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Exhibit I-A(8)(d)
Xxxxxxx Investor Services, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
FORM OF
PARTICIPATING CONTRACT AND POLICY AGREEMENT
Ladies and Gentlemen:
We (sometimes hereinafter referred to as "Investor Services") are the
Principal Underwriter of shares of Xxxxxxx Variable Life Investment Fund (the
"Fund"), a no-load, open-end, diversified registered management investment
company established in 1985 as a Massachusetts business trust. The Fund is a
series fund consisting of the Balanced Portfolio, Bond Portfolio, Capital Growth
Portfolio, Global Discovery Portfolio, International Portfolio, Money Market
Portfolio, and Growth and Income Portfolio (individually or collectively
hereinafter referred to as the "Portfolio" or the "Portfolios"). In addition,
each Portfolio, except the Money Market Portfolio, is divided into two classes
of shares of beneficial interest ("Shares"). Additional Portfolios and classes
may be created from time to time. The Fund is the funding vehicle for variable
annuity contracts and variable life insurance policies ("Participating Contracts
and Policies") to be offered to the separate accounts (the "Accounts") of
certain life insurance companies ("Participating Insurance Companies"). Owners
of Participating Contracts and Policies will designate a portion of their
premium to be invested in insurance company separate accounts or sub-accounts
which invest in, or represent an investment in, directly or indirectly, Shares
of the Portfolios of the Fund. All Shares of the Portfolios will be sold only to
Participating Insurance Companies which have agreed to participate in the Fund
to fund their separate accounts and/or to qualified plans, all in accordance
with the requirements of Section 817(h) of the Internal Revenue Code of 1986, as
amended ("Code") and Treasury Regulation 1.817-5. Shares of the Portfolios will
not be sold directly to the general public.
You are a registered broker-dealer which intends to offer and sell
Participating Contracts and Policies. In connection with such offer and sale you
will be obligated to deliver the prospectuses of such Participating Contracts
and Policies and, contemporaneously therewith, the prospectus of the Fund. Sales
of Shares to Participating Insurance Companies or their affiliates or the
separate accounts of either shall be effected solely by us as principal
underwriter of the Fund, and not by you. The relationship between us shall be
further governed by the following terms and conditions:
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1. To the extent, if any, that your activities or the activities of
the Participating Insurance Companies in connection with the sale
of Participating Contracts and Policies may constitute the sale of
Shares, you and we agree that (i) we are the sole "principal
underwriter" of the Fund and the sole "underwriter" of the Shares
as those terms are defined in the Investment Company Act of 1940
(the "1940 Act") and the Securities Act of 1933 (the "1933 Act"),
respectively, and (ii) neither you nor the Participating Insurance
Companies or the Accounts shall be deemed to be "principal
underwriters" of the Fund or "underwriters" of the Fund within the
meaning of the 1940 Act and the 1933 Act, respectively.
2. You hereby represent and warrant to us as follows:
(a) You are a corporation duly organized and validly
existing in good standing under the laws of the State
of Delaware and have full power and authority to enter into
this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by you and is a valid and binding obligation
enforceable against you in accordance with its terms.
(c) Your compliance with the provisions of this Agreement will
not conflict with or result in a violation of the provisions
of your charter or by-laws, or any statute or any judgment,
decree, order, rule or regulation of any court or
governmental agency or body having jurisdiction.
3. We hereby represent and warrant to you as follows:
(a) A registration statement (File No. 2-96461) on Form N-IA
with respect to the Shares (w) has been prepared by the Fund
in conformity with the requirements of the 1940 Act and the
1933 Act and all applicable published instructions, rules and
regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission"), (x) has been
filed with the Commission, (y) is currently effective, and
(z) will be amended under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous
offering of the Shares. The registration statement, including
financial statements and exhibits, and the final prospectus,
including the statement of additional information, as
subsequently amended and supplemented, are herein
respectively referred to as the "Registration Statement" and
the "Prospectus".
