FORM OF PRINCIPAL UNDERWRITING AGREEMENT
PRINCIPAL UNDERWRITING AGREEMENT
AGREEMENT made as of the ____ day of ____, 1995 by and between
Connecticut Mutual Life Insurance Company, ("CML"), on its own behalf and
on behalf of CML/OFFITBANK Variable Annuity Separate Account ("Separate
Account"), and Connecticut Mutual Financial Services, LLC, a Connecticut
limited liability corporation ("CMFS, LLC").
WHEREAS, the Account was established on September 15, 1995 pursuant to a
authority granted by CML's Board of Directors, in order to set aside and
invest assets attributable to certain variable annuity contracts ("Contracts")
issued by CML;
WHEREAS, CML has registered the Separate Account under the Investment
Company Act of 1940 as amended (the "1940 Act") and will register the Policies
under the Securities Act of 1933;
WHEREAS, CMFS, LLC is registered as a broker/dealer with the Securities
and Exchange Commission ("SEC") under the Securities Exchange Act of 1934 and
is a member of the National Association of Securities Dealers, Inc. ("NASD");
WHEREAS, CML and the Separate Account desire to have Policies sold and
distributed through CMFS, LLC and CMFS, LLC is willing to sell and distribute
such Policies under the terms stated herein; and
WHEREAS, CMFS, LLC may desire to appoint CML, the issuer, as its
agent to receive money and perform other services.
WITNESSETH:
In consideration of the covenants hereinafter contained CML and CMFS,
LLC agree as follows:
1. UNDERWRITER. CML hereby appoints CMFS, LLC as principal underwriter
of the Contracts during the term of this Agreement. CML reserves the
right, however, to refuse at any time or times to sell any Contracts
hereunder for any reason, and CML maintains ultimate responsibility
for issuing the Contracts.
2. UNDERTAKINGS REGARDING SALES. CMFS, LLC shall use reasonable efforts to
sell the Contracts but does not agree hereby to sell any specific number of
Contracts and shall be free to act as issuer of other securities. All
premiums for Policies shall be held in a fiduciary capacity and remitted
promptly (and in any event within 30 days) in full together with such
application, forms and any other required documentation to CML. CMFS,
LLC hereby appoints CML as agent of CMFS, LLC to receive premiums in
CMFS, LLC's behalf. Checks or money orders in payment of premiums shall be
drawn to the order of "Connecticut Mutual Life Insurance". CMFS, LLC
agrees to offer the Policies for sale in accordance with the prospectus
then in effect. CMFS, LLC is not authorized to give any information or to
make any representations concerning the Policies other than those contained
in the current prospectus filed with the SEC or in such sales literature as
may be authorized by CML. CML shall review and approve all advertising
concerning the Policies.
3. COMPLIANCE. CMFS, LLC shall conform to the Rules of Fair Practice of the
NASD, and the securities laws of any jurisdiction in which it sells,
directly or indirectly, any Policies. CMFS, LLC shall take reasonable
steps to ensure that its associated persons sell Policies to persons for
whom the Policy is suitable. CMFS, LLC agrees to make timely filings with
the SEC, the NASD, and such other regulatory authorities as may be required
of any sales literature relating to the Policies and intended for
distribution to prospective investors. CMFS, LLC also agrees to furnish to
CML sufficient copies of any agreements or plans it intends to use in
connection with any sales of Policies. CMFS, LLC further agrees to provide
information or reports with respect to its services hereunder pursuant to
request by any regulatory authority having jurisdiction with respect
thereto, in order that such regulatory authority may ascertain whether
CML's variable life insurance operations are being conducted in a manner
consistent with applicable laws and regulations.
