DISTRIBUTOR AGREEMENT
(Columbus Life Flexible Premium Variable Universal Life Insurance Contracts)
This Agreement is made as of the 15th day of July, 1999 by and between
Columbus Life Insurance Company, an insurance company organized and existing
under the laws of the State of Ohio (the "Company") and Touchstone Securities,
Inc., a Nebraska corporation (the "Distributor") and its undersigned affiliated
insurance agencies (the "Agencies").
WHEREAS, the Company and its Separate Account 1 (the "Separate
Account"), which is a separate investment account registered as a unit
investment trust under the Investment Company Act of 1940 (the "1940 Act"),
propose to offer for sale certain flexible premium variable universal life
insurance contracts, together with certificates under group contracts and any
riders (hereafter, the "Contracts"), interests under which may be deemed to be
securities under the Securities Act of 1933 (the "1933 Act") and the laws of
some states; and
WHEREAS, the Separate Account and various divisions thereof (the
"Sub-Accounts") will invest in various underlying funds (each a "Fund" and
collectively the "Funds"), each of which will be an open-end diversified
management investment company or a series thereof; and
WHEREAS, the Distributor is registered as a broker-dealer with the
Securities and Exchange Commission (the "SEC") under the Securities Exchange Act
of 1934 (the "1934 Act") and is a member of the National Association of
Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Agencies are affiliated with the Distributor by common
ownership or contract and are duly licensed insurance agencies under the
applicable insurance laws of one or more of those states in which the Contracts
will be distributed pursuant to this Agreement; and
WHEREAS, certain personnel of the Company or its affiliates may engage,
or may be deemed to be engaged, directly or indirectly, in offering, selling,
advertising or marketing Contracts and confirming transactions as required Rule
10b-10 under the 1934 Act; in the maintenance of records required by Rules 17a-3
and 17a-4 under the 1934 Act or other SEC or NASD rules applicable to registered
broker-dealers; and in the payment of commissions with respect to Contracts; and
WHEREAS, all Company personnel engaged in the activities described in
the foregoing paragraph (and those registered representatives of the Distributor
who shall supervise securities activities related to the Contracts that are
conducted on the premises of financial institutions), as well as all other
persons who Section 3(a)(18) of the 1934 Act defines as associated persons of
the Distributor, will be referred to herein as "Associated Persons," (it being
understood that such term, as used in this Agreement, does not include persons
associated with other broker-dealer firms that are engaged by the Distributor to
offer and sell Contracts);
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, the Distributor and the Company agree as follows:
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1. APPOINTMENT OF DISTRIBUTOR. The Distributor will act as the
exclusive general distributor of the Contracts during the term of this Agreement
in each state or other jurisdiction where the Contracts may legally be sold. The
Distributor shall at all times function as, and be deemed to be, an independent
contractor and will be under no obligation to effectuate any particular amount
of sales of Contracts or to promote or make sales, except to the extent the
Distributor deems advisable. Anything in this Agreement to the contrary
notwithstanding, the Company retains the ultimate right to control the sale of
the Contracts, including the right to suspend sales in any jurisdiction or
jurisdictions, to appoint and discharge agents of the Company, or to refuse to
sell a Contract to any applicant for any reason whatsoever.
2. APPOINTMENT OF DEALERS. The Distributor will use its best efforts to
find purchasers for the Contracts and to promote the distribution of the
Contracts. The Distributor may enter into agreements, in form and substance
satisfactory to the Company, with dealers and other persons selected by the
Distributor ("Selected Dealers"), providing for the sale of Contracts by and
through such Selected Dealers. The Selected Dealers shall not have any authority
to act as agent for the Company, but shall act only as dealers for their own
accounts or as agents for their customers.
3. DISTRIBUTION RESPONSIBILITIES OF THE DISTRIBUTOR. The Distributor
will assume full responsibility for securities law compliance by the Associated
Persons with respect to the offering of the Contracts, including, as applicable,
compliance with the NASD Rules of Fair Practice and Federal and state securities
laws and regulations. The Distributor, directly or through the Company as its
agent, will (a) make timely filings as required by law with the SEC, NASD, and
any other securities regulatory authorities of any sales literature or materials
relating to the Separate Account or the Sub-Accounts, (b) make available to the
Company copies of any agreements or plans intended for use in connection with
the sale of the Contracts in sufficient numbers and in adequate time for
clearance by the appropriate regulatory authorities before they are used, and
(c) train the Associated Persons, use its best efforts to prepare them to
complete satisfactorily any and all applicable NASD and state securities
examinations, register the Associated Persons as its registered representatives
or principals to the extent legally required before they engage in securities
activities, and diligently supervise and control them in the performance of such
activities. The parties will use their best efforts to obtain any required
clearances by regulatory agencies as expeditiously as reasonably possible and
will not use any materials, plan or agreement in any jurisdiction unless all
filings have been made and approvals obtained that are necessary to make said
use proper and legal therein. The Company will be responsible for filing the
Contracts with and obtaining all necessary approvals thereof from state
insurance regulatory authorities.
