EXHIBIT 10.11
BROKERAGE SERVICES AGREEMENT
SECURITIES BROKERAGE AND SERVICES AGREEMENT
THIS SECURITIES BROKERAGE AND SERVICES AGREEMENT ("Agreement"), is entered into
as of ______________, ____, by and between MML INVESTORS SERVICES, INC., a
Massachusetts corporation ("MMLISI", and ____________________, a __________
_____________________ ("Subscriber").
THE PARTIES AGREE AS FOLLOWS:
1. Effective Date. This Agreement shall bind MMLISI and Subscriber as of the
date set forth above, such date referred to as
the "Effective Date".
2. MMLISI Operations. MMLISI is a registered broker-dealer and, through
its registered representatives (the "MMLISI Representatives", as defined in
Section 8(a)), provides securities brokerage and investment advisory services
all as included in the MMLISI Program (as defined in Section 5), to the general
public, including depositors and other customers of participating financial
institutions. Subscriber desires to become a participating institution.
3. MMLISI Locations. MMLISI's services are provided through MMLISI
branch offices ("Branch Offices") and through the operation of services centers
("MMLISI Centers") located on the premises of participating financial
institutions. As soon as practicable following the Effective Date, and from time
to time during the term of this Agreement, MMLISI and Subscriber shall consult
with each other and use all reasonable efforts to determine the locations at
which MMLISI shall offer the MMLISI Program services to customers of Subscriber.
Such services may be offered through existing MMLISI Branch Offices and, at the
request of Subscriber, at MMLISI Centers located on the premises of the
Subscriber. Where requested, MMLISI shall use all reasonable efforts
expeditiously to open and operate MMLISI Centers at such locations as may from
time to time be designated by Subscriber and approved by MMLISI, which approval
shall not be unreasonably withheld. At Subscriber's request and with MMLISI's
approval, which approval shall not be unreasonably withheld, MMLISI shall
transfer any MMLISI Center then being operated at any of Subscriber's locations
to a different location. Subscriber is not granted exclusive rights in any
territory or location. MMLISI may enter into agreements with other participating
institutions and operate MMLISI Centers at any other locations selected by
MMLISI and other participating institutions.
4. Subscriber's Obligations. Subscriber shall use all reasonable efforts to
cooperate with MMLISI to do all acts and things required by this Agreement to be
done by Subscriber, and to permit MMLISI to offer the MMLISI Program services to
customers of Subscriber and, where requested, to open and operate the MMLISI
Centers in accordance with the terms of this Agreement.
5. MMLISI Program. The MMLISI Program consists of the following services which
MMLISI shall provide:
(a) Broker and Clearing Services.
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(1) MMLISI shall make available to Subscriber properly trained MMLISI
Representatives to assist depositors and other customers of Subscriber
(hereinafter referred to as "Program Customers") with various investment
activities. In addition, MMLISI will provide properly trained individuals who
are registered with the National Association of Securities Dealers Inc. ("NASD")
as principals (the "Supervisory Principals") to assist and supervise all MMLISI
Representatives and the Supervisory Principals shall have access to a toll-free
telephone line maintained by MMLISI for use in connection with the MMLISI
Program.
(2) MMLISI Representatives at MMLISI Branch Offices and MMLISI Centers
operated at Subscriber's locations will solicit and promptly transmit orders for
the purchase and sale of "Securities" as agent for Program Customers. For
purposes of this subparagraph, the term "Securities" shall have the meaning set
forth in section 3(a)(10) of the Securities Exchange Act of 1934, as amended
(the "Act"), but shall not include securities of Subscriber or any entity
affiliated with Subscriber.
(3) MMLISI, as an introducing broker-dealer, may retain one or more
clearing brokers to provide customers with such confirmations and account
statements as are customarily provided by clearing brokers, maintain such books
and records as are customarily maintained by clearing brokers and perform such
billing, collections, and other services as are customarily performed by
clearing brokers.
(4) Securities which may be sold by MMLISI Representatives through the
MMLISI Program may include mutual funds; unit investment trusts; corporate,
government or municipal bonds; stocks; variable annuities; variable life
insurance contracts; and other investment products and instruments. Subscriber
shall have no involvement in MMLISI's selection of products to offer through the
MMLISI Program.
(5) MMLISI will provide, or arrange for the provision of,
confirmations to all Program Customers for all transactions effected through the
MMLISI Program.
(6) Registered representatives of MMLISI shall, in connection with and
incidental to the brokerage services provided hereby, provide investment advice
and recommendations to Program Customers in accordance with each customer's
suitability profile and investment goals.
(b) Insurance Services. MMLISI Representatives at MMLISI Branch Offices and
MMLISI Centers operated at Subscriber's locations will, subject to applicable
state insurance laws and regulations, execute purchases and sales of certain
insurance products, which are securities, as agent for Program Customers.
(c) Investment Advisory Services. MMLISI Representatives at MMLISI Branch
Offices and MMLISI Centers operated at Subscriber's locations will make
available to Program Customers various fee-based investment advisory services
including, but not limited to, wrap-fee programs and financial planning. Any
Revenue Sharing Payments (as described in Section 7) made in connection with
investment advisory services shall be made consistent with the requirements of
Rule 206(4)-3 under the Investment Advisers Act of 1940 ("Advisers Act") in
accordance with Schedule 1 attached to this agreement. In this regard,
Subscriber shall perform its duties under this Agreement in a manner consistent
with the policies and procedures and instructions of MMLISI and the provisions
of the Advisers Act. Subscriber shall provide to any Program Customer seeking
investment advisory services, such disclosure documents as MMLISI shall direct.
