trust.
ss.1.2 Cross-References. All references in this Agreement to a Section,
Article, Schedule or Exhibit are to a section, article, schedule or exhibit of
this Agreement, unless otherwise indicated.
ARTICLE II
AUTHORIZATION OF BROKER-DEALER AND GENERAL AGENT
ss.2.1 Authority to Distribute Contracts. Pursuant to the authority
granted to it by Equitable, the Distributor hereby authorizes the Broker-Dealer,
under the securities laws, and General Agent, under the insurance laws, each in
a non-exclusive capacity, to distribute the Contracts. The Broker-Dealer and the
General Agent accept such authorization and agree to use their best efforts to
find purchasers for the Contracts in each case acceptable to the Equitable Life
Company issuing such Contracts. The Broker-Dealer and the General Agent
understand that the public offering of and solicitation for interests under the
Contracts are not permitted to commence, or to continue, unless the Contract
Registration Statements have become effective and, with respect to each state or
other jurisdiction in which Contract applications are to be solicited, the
Contracts are qualified for sale under all applicable securities and insurance
laws. The Broker-Dealer and the General Agent agree that the solicitation of
applications for the sale of the Contracts will commence as soon as practicable
after the Contract Registration Statements have become effective.
ss.2.2 Notification by Distributor. The Distributor shall notify the
Broker-Dealer and the General Agent:
a. If there are no effective Contract Registration Statements,
when the Contract Registration Statements have become effective;
b. Of all states and other jurisdictions in which the Contracts
are qualified for sale and of the states and other jurisdictions in which the
Contracts may not be lawfully sold;
c. Of any request by the SEC for any amendments or supplements to
a Contract Registration Statement or of any request for additional information
that must be provided by the Broker-Dealer or the General Agent or any Affiliate
of the Broker-Dealer or the General Agent;
d. Of the issuance by the SEC of any stop order with respect to a
Contract Registration Statement or the initiation of any proceedings for that
purpose or for any other purpose relating to the registration and/or offering of
the Contracts;
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e. If any event occurs as a result of which the Contract
Prospectus(es) or any sales literature for the Contracts would include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein not misleading.
The Distributor will provide the Broker-Dealer and the General Agent with
notification of these matters immediately by telephone, with notification in
writing promptly thereafter.
ss.2.3 Authority to Recommend Agent Appointments. The General Agent is
vested under this Agreement with power and authority to select and recommend
individuals who are associated with the General Agent and are registered
representatives of the Broker-Dealer for appointment as agents of Equitable, and
only individuals so recommended by the General Agent to the Distributor shall be
eligible to become Agents, provided that the number of Agents with appointments
in effect under this Agreement shall not at any time exceed five. Equitable
reserves the right in its sole discretion to refuse to appoint any proposed
agent or, once appointed, to terminate the same at any time with or without
cause.
ss.2.4 Limitations on Authority. Neither the Broker-Dealer nor the
General Agent shall possess or exercise any authority on behalf of the
Distributor or the Equitable Life Companies other than that expressly conferred
on the Broker-Dealer or the General Agent by this Agreement. In particular, and
without limiting the foregoing, neither the Broker-Dealer nor the General Agent
shall have any authority, nor shall either grant such authority to any Agent, on
behalf of the Distributor (i) to make, alter or discharge any Contract or other
contract entered into pursuant to a Contract; (ii) to waive any Contract
provision; (iii) to extend the time for payment of any Premiums; or (iv) to
receive any monies or Premiums from applicants for or purchasers of the
Contracts (except for the sole purpose of forwarding monies or Premiums to an
Equitable Life Company).
ss.2.5 Suitability. The Distributor wishes to ensure that the Contracts
solicited by Broker-Dealer will be issued to persons for whom the Contracts will
be suitable. Broker-Dealer shall take reasonable steps to ensure that Agents
shall not make recommendations to an applicant to purchase any Contract in the
absence of reasonable grounds to believe that the purchase of such Contract is
suitable for such applicant. While not limited to the following, a determination
of suitability shall be based on information furnished to an Agent after
reasonable inquiry concerning the applicant's insurance and investment
objectives, financial situation and needs.
ss.2.6 Insurer's Right to Reject Applications. The Broker-Dealer and the
General Agent acknowledge that each Equitable Life Company has the right in its
sole discretion to reject any applications or Premiums received by it and to
return or refund to an applicant such applicant's Premium. In the event that an
Equitable Life Company rejects an application solicited by an Agent, such
Equitable Life Company will return any Premium paid by the applicant to such
applicant, or to the soliciting Agent for prompt forwarding to such applicant.
In the event that a purchaser exercises his or her free look right under a
Contract, any amount to be refunded as provided in such Contract will be so
refunded to the purchaser by or on behalf of the Equitable Life Company that
issued such Contract, or to the soliciting Agent for prompt forwarding to such
purchaser.
ss.2.7 Contracts Included and Contracts Excluded Under Agreement. This
Agreement applies to all classes of annuity contracts or life insurance
contracts issued by an Equitable Life Company and distributed by the Distributor
("Contracts"). Schedule I to this Agreement describes the life insurance and
annuity contracts which are excluded as Contracts under this Agreement. Schedule
I may be amended by the Distributor in its sole discretion from time to time to
add or to delete classes of annuity contracts or life insurance contracts. The
provisions of this Agreement shall apply with equal force to all Contracts from
time to time covered by it unless the context otherwise requires.
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ss.2.8 Independent Contractor Status. The Distributor acknowledges that
the Broker-Dealer and the General Agent are each independent contractors.
Accordingly, while the Broker-Dealer and the General Agent agree to use their
best efforts to solicit applications for the Contracts, the Broker-Dealer and
the General Agent are not obliged or expected to give full time and energies to
the performance of their obligations hereunder or to sell or solicit a specified
number of Contracts, nor are the Broker-Dealer and the General Agent obliged or
expected to represent the Distributor or any Equitable Life Company exclusively.
Nothing herein contained shall constitute the Broker-Dealer, the General Agent,
or any agents or representatives of the Broker-Dealer or the General Agent as
employees of an Equitable Life Company or the Distributor.
