Exhibit 6.b.
UNDERWRITING AND INDEMNITY AGREEMENT
BY AND AMONG
XXXX XXXXXXX VARIABLE SERIES TRUST I
XXXX XXXXXXX DISTRIBUTORS, INC.
AND
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
UNDERWRITING AND INDEMNITY AGREEMENT
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Agreement made as of May 1, 1997, among Xxxx Xxxxxxx Variable
Series Trust I, an open-end investment company reorganized as a
business trust under the laws of Massachusetts (the "Series"), Xxxx
Xxxxxxx Distributors, Inc., a registered broker-dealer organized under
the laws of Delaware ("Distributors"), and Xxxx Xxxxxxx Mutual Life
Insurance Company, a life insurance company organized under the laws
of Massachusetts and a registered investment adviser ("JHMLICO").
RECITALS
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WHEREAS, the Series has agreed to sell its shares to the Separate
Accounts of JHMLICO and of its wholly-owned subsidiary, Xxxx Xxxxxxx
Variable Life Insurance Company ("Separate Accounts"), in order to
fund the Separate Accounts and the variable annuity contracts and
variable life insurance policies issued by them, and
WHEREAS, the Series desires to appoint Distributors, an indirect
wholly-owned subsidiary of JHMLICO, as the principal underwriter of
the Series' shares that the Series will sell to the Separate Accounts
and Distributors is willing to accept said appointment, and
WHEREAS, JHMLICO has accepted its appointment by the Series to
serve as investment adviser to the Series pursuant to Investment
Management Agreements dated as of April 12, 1988 (two), April 15, 1994
and March 14, 1996 (together with any amendments thereto, the
"Investment Management Agreements"), and
WHEREAS, pursuant to the Investment Management Agreements, the
Series agrees to assume, or provide for others to assume, certain
expenses for Series operations and activities; and
WHEREAS, pursuant to the Investment Management Agreements, JHMLICO
agrees to perform certain administrative functions and services on
behalf of the Series and also to assume certain of the expenses of the
Series.
NOW, THEREFORE, WITNESSETH: That it is hereby agreed among the
parties as follows:
1. APPOINTMENT OF DISTRIBUTORS AS UNDERWRITER.
The Series hereby appoints Distributors as the principal
underwriter and distributor of the Series to sell its shares to the
Separate Accounts and Distributors hereby accepts such appointment.
The Series, during the term of this Agreement, shall sell its shares
to the Separate Accounts at net asset values as set forth in the
Series' Prospectus and Statement of Additional Information in effect
from time to time (collectively hereinafter the "Prospectus"), and
upon the terms and conditions set forth below.
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2. EXCLUSIVE NATURE OF DUTIES.
Distributors shall be the exclusive representative of the Series to
act as principal underwriter and distributor.
3. SALE AND REDEMPTION OF SHARES OF THE SERIES.
(a) Sales, redemptions and repurchases shall be effected directly
by the transfer agent of the Series, as such, according to the terms
of the Series' transfer agency agreement, and payment for shares shall
be transmitted by the transfer agent directly to the Series'
custodians.
(b) The Series shall have the right to suspend the redemption of
shares of any of its Portfolios pursuant to the conditions set forth
in the Prospectus. The Series shall also have the right to suspend
the sale of shares of any or all of its Portfolios at any time when it
is authorized to suspend redemption of such shares, or at any other
time when there shall have occurred an extraordinary event or
circumstance which, in the reasonable judgment of the Series, makes it
impractical or inadvisable to continue to sell any such shares.
(c) The Series will give Distributors prompt notice of any such
suspension and shall promptly furnish such other information in
connection with the sale and redemption of Series shares as the
Distributors reasonably requests.
4. DUTIES OF THE SERIES.
(a) The Series shall furnish to Distributors copies of all
information, financial statements and other documents or papers which
it may reasonably request for use in connection with the distribution
of shares of the Series.
(b) The Series shall take, from time to time, but subject to any
necessary approval of its shareholders, all necessary action to
register shares under the Securities Act of 1933 (the "1933 Act"), to
the end that there will be available for sale such number of shares in
each Portfolio as may reasonably be expected to be sold and issued.
