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EXHIBIT 99-B.8.2
MARKETING AND SERVICES AGREEMENT
AMONG
AETNA INSURANCE COMPANY OF AMERICA
AND
XXXXXXXX-XXXXXXXXX CAPITAL MANAGEMENT
AND
XXXXXXXX-XXXXXXXXX SECURITIES
DATED
FEBRUARY 20, 1996
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MARKETING AND SERVICES AGREEMENT
THIS AGREEMENT is made, by and among AETNA INSURANCE COMPANY OF AMERICA,
a Connecticut insurance company and registered broker-dealer, referred to
herein as "AICA," with principal offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, and XXXXXXXX-XXXXXXXXX CAPITAL MANAGEMENT ("NACM"), a
California limited partnership and registered investment adviser, and
XXXXXXXX-XXXXXXXXX SECURITIES ("NAS"), a California limited partnership and
registered broker-dealer (together referred to herein as
"XXXXXXXX-XXXXXXXXX"), each with its principal place of business at 000 Xxxx
Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000. This Agreement shall be effective as
of the date both parties hereto have executed this Agreement, as noted on the
signature pages.
WITNESSETH:
WHEREAS, AICA is a stock life insurance company authorized to
conduct an insurance business in all fifty (50) states and the District of
Columbia; and
WHEREAS, Xxxxxxxx-Xxxxxxxxx has expertise in the marketing and
servicing of investment products; and
WHEREAS, the exclusive principal underwriter and distributor for
the Contracts ("Underwriter") shall be AICA, a registered broker-dealer
authorized to conduct business in all fifty (50) states and the District of
Columbia, and AICA shall perform all functions relating to the acceptance of
applications for the Contracts; and
WHEREAS, the parties are desirous of entering into a relationship
whereby Xxxxxxxx-Xxxxxxxxx will provide product development, marketing and
marketing support services in connection with certain variable insurance
products issued by AICA supported by separate accounts whose underlying
investment options will be registered investment companies advised or
administered by Xxxxxxxx-Xxxxxxxxx or an Affiliate, and certain registered
investment companies advised and administered by AICA or an Affiliate and a
guaranteed option account managed by the General Account of AICA;
NOW, THEREFORE, it is agreed as follows:
SECTION 1
DEFINITIONS
1.1 AFFILIATE.
"Affiliate" shall mean, with respect to a person, any other person
controlling, controlled by, or under common control with, such person in
accordance with Section 2(a)(3)(c) and Section 2(a)(9) of the Investment
Company Act of 1940 ("1940 Act").
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1.2 AGENT.
"Agent" shall mean those individuals who are appropriately licensed
under applicable insurance and securities statutes and regulations to sell
the Contracts in all jurisdictions where required to be so licensed and who
are appointed by AICA.
1.3 CONTRACTS.
"Contracts" shall mean the class or classes of variable annuity
contracts, which may include certain guaranteed account options managed as a
non-insulated, non-unitized separate account of AICA's General Account, as
set forth on Schedule 1 to this Agreement as in effect at the time this
Agreement is executed, and such other variable insurance products and
guaranteed account products that may be added to Schedule 1 from time to time
in accordance with Section 2.2.1 of this Agreement. For this purpose and
under this Agreement generally, a "Class of Contracts" shall mean those
Contracts issued by AICA on the same policy form or forms and covered by the
same Securities and Exchange Commission ("SEC") registration statement.
1.4 DISTRIBUTOR.
"Distributor" shall mean an entity registered as a broker-dealer and
licensed as a life insurance agent or affiliated with an entity so licensed,
and that has executed a Selling Agreement with AICA pursuant to which it is
authorized to distribute the Contracts as contemplated by Section 3.4 of this
Agreement.
1.5 FUND.
"Fund" shall mean an investment company advised or administered by
Xxxxxxxx-Xxxxxxxxx or an Affiliate or AICA or an Affiliate, as set forth on
Schedule 2 to this Agreement and in effect at the time this Agreement is
executed, and such other investment companies that may be added to Schedule 2
from time to time in accordance with Section 2.2.3 of this Agreement.
1.6 GENERAL ACCOUNT.
"General Account" shall mean the general assets of AICA other than those
allocated to a Separate Account.
1.7 SEPARATE ACCOUNT.
"Separate Account" shall mean each insulated unitized Separate Account
of AICA registered under the 1940 Act and whose securities are registered
under the Securities Act of 1933 ("1933 Act") specified on Schedule 3 to this
Agreement, as in effect at the time this Agreement is executed, and such
other separate accounts of AICA that may be added from time to time to
Schedule 3 to this Agreement in accordance with Section 2.2.2, each of which
is established and operated in compliance with any applicable insurance
regulations of all necessary
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jurisdictions.
1.8 SUBACCOUNTS OR SEPARATE ACCOUNT SUBACCOUNTS.
"Subaccounts" or "Separate Account Subaccounts" shall mean the
subaccounts of the Separate Accounts available under the Contracts, which
shall include those Subaccounts named on Schedule 3 to this Agreement as in
effect at the time this Agreement is executed, and such other Subaccounts
that may be added to Schedule 3 in accordance with Section 2.2.3 of this
Agreement.
1.9 TERRITORY.
"Territory" shall mean the fifty (50) states of the United States and
the District of Columbia.
SECTION 2
SCOPE OF AGREEMENT
2.1 THE SEPARATE ACCOUNTS AND THE FUNDS.
2.1.1 SEPARATE ACCOUNTS AND SUBACCOUNTS. The Separate Account
Subaccounts for the Contracts shall initially consist of the subaccounts set
forth on Schedule 3 hereto. Each Separate Account Subaccount shall invest in
a corresponding Fund or series of a Fund ("Fund Series") as set forth on
Schedule 2 to this Agreement.