(b) The Registration Statement and the Prospectus and any
amendment or supplement thereto will contain all statements
required to be stated therein and will comply in all material
respects with the requirements of the 1940 Act, the 1933 Act
and the Rules and Regulations, and the Registration Statement
and any post-effective amendment thereto will not contain or
incorporate by reference any untrue statement of a material
fact or omit to
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state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
the Prospectus and any amendment or supplement thereto will
not contain or incorporate by reference any 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, in light of the circumstances under which
they were made, not misleading.
(c) We are a corporation duly organized and validly existing in
good standing under the laws of The Commonwealth of
Massachusetts and have full power and authority to enter into
this Agreement.
(d) This Agreement has been duly authorized, executed and
delivered by us and is a valid and binding obligation
enforceable against us in accordance with its terms.
(e) Our compliance with all of the provisions of this Agreement
will not conflict with or result in a violation of the
provisions of our charter or by-laws, or any statute or any
judgment, decree, order, rule or regulation of any court or
governmental agency or body having jurisdiction over us.
4. You hereby covenant and agree with us as follows:
(a) You shall be an independent contractor and neither you nor
any of your directors, partners, officers or employees as
such, is or shall be an employee of us or of the Fund. You
are responsible for your own conduct and the employment,
control and conduct of your agents and employees and for
injury to such agents or employees or to others through your
agents or employees.
(b) You or one or more Participating Insurance Companies will be
responsible for insuring compliance with all applicable laws
and regulations of any regulatory body having jurisdiction
over you or Participating Contracts and Policies.
(c) No person is authorized to make any representations
concerning Shares except those contained in the Registration
Statement or Prospectus relating thereto and in such printed
information as issued by us for use as information
supplemental to the Prospectus. In offering Participating
Contracts and Policies you shall, with respect to the Fund
and the Shares, rely solely on the representations contained
in the Registration Statement, Prospectus and in the
above-mentioned supplemental information.
(d) You are not entitled to any compensation whatsoever from us
or the Fund with respect to offers of Participating Contracts
and Policies.
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(e) With respect to payments to be made to us pursuant to a Rule
12b-1 Plan for the Fund, you will not seek reimbursement for
administrative and recordkeeping services under the Fund's
Rule 12b-1 Plan that have been or will be paid for by any
fees or charges imposed on owners of Participating Contracts
and Policies by a Participating Insurance Company for such
services. This provision does not restrict you from receiving
sales charges on purchases and redemptions, consistent with
applicable law, made under or redemption proceeds from a
Participating Contract or Policy at the same time that you
are seeking reimbursement for expenses under the Fund's Rule
12b-1 Plan.
5. We hereby covenant and agree with you as follows:
(a) If, at any time when a Prospectus relating to the Shares is
required to be delivered under the 1940 Act, the 1933 Act or
the Rules and Regulations, we become aware of the occurrence
of any event as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of
a material fact, or omit to state a material fact necessary
to make the statements therein, in light of the circumstances
under which made, not misleading, or if we become aware that
it has become necessary at any time to amend or supplement
the Prospectus to comply with the 1940 Act, the 1933 Act or
the Rules and Regulations, we will promptly notify you and
promptly request the Fund to prepare and to file with the
Commission an amendment to the Registration Statement or
supplement to the Prospectus which will correct such
statement or omission or an amendment or supplement which
will effect such compliance, and deliver to you copies of any
such amendment or supplement.
(b) We will cooperate with you in taking such action as may be
necessary to qualify the Shares for offering and sale under
the securities or Blue Sky laws of any state or jurisdiction
as you may request and will continue such qualification in
effect so long as is required by applicable law in connection
with the distribution of Shares.
(c) We shall reimburse you, subject to the minimum amounts set
forth in the attached schedule, for those distribution and
shareholder servicing-related expenses that are permitted to
be paid for by the Fund under the Fund's Rule 12b-1 Plan and
for which (i) you submit documentation, as may be requested
by us or by the Fund's Board of Trustees, and (ii) we receive
payment for such expenses from the Fund under the Fund's Rule
12b-1 Plan. We shall remit to you as promptly as reasonably
practicable all payments received by us from the Fund for
remittance to you pursuant to the Fund's Rule 12b-1 Plan.