ARTICLE III
LICENSING AND REGISTRATION OF BROKER-DEALER, GENERAL AGENT AND AGENTS
ss.3.1 Broker-Dealer Qualifications. The Broker-Dealer represents that it
is a broker-dealer registered with the SEC under the 1934 Act, and is a member
of the NASD. The Broker-Dealer must, at all times when performing its functions
and fulfilling its obligations under this Agreement, be duly registered as a
broker-dealer under the 1934 Act and in each state or other jurisdiction in
which Broker-Dealer intends to perform its functions and fulfill its obligations
hereunder and in which such registration is required, and be a member in good
standing of the NASD.
ss.3.2 General Agent Qualifications. The General Agent represents that it
is a licensed life insurance agent where required to solicit applications. The
General Agent must, at all times when performing its functions and fulfilling
its obligations under this Agreement, be duly licensed to sell the Contracts in
each state or other jurisdiction in which the General Agent intends to perform
its functions and fulfill its obligations hereunder.
ss.3.3 Qualifications of Broker-Dealer Representatives. The Broker-Dealer
represents and warrants that it shall take all necessary action to ensure that
no individual shall offer or sell the Contracts on behalf of Broker-Dealer in
any state or other jurisdiction in which the Contracts may lawfully be sold
unless such individual is an associated person of Broker-Dealer (as that term is
defined in Section 3(a)(18) of the 1934 Act), is neither subject to a statutory
disqualification (as that term is defined in the 0000 Xxx) nor prohibited from
engaging in the business of insurance (under the Violent Crime Control and Law
Enforcement Act of 1994), and is duly registered with the NASD and any
applicable state securities regulatory authority as a registered person of
Broker-Dealer qualified to distribute the Contracts in such state or other
jurisdiction.
ss.3.4 Qualifications of General Agent's Agents and Appointment of Agents.
The General Agent represents and warrants that it shall take all necessary
action to ensure that no individual shall offer or sell the Contracts on behalf
of the General Agent in any state or other jurisdiction unless such individual
is duly appointed as an agent of the General Agent, duly licensed and appointed
as an agent of the appropriate Equitable Life Company and appropriately
licensed, registered or otherwise qualified to offer and sell the Contracts to
be offered and sold by such individual under the insurance laws of such state or
jurisdiction. The General Agent understands that certain states may require that
a special variable contracts examination be passed by agent before he or she can
solicit applications for the Contracts. Nothing in this Agreement is to be
construed as requiring an Equitable Life Company to obtain a license or issue a
consent or appointment to enable any particular agent to sell Contracts. All
matters concerning the licensing of any individuals recommended for appointment
by the General Agent under any applicable state insurance law shall be a matter
directly between the General Agent and such individual. The General Agent shall
furnish the Equitable Life Companies with proof of proper licensing of such
individual or other proof, reasonably acceptable to the Equitable Life
Companies, of satisfaction by such individual of licensing requirements prior to
the appointment of any such individual as an agent of any Equitable Life
Company. In conjunction with the submission of appointment papers for all such
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individuals as insurance agents of an Equitable Life Company, the General Agent
shall fulfill all requirements set forth in the General Letter of
Recommendation, which is Exhibit A, and shall be deemed to represent that each
individual is competent and qualified to act as an agent for the Equitable Life
Companies and to hold himself or herself out in good faith to the general
public.
ARTICLE IV
BROKER-DEALER AND GENERAL AGENT COMPLIANCE
ss.4.1 Supervisory Responsibilities of General Agent. The General Agent
shall train, supervise and be solely responsible for the conduct of the Agents
in their solicitation activities in connection with the Contracts, and shall
supervise Agents' strict compliance with applicable rules and regulations of any
governmental or other insurance authorities that have jurisdiction over
insurance contract activities, as well as the rules and procedures of the
Equitable Life Companies pertaining to the solicitation, sale and submission of
applications for the Contracts and the provision of services relating to the
Contracts. The General Agent shall be solely responsible for background
investigations of the proposed agents to determine their qualifications, good
character and moral fitness to sell the Contracts.
ss.4.2 Supervisory Responsibilities of Broker-Dealer. The Broker-Dealer
shall be responsible for securities training, supervision and control of the
Agents in connection with their solicitation activities and any incidental
services with respect to the Contracts and shall supervise Agents' strict
compliance with applicable federal and state securities laws and NASD
requirements in connection with such solicitation activities and with the rules
and procedures of the Equitable Life Companies.
ss.4.3 Compliance With Applicable Laws. The Broker-Dealer and the General
Agent hereby represent and warrant that they are in compliance with all
applicable federal and state securities laws and regulations and all applicable
insurance laws and regulations, including, without limitation, state insurance
laws and regulations imposing insurance licensing requirements. The
Broker-Dealer and the General Agent each agree to carry out their respective
sales and administrative activities and obligations under this Agreement in
continued compliance with federal and state laws and regulations, including
those governing securities and insurance-related activities or transactions, as
applicable. The Broker-Dealer and the General Agent shall notify the Distributor
and the Equitable Life Companies immediately in writing if Broker-Dealer and/or
the General Agent fail to comply with any of the laws and regulations applicable
to either of them.
ss.4.4 Restrictions on Sales Activity. The Broker-Dealer and the General
Agent and Agents shall not offer or attempt to offer the Contracts, nor solicit
applications for the Contracts, nor deliver Contracts, in any state or other
jurisdiction in which the Contracts may not lawfully be sold or offered for
sale. For purposes of determining where the Contracts may be offered and
applications solicited, the Broker-Dealer and the General Agent may rely on
written notification, as revised from time to time, received from the
Distributor.
ss.4.5 Premiums and Other Payments. All Premiums and loan repayments
shall be sent promptly (and in any event not later than two business days after
receipt) to the appropriate Equitable Life Company at the address indicated in
the rules and procedures of the Equitable Life Companies, or at such other
address as the Equitable Life Companies or the Distributor may subsequently
specify in writing. Each initial Premium shall be accompanied by a properly
completed application for a Contract, unless such Premium is submitted in
accordance with the procedures set forth in Exhibit B, which have been accepted
and agreed to by the Broker-Dealer and the General Agent, as provided in Exhibit
B. Checks in payment of Premiums or outstanding loans shall be drawn to the
order of the appropriate Equitable Life Company.