2.1.2 THE FUNDS. Schedule 2 lists the Funds and, in the case of a
Fund of the "series" type, the Series of such a Fund that have been made
available as investment options for each class of Contracts. Each Fund
listed on Schedule 2, as in effect at the time this Agreement is executed,
has been established and a registration statement has been filed with the
SEC. Additional Funds and Fund Series may be added to Schedule 2 from time
to time in accordance with Section 2.2.3 of this Agreement.
Xxxxxxxx-Xxxxxxxxx understands and agrees that with regard to the Funds, it
must at all times maintain one (1) subadviser that is not Xxxxxxxx-Xxxxxxxxx
or an Affiliate of Xxxxxxxx-Xxxxxxxxx.
2.2 ADDING CLASSES OF CONTRACTS, SEPARATE ACCOUNTS, SEPARATE ACCOUNT
SUBACCOUNTS, FUNDS AND FUND SERIES.
Subject to the following provisions of this Section 2.2, the parties to
this Agreement may by mutual agreement amend the Schedules to this Agreement
from time to time for the purposes described in the following subsections
2.2.1 through 2.2.3. Notwithstanding any provision to the contrary, nothing
in this Section 2.2 shall prohibit a party from taking action required by
applicable federal or state law, or require a party to take action prohibited
by applicable federal or state law.
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2.2.1 ADDING CLASSES OF CONTRACTS. Although the parties contemplate
a long-term relationship, at the time this Agreement is executed, the parties
have not agreed upon other classes of Contracts to be serviced during the
course of their relationship other than the initial classes of Contracts
described in Section 1.3. Nonetheless, the parties intend for this Agreement
to cover any additional classes of Contracts to which AICA and
Xxxxxxxx-Xxxxxxxxx may agree to have Xxxxxxxx-Xxxxxxxxx provide marketing and
marketing support services during the course of their relationship.
Accordingly, the parties by mutual agreement may amend the Schedules to this
Agreement to add classes of Contracts, and the provisions of this Agreement
shall be equally applicable to each such added class, unless the context
otherwise requires. Notwithstanding the foregoing, AICA shall neither be
required nor expected to add any additional contracts subject to the terms of
this Agreement during the term of this Agreement, nor shall AICA have any
right to use a Xxxxxxxx-Xxxxxxxxx Fund or its series as an underlying
investment medium for any variable insurance products, except as provided
under this Agreement or as the parties hereto may otherwise agree.
2.2.2 ADDING SEPARATE ACCOUNTS. The parties hereto by mutual
agreement may amend the Schedules to this Agreement to add new Separate
Accounts, which may be used to support new classes of Contracts or as
alternative or substitute Separate Accounts for an outstanding class or
classes of Contracts.
2.2.3 ADDING FUNDS, FUND SERIES AND SEPARATE ACCOUNT SUBACCOUNTS.
The parties hereto by mutual agreement may amend the Schedules to this
Agreement to add additional Funds, including new series of a Fund, and
Separate Account Subaccounts, and the provisions of this Agreement shall be
equally applicable to each such added Fund, Series or Separate Account
Subaccount, unless the context otherwise requires.
2.3 NON-EXCLUSIVE.
This Agreement does not create an exclusive relationship between AICA
and Xxxxxxxx-Xxxxxxxxx, and each party shall be free to enter into
relationships with third parties.
2.4 INDEPENDENT CONTRACTOR.
Each of the parties will act as an independent contractor under the
terms of this Agreement. Nothing contained in this Agreement creates or is
intended to create the relationship of employer-employee, partnership or
association between AICA and Xxxxxxxx-Xxxxxxxxx.
SECTION 3
SERVICING AND MARKETING THE CONTRACTS
3.1 SERVICES.
In consideration of the fees to be paid pursuant to Section 9 of this
Agreement and in accordance with Schedules 4 and 6 hereof, Xxxxxxxx-Xxxxxxxxx
and AICA shall perform the
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services stated in this Agreement, including but not limited to the specific
services set forth below. It is the intention of the parties that
Xxxxxxxx-Xxxxxxxxx shall provide services to facilitate the marketing of the
Contracts, but that Xxxxxxxx-Xxxxxxxxx, its agents and representatives shall
not offer or sell the Contracts or market the Contracts in such a manner that
Xxxxxxxx-Xxxxxxxxx could be considered a Distributor or the Underwriter of
the Contracts. However, certain agents and representatives of
Xxxxxxxx-Xxxxxxxxx may become licensed as insurance agents and may be
appointed by AICA as its Agents. It is understood by the parties that AICA
shall serve as Underwriter of the Contracts. From time-to-time, the services
to be provided by Xxxxxxxx-Xxxxxxxxx or AICA may be modified or additional
services added by mutual written agreement.
3.2 XXXXXXXX-XXXXXXXXX SERVICES REGARDING THE CONTRACTS. During the term of
this Agreement, Xxxxxxxx-Xxxxxxxxx shall, with regard to the Contracts:
3.2.1 DEVELOPMENT OF THE CONTRACTS. Xxxxxxxx-Xxxxxxxxx shall assist
AICA in the design and development of the Contracts. If a new class of
Contract is developed, this process shall include documented market research
by both parties which indicates that the proposed provisions of a Contract
are designed to be positively received in the marketplace. If a new class of
Contract is developed, the parties anticipate a period of three (3) months
from the time specifications are approved by both parties until a filing can
be made with necessary regulatory authorities.