(d) Marketing, education research and technical assistance services. MMLISI
will provide:
(1) advice and assistance regarding, and review and approval of,
Subscriber-sponsored advertising and promotion of the MMLISI Program and general
marketing assistance;
(2) compliance and procedure manuals for the operation of the MMLISI
Program;
(3) advice and assistance regarding the selection of Subscriber's
locations, if any, at which MMLISI shall open and operate MMLISI Centers;
(4) advice and assistance regarding the placement and setup of any
MMLISI Centers at Subscriber's locations;
(5) advice and assistance regarding the furnishings and design of any
MMLISI Centers;
(6) monitoring of compliance at the MMLISI Branch Offices and any
MMLISI Centers with applicable laws, rules and regulations and with MMLISI's
manuals, rules, procedures and instructions; and
(7) monitoring of relevant laws, rules and regulations affecting the
MMLISI Program and the operation of the MMLISI Branch Offices and any MMLISI
Centers at Subscriber's locations.
(8) MMLISI shall make available to the MMLISI Representatives
participating in the MMLISI Program various sales materials, advertising
templates, marketing brochures, and other promotional items which can be used to
promote the MMLISI Program.
(e) Reports. MMLISI shall periodically provide to Subscriber certain
reports, the form, content and frequency of which shall be determined by the
mutual agreement of MMLISI and Subscriber. Such reports may include a list of
all customer complaints involving Program Customers and their resolution. Other
reports to be provided to Subscriber by MMLISI may include:
(1) sales reports; and
(2) reports of internal compliance reviews of Program Customer
accounts originated at MMLISI Branch Offices and any MMLISI Centers.
In rendering services pursuant to this Agreement, MMLISI and the MMLISI
Representatives shall comply with all applicable state and federal laws and
regulations, and will act consistently with the provisions of the Interagency
Statement on Retail Sales of Nondeposit Investment Products dated February 15,
1994 (the "Interagency Statement"), including the provisions of the Interagency
Statement relating to customer disclosures, all rules, regulations, directives,
and policy statements issued by state regulators having authority over the
business and operations of the Subscriber, MMLISI and/or the MMLISI
Representatives, and such other applicable regulatory directives as may be
issued, amended or supplemented from time to time. Subscriber is hereby
authorized to monitor MMLISI and the MMLISI Representatives and periodically
review and verify that MMLISI and the MMLISI Representatives are complying with
this Agreement. Nothing in this Section 5 shall be construed as creating an
obligation on the part of Subscriber to monitor such activities for the benefit
of MMLISI.
6. Modification of MMLISI Program. MMLISI may modify the MMLISI Program from
time to time for the intended purpose of (i) meeting applicable regulatory
requirements, or (ii) making the MMLISI Program more effective, efficient,
economical or competitive, offering additional services, adapting to new
technology or conditions, or enhancing the reputation or public acceptance of
the MMLISI Program; provided that if any modification described in the preceding
clause (ii) may materially and adversely affect the amount of Revenue Sharing
Payments payable to Subscriber hereunder or the operation of any MMLISI Center
established or to be established at Subscriber's locations, such modification
shall not be effected without Subscriber's approval.
7. Revenue Sharing Payments.
(a) MMLISI shall make payments to Subscriber with respect to all securities
transactions which result from referrals to MMLISI by employees of Subscriber or
occur at, or are attributable to, the MMLISI Centers operated at Subscriber's
locations ("Revenue Sharing Payments"), in accordance with Schedule 1 attached
to this Agreement. Notwithstanding the above, MMLISI shall not be obligated to
make any Revenue Sharing Payment to Subscriber with respect to any such
securities transaction involving a securities/insurance product unless and until
the payment of such Revenue Sharing Payments is permissible under the applicable
insurance laws and regulations of the state in which Subscriber is doing
business. Revenue Sharing Payments represent payment for services provided to
MMLISI by Subscriber under this Agreement and payment for the lease of the
facilities and equipment of Subscriber required for the operation of any MMLISI
Centers. MMLISI shall notify Subscriber not less than 30 days in advance of any
reduction in any percentage used to calculate Revenue Sharing Payments, which
reduction shall take effect on the date specified in such notice; provided,
however Subscriber may terminate this Agreement by giving written notice of
termination to MMLISI following MMLISI's notice of any such reduction in any
percentage used to calculate Revenue Sharing Payments. If Subscriber gives such
notice of termination to MMLISI, this Agreement will terminate 30 days following
MMLISI's receipt of such notice and MMLISI shall not reduce any percentage used
to calculate Revenue Sharing Payments payable to Subscriber prior to such
termination.
