EXHIBIT 6(c)
Xxxxxxx Investor Services, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PARTICIPATING CONTRACT AND POLICY AGREEMENT
Dear Sirs:
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 Money Market Portfolio, Managed Bond Portfolio,
Managed Capital Growth Portfolio, Managed Diversified Portfolio, Managed
International Portfolio, Managed Natural Resources Portfolio and the 2010
Managed Zero Coupon Portfolio (individually or collectively hereinafter referred
to as the "Portfolio" or the "Portfolios"). Additional Portfolios 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
beneficial interest ("Shares") of the Portfolios of the Fund. 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; provided, however, that
you shall be our agent in connection with the receipt of purchase orders for
Fund Shares and not in connection with their offer and sale. The relationship
between us shall be further governed by the following terms and conditions:
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 Ohio 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.
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(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-1A with
respect to the Shares (x) 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"), (y) has been filed
with the Commission, and (z) is currently effective. 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 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
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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 prospectus and statement
of additional information 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 prospectus and statement of additional information and in
the above-mentioned supplemental information.
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(d) You are not entitled to any compensation whatsoever from us or
the Fund with respect to offers of Participating Contracts and
Policies.
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.
6. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Shares entirely, as to any person
or generally. We reserve the right to amend this agreement at any
time and you agree that the sale of Participating Contracts and
Policies, after notice of any such amendment has been sent to you,
shall constitute your agreement to any such amendment.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any prospectus and
statement of additional information
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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
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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 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 or any such suit, you
shall reimburse Investor Services and such officers,
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directors or controlling person or persons, defendant of
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,
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 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
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otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of your or his duties 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 to 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 it, 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 it. 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 written notice given to the other party, provided that 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.
13. Any notice hereunder shall be duly given if mailed or telegraphed to
the other party hereto at the address specified below. 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: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Authorized Officer
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned hereby accepts the
offer set forth in the above letter.
CARILLON INVESTMENTS INC.
Dated: 2-18-92 By: /s/ [Illegible]
---------- --------------------------------
Authorized Representative
Address: X.X. Xxx 000
---------------------------
Xxxxxxxxxx, Xxxx 00000
---------------------------
ATTN: Xxxx X. Xxxxxxxx
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