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MetLife Investors Insurance Company
SELLING AGREEMENT
This Agreement is made as of _________________ (such date, following
execution and delivery by all parties, to be the "Effective Date"), by and among
MetLife Investors Insurance Company, a Missouri life insurance company ("Life
Company"); and MetLife Investors Distribution Company, a Delaware corporation
("Distributor"); __________________ ("Broker-Dealer") and ___________________
("General Agent").
RECITALS
A. Life Company is the issuer of certain fixed and variable annuity contracts
and variable life insurance contracts identified in Schedule I (the
"Contracts"), (which Schedule I may be amended from time to time in accordance
with Section 2.6) and has appointed Distributor as principal underwriter or
distributor of the Contracts and authorized Distributor to recommend persons for
appointment as agents of Life Company to solicit applications for the sale of
the Contracts.
B. Distributor and Broker-Dealer are both broker-dealers registered with the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended ("1934 Act"), and members of the National Association of Securities
Dealers, Inc.
C. General Agent, which is an Affiliate of, or the same person as,
Broker-Dealer, or whose employees are also employees of Broker-Dealer, is an
insurance agency duly licensed to sell variable life insurance and fixed and
variable annuities in any state or other jurisdiction in which General Agent
intends to perform hereunder.
D. It is intended that General Agent shall be authorized to offer and sell the
Contracts to the general public subject to the terms and conditions set forth
more fully herein.
E. Life Company has authorized Distributor to enter into separate written
agreements with broker-dealers registered under the 1934 Act which agree to
participate in the distribution of the Contracts, and the parties hereto desire
that Broker-Dealer be authorized to solicit applications for the sale of the
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
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
(including in the Recitals, Schedules, and Exhibits), shall have the respective
meanings indicated.
a. Affiliated Person or Affiliate - With respect to a person, any other person
controlling, controlled by, or under common control with such person.
b. Agent -An individual associated with General Agent and registered with the
NASD as a representative of Broker-Dealer who is appointed by Life Company as an
insurance agent for the purpose of soliciting applications for the Contracts.
c. Broker-of-Record - The party designated in Life Company records as the
person, with respect to a Contract, who is entitled to receive compensation
payable with respect to such Contract and who is authorized to contact directly
the owner of such Contract. In the case of compensation payable with respect to
a Premium, the Broker-of-Record shall be the party designated as such in the
records of Life Company at the time such Premium is accepted by Life Company. In
the case of compensation payable with respect to Contract value or client
services, the Broker-of-Record shall be the party designated as such in the
records of Life Company, in accordance with the rules and procedures of Life
Company at the time any such payment is payable. In the case of compensation
payable on annuitization of a Contract, the Broker-of Record shall be the party
designated as such in the records of Life Company on the annuity commencement
date specified in such Contract.
d. Contract Prospectus - The prospectus for the interests under the Contracts
included within a Contract Registration Statement and including any prospectus
or supplement separately filed under the Contract Registration Statement
respecting the Contracts.
e. Contract Registration Statements - The most recent effective registration
statements, or most recent effective post-effective amendments thereto, relating
to interests under the Contracts and in the Variable Accounts, as required by
the 1933 Act and the 1940 Act, including the statement of addition of
information, financial statements therein and all exhibits thereto.
f. Contracts - The life insurance policies and annuity contracts, including
certificates, issued by Life Company, which are identified in Schedule I.
Schedule I may be modified from time to time as provided in Section 2.6.
g. NASD - National Association of Securities Dealers, Inc.
h. 1940 Act - Investment Company Act of 1940, as amended.
i. 1934 Act - Securities Exchange Act of 1934, as amended.
j. 1933 Act - Securities Act of 1933, as amended.
k. Premium - Any premium, purchase payment, contribution or other consideration
relating to the Contracts.
l. SEC or Commission - Securities and Exchange Commission.
m. Service Center -- The Life Company's Policy Service Office:
i. Fixed Products: X.X. Xxx 000, Xxx Xxxxxx, XX 00000
ii. Variable Products: X.X. Xxx 00000, Xxx Xxxxxx, XX 00000
iii. Express Mail Only: 0000 Xxxx Xxxxx Xxxxxxx, Xxxx Xxx Xxxxxx, 00000
n. Variable Accounts - Segregated asset accounts identified in Schedule I, each
of which has been established by Life Company pursuant to state laws as a
funding vehicle for the Contracts. The Variable Accounts are divided into
divisions that invest in shares of an investment company.
2.2 Cross-References. All references in this Agreement to a Section, Article,
Schedule or Exhibit are to a section, article, schedule or exhibit of this
Agreement, unless otherwise indicated.