(b) MMLISI reserves the right to deduct from Revenue Sharing Payments an
amount equal to the total of all costs, expenses, charges and fees, if any,
payable by Subscriber to MMLISI pursuant to this Agreement as the result of the
failure of any Program Customer referred by Subscriber or at a MMLISI Center
operated at any of Subscriber's locations to meet any obligation to deliver any
funds or securities or to meet any other obligation pursuant to MMLISI's
agreement to perform securities brokerage and insurance services for such
person; provided that with respect to any loss, cost or expenses described in
the preceding clause and subject to Section 7(c) hereof, MMLISI shall only
deduct such losses, costs and expenses from Revenue Sharing Payments in the
month incurred (MMLISI shall not carry back or carry over such losses, costs and
expenses should the amount to be deducted exceed the current Revenue Sharing
Payment). MMLISI shall use such efforts as are customary in the securities
brokerage and insurance business to mitigate such losses, costs or expenses
prior to deducting any amount form a Revenue Sharing Payment. In addition,
nothing in this Section 7(b) shall be interpreted as creating any obligation
whatsoever on the part of Subscriber to pay MMLISI for losses, costs and
expenses; it being the intention of the parties that MMLISI merely have the
right to deduct such losses, costs and expenses from current Revenue Sharing
Payments payable to Subscriber.
(c) In addition to the rights of MMLISI to deduct amounts form Revenue
Sharing Payments as set forth above in Section 7(b), MMLISI shall, with respect
to any and all securities transactions involving a securities/insurance product
sale to Program Customers referred by Subscriber or at MMLISI Centers operated
at any of Subscriber's locations, have the right to deduct from Revenue Sharing
Payments an amount equal to the total of all charge-backs for canceled or
adjusted sales of securities/insurance products and all charges for early
surrender of securities/insurance products (hereinafter referred to,
collectively, as "Chargeback and Surrender Payments"); provided that MMLISI
shall only deduct such Chargeback and Surrender Payments from Revenue Sharing
Payments in the month incurred and from Revenue Sharing Payments due Subscriber
thereafter (MMLISI may carry over, but shall not carry back, any of such
Chargeback and Surrender Payments should the amount deducted exceed the current
Revenue Sharing Payment).
(d) In the event that Subscriber or MMLISI terminates this Agreement, then
MMLISI shall be entitled to retain an amount (the "Holdback Amount") from all
Revenue Sharing Payments due Subscriber following the delivery or receipt by
MMLISI, as applicable, of the termination notice. The Holdback Amount shall be
in an amount which, in MMLISI's sole judgment, reasonably approximates all
Chargeback and Surrender Payments which are expected to arise in connection with
sales of securities/insurance products by MMLISI Representatives to MMLISI
Customers referred by Subscriber or at MMLISI Centers operated at Subscriber's
locations. MMLISI shall maintain the Holdback Amount in a non-interest bearing
account for a period to be determined by MMLISI in its sole discretion (the
"Holdback Period"), which Holdback Period shall not be more than four months.
During the Holdback Period, MMLISI shall be entitled to deduct from the Holdback
Amount all actual Chargeback and Surrender Payments as they occur. At the end of
the Holdback Period, MMLISI shall pay over to Subscriber the remaining portion,
if any, of the Holdback Amount. In no event shall MMLISI be entitled to collect
from Subscriber any Chargeback and Surrender Payments which, alone or in the
aggregate, exceed the Holdback Amount.
(e) MMLISI shall use such efforts as are customary in the insurance
business to mitigate all Chargeback and Surrender Payments prior to deducting
such amount from a Revenue Sharing Payment pursuant to Sections 7(c) or 7(d)
hereof. In addition, nothing in Sections 7(c) or 7(d) shall be interpreted as
creating any obligation whatsoever on the part of Subscriber to pay MMLISI for
Chargeback and Surrender Payments described in Sections 7(c) or 7(d) of this
Agreement; it being the intention of the parties that MMLISI merely has the
right to deduct Chargeback and Surrender Payments from Revenue Sharing Payments
payable to Subscriber.
(f) Subject to Section 7(d) above, MMLISI shall make Revenue Sharing
Payments to Subscriber in accordance with MMLISI's standard commission payment
schedule with respect to all securities transactions settled through the
Settlement Date (as defined below) for the immediately preceding period. For
purposes of this paragraph, Settlement Date shall mean the date on which MMLISI
closes its books and records for a particular period with respect to the Program
Customer accounts referred by Subscriber or opened through the MMLISI Centers at
Subscriber's locations. Each Revenue Sharing Payment shall be accompanied by a
complete record of transactions and, if applicable, an accounting of any losses,
costs, expenses, charges or fees incurred by Subscriber and deducted from such
Revenue Sharing Payment.
8. MMLISI Representatives.
(a) Defined. At the MMLISI Branch Offices and any MMLISI Centers operated
at Subscriber's locations, securities transactions shall be effected only by
registered representatives of MMLISI who shall be registered and qualified with
the Securities and Exchange Commission, National Association of Securities
Dealers, Inc. and appropriate state securities regulators. Securities
transactions involving securities/insurance products shall be effected only by
representatives of MMLISI who are licensed to sell such insurance products under
the applicable insurance laws and regulations of the state in which Subscriber
does business. Investment advisory services shall be provided only by
representatives of MMLISI who are affiliated with MMLISI's Corporate RIA and are
appropriately licensed under applicable laws and regulations. Such persons are
referred to in this Agreement as "MMLISI Representatives".