4. REGISTRATION AND QUALIFICATION OF POLICIES. CML agrees to execute such
papers and to do such acts and things as shall from time-to-time be
reasonably requested by CMFS, LLC for the purpose of qualifying and
maintaining qualification of the Contracts for sale under applicable state
law and for maintaining the registration of the Account and interests
therein under the federal Securities Act of 1933 and the federal Investment
Company Act of 1940, as amended; to the end that there will be available
for sale from time-to-time such amount of the Policies as CMFS, LLC may
reasonably be expected to sell. CML shall advise CMFS, LLC promptly of
(a) any action of the SEC or any authorities of any state or territory, of
which it may be advised, affecting registration or qualification of the
Account, or rights to offer the Contracts for sale, and (b) the happening of
any event which makes untrue any statement or which requires the making of
any change in the registration statement or prospectus in order to make the
statements therein not misleading.
5. CMFS, LLC INDEPENDENT CONTRACTOR. CMFS, LLC shall be an independent
contractor. CMFS, LLC is responsible for its own conduct and the
employment, control and conduct of its agents and employees and for injury
to such agents or employees or to others through its agent or employees.
CMFS, LLC assumes full responsibility for its agents and employees under
applicable statutes and agrees to pay all employer taxes thereunder. All
persons selling Contracts shall be duly licensed as insurance agents
pursuant to applicable state laws, and CML shall have responsibility
for arranging for such licensing. CMFS, LLC and CML may jointly enter
into sales agreements with other independent broker-dealers for the sale of
Policies. Notwithstanding the above, CML expressly reserves to itself
the ultimate responsibility and authority for direction and control of the
underwriting services provided hereunder; including the ultimate right to
appoint and discharge agents selling Contracts, and ultimate control over,
and responsibility for, marketing the Contracts.
6. EXPENSES PAID BY CM LIFE. While CMFS, LLC continues to act as agent of CML
to obtain subscriptions for and to sell Contracts, and PROVIDED CMFS,
LLC receives no commission for the sale of the Contracts, CML shall pay
the following:
(a) all expenses of printing and distributing any prospectus for use in
offering the Contracts for sale, and all other copies of any such prospectus
used by CMFS, LLC, and
(b) all other expenses of advertising and of preparing, printing and
distributing all other literature or material for use in connection with
offering the Contracts for sale.
7. INTERESTS IN AND OF CMFS, LLC. It is understood that any of the
policyholders, directors, officers, employees and agents of CML may be
a shareholder, director, officer, employee or agent of, or be otherwise
interested in, CMFS, LLC, any affiliated person of CMFS, LLC, any
organization in which CMFS, LLC may have an interest or any organization
which may have an interest in CMFS, LLC; that CMFS, LLC, any such
affiliated person or any such organization may have an interest in CML;
and that the existence of any such dual interest shall not affect the
validity hereof or of any transaction hereunder except as otherwise
provided in the Charter, Articles of Incorporation, or By-Laws of CML
and CMFS, LLC, respectively, or by specific provision of applicable law.
8. COMPENSATION FOR SALES OF POLICIES AND APPOINTMENT OF CML AS AGENT OF
CMFS, LLC.
(a) For sales of the Policies by associated persons of CMFS, LLC and the
continuing obligations of CMFS, LLC set forth herein, CML shall pay to
insurance agents of CML who are also associated persons of CMFS, LLC on
behalf of CMFS, LLC the commissions set forth in Schedule A to this
Agreement, as such Schedule may be amended from time-to-time. For Policies
sold under agreements that CMFS, LLC and CML enter into with other
broker-dealers, CML shall pay on behalf of CMFS, LLC, the commissions
set forth in Schedule B to this Agreement, as such Schedule may be amended
from time-to-time.
(b) CML agrees to maintain all required books of account and related
financial records on behalf of CMFS, LLC. All such books and records shall
be maintained and preserved pursuant to Rules 17a-3 and 17a-4 under the
Securities Exchange Act (or the corresponding provisions of any future
federal securities laws or regulations). In addition, CML agrees to
maintain records of all sales commissions paid to the associated persons of
CMFS, LLC and any other broker-dealers pursuant to paragraph (a) above for
the sale of the Policies. All such books and records shall be owned by and
under the control of CML. CML also agrees to send to CMFS, LLC's
customers all required confirmations of customer transactions, and on
behalf of CMFS, LLC to pay all sales commissions due and payable to full
time life insurance agents of CML who are also associated persons of
CMFS, LLC and/or to other broker-dealers duly authorized by CMFS, LLC to
sell the Policies.