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ss.4.6 Misdirected Payments. In the event that Premiums or loan
repayments are sent to the General Agent or Broker-Dealer, rather than to the
appropriate Equitable Life Company, the General Agent and Broker-Dealer shall
promptly (and in any event, within two business days) remit such Premiums to the
appropriate Equitable Life Company at the address indicated in the rules and
procedures of the Equitable Life Companies. The General Agent and Broker-Dealer
acknowledge that if any Premium or other payment is held at any time by either
of them, such Premium or other payment shall be held on behalf of the client,
and the General Agent or Broker-Dealer shall segregate such Premium or other
payment from their own funds and promptly (and in any event, within two business
days) remit such Premium or other payment to the Equitable Life Company issuing
the Contract pursuant to which such amounts have been paid.
ss.4.7 Delivery of Contracts. Upon issuance of a Contract by an Equitable
Life Company and delivery of such Contract to the Agent who solicited its
purchase, the soliciting Agent shall promptly deliver such Contract to its
purchaser. For purposes of this provision, "promptly" shall be deemed to mean
not later than five calendar days. Consistent with its administrative
procedures, each Equitable Life Company will assume that a Contract issued by it
will be delivered by the soliciting Agent to the purchaser of such Contract
within five calendar days. As a result, if a purchaser exercises the free look
rights under a Contract, the Broker-Dealer and the General Agent shall indemnify
the Equitable Life Company issuing a Contract for any loss incurred by such
Equitable Life Company that results from the soliciting Agent's failure to
deliver such Contract to its purchaser within the contemplated five-calendar-day
period.
ss.4.8 Restrictions on Communications. Neither the Broker-Dealer nor the
General Agent, nor any of their directors, partners, officers, employees,
registered persons, associated persons, agents or affiliated persons, in
connection with the offer or sale of the Contracts, shall give any information
or make any representations or statements, written or oral, concerning the
Contracts, the Variable Accounts or the Trust other than information or
representations contained in the Contract and Trust Prospectuses, statements of
additional information and Registration Statements, or in reports or proxy
statements therefor, or in promotional, sales or advertising material or other
information supplied and approved in writing by the Distributor.
ss.4.9 Directions Given on Behalf of Contract Owners. The Broker-Dealer
and the General Agent shall be solely responsible for the accuracy and propriety
of any instruction given or action taken by an Agent on behalf of an owner or
prospective owner of a Contract, including any instruction or action pursuant to
Exhibit B. Neither the Distributor nor the Equitable Life Companies shall have
any responsibility or liability for any action taken or omitted by it or by them
in good faith in reliance on or by acceptance of such an instruction or action.
ss.4.10 Restrictions on Sales Material and Name Usage. The Broker-Dealer
and the General Agent shall neither use nor authorize the use of any
promotional, sales or advertising material relating to the Contracts, the
Equitable Life Companies, the Variable Accounts, the MVA Interests or the Trust
without the prior written approval of the Distributor. Furthermore, the
Broker-Dealer and the General Agent shall neither use nor authorize the use of
the name of Equitable or of an Affiliate of Equitable, or any other name,
trademark, service xxxx, symbol or trade style that is now or may hereafter be
owned by Equitable or by an Affiliate of Equitable, except in the manner and to
the extent that such use may be specifically authorized in writing by Equitable
or the Distributor.
ss.4.11 Market Timing and Other Prohibitions. The Broker-Dealer and the
General Agent understand and acknowledge that the Distributor, in its sole
discretion and at any time during the term of this Agreement, may restrict or
prohibit the solicitation, offer or sale of Contracts and Premiums thereunder in
connection with any so-called "market timing" or "asset allocation" program,
plan, arrangement or service. Should the Distributor determine in its sole
discretion that the Broker-Dealer or
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the General Agent is soliciting, offering or selling, or has solicited, offered
or sold, Contracts or Premiums subject to any so-called "market timing" or
"asset allocation" program, plan, arrangement or service which is not permitted
under this Agreement (an "unapproved program"), the Distributor may take such
action which is necessary, in its sole discretion, to halt such solicitations,
offers or sales. Furthermore, in addition to any indemnification provided in
Article XI and any other liability that the Broker-Dealer and the General Agent
might have, the Distributor may hold the Broker-Dealer and the General Agent
liable for any damages or losses, actual or consequential, sustained by the
Distributor or any of its Affiliates, or the Trust or any Equitable Life
Company, as a result of any unapproved program which causes such losses or
damages following solicitation, offer or sale of a Contract or Premium subject
to any unapproved program or similar service made available by or through the
Broker-Dealer or the General Agent. Notwithstanding any prohibitions which may
be imposed pursuant to this Section 4.11, the Broker-Dealer and its registered
representatives who are Agents may provide incidental services in the form of
guidance to applicants and owners of Contracts regarding the allocation of
Premiums and Contract value, provided that such services are (i) solely
incidental to the Broker-Dealer's activities in connection with the sales of the
Contracts, (ii) subject to the supervision and control of the Broker-Dealer, and
(iii) furnished in accordance with rules and procedures prescribed by the
Equitable Life Companies.
ss.4.12 Tax Reporting Responsibility. The Broker-Dealer and the General
Agent shall be solely responsible under applicable tax laws for the reporting of
compensation paid to Agents and for any withholding of taxes from compensation
paid to Agents, including, without limitation, FICA, FUTA, and federal, state
and local income taxes.
ss.4.13 Maintenance of Books and Records. The General Agent represents
that it maintains and shall maintain such books and records concerning the
activities of the Agents as may be required by the appropriate insurance
regulatory agencies that have jurisdiction and that may be reasonably required
by the Distributor to reflect adequately the Contracts processed through the
General Agent. The General Agent shall make such books and records available to
the Distributor and/or an Equitable Life Company at any reasonable time upon
written request by the Distributor. The Broker-Dealer represents that it
maintains and shall maintain appropriate books and records concerning the
activities of the Agents as are required by the SEC, the NASD and other agencies
having jurisdiction and that may be reasonably required by the Distributor to
reflect adequately the Contracts processed through the General Agent.
Broker-Dealer shall make such books and records available to the Distributor
and/or an Equitable Life Company at any reasonable time upon written request by
the Distributor or an Equitable Life Company.
ss.4.14 Bonding of Agents and Others. The Broker-Dealer represents that
all directors, officers, employees, and registered representatives of the
Broker-Dealer who are appointed pursuant to this Agreement as Agents for state
insurance law purposes or who have access to funds of the Equitable Life
Companies, including but not limited to funds submitted with applications for
the Contracts or funds being returned to purchasers of Contracts, are and shall
be covered by a blanket fidelity bond, including coverage for larceny and
embezzlement, issued by a reputable bonding company. This bond shall be
maintained by the Broker-Dealer at the Broker-Dealer's expense. Such bond shall
be, at least, of the form, type and amount required under the NASD Rules of Fair
Practice. The Distributor may require evidence, satisfactory to it, that such
coverage is in force, and the Broker-Dealer shall give prompt written notice to
the Distributor of any cancellation or change of coverage. The Broker-Dealer
assigns any proceeds received from the fidelity bonding company to the Equitable
Life Companies to the extent of each Equitable Life Company's loss due to
activities covered by the bond. If there is any deficiency amount, as a result
of a deductible provision or otherwise, the Broker-Dealer shall promptly pay the
affected Equitable Life Company such amount on demand, and the Broker-Dealer
hereby indemnifies and holds harmless such Equitable Life Company from any such
deficiency and from the costs of collection thereof (including reasonable
attorneys' fees).