(c) The Series shall use Its best efforts to qualify and maintain
the qualification of an appropriate number of shares of each of its
Portfolios for sale under the securities laws of such states as
Distributors may reasonably require.
(d) The Series will furnish to Distributors upon request copies of
annual and interim reports of the Series.
(e) The Series shall promptly notify Distributors if the
registration or qualification of any Series shares under any state or
Federal securities laws, or the Series' registration under the
Investment Company Act of 1940 (the "1940 Act"), is suspended or
terminated, or if any governmental body or agency institutes
proceedings to terminate the offer and sale of any Series
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shares in any jurisdiction.
5. DUTIES OF DISTRIBUTORS.
(a) Distributors shall be subject to the direction and control of
Series in the sale of its shares. Distributors shall not be obligated
to sell any specific number of shares in any Portfolio.
(b) In selling the shares of the Series, Distributors shall use its
best efforts in all respects duly to conform with the requirements of
all Federal and state laws and regulations and the requirements of the
National Association of Securities Dealers, Inc. (the "NASD"),
relating to the sale of such securities. Neither Distributors nor any
other person shall make any representations or give any information
regarding the Series which is not contained in the registration
statement or related Prospectus or sales or advertising material
approved by Distributors.
(c) Distributors shall act as an independent contractor and nothing
herein contained shall constitute Distributors, its agent or
representatives, or any employees thereof as employees of the Series
in connection with the sale of shares of the Series. Distributors
assumes full responsibility for its agents and employees under
applicable statutes.
No commission shall be paid to any person or entity in connection
with the sale of Series shares hereunder to the Separate Accounts.
(d) Distributors shall keep records showing the amount of any
significant contribution to or withdrawal from any Separate Account
subaccount investing in the Series which does not reflect an automatic
transaction under an annuity or insurance contract (such as
investments of net premium, deaths of insureds, deductions of fees and
charges, transfers, surrenders, loans, loan repayments, deduction of
loan interest, lapses, reinstatements, and similar automatic
transactions), which record shall also include the name of the person
ordering the transaction and the date and time of day the transaction
was ordered. It is hereby agreed that any issuance, redemption or
repurchase of Portfolio shares relating to any such non-automatic
transaction shall be at the Portfolio's net asset value per share next
computed after the date and time of said order, and said order shall
become irrevocable at the time as of which such value is next
determined. Distributors shall also maintain records of the dates and
times of day at which all transactions were effected, showing the
share and dollar amounts of such transactions, and all other records
required by the Securities Exchange Act of 1934 ("1934 Act") and rules
thereunder with respect to the issuance, redemption or repurchase of
Series shares. All records required by this paragraph to be
maintained by Distributors may be maintained by the transfer agent of
the Series on behalf of Distributors, but at all times such records
(i) will be maintained and preserved in conformity with the
requirements of Rules 17a-3 and 17a-4 under the 1934 Act, (ii) shall
be and remain the property of Distributors, and (iii) be at all times
subject to inspection by the Securities and Exchange Commission in
accordance with Section 17(a) of the 1934 Act.
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6. INDEMNIFICATION.
Distributors and JHMLICO (together, the "Indemnitors" herein),
jointly and severally, hereby indemnify and hold harmless the Series
and each of its trustees and officers (or former officers and
trustees) (collectively, "Indemnitees") against any loss, liability,
claim, damage, or expense (including the reasonable cost of
investigating and defending against the same and any counsel fees
reasonably incurred in connection therewith) incurred by any
Indemnitees under the 1933 Act or under common law or otherwise which
arise out of or are based upon (1) any untrue or alleged untrue
statement of a material fact contained in information furnished by
Distributors or JHMLICO for use in the Series' registration statement,
Prospectus, or annual or interim reports to shareholders, (2) any
omission or alleged omission to state a material fact in connection
with such information furnished by Distributors or JHMLICO which is
required to be stated in any of such documents or necessary to make
such information not misleading, (3) any misrepresentation or omission
or alleged misrepresentation or omission to state a material fact on
the part of Distributors or JHMLICO or any of their respective agents,
officers or employees unless such misrepresentation or omission or
alleged misrepresentation or omission was made in reliance on written
information furnished by the Series, or (4) the willful misconduct or
failure to exercise reasonable care and diligence on the part of any
such persons with respect to services rendered under this Agreement.