(b) Training and Compensation. MMLISI will, at no cost to Subscriber,
recruit, train, test, compensate and provide ongoing sales management and
continuing education of, MMLISI Representatives. Compensation paid by MMLISI to
MMLISI Representatives will include commissions and, if applicable, investment
advisory fees.
(c) Control by MMLISI. MMLISI shall exercise exclusive control and
direction of the MMLISI Representatives and their conduct shall be governed in
all respects by MMLISI's compliance and procedure manuals and all other manuals,
procedures, rules and instructions of MMLISI, and by applicable laws, rules and
regulations, all as in effect from time to time. Subscriber shall strictly honor
such control relationship and shall not have any involvement whatsoever in any
of the services performed by the MMLISI Representatives.
Notwithstanding the foregoing, nothing in this Section 8(c) shall be
construed as preventing the Subscriber from conducting compliance reviews and
audits with respect to (and otherwise monitoring) the activities of the MMLISI
Representatives and other MMLISI
employees at any MMLISI Centers for purposes of compliance with the directives
of applicable regulatory agencies and any Subscriber policies adopted pursuant
to such regulatory directives.
(d). Discipline. The MMLISI Representatives shall be subject to discipline
by MMLISI and by various federal and state regulatory authorities, securities
exchanges, clearing corporations or associations, associations of brokers and
dealers and certain other entities having jurisdiction over the operation of the
MMLISI Branch Offices, any MMLISI Centers and the conduct of the MMLISI
Representatives. Subscriber shall report to MMLISI any violation of any law,
rule or regulation or of any of MMLISI's standards of conduct or procedures for
MMLISI Representatives of which Subscriber has knowledge or substantial
suspicion, provided that Subscriber shall have no obligation to MMLISI or others
to monitor such conduct or procedures. Subscriber shall transmit any such report
to MMLISI in a manner calculated to give MMLISI immediate notice of any such
violation and shall promptly thereafter confirm any such report in writing to
MMLISI's compliance officer.
9. Subscriber Employees.
(a) Support Services. Subscriber shall provide reception, secretarial, and
support services for the MMLISI Program reasonably satisfactory to MMLISI.
MMLISI and Subscriber shall agree from time to time on the level of support
services by Subscriber's employees necessary to support the MMLISI Program.
(b) Limited activities. Employees of Subscriber may distribute promotional
literature regarding the MMLISI Program, direct persons to MMLISI
Representatives and provide certain other limited types of information and
assistance of a clerical or ministerial nature, such as filling literature
racks, making appointments, or directing customers to MMLISI Representatives,
but may not engage in any investment or insurance-related activities on behalf
of MMLISI. Employees shall not recommend any securities or securities/insurance
product, give any form of advice, or discuss the merits of any securities or
securities/ insurance product with a customer. Subscriber's employees shall
provide to each customer who is referred to the MMLISI Representatives such
written disclosures as may be directed by the MMLISI Representatives. Subscriber
shall adopt policies and procedures governing the limited activities of its
employees in this regard and shall monitor the activities of and cause
compliance by, Subscriber's employees with the terms of this Agreement and
Subscriber's policies and procedures. Subscriber shall report to MMLISI in the
manner set forth in Section 8(d) any violations of such standards of conduct of
which Subscriber has knowledge or substantial suspicion.
(c) Training. MMLISI shall make materials available to assist Subscriber in
training Subscriber's employees regarding standards of conduct and permissible
activities in connection with the MMLISI Program. Subscriber shall make
Subscriber's employees available from time to time to participate in such
training.
10. Restrictions.
(a) Solicitation of Customers. MMLISI and Subscriber expressly acknowledge
and agree that the relationships which Subscriber has with its customers are key
assets of Subscriber
and, that by reason of this Agreement, MMLISI and the MMLISI Representatives
will have special and unique access and will occupy a special and unique
position with respect to Subscriber. Accordingly, MMLISI agrees and warrants
that, during the period in which MMLISI Representatives are participating in the
MMLISI Program with the Subscriber and for two years after the termination of
such participation, MMLISI and the MMLISI Representatives and their affiliates
shall not, either directly or indirectly, or as an agent or shareholder of any
corporation or other business, or member of any firm, or participant of any
venture without the express written consent of Subscriber (i) induce any Program
Customer to terminate his or her contract for securities brokerage and
investment advisory services with Subscriber or any agent or representative of
Subscriber, or their affiliates, or (ii) Solicit the business of any Program
Customer to participate in the MMLISI Program. MMLISI expressly acknowledges
that the foregoing limitation is reasonable and properly required for the
adequate protection of Subscriber's business.
(b) Restrictions on Employment. MMLISI and Subscriber expressly acknowledge
and agree that the relationships which MMLISI has with the MMLISI
Representatives are key assets of MMLISI and, that by reason of this Agreement,
Subscriber will have special and unique access and will occupy a special and
unique position with respect to MMLISI Representatives. Accordingly, Subscriber
agrees and warrants that, during the period in which a MMLISI Representative is
participating in the MMLISI Program with the Subscriber and for two years after
the termination of such participation, Subscriber and its affiliates shall not,
either directly or indirectly, on behalf of Subscriber, or on behalf of any of
the Subscriber's affiliates, or as an agent or shareholder of any corporation or
other business, or member of any firm, or participant of any venture, (i) induce
any MMLISI Representative to terminate his or her contract with MMLISI or its
affiliates, or (ii) engage, hire, employ or solicit the employment of any MMLISI
Representative. Subscriber expressly acknowledges that the foregoing limitation
is reasonable and properly required for the adequate protection of MMLISI's
business.