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ss.4.15 Reports to Insurers. The Broker-Dealer and the General Agent shall
promptly furnish to each Equitable Life Company or its authorized agent any
reports and information that such Equitable Life Company may reasonably request
for the purpose of meeting such Equitable Life Company's reporting and
recordkeeping requirements under the insurance laws of any state, under any
applicable federal or state securities laws, rules or regulations, or the rules
of the NASD.
ARTICLE V
STANDARD OF CONDUCT FOR AGENTS
ss.5.1 Basic Rules of Conduct. The Broker-Dealer and the General Agent
shall ensure that each Agent shall comply with a standard of conduct including,
but not limited to, the following:
a. An Agent shall be duly qualified, licensed and registered to
solicit and participate in the sale of Contracts as provided in Article III.
b. An Agent shall not solicit applications for the Contracts
without delivering the appropriate Contract Prospectus(es) the Trust Prospectus
and, where required by state insurance law (as set forth in a notice to be
supplied by the Equitable Life Companies), the then currently effective
statement of additional information for the Contracts, and any other information
whose delivery is specifically required. In soliciting applications for the
Contracts, an Agent shall only make statements, oral or written, which are in
accordance with the Contract Prospectus, the Trust Prospectus and written sales
literature regarding the Contracts authorized by the Distributor. An Agent shall
utilize only those applications for the Contracts provided to the General Agent
by the Distributor.
c. An Agent shall recommend the purchase of a Contract to an
applicant only if he or she has reasonable grounds to believe that such purchase
is suitable for the applicant in accordance with, among other things, applicable
regulations of any state regulatory authority, the SEC and the NASD. While not
limited to the following, a determination of suitability shall be based on
information supplied to an Agent after a reasonable inquiry concerning the
applicant's insurance and investment objectives and financial situation and
needs.
d. An Agent shall require that any payment of an initial Premium,
whether in the form of a check or otherwise, shall be drawn in U.S. dollars on a
bank located in the United States and made payable to the appropriate Equitable
Life Company and, if in the form of a check, signed by the applicant for the
Contract. An Agent shall not accept third-party checks or cash for Premiums.
e. All checks and applications for the Contracts received by an
Agent shall be forwarded promptly, and in any event not later than two business
days after receipt, to the processing office designated by the Equitable Life
Companies.
f. Every Contract received by an Agent shall be delivered
promptly, and in any event not later than five calendar days after receipt, to
its purchaser.
g. Any checks representing a return or refund of Premium which
are received by an Agent for delivery to an applicant or purchaser shall be
delivered promptly to the designated recipient.
h. An Agent shall have no authority to endorse checks to an
Equitable Life Company.
i. An Agent shall have no authority to alter, modify, waive or
change any of the terms, rates, charges or conditions of the Contracts.
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j. An Agent shall make no representations concerning the
continuation of non-guaranteed terms or provisions of the Contracts.
k. An Agent shall have no authority to advertise for, on behalf
of, or with respect to an Equitable Life Company, the Distributor, the Variable
Accounts, the MVA Interests, the Contracts or the Trust without prior written
approval and authorization from the Distributor.
l. An Agent shall have no authority to solicit applications for
Contracts or Premiums thereunder which will be subject to or in connection with
any so-called "market timing" or "asset allocation" program, plan, arrangement
or service which is an unapproved program.
m. An Agent shall not furnish any transfer or other instructions
by telephone to an Equitable Life Company on behalf of an owner of a Contract
without having first obtained from such owner a written authorization in a form
acceptable to the Equitable Life Companies.
n. An Agent shall not encourage a prospective purchaser to
surrender or exchange an insurance policy or contract issued by an Equitable
Life Company in order to purchase a Contract or, conversely, to surrender or
exchange a Contract in order to purchase another insurance policy or contract
issued by an Equitable Life Company, except to the extent such surrenders or
exchanges have been authorized by the Distributor. In the event that an
insurance policy or contract issued by an Equitable Life Company is surrendered
or exchanged in order to purchase a Contract, no compensation shall be paid
under this Agreement.
o. An Agent shall act in accordance with the rules and procedures
of the Equitable Life Companies, including their policy statements on ethical
conduct, in connection with any solicitation activities relating to the
Contracts.
ARTICLE VI
RESPONSIBILITIES OF DISTRIBUTOR FOR MARKETING MATERIALS AND REPORTS
ss.6.1 Prospectuses and Applications Provided by Distributor. During the
term of this Agreement, the Distributor upon request will make available to the
Broker-Dealer and the General Agent, for a reasonable charge, copies of the
Contract Prospectus(es), Trust Prospectus and applications for the Contracts.
Upon receipt from the Distributor of updated copies of the Contract
Prospectus(es), Trust Prospectus and applications for the Contracts, the
Broker-Dealer and the General Agent will promptly discard or destroy all copies
of such documents previously provided to them, except such copies as are needed
for purposes of maintaining proper records. Upon termination of this Agreement,
the Broker-Dealer and the General Agent will promptly return, to the
Distributor, all Contract and Trust Prospectuses, Contract applications, and
other materials and supplies furnished by the Distributor to the Broker-Dealer
or the General Agent or to the Agents.
ss.6.2 Sales Material Provided by Distributor. During the term of this
Agreement, the Distributor will be responsible for providing and approving all
promotional, sales and advertising material to be used by the Broker-Dealer and
the General Agent. The Distributor will file such materials or will cause such
materials to be filed with the SEC and the NASD, and with any state securities
regulatory authorities, as required.
ss.6.3 Information Provided by Distributor. The Distributor will compile
periodic marketing reports summarizing sales results to the extent reasonably
requested by the Broker-Dealer or the General Agent.
