GENERAL AGENT SALES AGREEMENT
AGREEMENT, dated as of January 1, 2000 by and between THE EQUITABLE
LIFE ASSURANCE SOCIETY OF THE UNITED STATES ("EQUITABLE"), a New York stock life
insurance company, having offices at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and AXA NETWORK, LLC ("AXA Network"), a Delaware limited liability
company having offices at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
and the additional affiliated entities of AXA Network executing this Agreement
below (AXA Network and such other entities being jointly and severally
hereinafter referred to as the "General Agent").
W I T N E S S E T H:
WHEREAS, Equitable is an insurance company which issues insurance
products in the states and other jurisdictions covered by this Agreement;
WHEREAS, the General Agent is a general agent which sells insurance
products in the states and other jurisdictions covered by this Agreement;
WHEREAS, Equitable desires to retain the General Agent to solicit
applications from the general public for Equitable insurance products and to
service the policies and contracts sold pursuant thereto and certain existing
policies and contracts, and the General Agent desires to solicit such
applications and service such policies and contracts;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and promises herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
ss.1.1 Defined Terms. In addition to any terms defined elsewhere in
this Agreement, the terms defined in this Section 1.1, whenever used in this
Agreement, shall have the respective meanings indicated herein.
a. Agent - A person who (i) is either an employee of the
General Agent or of an affiliate of the General Agent, an independent contractor
under contract to the General Agent or, if Equitable of Colorado has previously
consented thereto, a general agent under contract to the General Agent or an
employee or independent contractor of such general agent, (ii) is duly licensed
and qualified to sell the Products and service the Contracts which such person
proposes to sell and service under the insurance laws of all states and
jurisdictions in which such person proposes to make such sales and service such
Contracts and (iii) only with respect to the sale of Variable Products by
individuals, is also a Representative of the Broker-Dealer.
b. Application -- An application for the purchase of a
Contract made on the form from time to time delivered to the General Agent by
Equitable for such purpose in accordance with Equitable's Policies and
Procedures.
c. Appointed Agent -- An Agent appointed by Equitable to
solicit Applications for the Products and to service Contracts in one or more
states or jurisdictions.
d. Bank-Related Sales -- Any Application (i) made on the
premises of a bank, trust company, savings bank, savings and loan association,
thrift, credit union or similar institution (as the case may be, a "Bank"); (ii)
by means of personal, telephone, mail or other oral or written contacts
originating from the premises of a Bank; or (iii) to persons who are referred to
the General Agent by a Bank pursuant to customer lists, mailings, Bank employee
referrals or otherwise
e. Broker-Dealer -- AXA Advisors, LLC or such other registered
broker-dealer as Equitable may from time to time designate as a Broker-Dealer
hereunder in connection with the sale and servicing of Variable Products.
f. Broker-of-Record -- As to any Contract, the general agent
designated by Equitable from time to time as the entity responsible for
effecting the sale or servicing of such Contract.
g. Contract -- Any policy, contract or certificate evidencing
an insurance or annuity obligation of Equitable in respect of any Product for
which the General Agent is the Broker-of-Record.
h. Equitable Sales Materials -- Sales Materials prepared by
Equitable and delivered to the General Agent or prepared by the General Agent
and approved by Equitable in writing for use by the General Agent in connection
with the solicitation of Applications and the servicing of Contracts.
i. Equitable's Policies and Procedures -- Such policies and
procedures, if any, with respect to the subject matter of this Agreement or any
aspect thereof, including, without limitation, the solicitation and sale of
Products, the solicitation and submission of Applications, the training and
qualification of Appointed Agents and the servicing of Contracts, as Equitable
may from time to time adopt on not less than thirty (30) days prior written
notice to the General Agent.
j. Premium -- Any premium, contribution or other consideration
relating to a Contract.
k. Product -- Any class of insurance policies or annuity
products issued by Equitable which Equitable, in its sole discretion, may from
time to time make available to the General Agent to sell or service.
l. Representative -- An individual who is at one and the same
time (i) an associated person (as that term is defined in Section 3(a)(18) of
the Securities Exchange Act of 1934, as amended) of the Broker-Dealer; (ii) duly
registered with the National Association of Securities Dealers, Inc. and any
applicable state or other jurisdictional securities regulatory authorities as a
registered person of the Broker-Dealer qualified to distribute variable life
insurance policies and annuity contracts such as the Variable Products in the
states or other jurisdictions in which such individual proposes to distribute
such policies and contracts and (iii) not subject to a statutory
disqualification (as that term is defined in the Securities Exchange Act of
1934, as amended).