ARTICLE II
Authorization of Broker-Dealer and General Agent
2.1 Authority to Distribute Contracts. Distributor hereby authorizes
Broker-Dealer, under the securities laws, and General Agent, under the insurance
laws, each in a non-exclusive capacity, to distribute the Contracts.
Broker-Dealer and General Agent accept such authorization and agree to use their
best efforts to find purchasers for the Contracts in each case acceptable to
Life Company. Broker-Dealer and General Agent understand that the public
offering of and solicitation for interests under the variable life and variable
annuity Contracts are not permitted to commence, or to continue, unless the
Contract Registration Statements have become effective and, with respect to each
state or other jurisdiction in which Contract applications are to be solicited,
the Contracts are qualified for sale under all applicable securities and
insurance laws. Broker-Dealer and General Agent acknowledge that no territory is
exclusively assigned hereunder, and Life Company reserves the right in its sole
discretion to establish or appoint one or more agencies in any jurisdiction in
which General Agent transacts business hereunder.
2.2 Notification by Distributor. Distributor shall promptly notify Broker-Dealer
and General Agent:
a. If there are no effective Contract Registration Statements, when the Contract
Registration Statements have become effective;
b. Of all states and other jurisdictions in which the Contracts are qualified
for sale and of the states and other jurisdictions in which the Contracts may
not be lawfully sold;
c. Of any request by the SEC for any amendments or supplements to a Contract
Registration Statement or of any request for additional information that must be
provided by Broker-Dealer or General Agent or any Affiliate of Broker-Dealer or
General Agent;
d. Of the issuance by the SEC of any stop order with respect to a Contract
Registration Statement or the initiation of any proceedings for that purpose or
for any other purpose relating to the registration and/or offering of the
Contracts; or
e. If any event occurs as a result of which a Contract Prospectus or any sales
literature for the Contracts would include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein
not misleading.
2.3 Authority to Recommend Agent Appointments. General Agent is vested under
this Agreement with power and authority to select and recommend individuals who
are associated with General Agent and are registered representatives of
Broker-Dealer for appointment as agents of Life Company, and only individuals so
recommended by General Agent shall become Agents, provided that Life Company
reserves the right in its sole discretion to refuse to appoint any proposed
agent or, once appointed, to terminate the same at any time with or without
cause.
2.4 Limitations on Authority. Neither Broker-Dealer nor General Agent shall
possess or exercise any authority on behalf of Distributor or Life Company other
than that expressly conferred on Broker-Dealer or General Agent by this
Agreement. In particular, and without limiting the foregoing, neither
Broker-Dealer nor General Agent shall have any authority, nor shall either grant
such authority to any Agent: (i) to make, alter or discharge any Contract or
other contract entered into pursuant to a Contract; (ii) to waive any Contract
provision; (iii) to extend the time for payment of any Premiums; or (iv) to
receive any monies or Premiums from applicants for or purchasers of the
Contracts (except for the sole purpose of forwarding monies or Premiums to Life
Company).
2.5 Insurer's Right to Reject Applications. Broker-Dealer and General Agent
acknowledge that Life Company has the right in its sole discretion to reject any
applications or Premiums received by it and to return or refund to an applicant
such applicant's Premium. In the event that a Life Company rejects an
application solicited by an Agent, Life Company will return any Premium paid by
the applicant to such applicant and will promptly notify General Agent of such
action. In the event that a purchaser exercises his or her free look right under
a Contract, any amount to be refunded as provided in such Contract will be so
refunded to the purchaser by or on behalf of Life Company, and Life Company will
promptly notify General Agent of such action.
2.6 Contracts Included Under Agreement. Schedules I to this Agreement describe
the life insurance and annuity contracts, which are included as Contracts under
this Agreement. Schedule I may be amended by Distributor in its sole discretion
from time to time to include other annuity contracts or life insurance contracts
issued by Life Company and distributed by Distributor pursuant to any
distribution agreement with Life Company. The provisions of this Agreement shall
apply with equal force to such additional Contracts unless the context otherwise
requires. Schedule I may be amended by Distributor in its sole discretion from
time to time to delete annuity contracts or life insurance contracts.
2.7 Independent Contractor Status. Distributor acknowledges that Broker-Dealer
and General Agent are each independent contractors. Accordingly, while
Broker-Dealer and General Agent agree to use their respective best efforts to
solicit applications for the Contracts, Broker-Dealer and General Agent are not
obliged or expected to give full time and energies to the performance of their
obligations hereunder or to sell or solicit a specified number of Contracts, nor
are Broker-Dealer and General Agent obliged or expected to represent Distributor
or Life Company exclusively. Nothing herein contained shall constitute
Broker-Dealer, General Agent, or any agents or representatives of Broker-Dealer
or General Agent as employees of Life Company or Distributor.