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ARTICLE VII
COMMISSIONS, FEES AND EXPENSES
ss.7.1 Compensation Schedule. During the term of this Agreement, the
Distributor shall pay to the General Agent (or to the Broker-Dealer, at the
request of the General Agent) as compensation for Contracts for which it is the
Broker-of-Record, the amounts set forth in Schedule II, as such Schedule II may
be amended or modified at any time, in any manner and without prior notice by
the Distributor, and subject to the other provisions of this Agreement. Any
amendment to Schedule II will be applicable to any Contract for which an
application or initial Premium is received by an Equitable Life Company on or
after the effective date of such amendment, in accordance with procedures
established by the Distributor. Compensation with respect to any Contract shall
be paid to the General Agent only for so long as the General Agent is the
Broker-of-Record for such Contract.
ss.7.2 Limitations on Compensation. No compensation shall be payable, and
any compensation already paid shall be returned to the Distributor (or to
Equitable, at the direction of the Distributor) on request, under each of the
following conditions:
a. if an Equitable Life Company, in its sole discretion,
determines not to issue the Contract applied for;
b. if an Equitable Life Company refunds the Premium paid by an
applicant, upon the exercise of applicant's right of withdrawal;
c. if an Equitable Life Company refunds the Premium paid by an
applicant, as a result of a complaint by the applicant, recognizing that the
Equitable Life Companies have sole discretion to refund Premiums; or
d. if the Distributor determines that any person signing an
application or any person or entity receiving compensation for soliciting
purchases of Contracts is not duly licensed to sell life insurance (and to sell
variable contracts if required by the state in question).
No compensation or reimbursement of any kind other than that described in this
Agreement is payable to the General Agent or the Broker-Dealer. In addition, the
Broker-Dealer and the General Agent recognize that, unless the provisions of
Exhibit B apply to the receipt of an initial Premium, all compensation payable
to the General Agent hereunder will be disbursed by or on behalf of the
Distributor after each Premium is received and accepted by the appropriate
Equitable Life Company.
ss.7.3 Expenses Paid by Broker-Dealer and General Agent. Neither the
Broker-Dealer nor the General Agent shall, directly or indirectly, expend or
contract for the expenditure of any funds of the Distributor or any Equitable
Life Company. The Broker-Dealer and the General Agent shall each pay all
expenses incurred by each of them in the performance of this Agreement, unless
otherwise specifically provided for in this Agreement or unless the Distributor
shall have agreed in advance in writing to share the cost of certain expenses.
Initial state appointment fees for agents of an Equitable Life Company who are
associated with the General Agent will be paid by such Equitable Life Company
unless otherwise paid by the General Agent or Broker-Dealer. Renewal state
appointment fees for any Agent shall be paid by such Equitable Life Company if,
in the sole discretion of such Equitable Life Company, its minimum production
and activity requirements for the payment of renewal appointment fees have been
met by such Agent. Each Equitable Life Company shall establish reasonable
minimum production and activity requirements for the payment of renewal state
appointment fees, which may be changed by such Equitable Life Company in its
sole discretion at any time without notice. Except as otherwise provided herein,
the Broker-Dealer will be obligated to pay all state appointment fees,
including, but not limited
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to, renewal appointment fees not paid for by an Equitable Life Company, transfer
fees and termination fees, and any other fees required to be paid to obtain
state insurance licenses for Agents.
ss.7.4 Offsets of Compensation Under Other Agreements. With respect to
commissions, compensation or any other amounts owed by the Distributor or any
Affiliate of the Distributor to the Broker-Dealer or the General Agent under any
other agreement, the Distributor shall have a right to set off against such
amounts any monies payable by the General Agent under this Agreement, including
Schedule II, to the Distributor, to the extent permitted by applicable law. This
right on the part of the Distributor shall not prevent both of them or either of
them from pursuing any other means or remedies available to them to recover such
monies payable by the General Agent.
ss.7.5 No Rights of Agents to Compensation Paid by Distributor. Agents
shall have no interest in this Agreement or right to any commissions to be paid
by the Distributor to the General Agent. The General Agent shall be solely
responsible for the payment of any commission or consideration of any kind to
Agents. The General Agent shall have no interest in any compensation paid by an
Equitable Life Company to the Distributor, now or hereafter, in connection with
the sale of any Contracts under this Agreement.
ARTICLE VIII
TERM AND EXCLUSIVITY OF AGREEMENT
ss.8.1 Limited Classes of Contracts. This Agreement relates solely to the
Contracts identified in Schedule I.
ss.8.2 Term. This Agreement shall remain in effect for a period of one
year from the Effective Date, and, unless terminated earlier pursuant to
Sections 8.3 or 8.4, shall automatically continue in effect for one-year periods
thereafter; provided, however, that it shall automatically terminate upon
termination of any distribution agreement between the Distributor and an
Equitable Life Company relating to the Contracts.
ss.8.3 Early Termination by Notice. This Agreement may be terminated by
any party hereto by giving notice to the other parties at least sixty (60) days
prior to an anniversary of the Effective Date.
ss.8.4 Termination for Cause. If Broker-Dealer or the General Agent shall
default in their respective obligations under this Agreement, or breach any of
their respective representations or warranties made in this Agreement, the
Distributor may, at its option, cancel and terminate this Agreement without
notice.
ss.8.5 Surviving Provisions. Upon termination of this Agreement, all
authorizations, rights, and obligations hereunder shall cease except:
a. the obligation to settle accounts hereunder, including the
payment of compensation with respect to Contracts in effect at the time of
termination or issued pursuant to applications received by an Equitable Life
Company prior to termination or Premiums received under such Contracts
subsequent to termination of this Agreement;
b. the provisions with respect to indemnification set forth in
Article XI;
c. the provisions of Section 4.13 that require the General Agent
and the Broker-Dealer to maintain certain books and records;
d. the confidentiality provisions contained in Section 10.3; and
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e. the provisions of subparagraph l. of Section 5.1 with respect
to the surrender or exchange of a Contract.