m. Sales Materials -- All promotional, sales, marketing and
advertising materials relating to Equitable or the Products used or distributed
in connection with the solicitation of Applications and/or servicing of
Contracts, including, without limitation, illustrations, application forms,
contract forms, prospectuses, advertisements (such as material published, or
designed for use in, a newspaper, magazine or other periodical, radio,
television, internet, telephone or tape recording, videotape display, signs or
billboards, motion pictures or other public media), sales literature (i.e., any
written communication distributed or made generally available to customers or
the public, including
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brochures, circulars, research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales literature or
published article), and educational or training materials or other
communications.
n. Securities Laws -- All federal securities laws, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and the Investment Company Act of 1940, as
amended; all applicable state or foreign securities laws; all rules and
regulations promulgated with respect thereto and the Conduct Rules of the
National Association of Securities Dealers, Inc.
o. Variable Product - Any Product which is regulated by the
Securities Laws.
ss.1.2 Cross-references. All references in this Agreement to a Section,
Article or Exhibit are to a section, article exhibit of this Agreement, unless
otherwise indicated.
ARTICLE II
PRODUCT SALES
ss.2.1 Authority to Solicit and Service. Equitable hereby authorizes
the General Agent to solicit Applications for the Products and to service the
Contracts. The General Agent accepts such authorization and agrees to use its
best efforts to find purchasers for such Products acceptable to Equitable and to
service such Contracts. The General Agent acknowledges that the authorization to
solicit Applications for the Products and service Contracts granted hereunder is
not exclusive and that other agents and general agents will be soliciting
applications for the Products and/or similar products and servicing Equitable
policies and contracts in competition with the General Agent.
ss.2.2 Products Included Under Agreement. The Products which Equitable
makes available to the General Agent are the sole classes of policies and
contracts for which the General Agent is authorized to solicit Applications and
sell Contracts pursuant to this Agreement. The Contracts for which the General
Agent is designated as the Broker-of-Record are the sole policies and contracts
which the General Agent is authorized to service hereunder.
ss.2.3 General Agent Qualifications. The General Agent warrants and
represents that it is a life insurance agent licensed in each state and other
jurisdiction in which it intends to perform its functions and fulfill its
obligations hereunder. The General Agent shall, at all times when performing its
obligations under this Agreement, be duly licensed to sell Products and service
Contracts in each state or other jurisdiction in which it is soliciting
Applications and/or servicing Contracts. The General Agent shall use its best
efforts to become a licensed life insurance agent in all fifty states, the
District of Columbia, the Virgin Islands and Puerto Rico and to continue to be
so licensed throughout the term of this Agreement.
ss.2.4 Limitations on Authority. The General Agent shall not possess or
exercise any authority on behalf of Equitable other than that expressly
conferred pursuant this Agreement. The General Agent shall perform all its
obligations hereunder and shall cause all Agents to act in all respects in
connection with the subject matter hereof in accordance with Equitable's
Policies and Procedures. In particular, and without limiting the foregoing, the
General Agent shall not have any authority, nor shall it permit any Agent, to
(i) alter, modify, waive, forgive, cancel or change any of the terms, rates,
charges or conditions of any Contract or other contract entered into pursuant to
a Contract; (ii) make any representations concerning any of the terms, rates,
charges or provisions of any Contract except as expressly authorized in writing
by Equitable; (iii) extend the time for payment of any Premiums; (iv) receive
any moneys in
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payment of Premiums in respect of any Contract (except for the sole purpose of
forwarding the same to Equitable) or (v) make any representations concerning any
of the terms, rates, charges or provisions of any Contract except as expressly
authorized in writing by Equitable.
ss.2.5 Independent Contractor Status. Equitable and the General Agent
agree and confirm that the General Agent shall perform its obligations hereunder
as an independent contractor and nothing herein contained shall constitute the
General Agent, any of the Agents or any of the officers, directors, employees or
representatives of the General Agent as employees of Equitable. In performing
its obligations under this Agreement, the General Agent shall not be obligated
or expected to devote its full time and energies to the performance of its
obligations hereunder or to sell or solicit Applications for a specified number
of Contracts, nor shall the General Agent be obligated or expected to solicit
Applications for or sell the Products or service the Contracts on an exclusive
basis.
ss.2.6 Compliance With Applicable Laws. The General Agent shall perform
its obligations hereunder in compliance with, and cause its Agents to comply
with, all applicable insurance laws and regulations, including, without
limitation, state insurance laws and regulations governing insurance-related
activities and transactions. Notwithstanding the foregoing, Equitable has
retained the Broker-Dealer to oversee compliance with the Securities Laws in
connection with the solicitation, offering and servicing of Variable Products,
but the General Agent shall not violate any of the Securities Laws in performing
its obligations hereunder. The General Agent shall notify Equitable immediately
in writing if it receives notice of any governmental inquiry concerning its
compliance or the compliance of any of its Agents with any laws or regulations
in connection with the performance of its obligations hereunder or if it
otherwise learns that it is not in compliance with any such law or regulation.
ss.2.7 Restrictions on Sales Activity. The General Agent shall not
offer or attempt to offer any Contract, nor solicit Application for a Contract,
nor deliver any Contract, in any state or other jurisdiction in which such
Contract may not lawfully be sold or offered for sale, or permit any Agent to
make any such offer, attempt to offer, solicitation or delivery. For purposes of
determining where any Product may be offered and Applications solicited, the
General Agent may rely on written notification, as revised from time to time,
received from Equitable.