ARTICLE III
Licensing and Registration of Broker-Dealer, General Agent and Agents
3.1 Broker-Dealer Qualifications. Broker-Dealer represents and warrants that it
is a broker-dealer registered with the SEC under the 1934 Act, and is a member
of the NASD in good standing. Broker-Dealer must, at all times when performing
its functions and fulfilling its obligations under this Agreement, be duly
registered as a broker-dealer under the 1934 Act and, as required by applicable
law, in each state or other jurisdiction in which Broker-Dealer intends to
perform its functions and fulfill its obligations hereunder, and be a member in
good standing of the NASD.
3.2 General Agent Qualifications. General Agent represents and warrants that it
is a licensed life insurance agency where required to solicit applications for
the Contracts. General Agent must, at all times when performing its functions
and fulfilling its obligations under this Agreement be duly licensed to offer or
sell the Contracts in each state or other jurisdiction in which General Agent
intends to perform its functions and fulfill its obligations hereunder.
3.3 Qualifications of Broker-Dealer Representatives. Broker-Dealer represents
and warrants that it shall ensure that no individual shall offer or sell the
variable life or variable annuity Contracts on behalf of Broker-Dealer in any
state or other jurisdiction in which the Contracts may lawfully be sold unless:
such individual is an associated person of Broker-Dealer (as that term is
defined in Section 3(a)(18) of the 1934 Act); is not subject to a statutory
disqualification (as that term is defined in the 1934 Act); and is duly
registered with the NASD and any applicable state securities regulatory
authority as a registered person of Broker-Dealer qualified to distribute the
Contracts in such state or other jurisdiction.
3.4 Qualifications of General Agent's Agents and Appointment of Agents. General
Agent represents and warrants that it shall ensure that no individual shall
offer or sell the Contracts on behalf of General Agent in any state or other
jurisdiction unless such individual is duly appointed as an agent of General
Agent, duly licensed and appointed as an agent of Life Company and appropriately
licensed (including any special variable licensing), registered or otherwise
qualified to offer and sell the Contracts to be offered and sold by such
individual under the insurance laws of such state or jurisdiction. Nothing in
this Agreement is to be construed as requiring Life Company to obtain a license
or issue a consent or appointment to enable any particular agent to sell the
Contracts. All matters concerning the licensing of any individuals recommended
for appointment by General Agent under any applicable state insurance law shall
be a matter directly between the General Agent and such individual. General
Agent shall furnish Life Company with proof of proper licensing of such
individual or other proof, reasonably acceptable to Life Company, of
satisfaction by such individual of licensing requirements prior to the
appointment of any such individual as an agent of Life Company. In conjunction
with the submission of appointment papers for all such individuals as insurance
agents of Life Company, General Agent shall be deemed to represent that each
individual is competent and qualified to act as an agent for Life Company and to
hold himself or herself out in good faith to the general public. Broker-Dealer
and General Agent shall notify Distributor and Life Company immediately upon
termination of an Agent's association with Broker-Dealer or General Agent.
ARTICLE IV
Broker-Dealer and General Agent Compliance
4.1 Supervisory Responsibilities of General Agent. General Agent shall train,
supervise and be solely responsible for the conduct of Agents in their
solicitation activities in connection with the Contracts, and shall supervise
Agents' strict compliance with applicable laws, rules and regulations of any
governmental or other insurance authorities that have jurisdiction over
insurance contract activities, as well as the rules and procedures of Life
Company pertaining to the solicitation, sale and submission of applications for
the Contracts and the provision of services relating to the Contracts. General
Agent shall be solely responsible for background investigations of the proposed
agents to determine their qualifications, good character and moral fitness to
sell the Contracts and will provide Life Company with copies of such
investigations upon its request.
4.2 Supervisory Responsibilities of Broker-Dealer. Broker-Dealer shall be
responsible for securities training, supervision and control of Agents in
connection with their solicitation activities and any incidental services with
respect to the Contracts and shall supervise Agents' strict compliance with
applicable federal and state securities laws and NASD requirements in connection
with such solicitation activities and with the rules and procedures of Life
Company.
4.3 Compliance with Applicable Laws. Broker-Dealer and General Agent hereby
represent and warrant that they are in compliance with all applicable federal
and state securities laws and regulations and all applicable insurance laws and
regulations, including without limitation, state insurance laws and regulations
imposing insurance licensing requirements. Broker-Dealer and General Agent each
agree to carry out their respective sales and administrative activities and
obligations under this Agreement in continued compliance with federal and state
laws and regulations, including those governing securities and insurance-related
activities or transactions, as applicable. If Broker-Dealer and General Agent
are separate entities, they represent and warrant that they are and will
continue to be in compliance with applicable requirements with respect to the
non-registration as a broker-dealer of an insurance agency associated with a
registered broker-dealer. Broker-Dealer and General Agent shall notify
Distributor and Life Company immediately in writing if Broker-Dealer and/or
General Agent fail to comply with any of the laws and regulations applicable to
either of them.