ARTICLE IX
COMPLAINTS AND INVESTIGATIONS
ss.9.1 Cooperation in Investigations and Proceedings. The Distributor,
the Broker-Dealer and the General Agent shall each cooperate fully in any
insurance regulatory investigation, proceeding or inquiry or in any judicial
proceeding arising in connection with the Contracts marketed under this
Agreement. In addition, the Distributor, the Broker-Dealer and the General Agent
shall cooperate fully in any securities regulatory investigation, proceeding or
inquiry or in any judicial proceeding with respect to the Distributor, the
Broker-Dealer, their Affiliates or their agents, to the extent that such
investigation or proceeding is in connection with the Contracts marketed under
this Agreement. Copies of documents received by any party to this Agreement in
connection with any judicial proceeding shall be furnished promptly to all of
the other parties.
ss.9.2 Notification and Related Requirements. Without limiting the
provisions of Section 9.1:
a. The Broker-Dealer and the General Agent will be notified
promptly of any customer complaint or notice of any regulatory investigation,
proceeding or inquiry or any judicial proceeding received by the Distributor or
an Equitable Life Company with respect to the Broker-Dealer, General Agent or
any Agent.
b. The Broker-Dealer and the General Agent will promptly notify
the Distributor and the appropriate Equitable Life Company of any customer
complaint or notice of any regulatory investigation, proceeding or inquiry or
any judicial proceeding received by the Broker-Dealer, the General Agent or
their Affiliates with respect to themselves, their Affiliates or any Agent in
connection with any Contract marketed under this Agreement or any activity
relating to any such Contract and, upon request by the Distributor, will
promptly provide copies of all relevant materials to the Distributor.
c. In the case of a customer complaint, the Distributor, the
Broker-Dealer and the General Agent will cooperate in investigating such
complaint, and any response by the Broker-Dealer or the General Agent to such
complaint will be sent to the Distributor for written approval not less than
five business days prior to its being sent to the customer or regulatory
authority, except that if a more prompt response is required, the proposed
response shall be communicated by telephone or facsimile. The Distributor shall
have final authority to determine the content of each such response.
ARTICLE X
ASSIGNMENT, AMENDMENT, CONFIDENTIALITY
ss.10.1 Non-Assignable Except to Certain Affiliates. This Agreement shall
be non-assignable by the parties hereto, except that a party may assign its
rights and obligations to any subsidiary of, or any company under common control
with, such party, provided that:
a. the assignee is duly licensed to perform all functions
required of that party under this Agreement;
b. the assignee undertakes to perform such party's functions
hereunder; and
c. in the event that the Broker-Dealer or the General Agent
determines to assign its rights and obligations under this Agreement:
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i. such proposed assignment is approved in advance by the
Distributor; and
ii. the Broker-Dealer or the General Agent or assignee
pays any state insurance agent appointment fees and any other charges or fees,
including taxes, that become due and payable as a result of the assignment.
ss.10.2 Prior Agreements and Amendments. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior agreements,
either oral or written, between the parties relating to the Contracts and,
except for any amendment of Schedule I, pursuant to the terms of Section 2.6, or
Schedule II, pursuant to the terms of Section 7.1, may not be modified in any
way unless by written agreement.
ss.10.3 Confidentiality. Each party to this Agreement shall maintain the
confidentiality of any client list or any other proprietary information that it
may acquire in the performance of this Agreement and shall not use such
information for any purpose unrelated to the administration of the Contracts
without the prior written consent of the other parties.
ARTICLE XI
INDEMNIFICATION
ss.11.1 Indemnification of Distributor. The Broker-Dealer and the General
Agent, jointly and severally, shall indemnify and hold harmless each Equitable
Life Company, the Distributor and each person who controls or is associated with
an Equitable Life Company or the Distributor within the meaning of such terms
under the federal securities laws, and any officer, director, employee or agent
of the foregoing, against any and all losses, claims, damages or liabilities,
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in settlement of,
any action, suit or proceeding or any claim asserted), insofar as such losses,
claims, damages or liabilities arise out of or are based upon:
a. violation(s) by the Broker-Dealer, the General Agent or an
Agent of federal or state securities laws or regulations, insurance laws or
regulations, or any rule or requirement of the NASD;
b. any unauthorized use of sales or advertising material, any
oral or written misrepresentations, or any unlawful sales practices concerning
the Contracts, the Equitable Life Companies, the Variable Accounts, the MVA
Interests or the Trust, by the Broker-Dealer, the General Agent or an Agent;
c. claims by the Agents or other agents or representatives of the
General Agent or the Broker-Dealer for commissions or other compensation or
remuneration of any type;
d. any action or inaction by any clearing broker or broker
furnishing similar services through which the Broker-Dealer or the General Agent
processes any transaction pursuant to this Agreement;
e. any failure on the part of the Broker-Dealer, the General
Agent or an Agent to submit Premiums or applications for Contracts or accurate
and proper instructions of a Contract owner or prospective owner to the
Equitable Life Companies, or to submit the correct amount of a Premium, on a
timely basis and in accordance with Sections 4.5 and 4.6 and the rules and
procedures of the Equitable Life Companies.
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f. any failure on the part of the Broker-Dealer, the General
Agent, or an Agent to deliver Contracts to purchasers thereof on a timely basis
in accordance with Section 4.7 and in accordance with the rules and procedures
of the Equitable Life Companies; or
g. any other breach by the Broker-Dealer or the General Agent of
any provision of this Agreement, including, without limitation, Section 5.1.
This indemnification will be in addition to any liability which the
Broker-Dealer and the General Agent may otherwise have.
ss.11.2 Indemnification of Broker-Dealer and General Agent. The
Distributor shall indemnify and hold harmless the Broker-Dealer and the General
Agent and each person who controls or is associated with the Broker-Dealer or
the General Agent within the meaning of such terms under the federal securities
laws, and any officer, director, employee or agent of the foregoing, against any
and all losses, claims, damages or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amounts paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they or any of them may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon negligent,
improper, fraudulent or unauthorized acts or omissions.
ss.11.3 Notification and Procedures. After receipt by a party entitled to
indemnification ("Indemnified Party") under this Article XI of notice of the
commencement of any action or threat of such action, if a claim in respect
thereof is to be made against any person obligated to provide indemnification
under this Article XI ("Indemnifying Party"), such Indemnified Party will notify
the Indemnifying Party in writing of the commencement thereof as soon as
practicable thereafter, provided that the omission so to notify the Indemnifying
Party will not relieve it from any liability under this Article XI, except to
the extent that the omission results in a failure of actual notice to the
Indemnifying Party and such Indemnifying Party is damaged solely as a result of
the failure to give such notice. The Indemnifying Party, upon the request of the
Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party, unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
such proceeding is settled with such consent or if final judgment is entered in
such proceeding for the plaintiff, the Indemnifying Party shall indemnify the
Indemnified Party from and against any loss or liability by reason of such
settlement or judgment.