3.2.2 SALES AND MARKETING SERVICES. Xxxxxxxx-Xxxxxxxxx shall provide
the following sales and marketing services:
A. RECRUIT CURRENT DISTRIBUTORS. Xxxxxxxx-Xxxxxxxxx shall recruit
distributors with whom AICA currently has a Selling Agreement and obtain
verbal commitments from such distributors to agree to add the Contracts to a
Selling Agreement. Xxxxxxxx-Xxxxxxxxx shall provide AICA with written
documentation of all such verbal commitments prior to AICA sending such
distributors a letter acknowledging the addition of the Contracts to the
Selling Agreement. AICA shall use its reasonable best efforts to facilitate
this process.
B. RECRUIT PROSPECTIVE DISTRIBUTORS. Xxxxxxxx-Xxxxxxxxx shall
also recruit prospective distributors and assist AICA in developing
relationships with prospective distributors through identification of key
contacts and firm organizations. Xxxxxxxx-Xxxxxxxxx shall use its reasonable
best efforts to have such prospective distributors execute a Selling
Agreement with AICA. AICA shall use its best efforts to facilitate this
process and will establish relationships with key administrative contacts at
each Distributor following the signing of a Selling Agreement.
C. APPOINTMENT OF AGENTS. Xxxxxxxx-Xxxxxxxxx shall provide
reasonable assistance to AICA, if necessary, in securing the appointment of
wholesalers, the Distributors and their licensed representatives as Agents by
facilitating the submission of necessary documentation to AICA.
D. TRAINING. After receiving appropriate introductory training
from AICA (as described in Section 3.3.2.C. below), and follow-up training,
if necessary, from AICA,
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Xxxxxxxx-Xxxxxxxxx shall assist the Distributors in the training of Agents in
sales techniques and provide them with information concerning the Contracts
and the Funds. Xxxxxxxx-Xxxxxxxxx shall answer all questions from Agents
concerning the Contracts and the Funds and shall provide training to
wholesalers concerning the Contracts and the Funds. AICA will provide
reasonable necessary assistance to Xxxxxxxx-Xxxxxxxxx in responding to
questions from Agents concerning the Contracts and the Funds.
E. DESIGN AND PREPARE MATERIALS. Xxxxxxxx-Xxxxxxxxx shall design
and prepare promotional, sales, advertising and training materials.
Xxxxxxxx-Xxxxxxxxx will ensure that all materials directed to Distributors
and Agents provide an "800" Xxxxxxxx-Xxxxxxxxx service desk number.
Xxxxxxxx-Xxxxxxxxx shall maintain an appropriate inventory and provide
fulfillment for all promotional, sales, advertising and training materials to
the wholesalers, Distributors and Agents, including Contracts, forms,
prospectuses and the contents of any selling kits used by the Distributors.
Fulfillment shall include the stocking of such materials, but specifically
shall not include the production of the materials specified in Section 3.3.3
of this Agreement.
3.2.3 MARKETING SUPPORT -- "800" SERVICE DESK. Xxxxxxxx-Xxxxxxxxx
shall maintain an "800" service desk to answer questions from Distributors
and Agents concerning the Contracts and the Funds. After receiving
appropriate introductory training from AICA (as described in Section 3.3.2.c.
below), and follow-up training, if necessary, from AICA, Xxxxxxxx-Xxxxxxxxx
shall train its telephone support staff so they are able to answer questions
from Distributors and Agents concerning the Contracts and the Funds
(including monthly information about Fund performance.) Xxxxxxxx-Xxxxxxxxx
will ensure that all telephone support staff are appropriately licensed.
Xxxxxxxx-Xxxxxxxxx also shall provide wholesalers with appropriate feedback
regarding calls and fulfillment activity and shall distribute monthly Fund
performance reports to them as well as to Distributors and Agents.
3.2.4 GUARANTEED ACCOUNT OPTION. After receiving appropriate
introductory training from AICA on the guaranteed account option (as
described in Section 3.3.5 below), and follow-up training, if necessary, from
AICA, Xxxxxxxx-Xxxxxxxxx shall provide administrative services and support to
the Distributors in connection with the guaranteed account options. This
shall include answering all questions of Distributors and Agents through the
"800" service desk (including the appropriate training of the telephone
support staff). Xxxxxxxx-Xxxxxxxxx shall be responsible for reasonable
notification of all Distributors of changes in rates or terms of the
guaranteed account option.
3.2.5 REGULATORY FILINGS. Xxxxxxxx-Xxxxxxxxx shall, with any
necessary assistance from AICA, and in accordance with all applicable laws,
rules and regulations: (i) annually prepare, print and file with all
appropriate regulatory authorities registration statements for the Funds,
including the prospectuses and statements of additional information; (ii) if
necessary, prepare, print and file with all appropriate regulatory
authorities any amendments to the registration statements for the Funds,
including the prospectuses and statements of additional information to
reflect any changes in the Contracts or the Fund(s); (iii) prepare, print,
and provide to all shareholders of the Funds and file with all appropriate
regulatory authorities all proxy solicitation
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or voting instruction materials required under the federal securities laws to
be provided to Contract owners; and (iv) prepare, print and provide to all
shareholders of the Funds and file with all appropriate regulatory
authorities all semi-annual and annual reports required by Rule 30d-1 under
the 1940 Act to be provided to shareholders of the Fund.
3.2.6 OTHER SERVICES. Xxxxxxxx-Xxxxxxxxx shall provide such other
related services as requested by AICA and agreed to in writing by
Xxxxxxxx-Xxxxxxxxx; but in no event shall Xxxxxxxx-Xxxxxxxxx or its
Affiliates provide any customer services, as specified in Section 3.3.6.F.,
or engage in any activities that may be considered sales activities involving
a customer.