In connection with the offer and sale of variable life insurance policies as a
part of the Contracts to be offered hereunder, Broker-Dealer and General Agent
further agree that no recommendations shall be made to an applicant to purchase
a variable life insurance policy and that no variable life insurance shall be
issued in the absence of reasonable grounds to believe that the purchase of such
policy is not suitable for such applicant on the basis of information furnished
after reasonable inquiry of such applicant concerning the applicant's insurance
and investment objectives, financial situation and needs, and any other
information know to the Broker-Dealer or General Agent.
4.4 Restrictions on Sales Activity. Broker-Dealer, General Agent and Agents
shall not offer or attempt to offer the Contracts, nor solicit applications for
the Contracts, nor deliver the Contracts, in any state or other jurisdiction in
which the Contracts may not be lawfully sold or offered for sale. For purposes
of determining where the Contracts may be offered and applications solicited,
Broker-Dealer and General Agent may rely on written notification, as revised
from time to time, received from the Distributor.
4.5 Premiums and Other Payments. All Premiums and loan repayments shall be sent
promptly (and in no event later than the time permitted under applicable law or
the rules of the NASD) to Life Company at the Service Center, or at such other
address as Life Company or Distributor may subsequently specify in writing. Each
initial Premium shall be preceded or accompanied by a properly completed
application for a Contract, which shall include applications submitted
electronically to Life Company in such manner and format as Life Company shall
authorize. Checks in payment of Premiums or outstanding loans shall be drawn to
the order of Life Company.
4.6 Misdirected Payments. In the event that Premiums or loan repayments are sent
to General Agent or Broker-Dealer, rather than to Life Company, General Agent or
Broker-Dealer shall promptly (and in no event later than the time permitted
under applicable law or the rules of the NASD ) remit such Premiums to the
Service Center. General Agent and Broker-Dealer acknowledge that if any Premium
or other payment is held at any time by either of them, such Premium or other
payment shall be held on behalf of the client, and General Agent or
Broker-Dealer shall segregate such Premium or other payment from their own funds
and promptly (and in no event later than the time permitted under applicable law
or the rules of the NASD ) remit such Premium or other payment to Life Company
through the Service Center.
4.7 Delivery of Contracts. Upon issuance of a Contract by Life Company and
delivery of such contract to General Agent, General Agent shall promptly deliver
such Contract to its purchaser. Consistent with its administrative procedures,
Life Company will assume that a Contract issued by it will be promptly delivered
by General Agent to the purchaser of such Contract. As a result, if a purchaser
exercises the free look rights under a Contract, Broker-Dealer and the General
Agent shall indemnify Life Company for any loss incurred by Life Company that
results from General Agent's failure to promptly deliver such Contract to its
purchaser.
4.8 Restrictions on Communications. Neither Broker-Dealer not General Agent, nor
any of their directors, partners, officers, employees, registered persons,
associated persons, agents or affiliated persons, in connection with the offer
or sale of the Contracts, shall give any information or make any representations
or statements, written or oral, concerning the Contracts, the Variable Accounts
or Life Company other than information or representation contained in the
Contract Prospectuses, the prospectuses of the underlying mutual funds,
statements of additional information and Contract Registration Statements, or in
reports or proxy statements therefor, or in promotional, sales or advertising
material or other information supplied and approved in writing by Life Company
or Distributor.
4.9 Directions Given on Behalf of Contract Owners. Broker-Dealer and General
Agent shall be solely responsible for the accuracy and propriety of any
instruction given or action taken by an Agent on behalf of an owner or
prospective owner of a Contract. Neither Distributor nor Life Company shall have
any responsibility or liability for any action taken or omitted by it or by them
in good faith in reliance on or by acceptance of such an instruction or action.
4.10 Restrictions on Sales Material and Name Usage. Broker-Dealer and General
Agent shall neither use nor authorize the use of any promotional, sales or
advertising material relating to the Contracts, Life Company, Variable Accounts
or the underlying mutual funds without the prior written approval of Life
Company or Distributor. Furthermore, Broker-Dealer and General Agent shall
neither use nor authorize the use of the name of Life Company or of an Affiliate
of Life Company, including without limitation MetLife, Inc, MetLife Investors,
and Metropolitan Life Insurance Company, or any other name, trademark, service
xxxx, symbol or trade style that is now or may hereafter be owned by Life
Company or by an Affiliate of Life Company, except in the manner and to the
extent that such use may be specifically authorized in writing by Life Company
or Distributor.
