1
Exhibit 8(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 Money Market Portfolio, Bond Portfolio, Capital
Growth Portfolio, Balanced Portfolio and the International Portfolio
(individually or collectively hereinafter referred to as the "Portfolio" or the
"Portfolios"). Additional Portfolios may be created from time to time. The Fund
is the funding vehicle for variable annuity contracts and variable life
insurance policies ("Participating Contracts and Policies") to be offered to the
separate accounts (the "Accounts") of certain life insurance companies
("Participating Insurance Companies"). Owners of Participating Contracts and
Policies will designate a portion of their premium to be invested in insurance
company separate accounts or sub-accounts which invest in, or represent an
investment in, directly or indirectly, shares of beneficial interest ("Shares")
of the Portfolios of the Fund. You are a registered broker-dealer which intends
to offer and sell Participating Contracts and Policies. In connection with such
offer and sale you will be obligated to deliver the prospectuses of such
Participating Contracts and Policies and, contemporaneously therewith, the
prospectus of the Fund. Sales of Shares to Participating Insurance
2
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 Pennsylvania 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
2
3
Securities and Exchange Commission (the "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
3
4
your agents and employees and for injury to such agents or
employees or to others through your agents or employees.
(b) You or one or more Participating Insurance Companies will be
responsible for insuring compliance with all applicable laws
and regulations of any regulatory body having jurisdiction
over you or Participating Contracts and Policies.
(c) No person is authorized to make any representations concerning
Shares except those contained in the prospectus and statement
of additional information relating thereto and in such
printed information as issued by us for use as information
supplemental to the prospectus. In offering Participating
Contracts and Policies you shall, with respect to the Fund and
the Shares, rely solely on the representations contained in
the prospectus and statement of additional information and in
the above-mentioned supplemental information.
(d) You are not entitled to any compensation whatsoever from us or
the Fund with respect to offers of Participating Contracts and
Policies.
5. We hereby covenant and agree with you as follows:
(a) If, at any time when a prospectus relating to the Shares is
required to be delivered under the 1940 Act, the 1933 Act or
the Rules and Regulations, we become aware of the occurrence
of any event as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of
a material fact, or omit to state a material fact necessary to
make the statements therein, in light of the circumstances
under which made, not misleading, or if we become aware that
it has become necessary at any time to amend or supplement the
Prospectus to comply with the 1940 Act, the 1933 Act or the
Rules and Regulations, we will promptly notify you and
promptly request the 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
4
5
as is required by applicable law in connection with the
distribution of Shares.
6. We reserve the right in our discretion, without notice, to
suspend sales or withdraw the offering of Shares entirely, as
to any person or generally. We reserve the right to amend this
agreement at any time and you agree that the sale of
Participating Contracts and Policies, after notice of any such
amendment has been sent to you, shall constitute your
agreement to any such amendment.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any prospectus
and statement of additional information relating to the Shares
and printed information supplemental thereto, we shall furnish
you with such copies as you reasonably request upon the
payment of reasonable charges therefor by you or one or more
Participating Insurance Companies. If we elect not to provide
such copies of such documents, you or one or more
Participating Insurance Companies shall bear the entire cost
of printing copies for your use. You shall not use such copies
of such documents printed by you or one or more Participating
Insurance Companies until you shall have furnished us with a
copy thereof and we either have given you written approval for
use or twenty days shall have elapsed following our receipt
thereof and we have not objected thereto in writing. We agree
not to favor one Participating Insurance Company over another,
and will have a reasonable basis for treating Participating
Insurance Companies in a different manner.