ARTICLE III
Variable Products
ss.3.1 Sales of Variable Products. Notwithstanding anything to the
contrary contained in this Agreement, solicitations and offers to sell Variable
Products and the servicing of Contracts for Variable Products may only be made
jointly with the Broker-Dealer. The General Agent shall not permit any Appointed
Agent to solicit Applications or sell or service a Contract for any Variable
Product unless such Appointed Agent is at the time of such solicitation, sale
and/or servicing a Representative of the Broker-Dealer. The General Agent may
rely on the instructions of the Broker-Dealer concerning the Securities Laws in
connection with the sale and servicing of the Variable Products.
ss.3.2 Compliance with SEC No Action Letter. The General Agent warrants
and represents that, in connection with the offering of Variable Products
hereunder, it is presently in compliance with Xxxxxx & Xxxxxx (sub. nom. First
of America Brokerage Services, Inc.) (avail. Sept. 28, 1995), a no action letter
issued by the staff of the Securities and Exchange Commission with respect to
the non-registration as a broker-dealer of an insurance agency associated with a
registered broker-dealer (the "No Action Letter"). The General Agent shall, at
all times during the term of this Agreement, perform all obligations on its part
to be performed in compliance with the No Action Letter, as the same may be
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hereafter modified and amended by additional no action letters, legislation
and/or regulations. The General Agent shall not at any time during the term
hereof solicit any Application or offer to sell any Contract for a Variable
Product unless the General Agent is then in compliance with the No Action
Letter.
ARTICLE IV
APPOINTED AGENTS
ss.4.1 Agent Solicitation. The General Agent shall not permit any
individual to solicit an Application or offer to sell a Contract for a Product
or service any Contract unless such individual is at the time of such
solicitation and/or offer or servicing an Appointed Agent hereunder. The General
Agent shall not permit any Appointed Agent who at any time ceases to satisfy all
of the qualifications set forth in the definitions of Agent and/or Appointed
Agent in Article I above to solicit any Applications or sell or service any
Contracts. The General Agent shall not, and shall not permit any Appointed Agent
to, recommend the purchase of any Product to any customer without having
reasonable grounds to believe that such purchase is suitable for such customer,
based on information supplied by such customer after reasonable inquiry into
such customer's insurance and investment objectives and financial situation and
needs in accordance with applicable state insurance laws, rules or regulations.
ss.4.2 Authority to Recommend Agent Appointments. The General Agent may
recommend Agents to Equitable for appointment as Appointed Agents. Equitable
reserves the right in its sole discretion to refuse to appoint any Agent
proposed by the General Agent as an Appointed Agent. Equitable also reserves the
right, in its sole discretion, to terminate the appointment of any Appointed
Agent. The making of any recommendation by the General Agent shall be deemed to
constitute the warranty and representation of the General Agent that the
individual being recommended (a) satisfies all the criteria set forth in the
definition of "Agent" in this Agreement and (b) has the qualifications, good
character and moral fitness to act as an Appointed Agent and to hold himself or
herself out as such to the general public. The General Agent shall, upon written
request, confirm such warranties and representations in writing and shall
furnish Equitable with evidence of the same, acceptable to Equitable and
including, without limitation, proof of proper licensing and registration. It is
also understood and agreed that all matters concerning the licensing and/or
registration of any individual recommended for appointment as an Appointed Agent
under any applicable state insurance law shall be a matter directly between the
General Agent and such individual. The General Agent shall promptly notify
Equitable in writing if, at any time during the term hereof, any Appointed Agent
fails to satisfy any of the qualifications set forth in the foregoing warranty
and representation. Nothing in this Agreement shall be construed as requiring
Equitable to obtain a license or registration or issue a consent or appointment
to enable any particular individual to sell any Product. Equitable shall have no
obligation or responsibility for licensing insurance agents under applicable
state insurance laws.
ss.4.3 Supervisory Responsibilities. The General Agent shall be
responsible for the training, supervision, control and conduct of the Appointed
Agents in connection with their activities as insurance agents hereunder. The
General Agent shall supervise compliance by the Appointed Agents in respect of
all the terms and conditions of this Agreement in the performance of all
activities with respect to the subject matter hereof. The General Agent shall
not be responsible for the training, supervision, control or conduct of the
Appointed Agents in their capacity as Representatives of the Broker-Dealer.
ss.4.4 Tax Reporting Responsibility. The General Agent shall be solely
responsible under applicable tax laws for the reporting of compensation paid to
the Agents and for any withholding of taxes
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from compensation paid to the Agents, including, without limitation, FICA, FUTA,
and federal, state and local income taxes.