This indemnity provision, however, shall not operate to protect any
officer or trustee of the Series from any liability to the Series or
any shareholder by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of his or her duties.
In case any action shall be brought against any Indemnitee, the
Indemnitors shall not be liable with respect to any claim made against
any Indemnitee, unless the Indemnitee shall have notified Distributors
and JHMLICO 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 the Indemnitee (or after the
Indemnitee shall have received notice of such service on any
designated agent), but failure to notify the Indemnitors of any such
claim shall not relieve them from liability which they may have to the
person against whom such action is brought otherwise than on account
of this indemnification. The Indemnitors will be entitled to
participate at their own expense in the defense, or, if they so elect,
to assume the defense of any suit brought to enforce any such
liability, but if the Indemnitors elect to assume the defense, such
defense shall be conducted by counsel chosen by them and satisfactory
to the Indemnitees which are defendants in the suit.
The Indemnitors shall promptly notify the Series of any litigation
or proceedings in connection with the issuance or sale of the shares.
7. DURATION AND TERMINATION OF AGREEMENT.
This Agreement shall become effective as of the date first above
written and shall remain in force from year to year thereafter, but
only so long as such continuance is specifically approved at least
annually by (i) the Board of Trustees of the Series, or by the vote of
a majority of the outstanding voting securities of the Series, cast in
person or by proxy, and (ii) a majority of those trustees who are not
parties to this Agreement or interested persons of any such party cast
in
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person at a meeting called for the purpose of voting upon such
approval.
The Agreement may be terminated at any time without the payment of
any penalty, by the Board of Trustees of the Series, by vote of a
majority of the outstanding voting securities of the Series, or by
Distributors, or by JHMLICO as to its obligations hereunder, on sixty
days written notice to the other parties. This Agreement shall
automatically terminate in the event of its assignment. The
termination or amendment of this Agreement shall not affect the
Indemnitors indemnity obligations under Section 6 above with respect
to any claim or dispute arising out of transactions or occurrences
happening prior to said termination or amendment.
The terms "assignment", "vote of a majority of the outstanding
voting securities" and "interested person", when used in this
Agreement, shall have the respective meanings specified in the 1940
Act and rules thereunder.
8. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of
the Commonwealth of Massachusetts and the applicable provisions of the
1940 Act and rules thereunder.
9. MISCELLANEOUS.
No provision of this Agreement may be changed, waived, discharged
or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge
or termination is sought.
Neither Distributors nor JHMLICO shall disclose or use any records
or information obtained hereunder in any manner whatsoever, except as
expressly authorized hereunder, and each shall keep confidential any
information obtained pursuant to its relationship with the Series set
forth herein, and disclose such information only if the Series has
authorized such disclosure, or if such disclosure is expressly
required by appropriate federal or state regulatory authorities.
Distributors and JHMLICO shall furnish state insurance regulatory
authorities with any information or reports in connection with the
services they provide to the Series hereunder which such authorities
may request in order to ascertain whether the variable life insurance
operations of any insurance company are being conducted in a manner
consistent with applicable law or regulations.
10. LIMITATION OF LIABILITY.
It is expressly agreed that the obligations of the Series hereunder
shall not be binding upon any of the trustees, shareholders, officers,
agents or employees of the Series personally, but only bind the trust
property of the Series, as provided in the Series' Declaration of
Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above.
XXXX XXXXXXX VARIABLE SERIES TRUST I
ATTEST:
______________________ By:_________________________________________
Xxxxx X. Xxxx
Chairman
XXXX XXXXXXX DISTRIBUTORS, INC.
ATTEST:
_______________________ By:_________________________________________
Xxxxx X. Xxxxxxx
President
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
ATTEST:
_______________________ By:_________________________________________
Xxxxxx X. Xxxxxxx
Second Vice President
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