The foregoing Section 10(b) shall not apply in the event this Agreement is
terminated as a result of breach of this Agreement by MMLISI or any MMLISI
Representative, or their affiliates; the termination of this Agreement due to a
modification of the MMLISI Program under Section 6; or the reduction in any
percentage used to calculate Revenue Sharing Payments under Section 7.
11. Hours of operation. Each MMLISI Branch Office shall be open for
business during all New York Stock Exchange trading hours. Each MMLISI Center,
if any, shall be open for business during such hours as Subscriber and MMLISI
mutually agree. MMLISI Representatives located at MMLISI's Branch Office will be
available by telephone to provide securities brokerage services and insurance
services to MMLISI Customers during all New York Stock Exchange trading hours,
whether or not any MMLISI Center is then open for business and any securities
transactions thus effected will be attributed to the appropriate MMLISI Center.
12. Separation of Business. Subscriber shall, to the extent required by
applicable laws and regulations, maintain strict and total separation of its
business from the business conducted at any MMLISI Center, including separation
of records and of physical facilities, and shall conduct its business at all
times so as not to lead to confusion between the business conducted by
Subscriber and the business conducted by MMLISI through the operation of the
MMLISI Centers. MMLISI agrees to do the same. Subscriber agrees to be bound by,
and to comply in all respects with, the MMLISI Supervisory Manual, as it may be
modified or supplemented from time to time to ensure compliance with applicable
laws, current copies of which MMLISI has provided or will provide to Subscriber
and which, as it may be modified or supplemented from time to time, is
incorporated in and made a part of this Agreement.
No MMLISI Representative shall engage in any activity that would cause a
Program Customer reasonably to believe that MMLISI is engaged in the banking
business or that Subscriber in engaged in the securities business.
Each MMLISI Representative shall, both verbally and in writing, inform each
Program Customer that the MMLISI Program is being offered by MMLISI, and not by
Subscriber, that the MMLISI Program's products are not federally insured, are
not deposits of Subscriber, are not obligations of Subscriber, are not
guaranteed by Subscriber; that the products are subject to investment risks,
including fluctuations in value and earnings and possible loss of principal
banking service or activity. Each MMLISI Representative shall obtain a written
acknowledgment of the foregoing disclosures from each Program Customer who opens
an account with MMLISI.
13. Access.
(a) MMLISI's supervisory personnel and representatives of state and federal
regulatory authorities and of any other entity having jurisdiction over the
operation of any MMLISI Centers and the conduct of the MMLISI Representatives
shall have access during Subscriber's business hours to the MMLISI Centers, to
all records maintained in connection with the operation of the MMLISI Centers
and to the MMLISI Representatives and their personnel records.
(b) Subscriber and any federal or state regulatory authority having
jurisdiction over Subscriber are hereby authorized to have access to such
records of MMLISI as are necessary to evaluate MMLISI's and the MMLISI
Representatives' compliance with all applicable laws, regulations and
directives, the Interagency Statement, and this Agreement.
14. Subscriber Costs and Expenses. Subscriber shall be directly responsible
for the costs and expenses associated with the following items incurred by
Subscriber in connection with the MMLISI Program and the operation of any MMLISI
Centers at Subscriber's locations:
(a) Salary and benefits of Subscriber's employees;
(b) Production and printing of all Subscriber-sponsored advertising and
promotion; including any and all promotions by the subscriber of the MMLISI
Program that are specific to Subscriber and all stationery and business cards
furnished to any MMLISI Center;
(c) all furnishings, accessories and equipment utilized in any MMLISI
Center, including telephone and other operating equipment; and
(d) attorneys fees for counsel retained by Subscriber to analyze federal
and state banking and insurance laws regarding the retail sale of nondeposit
investment and securities/insurance products on Subscriber's premises;
Subscriber shall pay all reasonable costs and expenses set forth in this
Section 14 directly to third-party vendors or to MMLISI. In any MMLISI Centers
located at Subscriber's locations, Subscriber shall permit the use only of
furnishings, furniture, fixtures and materials from time to time purchased by
Subscriber shall remain at all times the property of Subscriber and may be
retained by Subscriber upon the termination of this Agreement.
15. MMLISI Costs and Expenses. MMLISI shall be directly responsible for the
following costs and expenses in connection with the MMLISI Program and the
operation of any MMLISI Centers:
(a) MMLISI-sponsored advertising and promotion of the MMLISI Program;
(b) all costs associated with the operation of MMLISI Branch Offices;
(c) all costs associated with the recruitment, training, qualification and
employment by MMLISI of the MMLISI Representatives and all employees of MMLISI;
and
(d) all costs associated with compliance activities and supervision of
MMLISI Representatives.
16. Advertising and Promotion. Subscriber shall be responsible for the
promotion of the MMLISI Program. MMLISI shall advise and
assist Subscriber in the promotion of the MMLISI Program. From time to time,
solely in its discretion, MMLISI, at its own cost, may promote the MMLISI
Program. Nothing herein obligates MMLISI or Subscriber to conduct any media
advertising.