3.3 AICA SERVICES REGARDING THE CONTRACTS. During the term of this
Agreement, AICA shall, with regard to the Contracts:
3.3.1 DEVELOPMENT OF THE CONTRACTS. AICA shall design and develop the
Contracts with Xxxxxxxx-Xxxxxxxxx'x assistance pursuant to Section 3.2.1 of
this Agreement. If a new class of Contract is developed, this process shall
include documented market research which indicates that the proposed
provisions of a Contract are designed to be positively received in the
marketplace. If a new class of Contract is developed, the parties anticipate
a period of three (3) months from the time specifications are approved by
both parties until a filing can be made with necessary regulatory
authorities.
3.3.2 SALES AND MARKETING SERVICES. AICA shall provide the following
sales and marketing services:
A. DISTRIBUTORS. Following the signing of a Selling Agreement,
AICA shall develop, with Xxxxxxxx-Xxxxxxxxx'x assistance, relationships with
Distributors through identification of key contacts and firm organizations.
AICA will use its reasonable best efforts to enable current Distributors to
sell the Contracts and to assist Xxxxxxxx-Xxxxxxxxx in recruiting prospective
distributors.
B. APPOINTMENTS. AICA shall initiate the process for obtaining
the appointment of wholesalers, the Distributors and their licensed
registered representatives as Agents of AICA. AICA shall provide
Xxxxxxxx-Xxxxxxxxx at least monthly or bi-weekly, if reasonably practicable,
reports concerning appointment activity.
C. TRAINING. AICA shall provide Xxxxxxxx-Xxxxxxxxx with
appropriate introductory training and follow-up training, if necessary,
concerning the Contracts to enable Xxxxxxxx-Xxxxxxxxx to provide the training
described in Section 3.2.2.D. and Section 3.2.3. AICA shall also maintain a
"producer support team" to provide assistance to Xxxxxxxx-Xxxxxxxxx'x
"producer support team" to answer questions concerning the Contracts.
3.3.3. DESIGN AND PREPARE MATERIALS. AICA shall design and prepare
all Contract forms, application and enrollment and other necessary forms in
support of the Contracts, and prospectuses for the Contracts and the Funds.
The agreed-upon expense to be assumed by AICA
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in designing, preparing and producing these materials will be in accordance
with the pricing specified on Schedule 4.
3.3.4 MARKETING AND ADMINISTRATIVE SUPPORT. AICA shall provide the
following marketing and administrative support services:
A. "800" SERVICE DESK. AICA shall maintain an "800" service desk
for customers to provide answers to all inquiries and to provide forms for
processing changes, withdrawals, etc.
B. DISTRIBUTORS AND AGENTS. AICA shall provide to
Xxxxxxxx-Xxxxxxxxx, the Distributors and/or their Agents information
concerning customers, current account values, fund transfers, fund
performance, status of any pending new business or 1035 exchanges.
3.3.5 GUARANTEED ACCOUNT OPTION. AICA shall provide
Xxxxxxxx-Xxxxxxxxx with appropriate introductory training and follow-up
training, if necessary, concerning the Contracts and the guaranteed account
options available under the Contracts to enable Xxxxxxxx-Xxxxxxxxx to provide
the training described in Section 3.2.4.
3.3.6 OTHER SERVICES.
A. GENERAL. AICA shall provide Xxxxxxxx-Xxxxxxxxx with such
sales activity, producer and initial and subsequent asset allocation or other
investment election information as is reasonably necessary for
Xxxxxxxx-Xxxxxxxxx to perform the services required of it by this Agreement.
AICA shall provide such other related services as requested by
Xxxxxxxx-Xxxxxxxxx and agreed to in writing by AICA.
B. INSURANCE SERVICES. To the extent that Xxxxxxxx-Xxxxxxxxx in
unusual circumstances and for a limited period of time requires the
reasonable services of an Agent to perform certain activities requiring
insurance licensing, AICA or an Affiliate will use its reasonable best
efforts to assist Xxxxxxxx-Xxxxxxxxx in providing such services.
C. REGULATORY FILINGS. AICA shall, with any necessary assistance
from Xxxxxxxx-Xxxxxxxxx, and in accordance with all applicable laws, rules
and regulations: (i) annually prepare, print and file with all appropriate
regulatory authorities registration statements for the Contracts, including
the prospectuses and statements of additional information; (ii) if necessary,
prepare, print and file with all appropriate regulatory authorities any
amendments to the registration statements for the Contracts, including the
prospectuses and statements of additional information to reflect any changes
in the Contracts or the Fund(s); (iii) provide to all Contract owners all
proxy solicitation or voting instruction materials after receiving from
Xxxxxxxx-Xxxxxxxxx all necessary proxy solicitation or voting instruction
materials required under the federal securities laws to be provided to
Contract owners; and (iv) prepare (as appropriate), file, as required, with
all appropriate regulatory authorities, and provide to all Contract owners
all semi-annual and annual reports required by Rule 30d-2 under the 1940 Act
to be provided to Contract owners, after receiving from Xxxxxxxx-Xxxxxxxxx
all semi-annual and annual reports
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required by Rule 30d-1 under the 1940 Act to be provided to AICA as a
shareholder of the Funds.
D. CUSTOMER REPORTS. AICA, in accordance with all applicable
laws, rules and regulations, shall provide to all Contract owners: (i)
confirmation of all financial transactions with Contract owners; (ii)
quarterly statements; (iii) appropriate federal and state tax forms; and (iv)
annual amendments to the prospectuses and statements of additional
information for the Contracts and the Funds, if required, and shall mail all
necessary proxy solicitation or voting instructions materials, and all
semi-annual and annual reports required by Rule 30d-2 under the 1940 Act.