4.11 Market Timing and Other Prohibitions. Broker-Dealer and General Agent
understand and acknowledge that Life Company or Distributor, in their sole
discretion and at any time during the term of this Agreement, may restrict or
prohibit the solicitation, offer or sale of Contracts, and Premiums thereunder
in connection with any so-called "market timing" or "asset allocation" program,
plan, arrangement, or service. Should Life Company or Distributor determine in
its sole discretion that Broker-Dealer or General Agent is soliciting, offering
or selling, or has solicited, offered or sold, Contracts, or Premiums subject to
any so-called "market timing" or "asset allocation" program, plan, arrangement,
or service which is not permitted under this Agreement (an "unapproved
program"), Life Company or Distributor may take action which is necessary, in
its sole discretion, to halt such solicitations, offers or sales. Furthermore,
in addition to any indemnification provided in Article XI and any other
liability that Broker-Dealer and General Agent might have, Distributor or Life
Company may hold Broker-Dealer and General Agent liable for any damages or
losses, actual or consequential, sustained by Life Company or Distributor or any
of its Affiliates, as a result of any unapproved program which causes such
losses or damages following solicitation, offer or sale of a Contract or Premium
subject to any unapproved program or similar service made available by or
through Broker-Dealer or General Agent. Notwithstanding any prohibitions which
may be imposed pursuant to this Section 4.11, Broker-Dealer and its registered
representatives who are Agents may provide incidental services in the form of
guidance to applicants and owners of Contracts regarding the allocation of
Premium and Contract value, provided that such services are (i) solely
incidental to Broker-Dealer's activities in connection with the sales of the
Contracts, (ii) subject to the supervision and control of Broker-Dealer, and
(iii) furnished in accordance with rules and procedures prescribed by Life
Company or Distributor.
4.12 Tax Reporting Responsibility. Broker-Dealer and General Agent shall be
solely responsible under applicable tax laws for the reporting of compensation
paid to Agents and for any withholding of taxes from compensation paid to
Agents, including, without limitation, FICA, FUTA, and federal, state and local
taxes.
4.13 Maintenance of Books and Records. General Agent represents that it
maintains and shall maintain such books and records concerning the activities of
Agents as may be required by the appropriate insurance regulatory agencies that
have jurisdiction and that may be reasonably required by Distributor to reflect
adequately the Contracts processed through General Agent. General Agent shall
make such books and records available to Distributor and/or Life Company at any
reasonable time upon written request. Broker-Dealer represents that it maintains
and shall maintain appropriate books and records concerning the activities of
Agents as are required by the SEC, the NASD and other agencies having
jurisdiction and that may be reasonably required by Distributor to reflect
adequately the Contracts processed through Broker Dealer. Broker-Dealer shall
make such books and records available to Distributor and/or Life Company at any
reasonable time upon written request.
4.14 Bonding of Agents and Others. Broker-Dealer represents that all directors,
officers, employees, and registered representatives of Broker-Dealer who are
appointed pursuant to this Agreement as Agents for state insurance law purposes
or who have access to funds of Life Company, including but not limited to funds
submitted with applications for the Contracts or funds being returned to
purchasers of the Contracts, are and shall be covered by a blanket fidelity
bond, including coverage for larceny and embezzlement, issued by a reputable
bonding company. This bond shall be maintained by Broker-Dealer at the
Broker-Dealer's expense. Such bond shall be, at least, of the form, type and
amount required under the NASD Conduct Rules. Distributor may require evidence,
satisfactory to it, that such coverage is in force, and Broker-Dealer shall give
prompt written notice to Distributor of any cancellation or change of coverage.
Broker-Dealer and the General Agent shall also secure and maintain errors and
omissions insurance coverage acceptable to Life Company and covering
Broker-Dealer, General Agent and Agents. Broker-Dealer and General Agent hereby
assign any proceeds received from the fidelity bonding company, errors and
omissions coverage or other liability insurance coverage to Life Company to the
extent of Life Company's loss is due to activity covered by the bond or other
coverage. If there is any deficiency amount, as a result of a deductible
provision or otherwise, Broker-Dealer or General Agency shall promptly pay Life
Company such amount on demand, and Broker-Dealer and General Agency hereby
indemnifies and holds harmless Life Company from any such deficiency and from
the costs of collection thereof (including reasonable attorney's fees).
4.15 Reports to Insurers. Broker-Dealer and General Agent shall promptly furnish
to Life Company or its authorized agent any reports and information that Life
Company may reasonably request for the purpose of meeting Life Company's
reporting and recordkeeping requirements under the insurance laws of any state,
under any applicable federal or state securities laws, rules or regulations, or
the rules of the NASD.