Advertising, direct mail, MMLISI marketing material and other publicity
regarding the MMLISI Program shall be prepared by MMLISI, or by Subscriber with
the advice and assistance of MMLISI, or, in the case of material relating to a
specific MMLISI product, by the issuer thereof. MMLISI or the issuer, as the
case may be, shall be responsible for ensuring that all materials conform to
applicable federal and state securities laws and regulations. MMLISI may use
Subscriber's name and/or its affiliate's name only to identify the locations
where information regarding the MMLISI Program may be obtained. All advertising
and promotional materials shall make it clear that Subscriber is not a
registered broker-dealer, that the customer will be dealing solely with MMLISI,
that MMLISI is not affiliated with Subscriber or its affiliates and that the
products offered are not federally insured or obligations of Subscriber.
All costs incurred in connection with the preparation, printing, and
distribution of advertising and promotional materials, including (but not
limited to) direct mail, lobby posters, account solicitation cards, materials
distributed at seminars and public relations materials, regarding the promotion
of the MMLISI Program, whether initially proposed by Subscriber or
MMLISI, shall be paid for solely by Subscriber; provided that Subscriber shall
have sole discretion as to whether to incur these costs. Subscriber shall not be
obligated to pay any cost or expense unless an authorized officer of Subscriber
has given prior written approval of the costs. In connection with any efforts to
advertise and promote the MMLISI Program and any MMLISI Centers operated at
Subscriber's locations, MMLISI may use Subscriber's name, or the name of any
entity that controls Subscriber, may identify Subscriber's locations at which
MMLISI Centers are located, and may, with the prior approval of Subscriber,
which approval shall not be unreasonably withheld, interview Subscriber's
officers and employees and use any quotations obtained from such persons.
Subscriber shall secure MMLISI's prior written approval of all advertising and
promotional materials, if any, prepared by or on behalf of Subscriber which
mention MMLISI or the MMLISI Program. All such advertising and promotional
materials shall make it clear that the MMLISI Program is provided by MMLISI and
not by Subscriber or any affiliates of Subscriber.
17. Bankruptcy, changes in control, etc. Any party hereto (the "Defaulting
Party") shall give the other party prompt written notice in the event that such
Defaulting Party (i) liquidates or is dissolved; (ii) makes an assignment for
the benefit of creditors, becomes insolvent or is unable to pay its debts as
they mature, files a voluntary petition for bankruptcy or a petition, answer or
consent seeking reorganization or readjustment of its indebtedness under
applicable bankruptcy or insolvency laws, consents to the appointment of a
receiver, sequestrator or trustee for all or a substantial party of its property
or takes corporate or other action for the purpose of effecting any of the
foregoing; (iii) has filed against it a petition for proceeding in bankruptcy or
for its reorganization or for the readjustment of its indebtedness under
applicable bankruptcy or insolvency laws or has a receiver, sequestrator or
trustee appointed for it or for all or a substantial party of its property; or
(iv) merges, consolidates or reorganizes in a transaction in which the
Defaulting Party is not the surviving entity, sells, its assets or experiences a
transfer to any person or group of 25% or more of its outstanding equity
interest. The party other than the Defaulting Party shall have the right to
terminate this Agreement upon the happening of any such event.
18. Term. This Agreement shall have an initial term of two years and shall
continue thereafter until either party shall terminate this Agreement pursuant
to Section 19(a).
19. Termination; suspension.
(a) Neither Subscriber nor MMLISI shall have the right to terminate this
Agreement, except pursuant to Section 7(a), 19(b), 19(c) or 19(d) hereof,
without first providing thirty (30) days prior written notice to the other
party.
(b) Either Subscriber or MMLISI (the "Declaring Party") may immediately
suspend performance under this Agreement, and may thereafter terminate this
Agreement pursuant to the procedures set forth in this Section 19(b), in the
event of breach by the other party (the "Breaching Party") of any material
representation or in the performance of any material agreement made by the
Breaching Party under this Agreement. The Declaring Party shall promptly notify
the Breaching Party of the grounds for any such suspension. The Breaching Party
shall have ten days following such notice to resolve the matter(s) specified
therein to the
Declaring Party's satisfaction prior to any termination of this Agreement. In
the event that the Breaching Party fails to resolve any such matter(s) within
the prescribed time and the Declaring Party does not agree in writing to extend
the period of resolution of any such matter(s), the Declaring Party may
terminate this Agreement upon the expiration of such 10-day period.
(c) MMLISI may terminate this Agreement at any time, upon written notice to
Subscriber, if Subscriber or any entity controlling Subscriber, directly or
indirectly, offers or makes available securities brokerage services, insurance
services or securities investment advisory products or services that MMLISI,
after careful consideration and following consultation with Subscriber,
reasonably deem to be detrimental to the operation of the MMLISI Program.
(d) Subscriber may terminate this Agreement at any time, upon written
notice to MMLISI, in the event that the Securities and Exchange Commission or
any other governmental agency or authority, by reason of a change in policy or
other factors outside of Subscriber's control, requires Subscriber to register
as a broker-dealer or determines Subscriber's execution of this agreement, or
performance thereunder, is not authorized by or is in violation of applicable
laws or regulations.
