EXHIBIT 3(a)
DISTRIBUTION AGREEMENT
This agreement dated as of October 1, 1991 (the "Agreement"), among Empire
Fidelity Investments Life Insurance Company ("EFILI"), a New York
corporation, Fidelity Brokerage Services, Inc. ("FBSI"), a Massachusetts
corporation and Fidelity Insurance Agency ("FIA"), a Massachusetts company:
WITNESSETH:
In consideration of the mutual covenants and conditions herein contained
EFILI, FBSI and FIA agree as follows:
A. Definitions
(1) "Contracts" shall mean the variable life insurance policies and the
variable annuity contracts which EFILI issues and can use a Variable
Account as hereinafter defined, and for which FBSI, a registered
broker-dealer, has been appointed the principal underwriter;
(2) "Fund" shall mean a registered investment company under the 1940 Act,
as shown on Schedule A hereto, which is incorporated herein by this
reference as said schedule may be amended from time to time by written
agreement of all parties hereto.
(3) "1933 Act" shall mean the Securities Act of 1933, as may be amended
from time to time.
(4) "1934 Act" shall mean the Securities Exchange Act of 1934, as may be
amended from time to time.
(5) "1940 Act" shall mean the Investment Company Act of 1940, as may be
amended from time to time.
(6) "Participation Agreement" shall mean one of the Participation
Agreements among EFILI, a Fund and Fidelity Distributors Corporation, as
shown on Schedule B hereto, which is incorporated herein by this reference
as said schedule may be amended from time to time by written agreement of
all parties hereto.
(7) "Payments" shall mean all purchase payments made on Contracts including
initial and any subsequent purchase payments made.
(8) "Prospectus" shall mean the prospectus included within any Registration
Statement referred to herein, including any such prospectus filed pursuant
to any subsection of Rule 424 or Rule 429 under the 0000 Xxx.
(9) "Registration Statement" shall mean the currently effective
registration statement or currently effective post-effective amendment
thereto relating to the Contracts and a Variable Account as hereinafter
defined as required by the 1933 Act and the 1940 Act, including financial
statements and all exhibits thereto.
(10) "Variable Account" shall mean any of the separate accounts as shown on
Schedule C hereto, which is incorporated herein by this reference as said
schedule may be amended from time to time by written agreement of all
parties hereto which are established by EFILI for the Contracts.
(11) "SEC" shall mean the United States Securities and Exchange Commission.
B. Agreements of EFILI
(1) EFILI hereby appoints FBSI as its principal underwriter and FIA as its
independent general agent during the term of the Agreement for sale of the
Contracts. During such term, FIA is authorized to undertake a marketing
program for the Contracts; provided (a) there is an effective Registration
Statement relating to such Contracts, and (b) with respect to each state or
jurisdiction in which applications are to be solicited, that EFILI has
notified FIA that the Contracts are qualified for sale under all applicable
securities laws and insurance laws of the state or jurisdiction in which
the application will be solicited.
(2) EFILI, during the term of the Agreement, will immediately notify FBSI
and FIA:
(a) When the Registration Statement for any Contract has become effective
or when any amendment with respect to the Registration Statement thereafter
becomes effective;
(b) Of any request by the SEC for any amendments or supplements to the
Registration Statement for any Contract or of any request for additional
information that must be provided by FBSI;
(c) Of the issuance by the SEC of any stop order with respect to the
Registration Statement for any Contract or any amendments thereto or the
initiation of any proceedings for that purpose or for any other purpose
relating to the registration and/or offering of the Contracts;
(d) Of the states or jurisdictions where approval of the Contract forms is
required under the applicable insurance laws and regulations, and when such
approvals have been obtained; and
(e) Of the states or jurisdictions where any Contract may not be lawfully
sold.
(3) EFILI will compile periodic marketing reports summarizing sales results
to the extent reasonably requested by FBSI or FIA.
(4) EFILI will provide to FBSI at least one complete copy of all
registration statements, prospectuses, Statements of Additional
Information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no action letters, and all amendments to any of the above,
that relate to the Contracts or a Variable Account, contemporaneously with
the filing of such document with the SEC.
(5) During the term of this Agreement, EFILI will provide FIA, with as many
copies of the Prospectus for any Contract (and any amendments or
supplements thereto) as FIA may reasonably request. If however, the
prospectus for the Contracts is to be printed as one document, EFILI will
provide to FIA typeset and camera ready copies of the Contract portion of
the prospectus and/or other necessary documentation.
C. Agreements of FBSI and FIA
(1) FBSI is a registered broker/dealer under the 1934 Act and a member of
the NASD.
(2) FIA will be duly licensed to sell variable annuities and variable life
insurance policies in any state or jurisdiction in which it performs
functions under this Agreement.
(3) FBSI and FIA shall each be responsible for carrying out their
respective sales, administrative and supervisory obligations under this
Agreement in material compliance with applicable Federal and state laws.
(4) FIA agrees that it shall be fully responsible for ensuring that no
agent, representative, telephone salesperson or employee shall offer any
Contract on its behalf until such person is duly licensed and appointed by
EFILI and appropriately licensed, registered or otherwise qualified to
offer and sell such Contract under federal securities laws, NASD rules and
regulations, and under the insurance laws of each state or other
jurisdiction in which such person intends to offer such Contract. EFILI
reserves the right to refuse to appoint any proposed agent or, once
appointed, to terminate such agent.
(5) FBSI and FIA each understand that the public offering of the Contracts
will commence as soon as possible after the effective date of the
Registration Statement. Beginning at that time, and during the term of
this Agreement, FIA agrees to use its best efforts to solicit applications
for the Contracts.
(6) All Payments and applications for Contracts sold by FIA or its agents,
representatives, telephone salespersons or employees through direct mail
solicitation should be sent directly to the EFILI Service Center. To the
extent that FIA solicits applications for Contracts through an agent or
that Payments are incorrectly sent to FIA rather than the Service Center,
all Payments received by FIA shall be remitted promptly in full together
with such application, forms and any other required documentation to the
Service Center. Checks or money orders in payment of Payments shall be
drawn to the order of "Empire Fidelity Investments Life Insurance Company."
EFILI shall have the unconditional right to reject, in whole or in part,
any application for any Contract. In the event an application is rejected,
the amount of the Payment received by EFILI will be returned directly to
the purchaser and EFILI will notify FIA of such action. In the event that
a Contract is returned to EFILI, FIA within the applicable "free-look"
period, the Payment received by EFILI (adjusted for investment performance,
as provided in the Contract) will be refunded to the purchaser and EFILI
will notify FIA of such action. In the event FIA has received compensation
based on any such returned Payments, FIA agrees to promptly repay such
compensation to EFILI.
(7) FIA shall, in soliciting applications for the Contracts, engage in
direct marketing of the Contracts using various means of communications.
FIA will provide telephone salespersons and such other personnel it deems
necessary to respond to inquiries from the general public regarding the
Variable Accounts, the Contracts and the portfolios underlying the Variable
Accounts. In connection with such marketing efforts:
(a) FIA shall furnish, or shall cause to be furnished, to EFILI each piece
of sales literature or other promotional material in which EFILI or a
Variable Account is named. No such material shall be used without the
prior written consent of EFILI.
(b) FIA, its agents, representatives, telephone salespersons or employees
shall not give without the prior written consent of EFILI, any information
or make any representations on behalf of or concerning EFILI, a Variable
Account, or the Contracts other than the information or representations
contained in the Registration Statement or Prospectus for the Contracts (as
each may be amended or supplemented from time to time) or in reports for
the Variable Accounts prepared by EFILI for distribution to Contract
owners, or in sales literature or other promotional material approved in
writing by EFILI.
(c) FBSI, in accordance with its obligations under federal securities laws
and regulations, shall establish and implement reasonable procedures
acceptable to EFILI for periodic inspection and ongoing supervision of
sales practices of FIA's agents, employees, telephone salespersons and
representatives and, upon request, shall make available to EFILI periodic
reports on the results of such inspections and the compliance with such
procedures.
(d) In compliance with EFILI's written rules and procedures and with
applicable rules and regulations of any governmental or other agency that
has jurisdiction over variable life insurance or variable annuity
activities, FBSI and FIA are responsible for the training, supervision, and
control of the agents, representatives, telephone salespersons and other
employees of FIA involved in the marketing program for the Contracts by
FIA. FBSI and FIA will also undertake to have all agents, representatives,
telephone salespersons and employees of FIA who must be licensed pursuant
to federal or state insurance and/or securities laws in order to sell the
Contracts, duly licensed.
(e) For purposes of this paragraph 7 and its subparagraphs and the
Indemnification provisions in Sections E and F hereof, the phrase, "sales
literature or other promotional material" includes, but is not limited to,
advertisements (including material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone
script or sound recording, video display, signs or billboards, motion
pictures, or other public media), written communications 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 articles), educational or training materials or other
communications distributed or made generally available to agents,
representatives, telephone salespersons or employees, and registration
statements, prospectuses, Statements of Additional Information, shareholder
reports, proxy materials, applications for the Contracts and application
kits.
(8) FIA shall act as an independent general agent, and nothing herein
contained shall constitute FIA or its agents, representatives, telephone
salespersons or employees, as employees of EFILI in connection with the
marketing program for the Contracts.
(9) FIA shall not directly or by means of its agents, representatives,
telephone salespersons or other employees offer, nor attempt to offer, nor
solicit applications for the Contracts or deliver Contracts in any state or
jurisdiction in which the Contracts may not legally be sold or offered for
sale.
(10) Neither FBSI nor FIA shall have authority on behalf of EFILI to: (i)
make, alter or discharge any Contract; and (ii) receive any monies or
Payments, except as set forth in Section C(6) of this Agreement. Neither
FBSI nor FIA shall expend, or contract for the expenditure of, the funds of
EFILI nor shall FBSI or FIA possess or exercise any authority on behalf of
EFILI other than that expressly conferred on FBSI or FIA by this Agreement.
(11) FBSI and FIA agree to maintain appropriate books and records
concerning the variable annuity and variable life business transacted by
FBSI and FIA under this Agreement as required by either (a) any
governmental authority (including without limitation the SEC, the NASD and
state insurance regulators) or (b) EFILI. Such books and records shall be
considered to be the books and records of EFILI and shall be available to
EFILI at any reasonable time upon its written request. FBSI and FIA shall
permit such governmental authorities reasonable access to such books and
records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated thereby.
(12) FIA shall pay the following expenses related to its distribution of
the Contracts: (i) expenses associated with the initial licensing and
training of its agents, representatives, telephone salespersons and
employees necessary for the marketing of the Contracts, (ii) the costs of
any advertisements and marketing material which it develops for use in
connection with the marketing program for the Contracts, and (iii) any
other expenses incurred by FBSI, FIA or the agents or employees of either
FBSI or FIA for the purpose of carrying out the obligations of FBSI or FIA
hereunder will be paid by FBSI and/or FIA, respectively.
D. Compensation
(1) EFILI shall pay to FIA for Contracts issued by EFILI and sold by FIA a
commission as set forth on Schedule D hereto, which is incorporated herein
by this reference as said schedule may be amended from time to time by
written agreement of all parties hereto.
E. Indemnification by EFILI
(1) EFILI agrees to indemnify and hold harmless FBSI and FIA against any
and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of EFILI) or litigation (including
legal and other expenses), to which FBSI or FIA may become subject under
any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale of the Contracts and:
(a) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the Registration Statement,
Prospectus, Contracts or sales literature for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall not
apply if such statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information furnished to
EFILI by FBSI or FIA for use in the Registration Statement, Prospectus,
Contracts or sales literature for the Contracts (or any amendment or
supplement) or otherwise for use in connection with the sale of the
Contracts; or
(b) arise as a result of any failure by EFILI to provide the services and
furnish the materials under the terms of this Agreement; or
(c) arise out of or result from any material breach of any representation
and/or warranty made by EFILI in this Agreement or arise out of or result
from any other material breach of this Agreement by EFILI, as limited by
and in accordance with the provisions of Sections E.1.(a) and E.1.(b)
hereof.
(2) EFILI shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against FBSI or FIA as such may arise from FBSI's or FIA's
willful misfeasance, bad faith, or gross negligence in the performance of
its duties or by reason of its reckless disregard of obligations or duties
under this Agreement.
(3) EFILI shall not be liable under this indemnification provision with
respect to any claim made against FBSI or FIA unless FBSI or FIA shall have
notified EFILI 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 FBSI or FIA (or after FBSI or FIA shall have
received notice of such service on any designated agent), but failure to
notify EFILI of any such claim shall not relieve EFILI from any liability
which it may have to FBSI or FIA otherwise than on account of this
indemnification provision. In case any such action is brought against FBSI
or FIA, EFILI shall be entitled to participate, at its own expense, in the
defense of such action. EFILI shall be entitled to assume the defense
thereof, with counsel satisfactory to FBSI or FIA. After notice from EFILI
to FBSI or FIA of the election by EFILI to assume the defense thereof, FBSI
or FIA shall bear the fees and expenses of any additional counsel retained
by it, and EFILI will not be liable to FBSI under this Agreement for any
legal or other expenses subsequently incurred by FBSI or FIA independently
in connection with the defense thereof other than reasonable costs of
investigation.
(4) FBSI or FIA will promptly notify EFILI of the commencement of any
litigation or proceedings against it in connection with the issuance or
sale of the Contracts.
F. Indemnification by FBSI or FIA
(1) FBSI and FIA agree to indemnify and hold harmless EFILI against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of FBSI or FIA) or litigation
(including legal and other expenses), to which EFILI may become subject
under any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale of the Contracts and:
(a) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the Registration Statement,
Prospectus, Contracts or sales literature for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall not
apply if such statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information furnished to
FBSI or FIA by EFILI for use in the Registration Statement, Prospectus,
Contracts or sales literature for the Contracts (or any amendment or
supplement) or otherwise for use in connection with sale of the Contracts;
or
(b) arise as a result of any failure by FBSI or FIA to provide the services
and furnish the materials under the terms of this Agreement; or
(c) arise out of or result from any material breach of any representation
and/or warranty made by FBSI or FIA in this Agreement or arise out of or
result from any other material breach of this Agreement by FBSI or FIA, as
limited by and in accordance with the provisions of Sections F.1.(a) and
F.1.(b) hereof.
(2) Neither FBSI nor FIA shall be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against EFILI as such may arise from
EFILI's willful misfeasance, bad faith, or gross negligence in the
performance of their duties or by reason of their reckless disregard of
obligations or duties under this Agreement.
(3) Neither FBSI nor FIA shall be liable under this indemnification
provision with respect to any claim made against EFILI unless EFILI shall
have notified FBSI and FIA 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 EFILI (or after EFILI shall have
received notice of such service on any designated agent), but failure to
notify FBSI and FIA of any such claim shall not relieve FBSI and FIA from
any liability which it may have to EFILI otherwise than on account of this
indemnification provision. In case any such action is brought against
EFILI, FBSI and FIA shall be entitled to participate, at their own expense,
in the defense of such action. FBSI and FIA shall be entitled to assume
the defense thereof, with counsel satisfactory to EFILI. After notice from
FBSI or FIA to EFILI of the election by FBSI or FIA to assume the defense
thereof, EFILI shall bear the fees and expenses of any additional counsel
retained by it, and FBSI or FIA will not be liable to EFILI under this
Agreement for any legal or other expenses subsequently incurred by EFILI
independently in connection with the defense thereof other than reasonable
costs of investigation.
(4) EFILI will promptly notify FBSI and FIA of the commencement of any
litigation or proceedings against them in connection with the issuance or
sale of the Contracts.
G. Confidentiality
(1) Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses
contained in FIA's mailing list and all information reasonably identified
as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize
such names and addresses and other confidential information until such time
as it may come into the public domain without the express written consent
of the affected party, provided, that to the extent any name and address is
available to a party through a source independent of the relationship
defined in this Agreement, such name and address shall not be treated as
confidential.
H. Term of Agreement
(1) The term of this Agreement, shall be for an initial period of one year,
and shall be automatically renewed from year to year thereafter, unless
terminated by at least 30 days prior written notice given at any time by
any party, except that this Agreement will automatically terminate upon the
termination of all the Participation Agreements.
(2) Upon termination of this Agreement, all authorizations, rights and
obligations shall cease except the indemnification provisions set forth
above between EFILI, FBSI and FIA and in the Participation Agreements, and
the provisions of Section C(11) above that require FBSI and FIA to maintain
certain books and records.
I. Non-Exclusivity of Agreement
EFILI may, at any time, distribute all or a portion of the Contracts
through any other distribution system or third parties selected by EFILI.
J. Assignability
This Agreement may not be assigned without the prior written consent of all
parties hereto.
K. Governing Law
This Agreement shall be in all respects governed by and construed in
accordance with the laws of the State of New York.
L. Notice
Any notice shall be sufficiently given when personally received by the
other party, or when sent by registered or certified mail to the other
party at the following address, or to such other address as may be
designated by any party:
If to EFILI:
Empire Fidelity Investments Life Insurance Company
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
If to FBSI:
Fidelity Brokerage Services, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx, Executive Vice President
If to FIA:
Fidelity Insurance Agency, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY
By: \s\ Xxxxxx X. Xxxxx
Title: Xxxxxx X. Xxxxx
Date: President
FIDELITY BROKERAGE SERVICES, INC.
By: \s\ Xxxxxxx Xxxxxxxxx
Title: Xxxxxxx Xxxxxxxxx
Date: Executive Vice President
FIDELITY INSURANCE AGENCY, INC.
By: \s\ Xxxxxx X. Xxxxx
Title: Xxxxxx X. Xxxxx
Date: President
SCHEDULE A
TO DISTRIBUTION AGREEMENT AMONG
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY,
FIDELITY BROKERAGE SERVICES, INC. AND
FIDELITY INSURANCE AGENCY, INC.
FUNDS
Variable Insurance Products Fund
Variable Insurance Products Fund II
Dated as of: October 1, 1991
SCHEDULE B
TO DISTRIBUTION AGREEMENT AMONG
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY,
FIDELITY BROKERAGE SERVICES, INC. AND
FIDELITY INSURANCE AGENCY, INC.
PARTICIPATION AGREEMENTS
Participation Agreement among Variable Insurance Products Fund, Fidelity
Distributors Corporation and Empire Fidelity Investments Life Insurance
Company dated as of October 1, 1991
Participation Agreement among Variable Insurance Products Fund II, Fidelity
Distributors Corporation and Empire Fidelity Investments Life Insurance
Company dated as of October 1, 1991
Dated as of: October 1, 1991
SCHEDULE C
TO DISTRIBUTION AGREEMENT AMONG
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY,
FIDELITY BROKERAGE SERVICES, INC. AND
FIDELITY INSURANCE AGENCY, INC.
VARIABLE ACCOUNTS
Empire Fidelity Investments Life Insurance Company:
Variable Annuity Account A
Variable Life Account A
Dated as of: October 1, 1991
SCHEDULE D
TO DISTRIBUTION AGREEMENT AMONG
EMPIRE FIDELITY INVESTMENTS LIFE INSURANCE COMPANY,
FIDELITY BROKERAGE SERVICES, INC. AND
FIDELITY INSURANCE AGENCY, INC.
COMPENSATION
3.00% of life premiums and annuity considerations, payable monthly.
Dated as of: October 1, 1991