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ARTICLE XII
MISCELLANEOUS
ss.12.1 Headings. The headings in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
ss.12.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
ss.12.3 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.
ss.12.4 Notices. All notices under this Agreement shall be given in
writing and addressed as follows:
if to the Distributor, to:
EQ Financial Consultants, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
if to the Broker-Dealer or the General Agent, to:
__________________________________
__________________________________
__________________________________
Attention: _______________________
or to such other address as such party may hereafter specify in writing. Each
such notice shall be either hand delivered or transmitted by certified United
States mail, return receipt requested, and shall be effective upon delivery.
ss.12.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, excluding its conflict of
laws provisions. This Agreement shall also be subject to the rules of the NASD,
including its By-Laws; and all disputes arising hereunder shall be submitted to
arbitration under the Code of Arbitration Procedure of the NASD.
ss.12.6 Scope of Sales Material References. For purposes of this
Agreement, all references to sales, promotional, marketing or advertising
material shall include, without limitation, advertisements (such as material
published, or designed for use in, a newspaper, magazine or other periodical,
radio, television, telephone or tape recording, videotape display, signs or
billboards, motion pictures or other public media), sales literature (i.e., any
written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature or published article), and educational or training materials or
other communications distributed or made generally available to some or all
Agents or employees of the Broker-Dealer or the General Agent.
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ss.12.7 Noninterference with Employees, Agents, and Clients.
a. During the term of this Agreement, neither the Broker-Dealer
nor the General Agent shall hire or solicit, as an employee, agent, consultant,
registered representative or other sales representative, or in any other
capacity, any individual who has been, at any time within six months prior to
such hiring or solicitation, an employee, agent or registered representative of
the Distributor or any affiliate of the Distributor. Violation of this provision
shall constitute a material breach of this Agreement.
b. During the term of this Agreement, the Broker-Dealer and the
General Agent agree not to solicit knowingly any person who is a client of a
member of the career agency force of Equitable (an "Equitable agent"). If, while
servicing a client, the Broker-Dealer or General Agent ascertains that the
person is also a client of an active Equitable agent, the Broker-Dealer or
General Agent will refer the client to the Equitable agent and, if possible,
notify the Equitable agent of the person's interest. The Broker-Dealer and the
General Agent agree that no commission will be payable under this Agreement in
connection with any sale of a Contract which involves a violation of the
foregoing rules regarding clients of Equitable agents. In the event that an
Agent and an Equitable agent each claim the same person as a client, the
client's desires will be taken into consideration in determining the application
of this Section 12.7(b).
ss.12.8 No Waiver of Rights. The rights, remedies and obligations
contained in this Agreement are cumulative and are in addition to any and all
rights, remedies and obligations, at law or in equity, which the parties hereto
are entitled to under state and federal laws. Failure of any party to insist
upon strict compliance with any of the conditions of this Agreement shall not be
construed as a waiver of any of the conditions, but the same shall remain in
full force and effect. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provisions, whether
or not similar, nor shall any waiver constitute a continuing waiver.
ss.12.9 Scope of Agreement. All Schedules and Exhibits to this Agreement
are part of the Agreement.
ARTICLE XIII
SALES BY OR THROUGH BANKS
ss.13.1 Applicability of Article; Supplement Definitions. This Article
XIII applies only if the Broker-Dealer or the General Agent distributes
Contracts in one or more of the following circumstances (collectively referred
to as "Bank-Related Sales"): (i) on the premises of a bank, trust company,
savings bank, savings and loan association, or other institution (a) the
deposits of which are insured by the Federal Deposit Insurance Corporation
("FDIC") or (b) which is chartered, organized, regulated or supervised under the
authority of any federal or state bank or similar financial institution
regulatory agency or authority (collectively, "Banks"); (ii) by means of
personal, telephone, mail or other oral or written contacts originating from the
premises of a Bank; or (iii) to persons which are referred to the Broker-Dealer
or General Agent by a Bank. For purposes of this Article XIII, the term "Bank
Regulatory Requirements" shall include (i) the Interagency Statement on Retail
Sales of Non-deposit Products (February 15, 1994), published by the U.S. Office
of the Comptroller of the Currency, the Board of Governors of the Federal
Reserve System, the FDIC and the U.S. Office of Thrift Supervision, as
supplemented or amended from time to time, and (ii) any federal or state laws,
regulations, orders, directives, circulars, agreements in writing, memoranda,
commitments in writing or other legal or supervisory requirements which may be
administered, adopted, promulgated, enforced or applied with respect to any
Bank-Related Sales under this Agreement (regardless of whether any such
requirement is of general or specific applicability) by any federal or state
bank or financial institution regulatory agency or authority.
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ss.13.2 Written Agreement for Bank-Related Sales. The authorization to
distribute Contracts which is conferred on the Broker-Dealer and the General
Agent under Article II shall not include Bank-Related Sales unless such
activities are conducted under the terms of a written agreement with each and
any Bank where such Bank-Related Sales will take place which complies in all
respects with applicable Bank Regulatory Requirements. The Broker-Dealer or
General Agent shall, upon request of the Distributor, provide the Distributor
with a copy of each such written agreement. The Broker-Dealer and the General
Agent shall have exclusive responsibility for ensuring strict compliance with
the terms and conditions of any such written agreement.
ss.13.3 Compliance with Bank Regulatory Requirements. The Broker-Dealer
and the General Agent each represent and warrant, on behalf of itself and the
Agents, that it is in compliance with all Bank Regulatory Requirements
applicable to third parties engaged in Bank-Related Sales. The Broker-Dealer and
the General Agent shall have exclusive responsibility for ensuring strict
compliance with all Bank Regulatory Requirements with respect to any
Bank-Related Sales under this Agreement. The Broker-Dealer and the General Agent
each undertake to keep the Distributor promptly informed of any amendments,
supplements or changes to applicable Bank Regulatory Requirements which may
affect this Agreement.
ss.13.4 Production by Distributor of Certain Books and Records. The
Distributor agrees to provide to the Broker-Dealer or the General Agent, upon
request, any books and records relating to Contracts distributed through
Bank-Related Sales for purposes of making such records available for inspection
by any federal or state bank or financial institution regulatory agency with
jurisdiction over such Bank-Related Sales, or over a Bank through which such
sales are conducted. The Distributor's agreement under this Section 13.4 shall
not constitute or represent in any respect an admission or acknowledgment by
Distributor that such federal or state bank or financial institution regulatory
authority has any jurisdiction over Distributor or the activities of the
Distributor, and the Distributor expressly disclaims any such jurisdiction.