6. Sales of Shares may be suspended or the offering of Shares
withdrawn without notice (i) if the continued offering or sale of
Shares would violate any applicable
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statute or regulation, order or decree of any court, governmental
agency or self-regulatory organization having jurisdiction, or
(ii) if in the sole discretion of the Trustees of the Fund,
including a majority of those Trustees who are not "interested
persons" (as defined in the 0000 Xxx) of the Fund acting in good
faith and in light of their duties under federal and any
applicable state laws, such action is determined to be necessary
in the best interests of the Shareholders of any Portfolio.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any Prospectus
relating to the Shares and printed information supplemental
thereto, we shall furnish you with such copies as you reasonably
request upon the payment of reasonable charges therefor by you or
one or more Participating Insurance Companies. If we elect not to
provide such copies of such documents, you or one or more
Participating Insurance Companies shall bear the entire cost of
printing copies for your use. You shall not use such copies of
such documents printed by you or one or more Participating
Insurance Companies until you shall have furnished us with a copy
thereof and we either have given you written approval for use or
twenty days shall have elapsed following our receipt thereof and
we have not objected thereto in writing.
8. (a) You will indemnify and hold harmless Investor Services and
each of its directors and officers and each person, if any,
who controls Investor Services within the meaning of Section
15 of the 1933 Act, against any loss, liability, damages,
claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees
incurred in connection therewith), arising by reason of any
person's acquiring any Shares, which may be based upon the
1933 Act or any other statute or common law, and which (i)
may be based upon any wrongful act by you, any of your
employees or representatives, any affiliate of or any person
acting on behalf of you, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact
contained in a Registration Statement or Prospectus covering
Shares or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading if such a statement or
omission was made in reliance upon information furnished to
us or the Fund by you, or (iii) may be based on any untrue
statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering
insurance products sold by you, or any amendments or
supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statement or statements therein not
misleading, unless such statement or omission was made in
reliance upon information furnished to you or a Participating
Insurance Company by or on behalf of Investor Services or the
Fund; provided, however, that in no case (i) is the indemnity
by you in favor of any person indemnified to be deemed to
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protect Investor Services or any such person against any
liability to which Investor Services or any such person would
otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its or his
duties or by reason of its or his reckless disregard of its
obligations and duties under this Agreement, or (ii) are you
to be liable under your indemnity agreement contained in this
paragraph with respect to any claim made against Investor
Services or any person indemnified unless Investor Services
or such person, as the case may be, shall have notified you
in writing within a reasonable time after the summons or
other first legal process giving information of the nature of
the claim shall have been served upon Investor Services or
upon such person (or after Investor Services or such person
shall have received notice of such service on any designated
agent), but failure to notify you of any such claim shall not
relieve you from any liability which you may have to Investor
Services or any person against whom such action is brought
otherwise than on account of your indemnity agreement
contained in this paragraph. You shall be entitled to
participate, at your own expense, in the defense, or, if you
so elect, to assume the defense of any suit brought to
enforce any such liability, but, if you elect to assume the
defense, such defense shall be conducted by counsel chosen by
you and satisfactory to Investor Services, or to its officers
or directors, or to any controlling person or persons,
defendant or defendants in the suit. In the event that you
assume the defense of any such suit and retain such counsel,
Investor Services or such officers or directors or
controlling person or persons, defendant or defendants in the
suit, shall bear the fees and expenses of any additional
counsel retained by them, but, in case you do not elect to
assume the defense of any such suit, you shall reimburse
Investor Services and such officers, directors or controlling
person or persons, defendant or defendants in such suit, for
the reasonable fees and expenses of any counsel retained by
them. You agree promptly to notify Investor Services of the
commencement of any litigation or proceedings against it in
connection with the offer, issue and sale of any Shares.