(e) In the event that MMLISI or Subscriber terminates this Agreement: (i)
Subscriber shall immediately cease representing itself as a Participant in the
MMLISI Program, discontinue use of all MMLISI's materials and all materials
bearing MMLISI's name, logo or servicemark, return to MMLISI any equipment,
signs, materials, furnishings and supplies purchased by MMLISI and promptly
remove MMLISI's name, logo or servicemark from any such items purchased by
Subscriber, and (ii) Subscriber shall return to MMLISI all MMLISI records
relating to Program Customers, all of MMLISI's procedures and compliance manuals
and all of MMLISI's forms and documents, and shall so certify in writing to
MMLISI within ten days of the date of termination.
(f) In the event that this Agreement is terminated as provided for herein
and Subscriber wishes to make the service of another securities broker-dealer
available to its customers, MMLISI shall provide reasonable assistance to
Subscriber to facilitate the orderly transfer to such broker-dealer of the
accounts of Program Customers established through referrals by Subscriber or at
the MMLISI Centers operating at Subscriber's locations and shall otherwise
cooperate with Subscriber to achieve a smooth transition to such other brokerage
service or insurance agency.
(g) In the event that this Agreement is terminated as provided for herein
and Subscriber does not wish to make services of another securities
broker-dealer or insurance agency available to its customers, all Subscriber
customer accounts with MMLISI shall remain with MMLISI and control of such
accounts shall not be transferred to any other broker-dealer or insurance agency
except as shall be directed by written customer request.
20. Additional Representations and Warranties of Subscriber. Subscriber
represents and warrants to MMLISI that, subject to any future regulatory orders
or agreements, (i) Subscriber has full legal right, power and authority to enter
into and perform this Agreement; (ii) Subscriber
is a "bank" as defined in ss. 3(a)(6) of the Act and in ss. 202(a)(2) of the
Advisers Act, and Subscriber recognizes that the SEC has taken the position that
neither a federal savings bank nor a federal savings and loan association is a
"bank" for purposes of these sections of the Act and Advisers Act, and that a
subsidiary of a bank is not a bank for purposes of these provision; (iii) this
Agreement has been duly authorized, executed and delivered by Subscriber and
constitutes the legal, valid and binding agreement of Subscriber; (iv) no
consent, approval, authorization or order of any governmental agency or
authority, except those disclosed to MMLISI in writing by Subscriber, is
required to be obtained by Subscriber in connection with the transactions
contemplated by this Agreement on the part of Subscriber to be performed; and
(v) if Subscriber will received compensation based on Investment Advisory
Services provided to Program Customers, Subscriber, its officers, directors,
employees, affiliates, and agents are not subject to disqualification by Rule
206(4)-3 under the Advisers Act.
21. Representations and Warranties of MMLISI. MMLISI represents and warrants
to Subscriber that: (i) MMLISI has full legal right, power and authority to
enter into and perform this Agreement; (ii) this Agreement has been duly
authorized, executed and delivered by MMLISI and constitutes the legal, valid
and binding agreement of MMLISI; and (iii) no additional consent, approval,
authorization or order of any governmental agency or authority (except for any
consent or approval required by applicable state securities or insurance laws
which consent or approval MMLISI shall obtain prior to the establishment of a
MMLISI Center) is required to be obtained by MMLISI or the MMLISI
Representatives in connection with the MMLISI Program, the operation of the
MMLISI Branch Offices or any MMLISI Centers at Subscriber's locations, and the
other transactions contemplated by this Agreement on the part of MMLISI or the
MMLISI Representatives to be performed.
22. Confidentiality. The parties hereto shall keep confidential any information
regarding the business and affairs to another party which it may acquire as a
result of this Agreement and which is not otherwise generally available to the
public, which requirement shall survive the term of this Agreement. Without
limiting the generality of the foregoing, MMLISI shall not sell, give or
otherwise disclose to any third party, without the prior written consent of
Subscriber, any list of Program Customers referred by Subscriber or with
accounts established at a MMLISI Center operated at any of Subscriber's
locations, except in response to a demand therefore by any Federal, State or
local court, governmental agency or regulatory authority or as otherwise
required by law.
23. Notices. All notices, requests, approvals, consents or other communications
required or permitted to be delivered hereunder shall be in writing, delivered
personally or forwarded by certified mail, postage prepaid, to the address set
forth below and shall be deemed duly given when so personally delivered or three
business days after the date of deposit in a mail box or other U.S. Postal
service depository outside the control of the sender. The parties hereto may
from time to time designate in writing any other address to which such notices,
requests and other communications shall be sent. Until any such change, such
notices, requests and other communications shall be sent to the address set
forth on the final page of this Agreement.
24. Approval of Government Authorities. This Agreement and the respective
obligations of the parties hereto (other than pursuant to the last sentence of
this Section 24) are conditioned
upon the acquisition by Subscriber of any consents, approvals, authorizations or
orders disclosed to MMLISI by Subscriber pursuant to Section 20 and upon
MMLISI's acquisition of any consent or approval required by applicable state
securities or insurance laws. MMLISI and Subscriber shall cooperate with each
other in obtaining all governmental approvals necessary to the commencement and
operation of the MMLISI Centers at Subscriber's locations and shall furnish the
other party with any such information and documents as such party may reasonably
request in connection with the acquisition of such approvals.