ARTICLE V
SALES PRACTICES
ss.5.1 Applications. Completed Applications shall be promptly delivered
to Equitable at such address as Equitable may from time to time specify in
writing. Equitable shall have the right in its sole discretion to reject any
Application and refund any Premium received.
ss.5.2 Sales Materials. Equitable will provide all Equitable Sales
Materials (other than Equitable Sales Materials prepared by the General Agent
and approved in writing by Equitable) to be used and/or distributed by the
General Agent and the Appointed Agents in connection with the solicitation of
Applications and sale or servicing of Contracts pursuant to this Agreement. The
General Agent shall not, and shall not permit any Appointed Agent to, solicit
any Application or offer to sell or service any Contract without delivering all
Equitable Sales Materials to the prospective purchaser required by applicable
state insurance laws, rules or regulations and Equitable's Policies and
Procedures. All Equitable Sales Materials shall be and remain the sole and
exclusive property of Equitable and shall be used or distributed by the General
Agent and the Appointed Agents solely and exclusively in connection with the
solicitation of Applications and/or servicing of Contracts. The General Agent
shall not, and shall not permit anyone to, distribute any Sales Materials with
respect to Equitable and/or the Products other than Equitable Sales Materials
and the General Agent shall not permit anyone other than Appointed Agents to use
or distribute Equitable Sales Materials. No Equitable Sales Materials shall be
used or distributed in any state or other jurisdiction unless approved by
Equitable in writing for use and/or distribution in such state or other
jurisdiction. Notwithstanding the foregoing, to the extent Equitable Sales
Materials with respect to any Variable Product may only be used and/or
distributed by a registered broker-dealer and its registered representative, the
General Agent shall have no obligation hereunder with respect to such Sales
Materials. Upon the termination of this Agreement, the General Agent will
promptly destroy or return to Equitable all Equitable Sales Materials and other
materials and supplies furnished by Equitable to the General Agent, except in
each case to the extent copies are required for the maintenance of records.
ss.5.3 Limitations on Advertising. The General Agent shall not, and
shall not permit any Appointed Agent to, advertise for, on behalf of, or with
respect to Equitable or any of the Products without prior written approval and
authorization from Equitable.
ss.5.4 Restrictions on Bank Sales. The General Agent shall not, without
the prior written consent of Equitable in each instance, offer or attempt to
offer any Product nor solicit any Application for any Product (i) by means of
personal, telephone, mail or other oral or written contacts originating from the
premises of a bank, trust company, savings bank, savings and loan association,
thrift, credit union or similar institution or (ii) to persons referred to them
by any such institution or through any customer lists, mailings, employee
referrals or any other sources of any such institution.
ss.5.5 Replacements of Equitable Products. The General Agent shall not,
and shall not permit any Agent to encourage any customer to, surrender or
replace a life insurance policy or annuity contract issued by Equitable in order
to purchase a Contract or, conversely, to surrender or exchange a Contract in
order to purchase another life insurance policy or annuity contract issued by
Equitable, except to the extent such surrenders or exchanges are made in
accordance with Equitable's Policies and Procedures. In the event that a life
insurance policy or annuity contract issued by Equitable is surrendered or
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exchanged in order to purchase a Contract, no compensation shall be paid under
this Agreement except as expressly provided to the contrary in Exhibit A.
ss.5.6 Premiums. All payments on account of Premiums for any Contract
shall be made in accordance with the relevant Contracts and other Equitable
Sales Materials as well as Equitable's Policies and Procedures. Equitable shall
not be liable for any error made in the investment of any Premium forwarded to
Equitable by the General Agent unless written instructions for investing such
Premium were delivered to Equitable simultaneously with or prior to the time
such Premium was forwarded to Equitable and such error resulted from Equitable's
negligence, gross negligence or intentional misconduct.
ss.5.7 Misdirected Payments. In the event that Premiums or loan
repayments are sent to the General Agent or any Agent, rather than to Equitable,
the General Agent shall, or shall cause such Agent to, promptly remit such
Premiums or loan repayments to Equitable.