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
5
6
in reliance upon information furnished to us or the
Fund by you, or (iii) may be based on any untrue
statement or alleged untrue statement of a material
fact contained in a registration statement or
prospectus covering insurance products sold by you,
or any amendments or supplement thereto, or the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement or statements therein
not misleading, unless such statement or omission was
made in reliance upon information furnished to you or
a Participating Insurance Company by or on behalf of
Investor Services or the Fund; provided, however,
that in no case (i) is the indemnity by you in favor
of any person indemnified to be deemed to protect
Investor Services or any such person against any
liability to which Investor Services or any such
person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in
the performance of its or his duties or by reason of
its or his reckless disregard of its obligations and
duties under this Agreement, or (ii) are you to be
liable under your indemnity agreement contained in
this paragraph with respect to any claim made against
Investor Services or any person indemnified unless
Investor Services or such person, as the case may be,
shall have notified you in writing within a
reasonable time after the summons or other first
legal process giving information of the nature of the
claim shall have been served upon Investor Services
or upon such person (or after Investor Services or
such person shall have received notice of such
service on any designated agent), but failure to
notify you of any such claim shall not relieve you
from any liability which you may have to Investor
Services or any person against whom such action is
brought otherwise than on account of your indemnity
agreement contained in this paragraph. You shall be
entitled to participate, at your own 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,
6
7
directors or controlling person or persons, defendant
of defendants in such suit, for the reasonable fees
and expenses of any counsel retained by them. You
agree promptly to notify Investor Services of the
commencement of any litigation or proceedings against
it in connection with the offer, issue and sale of
any shares.
(b) Investor Services will indemnify and hold harmless
you and each of your directors and officers and each
person, if any, who controls you within the meaning
of Section 15 of the 1933 Act, against any loss,
liability, damages, claim or expense (including the
reasonable cost of investigating or defending any
alleged loss, liability, damages, claim or expense
and reasonable counsel fees incurred in connection
therewith), arising by reason of any person's
acquiring any Shares, which may be based upon the
1933 Act or any other statute or common law, and
which (i) may be based upon any wrongful act by
Investor Services, any of its employees or
representatives, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material
fact contained in a registration statement or
prospectus covering Shares or any amendment thereof
or supplement thereto or the omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading unless such statement or
omission was made in reliance upon information
furnished to Investor Services or the Fund by you or
(iii) may be based on any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement or prospectus covering
insurance products sold by you, or any amendment or
supplement thereto, or the omission or alleged
omission to state therein 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
7
8
such person, as the case may be, shall have notified
Investor Services in writing within a reasonable time
after the summons or other first legal process giving
information of the nature of the claim shall have
been served upon you or upon such person (or after
you or such person shall have received notice of such
service on any designated agent), but failure to
notify Investor Services of any such claim shall not
relieve Investor Services from any liability to which
Investor Services may have to you or any person
against whom such action is brought otherwise than on
account of its indemnity agreement contained in this
paragraph. Investor Services shall be entitled to
participate, at its own expense, in the defense, or,
if it so elects, to assume the defense of any suit
brought to enforce any such liability, but, if it
elects to assume the defense, such defense shall be
conducted by counsel chosen by Investor Services and
satisfactory to you, or to your officers or
directors, or to any controlling person or persons,
defendant or defendants in the suit. In the event
that Investor Services assumes the defense of any
such suit and retains such counsel, you or such
officers or directors or controlling person or
persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel
retained by it, but, in case Investor Services does
not elect to assume the defense of any such suit,
Investor Services shall reimburse you and such
officers, directors or controlling person or persons,
defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained
by it. Investor Services agrees promptly to notify
you of 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
8
9
jurisdiction. To the extent permitted by applicable law, each
party hereto waives any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
11. This Agreement constitutes the entire agreement among the
parties concerning the subject matter hereof, and supersedes
any and all prior understandings.
12. This Agreement shall automatically terminate in the event of
its assignment. This Agreement may be terminated at any time
by either party by written notice given to the other party,
provided that the obligation of each party to indemnify the
other party pursuant to paragraph 8 hereof shall apply with
respect to any Shares sold before or after such termination.
13. Any notice hereunder shall be duly given if mailed or
telegraphed to the other party hereto at the address specified
below. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
14. This Agreement may be executed in any number of counterparts
which, taken together shall constitute one and the same
instrument. This Agreement shall become effective upon receipt
by us of your acceptance hereof.
15. This Agreement may not be modified or amended except by a
written instrument duly executed by the parties hereto.
XXXXXXX INVESTOR SERVICES, INC.
By:_____________________________
Authorized Officer
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned hereby accepts the
offer set forth in the above letter.
PML SECURITIES COMPANY
Dated:_______________ By:______________________________________
Authorized Representative
000 Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
9