E. CUSTOMER SERVICES. AICA, in accordance with all applicable
laws, rules and regulations, shall: (i) prepare and provide to all Contract
owners confirmations and all other necessary Contract owner communications,
and (ii) provide an "800" number and voice response system for Contract
owners. AICA also shall provide the following services in support of the
Contracts: (i) process all new account applications (including mailing of
all issue documents to the Distributor); (ii) apply initial and subsequent
premiums as specified by Contract owners; (iii) process all financial
transactions with respect to the Contracts, such as withdrawals, death
claims, cancellations, transactions under the systematic withdrawal program
and any bank plans; (iv) support elections for asset allocation and annual
rebalancing elections under the Contracts; and (v) provide general support
services for the Contracts.
F. DISTRIBUTOR SUPPORT SERVICES. AICA shall: (i) develop
procedures and appropriate documentation with respect to commission
processing; (ii) provide bi-weekly commission statements and checks for
delivery by AICA to the appropriate Distributor, assuming net commission
arrangements are not in place; (iii) develop procedures to receive and
respond to Distributor and Agent inquiries concerning commission payments;
(iv) provide appropriate federal and state tax forms to each Distributor in
compliance with applicable federal and state laws, rules and regulations and
(v) with the necessary assistance of Xxxxxxxx-Xxxxxxxxx, provide, within a
reasonable period of time, statement, asset allocation and other service
upgrades designed to meet competitive industry standards. For purposes of
this Section 3.3.6.F., "competitive industry standards" means standards
applicable to variable annuities sold through wirehouses and broker-dealers.
3.4 SELLING AGREEMENTS.
AICA shall act as the Underwriter of the Contracts in the Territory of
the Contracts. AICA shall, using its reasonable best judgment, enter into
separate written Selling Agreements with Distributors that AICA considers
capable and appropriate in order to authorize them to sell the Contracts.
Distributors that have already executed Selling Agreements with AICA that do
not include the Contracts in the Selling Agreements, will not be considered
authorized distributors for purposes of this Agreement until an
acknowledgement letter is sent to them by AICA. AICA will provide
Xxxxxxxx-Xxxxxxxxx, on a monthly basis, a list of all Distributors that have
entered into a Selling Agreement with AICA with respect to the Contracts.
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3.5 MARKETING MATERIALS.
The parties recognize that the following general rules shall apply to
promotional, sales, advertising and training material; provided, however,
that the following general rules shall not prohibit a party from taking
action required by applicable federal or state law, or require a party to
take action prohibited by applicable federal or state law.
3.5.1 RESPONSIBLE PARTIES. Xxxxxxxx-Xxxxxxxxx shall be primarily
responsible for the design and preparation of promotional, sales, advertising
and training material. It is understood that, as a general matter,
Xxxxxxxx-Xxxxxxxxx shall initiate and design all forms of promotional, sales
advertising and training material relating to the Contracts, although AICA
also may do so. Such promotional, sales, advertising and training material
shall be prepared and reviewed in light of all applicable laws, rules and
regulations. All such material shall be approved in writing by each party
and the parties agree to respond to requests for such approval on a prompt
and timely basis, not exceeding ten (10) business days for the initial review
of such materials, and five (5) business days for any subsequent review of
such materials.
3.5.2 PROCEDURES. Prior to any distribution of such materials to
Distributors or members of the public, the following procedures shall be
observed:
A. Each party shall provide the other with copies of all
promotional, sales, advertising and training material developed by each party
for the other party's prompt review and written approval. Each party shall
provide the other with all "final" versions of such materials.
B. If any such promotional, sales, advertising or training
material names a Fund or a Fund's investment adviser or sub-adviser,
Xxxxxxxx-Xxxxxxxxx, with respect to materials it prepares and those materials
prepared by AICA and its Affiliate (once such materials are received by
Xxxxxxxx-Xxxxxxxxx), shall furnish such material to such Fund's investment
adviser or sub-adviser or its designee and shall obtain written approval from
each Fund or such Fund's investment adviser or sub-adviser or its designee
before use.
X. Xxxxxxxx-Xxxxxxxxx shall be responsible for filing all
promotional, sales and advertising material, whether developed by
Xxxxxxxx-Xxxxxxxxx or AICA, with the NASD only. It is anticipated that
training materials provided to Distributors and Agents will not be filed with
the NASD or any state securities or insurance regulatory authorities,
although such materials will be prepared in accordance with applicable laws,
as stated above.
D. AICA shall be responsible for filing all promotional, sales
and advertising materials, whether developed by Xxxxxxxx-Xxxxxxxxx or AICA,
with all appropriate state securities or insurance regulatory authorities.
E. Each party shall assist the other, as necessary, in filing
such promotional, sales, or advertising materials, as required, with all
appropriate regulatory authorities in accordance with the rules and
regulations of such regulatory authorities.
F. Each party shall notify the other expeditiously of any comments
provided by any regulatory authority on materials filed by them and will
cooperate expeditiously in resolving and implementing any comments, as
necessary. Each party will provide the other with any written responses
prepared in response to such comments.