ss.5.8 Delivery of Contracts. Upon the acceptance of an Application by
Equitable and receipt of the appropriate Premium therefor, Equitable will
forward the Contract applied for to the General Agent for delivery to the
purchaser thereof, and the General Agent shall deliver the Contract to the
purchaser within such period as may be allowed or required by Equitable's
Policies and Procedures. Each Contract delivered to a purchaser shall be
accompanied by a form of acknowledgment of receipt and such additional materials
as Equitable may from time to time require. The General Agent shall request that
the purchaser execute and return such acknowledgment of receipt and other
materials to Equitable within ten (10) days following receipt of the Contract
and shall inform such owner in writing that, unless and until such
acknowledgment of receipt is executed and returned to Equitable, no financial
transactions with respect to the Contract requested by such owner shall be
effected by Equitable except upon receipt of written instructions signed by such
owner, accompanied by a signature guaranty, in form acceptable to Equitable. For
purposes of this provision, no Contract shall be deemed to be issued by
Equitable until delivered by the General Agent to the purchaser thereof,
together with the acknowledgment and other materials provided for herein.
ss.5.9 Refunds of Premiums. In the event that Equitable rejects an
Application or a customer exercises his or her free look right under a Contract
in a timely manner, Equitable will refund any Premium received by Equitable on
account of such Application or Contract to the applicant or customer, as the
case may be, unless any portion of the Premium was paid to Equitable by another
insurance company as part of a 1035 exchange, in which case such portion shall
be refunded to such other insurance company. Equitable will promptly notify the
General Agent of all Premiums refunded and the party to whom such refunds were
paid.
ss.5.10 Directions Given on Behalf of Customers. Equitable may from
time to time in accordance with Equitable's Policies and Procedures accept
transfer or other instructions with respect to Contracts given by an Appointed
Agent on behalf of his or her customers, provided that the Appointed Agent has
first obtained from the customer written authorization therefor in form
acceptable to Equitable. The General Agent shall be solely responsible for the
accuracy and propriety of any instruction given or action taken by an Agent on
behalf of a customer. Equitable shall not have any responsibility or liability
for any action taken or omitted by it in good faith in reliance on or by
acceptance of such an instruction or action. No instructions shall be given or
actions taken by an Agent on behalf of a customer except in accordance with
Equitable's Policies and Procedures.
ss.5.11 Restrictions on Certain Investment Services. Without the prior
written consent of Equitable in each instance, the General Agent shall not, nor
shall it permit any Agent to, adopt,
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implement or offer any program, plan, arrangement or service to allocate
Premiums and/or Variable Account investments for market timing purposes, whether
conducted under powers of attorney or otherwise.
ARTICLE VI
CONFIDENTIALITY, REPORTING AND RECORDKEEPING
ss.6.1 Confidentiality. Equitable and the General Agent shall maintain
the confidentiality of all client lists, operations manuals, training manuals
and materials, products manuals or any other proprietary information acquired
from the other as a result of the contractual relationship contemplated in this
Agreement and shall not use such information for any purpose except in
furtherance of the purposes hereof without prior written consent. Neither
Equitable nor the General Agent shall use, disclose, reveal or publish any
confidential information so acquired to market products or services for itself
directly or indirectly without the prior written consent of the other. Nothing
contained in this Section 6.1 to the contrary shall prohibit either party hereto
from disclosing any information which such party is, in the opinion of such
party's counsel, compelled to disclose by law, regulation, court action or
similar process.
ss.6.2 Names and Trademarks. The General Agent shall not shall use, nor
permit any Agent to use, the Equitable name or any other name, trademark,
service xxxx, symbol or trade style that is now or may hereafter be owned by
Equitable, except in the manner and to the extent that such use is specifically
authorized in writing by Equitable.
ss.6.3 Maintenance of Books and Records. The General Agent shall
maintain such books and records concerning the activities of the Agents as may
be required by state insurance departments and other regulatory agencies to
reflect adequately the Contracts processed and/or serviced pursuant hereto. The
General Agent shall make such books and records available to Equitable, its
accountants, auditors and other representatives and all state and federal
regulators at any reasonable time upon written request. Each party shall be and
remain sole owner of its records, including but not limited to business and
corporate records, regardless of the use or possession by either party of the
other party's records. The books, accounts and records of Equitable and the
General Agent as to all transactions between them under this agreement shall be
maintained so as to clearly and accurately disclose the nature and details of
the transactions, including such accounting information as is necessary to
support the reasonableness of the charges under this Agreement. Equitable and
the General Agent shall each individually maintain separate books, accounts and
records in respect to personnel, property and services provided under this
Agreement and shall cooperate and use reasonable efforts to prepare and/or
obtain in a timely fashion any and all books, accounts, records or other
documentation as may be necessary or desirable in connection with this Agreement
and/or the personnel, property or services provided hereunder.
ss.6.4 Reports to Insurers. The General Agent shall promptly furnish to
Equitable at any reasonable time upon written request any reports and
information which Equitable may reasonably require for the purpose of meeting
its reporting and record keeping requirements under the insurance laws of any
state, under any applicable federal or state securities laws, rules or
regulations, or the rules of the National Association of Securities Dealers,
Inc.