ss.13.5 Prospectuses and Applications Provided by Distributor; Sales
Materials. During the term of this Agreement, the Distributor will provide the
Broker-Dealer and the General Agent, without charge, with as many copies of the
Contract Prospectus(es), Trust Prospectus and applications for the Contracts,
containing those disclosures specifically required by any applicable Bank
Regulatory Requirements with respect to products not insured by the FDIC and
similar matters, as the Broker-Dealer or the General Agent reasonably may
request. The Broker-Dealer and the General Agent shall have exclusive
responsibility for ensuring the use and delivery of such materials, and any
sales materials described in Article VI, in compliance with applicable Bank
Regulatory Requirements. The terms of Article VI otherwise shall govern the
furnishing, use and return of such documents and materials.
ss.13.6 Supplemental Indemnification of Distributor. In addition to the
indemnifications provided to the Distributor under Section 11.1, the
Broker-Dealer and the General Agent, jointly and severally, shall indemnify each
person entitled to indemnification under Section 11.1 for any losses, claims,
damages or liabilities (as described in Section 11.1) arising out of or based on
violations or failures to comply with any Bank Regulatory Requirements. The
provisions of Article VI otherwise shall govern the terms and procedures with
respect to any indemnifications provided under this Section 13.6.
ss.13.7 Construction With Other Provisions. The provisions of this Article
XIII are in addition to the other terms and conditions of this Agreement. In the
event of any inconsistency between the provisions of this Article XIII and any
other term or condition of this Agreement, the requirements of this Article XIII
and not such other term or condition, shall govern.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers.
___________________________________
[Broker-Dealer]
By: _______________________________
Title:
___________________________________
[General Agent]
By: _______________________________
Title:
Agreed to and accepted as of the _______ day
of _________________, 199_____ in New York, New York
EQ FINANCIAL CONSULTANTS, INC.
By: __________________________________
Title: _________________________________
L5S_1.DOC/27424
MTX_1.DOC/29589
OPU_1.DOC/32034
10/95
octsa.doc
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EXHIBIT A
GENERAL LETTER OF RECOMMENDATION
The General Agent hereby certifies to the Equitable Life Companies that all
the following requirements have been fulfilled in conjunction with the
submission of appointment papers for all applicants as agents of an Equitable
Life Company submitted by the General Agent, as listed on Schedule A. The
General Agent will, upon request, forward proof of compliance with same to the
Equitable Life Companies in a timely manner.
1. We have made a thorough and diligent inquiry and investigation relative
to each applicant's identity, residence and business reputation and declare that
each applicant is personally known to us, has been examined by us, is known to
be of good moral character, has a good business reputation, is reliable, is
financially responsible and is worthy of a license. Each individual is
trustworthy, competent and qualified to act as an agent for the Equitable Life
Companies and to hold himself or herself out in good faith to the general
public. We vouch for each applicant.
2. We have on file a Form U-4 which was completed by each applicant. We
have fulfilled all the necessary investigative requirements for the registration
of each applicant as a registered representative through our NASD member firm,
and each applicant is presently registered as an NASD registered representative.
The above information in our files indicates no fact or condition which would
disqualify the applicant from receiving a license, and all the findings of all
investigative information is favorable.
3. We certify that all educational requirements have been met for the
specific state in which each applicant is requesting a license and that all such
persons have fulfilled the appropriate examination, education and training
requirements.
4. If the applicant is required to submit his or her picture, signature or
securities registration in the state in which he or she is applying for a
license, we certify that those items forwarded to the Equitable Life Companies
are those of the applicant and the securities registration is a true copy of the
original.
5. We hereby warrant that the applicant is not applying for a license with
an Equitable Life Company in order to place insurance chiefly or solely on his
or her life or property or on the lives, property or liability of relatives or
associates.
6. We certify that each applicant will receive close and adequate
supervision, and that we will make inspection when needed of any or all risks
written by these applicants, to the end that the insurance interest of the
public will be properly protected.
-i-
7. We will not permit any applicant to transact insurance as an agent until
duly licensed therefor. No applicants have been given a contract or furnished
supplies, nor have any applicants been permitted to write or solicit business or
to act as an agent in any capacity, and they will not be so permitted until the
certificate of authority or license applied for is received.
This certification is given and agreed to as of the day and year first
above written.
___________________________________
[Broker-Dealer]
By: _______________________________
___________________________________
[General Agent]
By: _______________________________
-ii-
SCHEDULE A
APPLICANTS FOR APPOINTMENT AS AGENTS
1)_________________________________
2)_________________________________
3)_________________________________
4)_________________________________
5)_________________________________
___________________________________
[Broker-Dealer]
By: _______________________________
___________________________________
[General Agent]
By: _______________________________
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EXHIBIT B
SPECIAL PROCEDURES FOR INITIAL PREMIUM TRANSMITTAL
As indicated in Section 4.5, an initial Premium which is not accompanied by
a properly completed application for a Contract may be accepted by an Equitable
Life Company if the Broker-Dealer and the General Agent have accepted, agreed to
and complied with the procedures set forth in this Exhibit B.
Wire Transmittal and Submission of Application
1. The Broker-Dealer will cause the initial Premium to be paid to the
appropriate Equitable Life Company by wire transfer.
2. The wire transfer will be accompanied by a simultaneous telephone
facsimile transmission of application information in a form prescribed by the
Equitable Life Companies.
3. Any cost associated with the correction of an error made in the
investment of an initial Premium shall be borne by the Broker-Dealer, unless
such error results directly from any improper action of an Equitable Life
Company.
4. If no properly completed application for a Contract is received by an
Equitable Life Company within the period of time specified by it, and the
initial Premium is therefore returned to the proposed owner of the Contract, the
General Agent shall promptly repay to the Distributor, upon request from the
Distributor, any and all compensation received by the General Agent, based on
the Premium paid into the Contract, and shall pay any loss incurred as a result
of the Premium being returned, unless such loss results directly from any
improper action of an Equitable Life Company.
The procedures set forth in this Exhibit B, as further described in the
Contract Prospectus and as modified from time to time by the Equitable Life
Companies, are hereby accepted and agreed to as of the day and year first above
written.
___________________________________
[Broker-Dealer]
By: _______________________________
___________________________________
[General Agent]
By: _______________________________
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SCHEDULE I
EXCLUDED CONTRACTS
Contracts made available through the Income Management Group of
Equitable, including the following, are not covered by this Agreement:
NQ Accumulator
Rollover XXX
Assured Growth Plan
NQ Assured Payment Plan
(Certain Period and Life Annuity)
NQ Assured Payment Plan
(Certain Period Only)
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