ARTICLE V
Responsibilities of Distributor for Marketing Materials and Reports
5.1 Prospectuses and Applications Provided by Distributor. During the term of
this Agreement, Distributor will provide Broker-Dealer and General Agent,
without charge, with as many copies of the Contract Prospectus(es), current
underlying mutual fund Prospectus(es), statements of additional information and
applications for the Contracts, as Broker-Dealer or General Agent may reasonably
request. Upon receipt from Distributor of updated copies of the Contract
Prospectus(es), current underlying mutual fund Prospectus(es), statements of
additional information and applications for the Contracts, Broker-Dealer and
General Agent will promptly discard or destroy all copies of such documents
previously provided to them, except such copies as are needed for purposes of
maintaining proper records. Upon termination of this Agreement, Broker-Dealer
and General Agent will promptly return to Distributor all Contract Prospectuses,
current underlying mutual fund Prospectus(es), statements of additional
information, Contract applications and other materials and supplies furnished by
Distributor to Broker-Dealer or General Agent or to Agents, except for copies
required for maintenance of records.
5.2 Sales Material Provided by Distributor. During the term of this Agreement,
Distributor will be responsible for providing and approving all promotional,
sales and advertising material to be used by Broker-Dealer and General Agent.
Distributor will file such materials or will cause such materials to be filed
with the SEC, NASD, and any state securities regulatory authorities, as
appropriate.
5.3 Information Provide by Distributor. Distributor will compile periodic
marketing reports summarizing sales results to the extent reasonably requested
by Broker-Dealer or General Agent.
ARTICLE VI
Rules of Ethical Conduct
6.1 Principals of Ethical Market Conduct. The rules, policies and directives to
which Broker-Dealer and General Agent are required to conform include the
Principles of Ethical Market Conduct, as adopted from time to time by the
Insurance Marketplace Standards Association (IMSA). Life Company subscribes to
the Principles of Ethical Market Conduct and the Code of Ethical Market Conduct
in all matters affecting the sale of the Contracts. Currently, the Principles of
Ethical Market Conduct are:
a. To conduct business according to high standards of honesty and fairness and
to render service to its customers which, in the same circumstances, it would
apply to or demand for itself;
b. To provide competent and customer-focused sales and service;
c. To engage in active and fair competition;
d. To provide advertising and sales materials that are clear as to purpose and
honest and fair as to content;
e. To provide for fair and expeditious handling of customer complaints and
disputes;
f. To maintain a system of supervision and review that is reasonably designed to
achieve compliance with the aforementioned Principles of Ethical Market Conduct.
6.2 Reporting on IMSA Compliance. Broker-Dealer and General Agent shall furnish
information, documentation and reports to Life Company as it may reasonably
request in order to permit Life Company to ascertain whether Broker-Dealer and
General Agent are conducting their operations in accordance with the Principles
of Ethical Market Conduct.
ARTICLE VII
Commissions, Fees and Expenses
7.1 Compensation. During the term of this Agreement, Distributor shall pay to
Broker-Dealer or General Agent, as applicable, commissions and fees set forth in
Schedule I to this Agreement. The payment of such commissions and fees shall be
subject to the terms and conditions of this Agreement and those set forth on
Schedule I. Schedule I, including the commissions and fees therein, may be
amended by Distributor at any time, in any manner, and without prior notice. Any
amendment to Schedule I will be applicable to any Contract for which any
application or Premium is received by the Service Center on or after the
effective date of such amendment. However, Distributor reserves the right to
amend such Schedule with respect to subsequent premiums and renewal commissions
and the right to amend such Schedule pursuant to this subsection even after
termination of this Agreement. Compensation with respect to any Contract shall
be paid to General Agent only for so long as General Agent is the
Broker-of-Record and maintains compliance with applicable state insurance laws
and only while this Agreement is in effect.
7.2 Limitations on Compensation. No compensation shall be payable, and
Broker-Dealer and General Agent agree to reimburse Distributor, for any
compensation that may have been paid to Broker-Dealer, General Agent or any
Agent in any of the following situations: (i) Life Company, in its sole
discretion, determines not to issue the Contract applied for; (ii) Life Company
refunds the Premium upon the applicant's surrender or withdrawal pursuant to any
"free look" provision; (iii) Life Company refunds the Premium paid by applicant
as a result of a complaint by applicant; (iv) Life Company determines that any
person soliciting an application who is required to be licensed or any other
person or entity receving compensation for soliciting applications or Premium
for the Contracts is not or was not duly licensed as an insurance agent; or (v)
any other situation listed on Schedule I.
7.3 Agent Commissions. Agents shall have no interest in this Agreement or right
to any commissions to be paid by Distributor to Broker-Dealer or General Agent.