ARTICLE VII
COMPENSATION, FEES AND EXPENSES
ss.7.1 Compensation Schedule. Equitable shall pay to the General Agent,
as compensation for the Contracts for which the General Agent is then the
Broker-of-Record, the amounts with respect such Contracts provided in the
schedules set forth in Exhibit A attached hereto and made a part hereof, as the
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same may be modified and amended from time to time by Equitable in its sole
discretion on not less than ten (10) days prior written notice. In no event
shall any compensation due and payable hereunder be in excess of any limitations
on compensation imposed by Section 4228 of the New York Insurance Law or any
other applicable law or regulation.
ss.7.2 Limitations on Compensation. The compensation provided in
Section 7.1 above shall constitute compensation in full for all services to be
performed by the General Agent hereunder. No compensation or reimbursement of
any kind shall be due and payable to the General Agent pursuant to this
Agreement except as expressly set forth in Exhibit A, as the same may be amended
from time to time as above provided. Except as provided in Equitable's Policies
and Procedures, no compensation or reimbursement of any kind otherwise due and
payable hereunder in respect of any Contract shall be due and payable unless and
until all Premiums then due and payable to Equitable pursuant to such Contract
have been received and accepted by Equitable. No compensation will be due and
payable hereunder in respect of any Application rejected by Equitable or any
Contract for which the free look right has been exercised, except as otherwise
provided to the contrary in Exhibit A attached hereto, and the General Agent
shall promptly reimburse Equitable for the amount of any compensation previously
paid to the General Agent in connection therewith.
ss.7.3 Costs and Expenses Paid by General Agent. Except as expressly
provided in this Agreement to the contrary, the General Agent shall be solely
responsible for the payment of all costs and expenses incurred by it in the
performance of its obligations under this Agreement, including, without
limitation, all costs and expenses from time to time of appointing and
reappointing Appointed Agents.
ss.7.4 Broker-Dealer Fees and Expenses. All fees and other
compensation, if any, due and payable to the Broker-Dealer in connection with
the solicitation and sale of Variable Products as contemplated herein shall be
the sole and exclusive obligation of Equitable, and the General Agent shall have
no obligation to pay any such fees or other compensation or reimburse the
Broker-Dealer for any costs or expenses incurred by the Broker-Dealer in
connection therewith, except as the General Agent and the Broker-Dealer may from
time to time agree to the contrary.
ss.7.5 No Rights of Agents to Compensation Paid by Equitable. No Agent,
director, officer, employee or representative of the General Agent shall have
any interest in this Agreement or any right to any compensation or other sums
dues and payable hereunder. The General Agent shall be solely responsible for
the payment of all commissions and other consideration of any kind to the
Agents.
ARTICLE VIII
COMPLAINTS AND INVESTIGATIONS
ss.8.1 Customer Complaints. Equitable and the General Agent shall give
prompt written notice to the other of any customer complaint (as such term is
defined in Equitable's Policies and Procedures) received by such party or any
affiliate thereof in connection with, relating to or arising out of any Product,
the solicitation of Applications pursuant hereto, any Contract issued pursuant
to this Agreement or any activity or conduct pertaining to the subject matter of
this Agreement. A copy of the customer complaint received (or a written summary
thereof if made orally) shall accompany such notice. Copies of all materials
relevant to such customer complaint shall, upon the written request of any other
party hereto, be promptly provided to the party requesting the same. Equitable
and the General Agent will cooperate in investigating all customer complaints,
will consult with each other prior to responding to a customer complaint
received by any of them and will attempt in good faith to reach agreement on the
response to each such customer complaint. If the parties are unable to agree on
the response to any customer complaint, each party shall have the right, upon
prior notice to the other parties, to issue its own
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response to such customer complaint, whether or not such complaint was
originally addressed to such party. Each party shall promptly give the other
parties copies of each response issued by such party.
ss.8.2 Regulatory and Judicial Proceedings. Equitable and the General
Agent shall give prompt written notice to the other of the commencement of any
regulatory investigation, proceeding or inquiry or of any judicial action or
proceeding in connection with, relating to or arising out of the solicitation of
Applications pursuant hereto, any Contract issued pursuant to this Agreement or
any activity or conduct pertaining thereto of which such party or any affiliate
thereof has knowledge. The parties shall each cooperate fully in any such
regulatory investigation, proceeding or inquiry or of any judicial action or
proceeding. Copies of all materials relevant to any such regulatory
investigation, proceeding or inquiry or of any judicial action or proceeding in
the possession of any party hereto shall, upon the written request of any other
party hereto, be promptly provided to the party requesting the same.