(b) Investor Services will indemnify and hold harmless you and
each of your directors and officers and each person, if any,
who controls you within the meaning of Section 15 of the 1933
Act, against any loss, liability, damages, claim or expense
(including the reasonable cost of investigating or defending
any alleged loss, liability, damages, claim or expense and
reasonable counsel fees incurred in connection therewith),
arising by reason of any person's acquiring any Shares, which
may be based upon the 1933 Act or any other statute or common
law, and which (i) may be based upon any wrongful act by
Investor Services, any of its employees or representatives,
any affiliate of or any person acting on its behalf, or (ii)
may be based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration
Statement or Prospectus covering Shares or any amendment
thereof or supplement thereto or the omission or
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alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading unless such statement or omission was made in
reliance upon information furnished to Investor Services or
the Fund by you or (iii) may be based on any untrue statement
or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering insurance
products sold by you, or any amendment or supplement thereto,
or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished to you by or on behalf of Investor
Services or the Fund; provided, however, that in no case (i)
is the indemnity by Investor Services in favor of any person
indemnified to be deemed to protect you or any such person
against any liability to which you or any such person would
otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of your or his
duties or by reason of your or his reckless disregard of your
or his obligations and duties under this Agreement, or (ii)
is Investor Services to be liable under its indemnity
agreement contained in this paragraph with respect to any
claim made against you or any person indemnified unless you
or such person, as the case may be, shall have notified
Investor Services in writing within a reasonable time after
the summons or other first legal process giving information
of the nature of the claim shall have been served upon you or
upon such person (or after you or such person shall have
received notice of such service on any designated agent), but
failure to notify Investor Services of any such claim shall
not relieve Investor Services from any liability which
Investor Services may have to you or any person against whom
such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. Investor
Services shall 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 liability,
but, if it elects to assume the defense, such defense shall
be conducted by counsel chosen by Investor Services and
satisfactory to you, or to your officers or directors, or to
any controlling person or persons, defendant or defendants in
the suit. In the event that Investor Services assumes the
defense of any such suit and retains such counsel, you or
such officers or directors or controlling person or persons,
defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by you, but, in
case Investor Services does not elect to assume the defense
of any such suit, Investor Services shall reimburse you and
such officers, directors or controlling person or persons,
defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by you. Investor
Services agrees promptly to notify you of the commencement of
any litigation or proceedings against it in connection with
the offer, issue and sale of any Shares.
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9. The indemnities, representations, warranties, covenants and
agreements of each party to this Agreement as set forth in this
Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of either of such parties or
any of their respective officers, directors, partners or any
controlling person, and will survive delivery of and payment for
the Shares.
10. Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, each
party hereto waives any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
11. This Agreement constitutes the entire agreement among the parties
concerning the subject matter hereof, and supersedes any and all
prior understandings.
12. This Agreement shall automatically terminate in the event of its
assignment. This Agreement may be terminated at any time by either
party by 30 days' written notice given to the other party, except
that the Agreement may be terminated by Investor Services without
notice (i) if the continued offering or sale of Shares would
violate any applicable statute or regulation, order or decree of
any court, governmental agency or self-regulatory organization
having jurisdiction, or (ii) if in the sole discretion of the
Trustees of the Fund, including a majority of those Trustees who
are not "interested persons" (as defined in the 0000 Xxx) of the
Fund, acting in good faith and in light of their duties under
federal and any applicable state laws, such action is determined
to be necessary in the best interests of the Shareholders of any
Portfolio. The obligation of each party to indemnify the other
party pursuant to paragraph 8 hereof shall apply with respect to
any Shares sold before or after such termination. To the extent we
receive payments under any provision of this Agreement pursuant to
a Rule 12b-1 Plan for the Fund, both you and we understand and
agree that this Agreement will be subject to the applicable
approval, reporting and termination requirements as set forth in
Rule 12b-1.
13. Any notice hereunder shall be duly given if mailed or telegraphed
to the other party hereto at the address specified below or at
such other address as such party may from time to time specify in
writing to the other party. This Agreement shall be governed by
and construed in accordance with the laws of The Commonwealth of
Massachusetts.
14. This Agreement may be executed in any number of counterparts
which, taken together shall constitute one and the same
instrument. This Agreement shall become effective upon receipt by
us of your acceptance hereof.
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15. This Agreement may not be modified or amended except by a written
instrument duly executed by the parties hereto.
XXXXXXX INVESTOR SERVICES, INC.
By:
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Xxxxx X. Xxx
President
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned hereby accepts the offer set
forth in the above letter.
INVESTORS BROKERAGE SERVICES, INC.
Dated: By:
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Xxxx X. Xxxxxxx, Xx.
President
Xxx Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
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