4. ADMINISTRATIVE FUNCTIONS AND SERVICES. Completed applications for
the Contracts shall be transmitted directly to the Company or its designated
agent for acceptance or rejection in accordance with rules and procedures
established by the Company. Initial and subsequent premium payments under the
Contracts shall be made payable to the Company and shall be delivered to the
Company or its designated agent; any such payments that are received in error by
the Distributor shall be forwarded by the Distributor to the Company or its
designated agent promptly after such receipt. All other administrative functions
and services in connection with the Contracts shall be performed by the Company.
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5. APPOINTMENT OF AGENTS; COMPLIANCE WITH STATE INSURANCE LAWS. The
Company shall undertake to appoint as life insurance agents of the Company the
Distributor's qualified principals and representatives (including Associated
Persons where applicable) and, as appropriate upon the request of the
Distributor, those of the Selected Dealers. The Distributor, either itself or
through an affiliated insurance agency, shall comply with all state insurance
licensing requirements applicable to the Distributor in performing this
Agreement, and shall be responsible for ensuring that Associated Persons will
engage in the offer and sale of Contracts only if properly qualified under the
insurance laws of all relevant jurisdictions. Although the Distributor may
assist the Selected Dealers or their representatives or principals in qualifying
under relevant insurance laws to sell Contracts, and will assist the Company in
monitoring such qualification on a periodic basis, the responsibility for
ensuring that all such requirements have been met is that of such Selected
Dealers and not the Distributor. Each of the Agencies joins in the execution
this Agreement for the purpose of acknowledging its obligations to comply with
all state insurance licensing requirements of those states in which such Agency
is licensed that are applicable to the Contracts and the performance of this
Agreement on Distributor's behalf.
6. SUITABILITY. The Distributor will take reasonable steps to ensure
that the Associated Persons shall not make recommendations to an applicant to
purchase a Contract in the absence of reasonable grounds to believe that the
purchase of the Contract is suitable for the applicant.
7. SALES PRACTICES. The Distributor will use its best efforts to assure
that no person uses any sales aids, promotional material, or sales literature
with respect to Contracts that have not been specifically approved in advance by
the Distributor and the Company. The Company will be responsible for filing such
items, as necessary, with any insurance regulatory authorities and, where
necessary, obtaining approvals of said authorities. Distributor will use its
best efforts to assure that no person, in connection with the offer or sale of
the Contracts, makes any representations regarding the Contracts, the
Sub-Accounts, the Company, shares of the Funds, the Funds, or the Distributor,
which are not either then authorized by the Company and the Distributor or
contained in a then-effective Registration Statement relating to the Separate
Accounts and the offering of the Contracts (the "Registration Statement").
8. COSTS AND EXPENSES. Except as set forth below or otherwise
specifically set forth herein, or except as may otherwise be agreed between the
parties from time to time, each party to this Agreement shall bear all costs and
expenses of providing the services and performing the functions that it
undertakes to provide or perform hereunder.
(a) As between the Company and the Distributor, the Company will
bear and/or reimburse the Distributor for the cost of all direct
services and expenses (but not any part of the Distributor's general
overhead) and all fees, including registration and filing fees,
required or incurred in connection with (i) registering and qualifying
the Separate Account and the Contracts with Federal and state
regulatory authorities, (ii) preparing, typesetting, printing, filing
and distributing registration statements, prospectuses and statements
of additional information (including amendments to any of the
foregoing) pertaining to the Separate Account and the Contracts
(except the cost thereof relating to those prospectuses and statements
of additional information distributed to prospective investors, which
will be borne by the Distributor), (iii) preparing, typesetting,
printing, filing and distributing
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Contract forms, (iv) preparing, typesetting, printing, filing and
distributing to Contract owners confirmations, periodic statements of
account, and periodic reports of the Separate Account and the various
Sub-Accounts to Contract owners, (v) audit and accounting expenses
pertaining to the Company and audit and financial statement
preparation expenses pertaining to the Separate Account and the
Sub-Accounts, (vi) preparation of and filing Forms N-SAR for the
Separate Account, (vii) preparation of and filing required insurance
regulatory reports for the Separate Account and the Company, (viii)
general advice, including the fees and expenses of legal counsel,
concerning the Separate Account and the Contracts, and (ix)
registering and qualifying those Associated Persons who are employees
of the Company or its affiliates with state insurance regulatory
authorities (including the training of Associated Persons for this
purpose).