ARTICLE IX
TERM OF AGREEMENT
ss.9.1 Termination Without Cause. Either party may terminate this
Agreement for any reason whatsoever ninety (90) days after giving written notice
to the other party hereto.
ss.9.2 Termination for Cause. Either party may, at its option, cancel
and terminate this Agreement for cause thirty (30) days after giving written
notice to the other party of the occurrence of any breach or default hereunder
by such other party of any obligation or warranty or representation herein
contained, unless such other party commences in good faith to cure such breach
or default within such thirty (30) period, in which case such thirty (30) day
period shall be extended for such period as may be reasonably required to cure
such breach or default.
ss.9.3 Surviving Provisions. The provisions of Articles VI, VIII and X
shall survive termination of this Agreement.
ARTICLE X
INDEMNIFICATION
ss.10.1 Indemnification of Equitable. The General Agent shall indemnify
and hold harmless, Equitable, all direct and indirect Equitable subsidiaries and
all officers, directors, employees and representatives of the foregoing from and
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 they or any of them may become
subject, at common law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any breach of any warranty or
representation by the General Agent hereunder or any default or other failure on
the General Agent's part to perform any of its obligations hereunder.
ss.10.2 Indemnification of General Agent. Equitable shall indemnify and
hold harmless the General Agent, its parent AXA Distribution Holding Company,
all direct and indirect subsidiaries of AXA Distribution Holding Company and all
officers, directors, employees and representatives of the foregoing from and
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 they or any of them may become
subject, at common law or otherwise, insofar as such losses, claims, damages or
liabilities arise
10
out of or are based upon any breach of any warranty or representation by the
Equitable hereunder or any default or other failure on Equitable's part to
perform any of its obligations hereunder:
ss.10.3 Notification and Procedures. After receipt by a party entitled
to indemnification ("Indemnified Party") under this Article X of notice of the
commencement of any action or threat of such action, if a claim in respect
thereof is to be made against any person obligated to provide indemnification
under this Article X ("Indemnifying Party"), such Indemnified Party will notify
the Indemnifying Party in writing of the commencement thereof as soon as
practicable thereafter, provided that the omission so to notify the Indemnifying
Party will not relieve it from any liability under this Article X, 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 (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) 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 its written consent, but if
such proceeding is settled with such consent or if final judgment is entered in
such proceeding 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.
ARTICLE XI
MISCELLANEOUS
ss.11.1 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.
ss.11.2 Assignment Prohibited. This Agreement may not be assigned
directly or indirectly by merger, operation of law or otherwise by any party
hereto without the prior written consent of the other. Any direct or indirect
transfer, individually or in the aggregate, of more than fifty percent (50%) of
the ownership interests of any party by the holder or holders thereof shall
constitute an assignment for the purposes hereof.
ss.11.3 Prior Agreements and Amendments. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior agreements,
either oral or written, between the parties with respect to the Products, the
solicitation of Applications and the sale and servicing of Contracts and may not
be modified or amended in any way except in writing signed by both parties
hereto unless expressly provided to the contrary herein.
ss.11.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
ss.11.5 Severability. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
11
ss.11.6 Notices. All notices under this Agreement shall be given in
writing and addressed as follows:
(a) if Equitable, to:
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Law Department
(b) if the General Agent, to:
AXA Network, LLC
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
with a copy to:
AXA Network, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Counsel
or to such other address as such party may hereafter specify in writing. Each
such notice and each such copy thereof shall be either hand delivered, delivered
by overnight courier or transmitted by certified United States mail, return
receipt requested, and shall be effective upon delivery.
ss.11.7 Arbitration. Should an irreconcilable difference of opinion
arise between Equitable and the General Agent as to the interpretation of any
matter respecting this Agreement, it is hereby mutually agreed that such
differences shall be submitted to arbitration as the sole remedy available to
both parties. Such arbitration shall be in accordance with the rules of the
American Arbitration Association, the arbitrators shall have extensive
experience in the insurance industry, and the arbitration shall take place in
New York, New York.
ss.11.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, excluding its
conflict of laws provisions.
ss.11.9 No Waiver of Rights. 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 state and federal laws. Failure of any party to insist
upon strict compliance with any of the terms and/or conditions of this Agreement
shall not be construed as a waiver of any of the terms and/or conditions, but
the same shall remain in full force and effect. No
12
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers.