3.6 EXPENSES.
Other than as specifically provided in this Agreement, AICA shall pay
all expenses that it incurs in connection with this Agreement and
Xxxxxxxx-Xxxxxxxxx shall pay all expenses that it incurs in connection with
this Agreement. Specifically, with regard to the activities described in
Section 3.2.5, Xxxxxxxx-Xxxxxxxxx shall bear all printing expenses in
connection with printing a sufficient number of copies for all Contract
owners with respect to proxy solicitation materials, voting instruction
materials, and semi-annual reports and annual reports required to be provided
to Contract owners. In the event AICA, at the request of Xxxxxxxx-Xxxxxxxxx,
prints such materials and reports, Xxxxxxxx-Xxxxxxxxx shall reimburse AICA
for all reasonable printing expenses. With regard to the activities described
in Section 3.3.6.C, AICA shall bear all postage and mailing expenses incurred
in connection with providing Contract owners with such materials and reports,
provided if Xxxxxxxx-Xxxxxxxxx is printing such materials AICA receives such
materials in a timely manner from Xxxxxxxx-Xxxxxxxxx.
SECTION 4
TRADEMARKS AND CONFIDENTIALITY
4.1 TRADEMARKS.
The rights and obligations of the parties with respect to certain names,
trademarks or service marks to be used in connection with the Contracts are
set forth in a License Agreement between Xxxxxxxx-Xxxxxxxxx and Aetna Life
and Casualty Company dated November 30, 1995 attached hereto as Schedule 5.
4.2 OWNERSHIP OF PROSPECTS; CONFIDENTIALITY.
4.2.1 PROSPECTS. The names, addresses and other information
relating to prospects or leads for the Contracts acquired by a Distributor or
an agent or representative of a Distributor in connection with their
solicitation activities shall be the exclusive property of, and shall be
exclusively owned by, such Distributor, unless such information is provided
directly by AICA or Xxxxxxxx-Xxxxxxxxx or is already in the possession of
AICA or Xxxxxxxx-Xxxxxxxxx. The records created and maintained by AICA, or
by any subcontractor on behalf of AICA, that pertain to Contract owners and
the servicing and administration of the Contracts shall be the exclusive
property of, and shall be exclusively owned by AICA. Information concerning
the names, addresses and other information with respect to Contract owners
contained in such records may be used by AICA or its Affiliates or
Xxxxxxxx-Xxxxxxxxx or its Affiliates only to the extent necessary for the
issuance or maintenance of the Contracts or for other required regulatory
purposes. No party or its Affiliates shall use or make public the names,
addresses or other information with respect to Contract owners ("Contract
owner Information") contained in such records for any purpose except in
connection with the performance of such party's duties and responsibilities
under this Agreement, unless such Contract owner Information was (i) provided
directly by such party to the Distributors or the Underwriter, or (ii) in the
possession of the party wishing to use the Contract owner Information before
the entity or individual became a Contract owner, or (iii) obtained by the
party through a means or method having no relationship whatsoever with the
duties or responsibilities of such party or its Affiliates, Agents or
employees under this Agreement.
4.2.2 CONFIDENTIALITY. AICA and its Affiliates and
Xxxxxxxx-Xxxxxxxxx and its Affiliates each shall keep confidential the terms
and provisions of this Agreement (except as required by law or regulation),
each other's methods of doing business, the names, addresses and other
personal information relating to customers or prospective customers for the
Contracts, the names, addresses and other personal information relating to
Contract owners, and any other information proprietary to the other and shall
not reproduce, disseminate or otherwise publish or make available the same
directly or indirectly to any person not affiliated with a party to this
Agreement without the prior written approval of the other, except as required
by applicable law or regulation or any regulatory body, administrative agency
or other governmental instrumentality with jurisdiction over such party's
attorneys, accountants and other representatives involved in the services and
activities contemplated by this Agreement.
SECTION 5
REGULATION
5.1 RECORDS.
AICA and Xxxxxxxx-Xxxxxxxxx each shall maintain such accounts, books and
other documents as are required to be maintained by each of them by
applicable laws and regulations and shall preserve such accounts, books and
other documents for the periods prescribed by such laws and regulations. The
accounts, books and records of AICA, the Separate Account(s) and
Xxxxxxxx-Xxxxxxxxx as to all transactions hereunder shall be maintained so as
to clearly and accurately disclose the nature and details of the
transactions, including such accounting information as necessary to support
the reasonableness of the amounts paid by AICA hereunder or pursuant to any
Selling Agreement with Distributors with respect to the Contracts. Each
party shall have the right to inspect and audit such accounts, books and
records of the other party during normal business hours upon reasonable
written notice to the other party. Each party shall keep confidential all
information obtained pursuant to such an inspection or audit, and shall
disclose such information to third parties only upon receipt of written
authorization from the other party, except as required by applicable law or
regulation or any regulatory body, administrative agency or other
governmental instrumentality with jurisdiction over such party's attorneys,
accountants and other representatives involved in the services and activities
contemplated by this Agreement.
5.2 INVESTIGATIONS AND PROCEEDINGS; COOPERATION.
Xxxxxxxx-Xxxxxxxxx and AICA shall cooperate fully in any insurance
regulatory investigation or proceeding or judicial proceeding arising in
connection with the offering, sale or distribution of the Contracts subject
to this Agreement. Further, Xxxxxxxx-Xxxxxxxxx and AICA shall cooperate
fully in any securities regulatory investigation or proceeding or judicial
proceeding with respect to AICA, Xxxxxxxx-Xxxxxxxxx, their Affiliates and
their Agents, representatives or employees to the extent that such
investigation or proceeding is in connection with the offering, sale or
distribution of the Contracts (including the Funds) subject to this
Agreement. Without limiting the foregoing, AICA and Xxxxxxxx-Xxxxxxxxx shall
promptly notify each other of any customer complaint, correspondence from or
on behalf of Contract owners, or notice of any regulatory investigation or
proceeding or judicial proceeding received by either party with respect to
AICA, Xxxxxxxx-Xxxxxxxxx or any of their Affiliates, Agents, representatives
or employees or which may affect AICA's issuance of any Contract (and the
offering of Funds as investment options) subject to this Agreement.
Xxxxxxxx-Xxxxxxxxx shall send by facsimile and by express mail copies of
all correspondence from or on behalf of Contract owners or any regulatory
authority concerning the Contracts, the Funds, Xxxxxxxx-Xxxxxxxxx or AICA as
soon as is reasonably possible. AICA shall be responsible for either
responding to all correspondence, or coordinating such response with the
Distributor or Xxxxxxxx-Xxxxxxxxx, if appropriate. Any response relating to
Xxxxxxxx-Xxxxxxxxx or the Funds must be approved in writing by
Xxxxxxxx-Xxxxxxxxx prior to it being sent to the Contract owner or any
regulatory authority. Xxxxxxxx-Xxxxxxxxx agrees to review any such response
prepared by AICA within three (3) business days of its receipt by
Xxxxxxxx-Xxxxxxxxx, except if a more prompt response is required
Xxxxxxxx-Xxxxxxxxx will respond by facsimile transmission.
Xxxxxxxx-Xxxxxxxxx and AICA shall cooperate in investigating any complaint.
Any response by AICA which relates to the Contracts, AICA or its Affiliates
or any Distributor, shall be provided to Xxxxxxxx-Xxxxxxxxx no later than the
time it is provided to the Contract owner or any regulatory authority.
SECTION 6
AUTHORITY
6.1 AUTHORITY TO EXECUTE.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
corporate action by each of the parties, and when so executed and delivered
this Agreement shall be the valid and binding obligation of each of the
parties enforceable in accordance with its terms.
6.2 NO CONFLICTS.
The consummation of the transactions contemplated by this Agreement, and
the fulfillment of the terms of this Agreement, shall not, in any material
way, conflict with, result in any breach of
the terms and provision of, or constitute (with or without notice or lapse of
time) a default under, the articles of incorporation, charter, or bylaws, or
any amendment thereto, of any of the parties, or any indenture, agreement,
mortgage, deed of trust, or other instrument to which Xxxxxxxx-Xxxxxxxxx or
AICA is a party or by which Xxxxxxxx-Xxxxxxxxx or AICA is bound, or violate
any law, or, to the best of AICA's or Xxxxxxxx-Xxxxxxxxx'x knowledge, any
order, rule or regulation applicable to AICA or Xxxxxxxx-Xxxxxxxxx of any
court or of any federal or state regulatory body, administrative agency or
any other governmental instrumentality having jurisdiction over AICA or
Xxxxxxxx-Xxxxxxxxx or any of their properties.
No consent, approval, authorization or order of any court or
governmental authority or agency is required for the issuance or sale of the
Contracts or for the consummation of the transactions contemplated by this
Agreement that has not been obtained, except for the approvals of the SEC and
certain states securities regulatory authorities with regard to the
securities to be issued by the Funds and Separate Accounts regarding the
Contracts and certain insurance regulatory authorities regarding the
Contracts.
SECTION 7
RIGHTS AND REMEDIES
7.1 INDEMNIFICATION.
7.1.1 AICA. AICA shall indemnify and hold harmless
Xxxxxxxx-Xxxxxxxxx and its Affiliates 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
Xxxxxxxx-Xxxxxxxxx and its Affiliates and/or any such person may become
subject, under any statute, regulation, promulgation or any NASD rule or
interpretation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities result from any breach by AICA or any representative
of AICA of any provision of this Agreement, or by violation by AICA or any
representative of AICA of any law or regulation.
This indemnification agreement shall be in addition to any liability
that AICA may otherwise have; provided, however, that no person shall be
entitled to indemnification pursuant to this provision if such loss, claim,
damage or liability is due to the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the person seeking
indemnification.
7.1.2 XXXXXXXX-XXXXXXXXX. Xxxxxxxx-Xxxxxxxxx shall indemnify and
hold harmless AICA and its Affiliates 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 claims asserted), to
which an AICA and its Affiliates and/or any such person may become subject
under any statute, regulation, promulgation or any NASD rule or
interpretation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities
result from any breach by Xxxxxxxx-Xxxxxxxxx or an Affiliate or any
representative of Xxxxxxxx-Xxxxxxxxx of any provision of this Agreement, or
by violation by Xxxxxxxx-Xxxxxxxxx or an Affiliate or any representative of
Xxxxxxxx-Xxxxxxxxx of any law or regulation.
This indemnification shall be in addition to any liability that
Xxxxxxxx-Xxxxxxxxx may otherwise have; provided, however, that no person
shall be entitled to indemnification pursuant to this provision if such loss,
claim, damage or liability is due to the willful misfeasance, bad faith,
gross negligence or reckless disregard of duty by the person seeking
indemnification.
7.1.3 GENERAL. After receipt by a party entitled to indemnification
("indemnified party") under this Section 7 of notice of the commencement of
any action, if a claim in respect thereof is to be made against any person
obligated to provide indemnification under this Section 7 ("indemnifying
party"), such indemnified party shall notify the indemnifying party in
writing of the commencement thereof as soon as practicable thereafter;
provided that the omission to so notify the indemnifying party shall not
relieve the indemnifying party from any liability under this Section 7,
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: (1) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel; or (2) 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 written consent but if settled with such consent
or if there be a final judgment 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.
The indemnification provisions contained in this Section 7 shall remain
operative in full force and effect, regardless of any termination of this
Agreement. A successor by law of AICA or Xxxxxxxx-Xxxxxxxxx, as the case
may be, shall be entitled to the benefits of the indemnification provisions
contained in this Section 7.
7.2 RIGHTS, BENEFITS, ETC., ARE CUMULATIVE.
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 federal and state laws. Failure of either 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.
7.3. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement,
or the breach hereof, shall be settled by arbitration in the forum jointly
selected by AICA and Xxxxxxxx-Xxxxxxxxx (but if applicable law requires some
other forum, then such other forum) in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
SECTION 8
TERMINATION
8.1 TERM OF AGREEMENT.
Unless otherwise terminated pursuant to this Section 8, this Agreement
shall remain in effect until December 31, 1998, and shall continue thereafter
until terminated. After the initial term, this Agreement may be terminated
by either party for any reason or for no reason upon six (6) months prior
written notice by the terminating party to the other party without the
payment of any penalty.
8.2 TERMINATION BY ASSIGNMENT.
This Agreement shall not be assignable by a party without the prior
written consent of the other party. The term "assignment" shall for purposes
of this Agreement be construed in accordance with Rule 2a-6 under the 1940
Act and the interpretations thereunder, so long any such assignee is capable
of performing its obligations under this Agreement.
8.3 TERMINATION FOR MATERIAL BREACH.
This Agreement may be terminated at the option of either party to this
Agreement upon the other party's material breach of any provision of this
Agreement, unless such breach has been cured within 10 days after receipt of
written notice of breach from the non-breaching party.
8.4 SURVIVABILITY.
Upon termination of this Agreement all authorizations, rights and
obligations shall cease except: (1) AICA's obligation to service any then
existing Contracts; (2) Xxxxxxxx-Xxxxxxxxx'x obligation to continue its
services with regard to the Funds; and (3) the obligations contained in
Sections 4.2, 5, 7 and 9 and Schedules 4 and 6 hereof.
SECTION 9
COMPENSATION
9.1 FEES AND CHARGEBACKS. Fees and chargebacks shall be determined in
accordance with Schedule 6 hereof.
SECTION 10
MISCELLANEOUS
10.1 INTERPRETATION; JURISDICTION.
This Agreement constitutes the whole agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all prior
oral or written understandings, agreements or negotiations between the
parties with respect to such subject matter, except as otherwise agreed to in
writing by the parties. No prior writings by or between the parties with
respect to the subject matter hereof shall be used by either party in
connection with the interpretation of any provision of this Agreement. This
Agreement shall be construed and its provisions interpreted under and in
accordance with the laws of the State of Connecticut without giving effect to
principles of conflict of laws.
10.2 NOTICES.
All notices hereunder are to be made in writing and shall be given:
if to AICA, to:
Xxxxxxx X. Xxxxxxx, Vice President
Aetna Insurance Company of America
000 Xxxxxxxxxx Xxxxxx, XXXX
Xxxxxxxx, Xxxxxxxxxxx 00000
with a simultaneous copy to:
Xxxxx X. XxXxxx, Esq.
Aetna Insurance Company of America
000 Xxxxxxxxxx Xxxxxx, XX0X
Xxxxxxxx, XX 00000
if to Xxxxxxxx-Xxxxxxxxx, to:
Xxxxxxxx-Xxxxxxxxx Capital Management
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
with a simultaneous copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxxx Xxxxxxxxx Xx., X.X.
Suite 700, East Lobby
Xxxxxxxxxx, XX 00000
or such other address as such party may hereafter specify in writing. Each
such notice to a party shall be either hand delivered or transmitted by
registered or certified United States mail with return receipt requested, and
shall be effective upon delivery.
10.3 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all previous oral or
written agreements between the parties.
10.4 SCHEDULES.
The Schedules referred to in this Agreement are hereby incorporated
herein and made a part of this Agreement. To the extent the language in the
"Statement of Intent" portion of Schedule 4 contradicts a provision of this
Agreement, the language of this Agreement shall be controlling.
10.5 SEVERABILITY.
This is a severable Agreement. In the event that any provision of this
Agreement would require a party to take action prohibited by applicable
federal or state law or prohibit a party from taking action required by
applicable federal or state law, then it is the intention of the parties
hereto that such provision shall be enforced to the extent permitted under
the law, and, in any event, that all other provisions of this Agreement shall
remain valid and duly enforceable as if the provision at issue had never been
a part hereof.
10.6 SECTION AND OTHER 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.
10.7 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, which when
taken together shall constitute one and the same instrument.
10.8 REGULATIONS.
This Agreement is subject to all state and federal laws, regulations and
promulgations relating to the sale of the Contracts. This Agreement shall be
subject to the provisions of the
1933 Act, the Securities and Exchange Act of 1934 and the 1940 Act and the
rules and regulations thereunder and the rules and regulations of the
National Association of Securities Dealers, Inc., from time to time in
effect, including such exemptions from the 1940 Act as the SEC may grant, and
the terms hereof shall be interpreted and construed in accordance therewith.
IN WITNESS WHEREOF, each party hereto represents that the officer
signing this Agreement on the party's behalf is duly authorized to execute
this Agreement; and the parties hereto have caused this Agreement to be duly
executed by such authorized officers on the date specified below.
AETNA INSURANCE COMPANY OF AMERICA
BY:___________________________________
NAME:_________________________________
TITLE:________________________________
DATE:_________________________________
XXXXXXXX-XXXXXXXXX CAPITAL MANAGEMENT
BY:_________________________________
NAME: E. XXXXX XXXXX, JR.
TITLE: GENERAL COUNSEL
DATE:_______________________________
XXXXXXXX-XXXXXXXXX SECURITIES
BY:_________________________________
NAME: E. XXXXX XXXXX, JR.
TITLE: GENERAL COUNSEL
DATE:_______________________________