(b) As between the Company and the Distributor, the Distributor
will bear and/or reimburse the Company for the cost of all direct
services and expenses (but not any part of the Company's general
overhead) and all fees, including registration and filing fees,
required or incurred in connection with (i) registering and qualifying
the Associated Persons with Federal and state securities regulatory
authorities, including the NASD (including the training of Associated
Persons for this purpose), (ii) preparing, typesetting, filing with
insurance and securities regulatory authorities, printing and
disseminating sales literature (including prospectuses and statements
of additional information distributed to prospective investors) and
advertising in connection with the Contracts or in connection with the
shares of the Funds purchased by the Separate Account through its
Sub-Accounts, and (iii) costs of computer processing that may be
necessary for the Distributor to perform its responsibilities
hereunder.
(c) In connection with the sale of the Contracts, Distributor
will pay all amounts (including sales commissions and overrides at
rates established by Distributor) becoming payable to the Selected
Dealers or their sales representatives, to the Associated Persons or
to any other broker-dealers who have entered into sales agreements
with the Distributor, provided that appropriate records of all
commission payments shall be maintained by the Company or its agent.
The agreements with the Selected Dealers and any such agreement with
another broker-dealer shall be subject to the Company's approval as to
form and substance.
9. RECORDS AND CONFIRMATIONS. The Distributor, directly or through the
Company as its agent, will (i) maintain and preserve in accordance with Rules
17a-3 and 17a-4 under the 1934 Act all books and records required to be
maintained in connection with the offer and sale of the Contracts being
distributed pursuant to this Agreement, which books and records shall remain the
property of the Distributor and shall be subject to inspection by the SEC in
accordance with Section 17(a) of the 1934 Act and (ii) upon or prior to the
completion of each Contract transaction for which a confirmation is legally
required, send a written confirmation for each such transaction reflecting the
facts of the transaction. All records maintained hereunder by the Company as the
Distributor's agent will be promptly surrendered by the Company at the request
of the Distributor and will be available at any time during business hours to
properly-constituted governmental authorities and furnished to them in true,
correct and current hard copy form, should the same be required by said
authorities.
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The Company or the Distributor (but at the Company's expense), will
maintain and preserve all records in connection with the Contracts and the
Separate Account in accordance with Rules 31a-1 and 31a-2 under the 1940 Act. To
the extent maintained and preserved by the Distributor, such records shall be
the property of the Company and shall be returned to the Company upon request.
10. SECURITIES LAW REGISTRATION. The Distributor will execute such
papers and do such acts and things as shall from time to time be reasonably
requested by the Company for the purpose of (i) maintaining the registration of
the Contracts under the 1933 Act and the registration of the Separate Account
under the 1940 Act and (ii) qualifying and maintaining the qualification of the
Contracts for sale under the applicable laws of any state.
Each party hereto shall advise the other promptly of (i) any action of
the SEC or any authorities of any state or territory, of which it has knowledge,
affecting the registration or qualification of the Separate Account or of the
Contracts or the right to offer the Contracts for sale or (ii) the happening of
any event which makes untrue any statement, or which requires the making of any
change in, any registration statement or any current prospectus or statement of
additional information, in order to make the statements therein not materially
misleading.
11. COMPENSATION. As compensation to the Distributor for assuming the
expenses and performing the distribution services to be assumed and performed by
it pursuant to this Agreement, the Distributor will receive from the Company
such amounts and at such times as are set forth in Schedule A to this Agreement
(as the same may from time to time be amended by agreement between the parties
hereto). To the extent that applicable state insurance laws require that
compensation due on account of the sale of Contracts be paid only to duly
licensed insurance agents, the Distributor agrees that any such compensation
received from the Company by the Distributor will be processed by the
Distributor on behalf of its affiliated insurance agency. In this event, such
compensation will be reported by the Distributor for purposes of satisfying
securities regulatory requirements and by its affiliated insurance agency for
purposes of satisfying state insurance regulatory requirements.
The Company will receive all amounts charged as "surrender charges" in
connection with the Contracts, and all other amounts assessed as Contract
charges.
12. COOPERATION. The Distributor and the Company agree to cooperate
with each other fully in any insurance regulatory examination, investigation, or
proceeding or any judicial proceeding arising in connection with the Contracts.
The Distributor and the Company further agree to cooperate fully with each other
in any securities regulatory examination, investigation or proceeding or any
judicial proceeding with respect to the Company, the Distributor, their
respective affiliates, agents or representatives (including all Associated
Persons), and the Selected Dealers, to the extent that such examination,
investigation or proceeding is in connection with Contracts distributed under
this Agreement. The Distributor shall furnish applicable Federal and state
regulatory authorities with any information or reports in connection with its
services under this Agreement which such authorities may request in order to
ascertain whether the Company's operations are being conducted in a manner
consistent with any applicable law or regulations.