Broker-Dealer or General Agent shall be solely responsible for the payment of
any commission or consideration of any kind to Agents. Broker-Dealer and General
Agent shall have no right to withhold or deduct any commission from any Premium
in respect of the Contract which it may collect unless and only to the extent
that Distributor and Life Company agrees in writing to permit Broker-Dealer and
General Agent to net its commissions against Premium collected. Broker-Dealer
and General Agent shall have no interest in any compensation paid by Life
Company to Distributor or any Affiliate, now or hereafter, in connection with
the sale of any Contracts hereunder.
7.4 Expenses Paid by Broker-Dealer and General Agent. Neither Broker-Dealer nor
General Agent shall, directly or indirectly, expend or contract for the
expenditure of any funds of Distributor or Life Company. Broker-Dealer and
General Agent shall each pay all expenses incurred by each of them in the
performance of this Agreement, unless otherwise specifically provided for in
this Agreement or unless Distributor or Life Company shall have agreed in
advance in writing to share the cost of certain expenses. Initial and renewal
state appointment fees for General Agent and appointees of General Agent as
Agents of Life Company will be paid according to the terms set forth in rules
and procedures as may be adopted by Life Company from time-to-time. Except as
otherwise provided herein, Broker-Dealer or General Agent will be obligated to
pay all state appointment fees, including, but not limited to, renewal
appointment fees not paid for by Life Company, transfer fees and termination
fees, and any other fees required to be paid to obtain state insurance licenses
for Agents.
ARTICLE VIII
Complaints and Investigations
8.1 Investigation and Resolution of Complaints. Life Company, Distributor,
Broker-Dealer and General Agent shall cooperate fully in any insurance
regulatory investigation or proceeding or judicial proceeding arising in
connection with the Contracts marketed under this Agreement. In addition, Life
Company, Distributor, Broker-Dealer and General Agent shall fully cooperate with
each other in any securities regulatory investigation or proceeding or judicial
proceeding with respect to Life Company, Distributor, Broker-Dealer, General
Agent, their Affiliates and their agents, to the extent that such investigation
or proceeding relates to the Contract marketed under this Agreement. Without
limiting the foregoing:
a. Broker-Dealer and General Agent will be notified promptly by Distributor or
Life Company of any customer complaint or notice of any regulatory investigation
or proceeding or judicial proceeding received by Distributor or Life Company
with respect to Broker-Dealer, General Agent or any Agent which may relate to
the issuance of any Contract marketed under this Agreement.
b. Broker-Dealer and General Agent will promptly notify Distributor and Life
Company of any customer complaint or notice of any regulatory investigation or
proceeding or judicial proceeding received by Broker-Dealer or General Agent or
their Affiliates with respect to themselves, their Affiliates or any Agent in
connection with any Contract marketed under this Agreement or any activity in
connection with any such Contract.
c. The term "customer complaint" shall mean an oral or written communication
either directly from the purchaser of or applicant for a Contract covered by
this Agreement or from his/her legal representative, or indirectly from any
regulatory agency to which he/she or his/her legal representative has expressed
a grievance.
d. The full cooperation referred to in Subsections 8.1a and 8.1b above shall
include, but is not limited to, requiring each party to promptly notify the
other parties of the receipt of notice of any such investigation, proceeding, or
customer complaint, forwarding to the other parties a copy of any written
materials in connection with the matter (or a written statement of an oral
complaint), providing such additional information as may be necessary to furnish
a complete understanding of same, and, in the case of a customer complaint,
consulting with the other parties prior to responding thereto and thereafter
providing each party with copies of all written responses.
ARTICLE IX
Customer Information
9.1 Receipt of Customer Information by Life Company. Distributor and Life
Company will treat customer information provided to it by Broker-Dealer and
General Agent under this Agreement as Confidential Information under Section
10.1 of this Agreement, except that such provisions shall not apply to any
information provided by or received from others concerning customers of
Broker-Dealer and General Agent who were, are or become policyholders or
customers of Life Company or any of its Affiliates other than by reason of the
products or services provided by Life Company under this Agreement.
9.2 Uses of Customers Information. Notwithstanding the foregoing, Life Company
and its Affiliates shall have the right to use Broker-Dealer and General Agent
customer information:
a. To the full extent required to comply with laws, rules and regulations or
requests of regulators;
b. As necessary in connection with any of Life Company's compliance or
accounting procedures; and
c. To provide customer service to purchasers of Contracts under this Agreement.
Life Company and its Affiliates may market, offer, sell or distribute insurance
products, including, but not limited to, the Contracts, or any of their other
products and related services, outside of this Agreement to customers of
Broker-Dealer or General Agency provided they do not use customer information
provided by Broker Dealer or General Agent to identify or target customers, and
such marketing, offering, selling or distributing by Life Company or its
Affiliates of insurance (including but not limited to the Contracts) or any of
their other products or services shall not be subject to the terms of this
Agreement.