9. INDEMNIFICATION.
(a) CML agrees to indemnify and hold harmless CMFS, LLC and each
director or officer thereof and each person, if any, who is associated with
CMFS, LLC within the meaning of the Securities Exchange Act of 1934 against
any and all loss, liability, claims, damage, and expenses whatsoever
(including any and all expenses reasonably incurred in investigating or
defending against any litigation commenced or threatened or any claim
whatsoever) arising out of any untrue or alleged untrue registration
statement, or sales material relating to the Contracts prepared by CM Life
or supplied to CMFS, LLC by CML or in any application ("application")
filed in any state in order to qualify the same for sale or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(b) CMFS, LLC agrees to indemnify and hold harmless CML and each
director or officer thereof, and each person, if any who controls CM Life
within the meaning of the Securities Act of 1933, its agents, subsidiaries
and employees, against any and all loss, liability, claims, damages, and
expense whatsoever (including but not limited to any and all expenses
reasonably incurred in investigating or defending against any litigation
commenced or threatened or any claim whatsoever) arising out of any untrue
or alleged untrue statement or representation made (except as such
statements may be made in reliance on the prospectus, registration
statement and sales material supplied by CML), the failure to deliver a
currently effective prospectus (provided that CMFS, LLC shall be entitled
to rely on representations by CML as to which prospectus is currently
effective at any point in time and CMFS, LLC shall not be liable for
delivering a prospectus that is not currently effective at the time of
delivery thereof due to a misrepresentation of the currency thereof by CML
or other failure by CML to notify CMFS, LLC that such prospectus
was no longer effective) or the use of any unauthorized sales literature by
CMFS, LLC (or its employees), in connection with the sale of the Contracts.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any such litigation or claim, such
indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section, notify the indemnifying party of
the commencement thereof, but the omission so to notify the indemnifying
party will not relieve it from any liability, which it may have to any
indemnified party otherwise than under this Section. In case any such
litigation or claim is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election to assume the
defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than the reasonable cost of investigation.
10. LIABILITY. Each party shall be liable for its own misconduct and
negligence hereunder.
11. EFFECTIVE DATE AND TERMINATION. This Agreement shall become effective as
of the date of its execution and delivery, and shall supersede any prior
Principal Underwriting Agreement which may exist between the parties, and:
(a) shall continue in force from year-to-year, subject to prior
termination as provided herein;
(b) may at any time be terminated on sixty days' written notice to CMFS,
LLC by CML;
(c) may at any time be terminated by CML if CMFS, LLC fails to perform
in a satisfactory manner;
(d) shall terminate automatically in the event of its assignment by CMFS,
LLC and shall be assignable by CML upon prior written notice to CMFS,
LLC;
(e) may be terminated by CMFS, LLC on sixty days' written notice to CML.
Termination of this agreement pursuant to this section shall be without
payment of any penalty. In the event of termination for any reason, CML
shall retain all records relating hereto, free from any claim or
retention of rights by CMFS, LLC.
12. CONFIDENTIALITY. CMFS, LLC agrees not to disclose or use any records or
information obtained hereunder in any manner whatsoever except as expressly
authorized herein, and will keep confidential any information obtained
pursuant hereto, and disclose such information only if CML has
authorized such disclosure, or if such disclosure is expressly required by
applicable state or federal regulatory authorities.
13. AMENDMENT. This Agreement may be amended only by mutual consent of the
parties by an instrument in writing.
14. APPLICABLE LAW AND LIABILITIES. This Agreement is executed and delivered
in the State of Connecticut and shall be governed by and construed in
accordance with the laws of Connecticut.
This Agreement shall be subject to all applicable provisions of law,
including, without limitation, the applicable provisions of the 1940 Act. To
the extent that any provisions herein contained conflict with any applicable
provisions of law, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Connecticut Mutual Life Insurance Company
_______________________________________
By:
Connecticut Mutual Financial Services, LLC
_______________________________________
By:
