EX-3.a.
AMENDED AND RESTATED
GENERAL DISTRIBUTOR AGREEMENT
This Amended and Restated General Distributor Agreement is by and among
XXXXXXX NATIONAL LIFE INSURANCE COMPANY (JNL), a Michigan corporation, XXXXXXX
NATIONAL LIFE INSURANCE COMPANY OF NEW YORK (JNLNY), a New York corporation
(together, "COMPANY"), and XXXXXXX NATIONAL LIFE DISTRIBUTORS, LLC (JNLD), a
Delaware limited liability company (the "Agreement").
Reference is made to the following agreements, which the parties now
wish to combine, amend, and restate in their entirety: General Distributor
Agreement between JNL and JNLD dated June 30, 1998 (Xxxxxxx National Separate
Account-I); General Distributor Agreement between JNL and JNLD dated June 30,
1998 (Xxxxxxx National Separate Account III); General Distributor Agreement
between JNL and JNLD dated August 2, 1999 (Xxxxxxx National Separate Account V);
General Distributor Agreement between JNL and JNLD dated March 29, 2004 (Xxxxxxx
National Separate Account IV); General Distributor Agreement between JNL and
JNLD dated May 3, 2004 (Xxxxxxx National Separate Account IV); General
Distributor Agreement between JNLNY and JNLD dated June 30, 1998 (JNLNY Separate
Account I); General Distributor Agreement between JNLNY and JNLD dated December
29, 1999 (JNLNY Separate Account II); and General Distributor Agreement between
JNLNY and JNLD dated March 29, 2004 (JNLNY Separate Account IV). This Agreement
supercedes all prior agreements and understandings, both oral and written, among
the parties with respect to the below subject matter, including the Amended and
Restated General Distributor Agreement dated October 25, 2005.
I
COMPANY issues variable and fixed annuity contracts and variable
universal life insurance policies (the "Variable Products") through its separate
accounts named in attached and incorporated Appendix A. JNLD agrees to
distribute the Variable Products to Selling Broker Dealers (as defined in
Section III) and insurance agencies for sale to the public and to provide sales
services, subject to this Agreement's terms and conditions. JNLD is registered
as a broker-dealer under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and is a member of the National Association of Securities Dealers,
Inc. (NASD).
II
COMPANY authorizes JNLD and JNLD agrees to serve, during the term of
this Agreement, as the distributor of the Variable Products. JNLD will
distribute the Variable Products to Selling Broker-Dealers and insurance
agencies to sell, at a price to be set by COMPANY, to purchasers permitted to
buy such Variable Products as specified in the applicable prospectus.
III
Company authorizes JNLD, subject to disapproval by COMPANY, to select
broker-dealers ("Selling Broker Dealers") to enter into separate written
agreements ("Selling Agreements") with Company and JNLD to participate as JNLD
shall deem appropriate in the distribution of the Variable Products. Selling
Broker Dealers must be registered under the 1934 Act and members of the NASD,
and either licensed as an insurance agency or affiliated with an insurance
agency, which insurance agency must also execute the Selling Agreement. The
Selling Agreements shall be in a form acceptable to COMPANY. Each Selling
Broker-Dealer and its registered representatives soliciting applications for
Variable Products ("Representatives") shall be duly and appropriately licensed,
appointed by COMPANY, registered and otherwise qualified for the sale of
Variable Products under the NASD rules and applicable federal and state
securities and insurance laws. Each Selling Broker-Dealer shall be responsible
for its Representatives continuing compliance with all applicable securities
laws and regulations including, but not limited to, registration requirements,
and with all applicable state laws.
IV
Each Selling Agreement shall provide as follows, in words or substance
with respect to the training and supervision of Representatives and other
persons associated with such Selling-Broker Dealer who are involved directly or
indirectly in the offer or sale of Contracts:
A. All such persons shall be subject to the control of such
Selling-Broker Dealer with respect to such persons' activities in
connection with the sale of Variable Products. Such
Selling-Broker Dealer shall be responsible for training and
supervision of all such persons. JNLD and COMPANY shall not have
responsibility for the training and supervision of any person
associated with such Selling-Broker Dealer. JNLD shall require
such Selling Broker-Dealer to agree to comply with COMPANY's
position regarding legal and ethical business standards for its
producers and to engage in active and fair competition as
required by all applicable laws, rules and regulations.
B. Such Selling Broker-Dealer shall be required to assume full
responsibility for continued compliance by itself and its
associated persons (as defined in Section 3(a)(18) of the 0000
Xxx) with the NASD Conduct Rules ("NASD Rules") and applicable
federal and state securities and insurance laws. Such
Selling-Broker Dealer shall be specifically charged with the
responsibility of supervising its representatives' compliance
with all applicable suitability requirements under federal or
state law or the regulations of the NASD. Such Selling
Broker-Dealer shall be specifically charged with providing or
arranging for adequate training to ensure that representatives
have thorough knowledge of each Variable Product for sale and the
ability to make appropriate product presentations and suitability
determinations in compliance with applicable law. Such Selling
Broker-Dealer and its representatives shall not recommend the
purchase of a Variable Product to a prospective purchaser unless
they have reasonable grounds to believe that such purchase is
suitable for the prospective purchaser and is in accordance with
applicable regulations of any regulatory authority, including the
Securities and Exchange Commission (SEC) and the NASD.
V
The parties hereto recognize that any Representative selling Variable
Products as contemplated by this Agreement shall be acting as an insurance agent
of COMPANY. Such Representatives shall not be considered agents or employees of
JNLD, unless any contract between JNLD and any such person specifically provides
otherwise. Further, it is intended by the parties hereto that such
Representatives have and shall continue to be considered to have a common law
independent contractor relationship with COMPANY and not to be considered common
law employees of COMPANY, unless any contract between COMPANY and any person
selling the Variable Products specifically provides otherwise.
VI
JNLD shall be fully responsible for carrying out all compliance and
supervisory obligations in connection with the distribution of the Variable
Products, as required by NASD Rules, and by federal and any applicable state
laws. JNLD shall assume full responsibility for training and oversight of its
representatives engaged directly or indirectly in the distribution of the
Variable Products to Selling Broker-Dealers, and shall have the authority to
require that disciplinary action be taken with respect to its representatives.
JNLD agrees to comply with COMPANY's position regarding legal and ethical
business standards and to engage in active and fair competition as required by
all applicable laws, rules and regulations.
VII
COMPANY and JNLD each agree to carry out its activities and obligations
under this Agreement in continuous compliance with the federal and state laws
and regulations, including those governing securities and insurance related
activities or transactions, as applicable. Each shall notify the other parties
immediately in writing if it fails to comply with any applicable law or
regulation.
VIII
COMPANY reserves the right to review and accept or reject all
applications for Variable Products. All applications forwarded to COMPANY shall
be approved by an appropriate registered principal of the submitting
Selling-Broker Dealer in accordance with all applicable rules and regulations,
including but not limited to those regarding suitability. All premium payments
for such Variable Products shall be sent promptly to the office designated for
such by COMPANY.
IX
COMPANY shall furnish JNLD with copies of such information, financial
statements and other documents requested by JNLD for use in connection with the
distribution of the Variable Products, as may be deemed reasonable by COMPANY.
COMPANY shall provide to JNLD such number of copies of the currently effective
prospectuses and any supplements, as JNLD and COMPANY shall agree upon from time
to time. COMPANY reserves the right to require the recall of any material
approved by it at any time for any reason, and JNLD shall promptly comply, and
use its best efforts to cause all Selling Broker-Dealers to promptly comply.
X
JNLD is not authorized to give any information, make any
representations, or authorize anyone else to give any information or make any
representation concerning COMPANY or the separate accounts, other than as
contained in the current SEC-filed registration statement or such sales
literature as may be authorized by COMPANY.
XI
COMPANY, as agent for JNLD, shall confirm to each applicant for and
purchaser of a Variable Product acceptance of Premiums and such other
transactions as are required by Rule 10b-10 under the 1934 Act, including
administrative interpretations thereunder. COMPANY shall maintain and preserve
such books and records with respect to such confirmations in conformity with the
requirements of Rules 17a-3 and 17a-4 under the 1934 Act to the extent such
requirements apply. COMPANY shall maintain all such books and records and hold
such books and records on behalf of and as agent for JNLD whose property they
are and shall remain, and acknowledges that such books and records are at all
times subject to inspection by the SEC in accordance with Section 17(a) of the
1934 Act.
XII
The parties to this Agreement agree to keep necessary records as
indicated by applicable state and federal law and to render the necessary
assistance to one another for the accurate and timely preparation of such
records. Each party shall make such books and records reasonably available to
the other party. The parties shall promptly furnish each other with any reports
and information the other party may reasonably request for the purpose of
meeting its reporting and recordkeeping requirements under the insurance laws of
any state, under any applicable federal or state securities laws, rules or
regulations, or under the rules of the NASD.
XIII
Commissions payable with respect to Variable Products shall be paid by
COMPANY as agent for JNLD, and nothing herein shall obligate JNLD to otherwise
or directly pay any commissions or other remuneration to the Selling
Broker-Dealers/Representatives selling the Variable Products or to reimburse
such Selling Broker-Dealers/Representatives for expenses incurred by them, nor
shall JNLD have any interest whatsoever in any commissions or other remuneration
payable to any Selling Broker-Dealer/Representative by COMPANY.
XIV
Each party will promptly notify the other parties of any customer
complaint or notice of any regulatory investigation or proceeding received by
such party or their respective affiliates relating to the Variable Products or
any threatened or filed arbitration action or civil litigation arising out of
the offer or sale of the Variable Products. The parties shall cooperate fully in
investigating and responding to any such complaint, regulatory investigation or
proceeding, arbitration, or civil litigation, and in any settlement or trial of
any actions arising out of the conduct of business under this Agreement.
JNLD will include in each Selling Agreement a notification provision
comparable to this Paragraph requiring the Selling Broker-Dealer (a) to notify
JNLD and COMPANY promptly of any complaint or claim or any notice of any
regulatory investigation or proceeding received by the Selling-Broker Dealer or
its affiliates relating to JNLD, COMPANY, any associated person of JNLD or
COMPANY, and any Variable Product, or any threatened or filed arbitration action
or civil litigation arising out of solicitation of the Variable Products, and
(b) to cooperate with COMPANY and JNLD in investigating and resolving such
matter.
XV
Each party (the "Indemnifying Party") hereby agrees to release,
indemnify, and hold harmless the other parties, its officers, directors,
employees, agents, servants, predecessors or successors from any claims or
liability arising out of the breach of this Agreement by the Indemnifying Party
or arising out of acts or omissions of the Indemnifying Party or its agents,
appointees, independent contractors or employees not authorized by this
Agreement, including the violation of the federal and state securities laws,
state insurance laws, and tax laws, including the Employee Retirement Income
Security Act of 1974 (ERISA), or arising from acts of misrepresentation or false
declaration concerning the products sold hereunder.
XVI
No party will disclose Confidential Information (as defined below) to
any person or entity other than their respective Representatives (as defined
below) or use Confidential Information other than in connection with their
activities under this Agreement, unless and to the extent (i) if the
Confidential Information relates to a party or an affiliate thereof, such party
otherwise agreed in writing to such usage, or (ii) if the Confidential
Information relates to a client or prospective client of a party or an
affiliate, such client and such party or affiliate otherwise agrees in writing
to such usage.
"CONFIDENTIAL INFORMATION" relating to any person or entity means all
information concerning the identity of, and the finances, business, operations,
prospects, procedures, or relationships relating to such person or entity, which
is received verbally or in writing by a party from the other party, unless and
to the extent such information either becomes generally available to the public
other than through disclosure by the receiving party or becomes available to the
receiving party on a non-confidential basis from a person other than the other
party, who to the receiving party's knowledge, is not prohibited from disclosing
the information. Without limitation of the foregoing, COMPANY agrees to keep the
identity of each client and all information of any nature relating to each
client confidential and shall use such information only for the purposes set
forth in this Agreement and not otherwise. "Representatives" of a party means
its directors, officers, employees, attorneys, agents, and other representatives
that are designated and provided in writing from time to time to the other party
upon request of the other party.
The parties may disclose Confidential Information to the extent
required by applicable law or at the request of any regulatory or supervisory
authority having jurisdiction over that party.
XVII
No amendment or supplement to this Agreement shall bind the parties
unless in writing, signed by duly authorized officers, except for any changes to
Appendix A. The parties agree to be bound by any changes to Appendix A of which
there is notice, and for which no signatures will be required.
This Agreement shall remain in effect unless terminated as hereinafter
provided. This Agreement shall automatically terminate in the event of its
assignment by JNLD. This Agreement may be terminated by either party hereto at
any time upon not less than 60 days' written notice to the other party.
XVIII
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been given on the date
of service if served personally on the party to whom notice is to be given, or
on the date of mailing if sent by first class mail, registered or certified,
postage prepaid and properly addressed as follows:
TO COMPANY:
Xxxxxxx National Life Insurance Company
0 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
And/or
Xxxxxxx National Life Insurance Company of New York
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
TO JNLD:
Xxxxxxx National Life Distributors, LLC
0000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be signed on their behalf by their respective officers thereunto duly
authorized.
This Agreement is effective as of the 1st day of June, 2006.
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Its: SENIOR VICE PRESIDENT AND GENERAL COUNSEL
XXXXXXX NATIONAL LIFE INSURANCE COMPANY OF NEW YORK
By: XXXXXX X. XXXXX
------------------------------------------------
Xxxxxx X. Xxxxx
Its: SENIOR VICE PRESIDENT AND GENERAL COUNSEL
XXXXXXX NATIONAL LIFE DISTRIBUTORS, LLC
By: XXXXXXXX X. XXXX
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Its: President
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APPENDIX A
Dated June 1, 2006
XXXXXXX NATIONAL LIFE INSURANCE COMPANY:
Xxxxxxx National Separate Account I
Xxxxxxx National Separate Account III
Xxxxxxx National Separate Account IV
Xxxxxxx National Separate Account V
XXXXXXX NATIONAL LIFE INSURANCE COMPANY OF NEW YORK:
JNLNY Separate Account I
JNLNY Separate Account II
JNLNY Separate Account IV