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13. INDEMNIFICATION.
(a) The Distributor shall indemnify and hold harmless the
Separate Account, the Company and each of its directors and officers,
and each person who controls the Company against any loss, liability,
claim, damage, or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage
or expense and reasonable counsel fees incurred in connection
therewith) (i) arising by reason of any person's acquiring any
Contract or interest thereunder, which may be based upon the ground
that any Registration Statement related to the Contracts or the
Separate Account or the prospectus or statement of additional
information contained therein, as from time to time amended or
supplemented, or any annual or interim reports of the Company or the
Separate Account to Contract owners, include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, but only to the extent that such statement or omission was
made in reliance upon, and in conformity with, information furnished
to the Company in writing in connection therewith by or on behalf of
the Distributor or (ii) otherwise arising out of the Distributor's
negligence, bad faith, willful misfeasance or reckless disregard of
its responsibilities hereunder.
(b) The Company shall indemnify and hold harmless the
Distributor, its agents and employees, and each person, if any, who
controls the Distributor against any loss, liability, claim, damage,
or expense described in subparagraph (a), above, except as to
statements (or omissions) made (or not made) in reliance upon, and
conformity with, information furnished to the Company in writing by or
on behalf of the Distributor for use in connection with (i) the
Registration Statement related to the Contracts or the Separate
Account or the prospectus or statement of additional information
contained therein, as the same may be from time to time amended and
supplemented, or (ii) any annual or interim reports to Contract
owners; provided, however, that in no case is the indemnity of the
Company in favor of the Distributor and any such controlling persons
to be deemed to protect the Distributor or any such controlling
persons against any liability to the Company or its Contract owners to
which the Distributor or any such controlling person would otherwise
be subject by reason or willful misfeasance, bad faith or negligence
in the performance of their duties or by reason of reckless disregard
of their obligations and duties under this agreement.
(c) No person from whom indemnity may be sought under this
Section 13 ("Indemnitor") shall be liable to indemnify or hold
harmless any person ("Indemnitee") pursuant to this Section 13, unless
the Indemnitee shall have notified the Indemnitor in writing of the
nature of the claim as to which indemnity is being sought hereunder
within a reasonable time after the Indemnitee shall have been served
with a summons or other first legal process giving notice thereof (or
shall have received notice of such service on any designated agent),
which notice to the Indemnitor shall give information as to the nature
of the claim for which indemnity is sought hereunder. The failure of
the Indemnitee to notify the Indemnitor of any such claim shall not
relieve it from any liability which it may have to the Indemnitee
otherwise than on account of its indemnity agreement contained in this
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Section 13. The Indemnitor will be entitled to participate at its
own expense in the defense, or, if it so elects, to assume the defense
of any suit brought to enforce any such claim, but if the Indemnitor
elects to assume the defense, such defense shall be conducted by
counsel chosen by it that is reasonably satisfactory to the
Indemnitee. If the Indemnitor elects to assume the defense of any such
suit and retain such counsel in accordance herewith, the Indemnitee
shall bear the fees and expenses of any additional counsel retained by
it. If the Indemnitor does not elect to assume the defense of any such
suit, it will reimburse the Indemnitee for the reasonable fees and
expenses of any counsel retained by the Indemnitee that is reasonably
satisfactory to the Indemnitor.
14. MISCELLANEOUS.
(a) This Agreement shall become effective as of July 15, 1999 and
shall continue in full force and effect until terminated. It may be
terminated at any time without penalty on six months' prior written
notice by either party to the other.
(b) This Agreement may be amended only by the written agreement
of the parties hereto.
(c) The Distributor will not assign or delegate its
responsibilities under this Agreement, except with the consent of the
Company.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
(e) The Distributor shall keep confidential any information
obtained pursuant to this Agreement and shall disclose such
information only if the Company has authorized such disclosure, or if
such disclosure is expressly required by Federal or state authorities
having jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COLUMBUS LIFE INSURANCE COMPANY TOUCHSTONE SECURITIES, INC.
By: _________________________________ By: __________________________________
Name: _________________________________ Name: ________________________________
Title: ________________________________ Title: _______________________________
And, its affiliated insurance agencies:
IFS INSURANCE AGENCY, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
IFS AGENCY SERVICES, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
IFS AGENCY, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
666765.01
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SCHEDULE A
COMMISSION SCHEDULE
COLUMBUS LIFE INSURANCE COMPANY SEPARATE ACCOUNT 1
FLEXIBLE PREMIUM VARIABLE LIFE INSURANCE CONTRACT
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