25. Arbitration. Other than any equitable relief as provided for in
Section 27(b), any controversy between MMLISI and Subscriber arising out of or
relating to this Agreement, or the breach thereof, shall be resolved by
arbitration in accordance with the rules then in effect of the National
Association of Securities Dealers, Inc. or, if such controversy is not
arbitrable pursuant to the rules of such exchange, in accordance with the rules
then in effect of the American Arbitration Association. It is hereby understood
and agreed that the decision of any such arbitrator shall be based upon the
terms and conditions of this Agreement, as set forth herein.
26. Indemnification.
(a) Subscriber shall indemnify and hold harmless MMLISI and each person who
controls MMLISI within the meaning of Section 20(a) of the Act, as amended,
against any and all losses, claims, damages, liabilities, actions, costs or
expenses, joint or several, to which MMLISI may become subject (including any
legal or other expenses reasonably incurred by it in connection with
investigating any claim against it and defending any action and any amounts paid
in settlement or compromise, provided Subscriber shall have given its prior
written approval of such settlement or compromise), insofar as such losses,
claims, damages, liabilities, actions, costs or expenses arise out of or result
from (i) the negligent, reckless or intentional act or omission of any employee
or agent of Subscriber, or (ii) Subscriber's improper use of a name, trade name,
service xxxx or the like in conjunction with the MMLISI Program, as described in
Section 15 hereof.
Notwithstanding the foregoing, nothing in this Section 26(a) shall be
construed as creating an indemnification obligation in relation to Subscriber's
actions or inactions in reviewing or monitoring the activities of the MMLISI
Representatives or other MMLISI employees or with respect to any duties relative
to the notification requirements set forth in Section 8(c) of this Agreement.
(b) MMLISI shall indemnify and hold harmless Subscriber and each person who
controls Subscriber within the meaning of Section 20(a) of the Act, as amended,
against any and all losses, claims, damages, liabilities, actions, costs or
expenses, joint or several, to which such indemnified party may become subject
(including any legal or other expenses reasonably incurred by it in connection
with investigating any claim against it and defending any action and any amounts
paid in settlement or compromise, which approval shall not be unreasonably
withheld, provided MMLISI shall have given its prior written approval of such
settlement or compromise), insofar as such losses, claims, damages, liabilities,
actions, costs or expenses arise out of or result from any act or omission to
act of (i) any MMLISI Representative, or (ii) any employee or agent of MMLISI.
(c) Promptly after receipt by an indemnified party under this Section 26 of
notice of any claim or the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 26, notify the indemnifying party in writing of such claim or
the commencement of such action. The indemnification is conditioned upon timely
receipt of such written notice. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, as provided herein, the indemnifying party will be entitled to
participate therein and, to the extent that it may elect by written notice to
the indemnified party, to assume the defense thereof. Upon receipt by the
indemnified party of notice from the indemnifying party of such indemnifying
party's election to assume the defense of such actions such indemnifying party
will cease to be liable to such indemnified party under Section 26 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof.
27. Miscellaneous.
(a) This Agreement constitutes the entire understanding of the parties with
respect to its subject matter. This Agreement may be amended only in writing
signed by the parties. The parties hereto may not assign this Agreement without
the prior written consent of the other parties. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by and against, the successors
and permitted assigns of each of the parties.
(b) The parties hereto shall not use any servicemark, trade name or
trademark of the other party hereto without the prior written consent of such
other party, except for the use by MMLISI of any trade name, trademark,
servicemark or logo used in connection with the MMLISI Program. The parties
hereto recognize and acknowledge that failure by any of them to comply with the
provisions of this Agreement regarding permitted use by such party of the other
party's name, logo or servicemark may result in damage to such other party for
which monetary damages would be inadequate. The parties therefore agree that
they shall be entitled to specific performance of the other party's obligations
pursuant to such provisions.
(c) Neither party hereto shall be liable to the other party for punitive,
special, indirect or consequential damages arising out of any breach of their
obligations under this Agreement, other than their obligation to indemnify the
other party pursuant to Section 26 of this Agreement.
(d) Neither Subscriber nor MMLISI shall hold itself out as an agent, joint
venturer or partner of the other or of any of the subsidiaries or companies
controlled directly or indirectly by or affiliated with the other.
(e) The captions of the paragraphs and subparagraphs of this Agreement
shall not affect their interpretation.
(f) In the event that any court of competent jurisdiction declares invalid
any provision of this Agreement, such invalidity shall have no effect on the
other provisions hereof,
which shall remain valid and binding and in full force and effect, and to that
end the provisions of this Agreement shall be considered severable.
(g) This Agreement has been accepted by MMLISI in, and shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, MMLISI and Subscriber have executed this Agreement
effective on the date first indicated above.
MML INVESTORS SERVICES, INC.
By:_____________________________
Title:__________________________
__________________________
SUBSCRIBER
By:_____________________________
Title:__________________________
Address of Subscriber for
notices hereunder:
Address of MMLISI for notices
hereunder:
MML Investors Services, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Chief Legal Officer