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name:____________________________
Title: __________________________
AXA NETWORK, LLC
AXA NETWORK OF ALABAMA, LLC
AXA NETWORK OF CONNECTICUT, MAINE AND NEW
YORK, LLC
AXA NETWORK INSURANCE AGENCY OF
MASSACHUSETTS, LLC
EQUISOURCE OF NEVADA, INC. (to be renamed AXA
Network Of Nevada, Inc.)
EQUISOURCE OF PUERTO RICO, INC. (to be renamed AXA
Network Of Puerto Rico, Inc.)
EQUISOURCE OF NEW YORK, INC. as agent for EQUISOURCE
INSURANCE AGENCY OF TEXAS, INC. (to be
renamed AXA Network Insurance Agency of Texas, Inc.)
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
13
EXHIBIT A
SCHEDULE 1
GENERAL AGENT COMPENSATION FOR LIFE INSURANCE SALES AND SERVICING
This Schedule 1 of Exhibit A is attached to and made part of the General Agent
Sales Agreement dated January 1, 2000 by and between The Equitable Life
Assurance Society of the United States and AXA Network, LLC.
Compensation to the General Agent in connection with the sale and servicing of
life insurance policies will be calculated on a policy by policy basis.
Compensation paid hereunder will be allocated to commissions and expense
allowances as the parties may from time to time agree consistent with the
provisions of Section 4228 of the New York State Insurance Law. Total
compensation to the General Agent in respect of the sale and servicing of each
life insurance policy will be a percentage of the premiums received by Equitable
in respect of such policy as more particularly set forth in the following table:
Type of Premium Percentage
--------------- ----------
First Policy Year
Scheduled Premiums 99.0%
Premiums up to Target 99.0%
Premiums in excess of Target 8.5%
Renewal Years 8.0%
i
EXHIBIT A
SCHEDULE 2
GENERAL AGENT COMPENSATION Qualified Periodic Annuity Sales and Servicing
This Schedule 2 of Exhibit A is attached to and made part of the General Agent
Sales Agreement dated January 1, 2000 by and between The Equitable Life
Assurance Society of the United States and AXA Network, LLC.
Compensation to the General Agent in connection with the sale and servicing of
periodic premium annuity contracts qualified under Sections 401, 403 or 457 of
the Internal Revenue Code, as amended, will be calculated on a contract by
contract and certificate by certificate basis. Compensation paid hereunder will
be allocated to commissions and expense allowances as the parties may from time
to time agree consistent with the provisions of Section 4228 of the New York
State Insurance Law. Total compensation to the General Agent in respect of the
sale and servicing of each qualified periodic premium annuity contract or
certificate will be a percentage of the consideration received by Equitable in
respect of such contract or certificate as more particularly set forth in the
following table:
Type of Consideration Percentage
--------------------- ----------
First Policy Year 16.0%
Renewal Years 6.0%
ii
EXHIBIT A
SCHEDULE 3
GENERAL AGENT COMPENSATION FOR OTHER ANNUITY SALES AND SERVICING
This Schedule 3 of Exhibit A is attached to and made part of the General Agent
Sales Agreement dated January 1, 2000 by and between The Equitable Life
Assurance Society of the United States and AXA Network, LLC.
Compensation to the General Agent in connection with the sale and servicing of
all annuity contracts other than tax qualified periodic premium annuity
contracts will be calculated on a contract by contract and certificate by
certificate basis. Compensation paid hereunder will be allocated to commissions
and expense allowances as the parties may from time to time agree consistent
with the provisions of Section 4228 of the New York State Insurance Law. Total
compensation to the General Agent in respect of the sale and servicing of each
such contract or certificate will be a percentage of the consideration received
by Equitable in respect of such contract or certificate as more particularly set
forth in the following table:
Type of Consideration Percentage
--------------------- ----------
First Policy Year 8.5%
Renewal Years 8.5%
iii
EXHIBIT A
SCHEDULE 4
GENERAL AGENT COMPENSATION FOR HEALTH INSURANCE SALES AND SERVICING
This Schedule 4 of Exhibit A is attached to and made part of the General Agent
Sales Agreement dated January 1, 2000 by and between The Equitable Life
Assurance Society of the United States and AXA Network, LLC.
Compensation to the General Agent in connection with the sale and servicing of
all health insurance contracts and policies will be calculated on a contract by
contract and policy by policy basis. Total compensation to the General Agent in
respect of the sale and servicing of each health insurance contract or policy
will be a percentage of the premiums received by Equitable in respect of such
contract or policy as more particularly set forth in the following table:
Type of Contract or Policy Percentage
-------------------------- ----------
Major Medical Policies 10.0%
Disability Income Policies
First Year Premiums 99.0%
Renewal Year Premiums
Years 2-10 20.0%
Years 11 on 10.0%
iv