9.3 Receipt of Customer Information by Broker-Dealer and General Agent.
Broker-Dealer and General Agent will treat nonpublic personal information
regarding Broker-Dealer's or General Agent's customers provided to it by
Distributor or Life Company under this Agreement as Confidential Information
under Section 10.1 and shall use such information only to solicit sales of and
to provide service with respect to Contracts sold pursuant to this Agreement.
Notwithstanding the foregoing, Broker shall have the right to use or disclose
nonpublic personal information provided to it by Distributor or Life Company to
the extent permitted by applicable law and Life Company's privacy policy, for
example, to comply with applicable law or requests of regulators, in connection
with audit procedures, as authorized by such customers, and to protect against
or prevent fraud.
ARTICLE X
Confidentiality, Privacy
10.1 Confidential Information. Life Company, Distributor, Broker-Dealer and
General Agent shall not disclose any Confidential Information that is covered by
this Agreement, and shall only disclose such information if authorized in
writing by the affected party or if expressly required under the terms of a
valid subpoena or order issued by a court of competent jurisdiction or
regulatory body or applicable laws and regulations. "Confidential Information"
under this Section 10.1 means:
a. Any information that this Agreement specifies will be treated as
"Confidential Information" under this Section 10.1;
b. Any information of Broker-Dealer and General Agent disclosed to Distributor
or Life Company through the course of business during the term of this
Agreement, or any information of Distributor or Life Company that is disclosed
to Broker-Dealer or General Agent through the course of business during the term
of this Agreement, in each such case if such information is clearly identified
as and marked "confidential" by the disclosing party, such information includes,
but is not limited to, new products, marketing strategies and materials,
development plans, customer information, client lists, pricing information,
rates and values, financial information, and computer systems; and
c. Information required to be treated as confidential under applicable laws,
rules and regulations.
10.2 Excluded Information. "Confidential Information" does not include (i)
information which is now generally available in the public domain or which in
the future enters the public domain through no fault of the receiving party;
(ii) information that is disclosed to the receiving party by a third party
without violation by such third party of an independent obligation of
confidentiality of which the receiving party is aware; or (iii) information that
the disclosing party consents in writing that the receiving party may disclose.
10.3 Warranties and Limitations on Liability.
a. The disclosing party warrants that it has the right to provide access to,
disclose and use, the Confidential Information to be provided hereunder.
b. The receiving party shall not be liable to the other parties for:
(i) Inadvertent use, publication, or dissemination of the Confidential
Information received hereunder provided that: (a) it uses the same degree of
care in safeguarding such information as it uses for its own information of like
importance; and (b) upon discovery of such, it shall take appropriate steps to
prevent any further inadvertent use, publication, or dissemination; and/or
(ii) Unauthorized use, publication or dissemination of the Confidential
Information received hereunder by persons who are or have been in its employ,
unless it fails to safeguard such information with the same degree of care as it
uses for its own proprietary information of like importance and provided that
the receiving party uses such Confidential Information in accordance with
applicable laws.
c. Any similarity between the Confidential Information and any other
information, regardless of medium, whether verbal or written, as well as
contracts and/or services acquired from third parties or developed by the
receiving party, or Affiliates independently through its or their own efforts,
thought, labor and ingenuity shall not constitute any violation of this
Agreement and shall not subject the receiving party to any liability whatsoever.
d. The receiving party shall use the Confidential Information solely for
purposes contemplated by this Agreement and shall not disclose the Confidential
Information except as expressly provided herein.
e. In the event the receiving party receives a request to disclose all or any
part of the Confidential Information under the terms of a valid subpoena or
order issued by a court of competent jurisdiction or by a governmental body, the
receiving party agrees to: (i) notify the disclosing party promptly of such
request; and (ii) provide the disclosing party with reasonable assistance in
obtaining an order or other reliable assurances that confidential treatment will
be accorded to such portion of the Confidential Information that the disclosing
party so designates.
f. The receiving party understands that neither the disclosing party nor any of
its representatives or designees have made or make any representation or
warranty as to the accuracy or completeness of the Confidential Information.
ARTICLE XI
Indemnification
11.1 Indemnification by Broker-Dealer and General Agent. Broker-Dealer and
General Agent, jointly and severally, shall indemnify and hold harmless
Distributor and Life Company, and each person who controls or is associated with
Distributor or Life Company within the meaning of such terms under the federal
securities laws, and any officer, director, employee or agent of the foregoing,
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 reasonable amounts paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they or any of them may
become subject under any statute or regulation, at common law or otherwise as
such losses, claims, damages or liabilities arise out of or are based upon any
actual or alleged negligent, improper, fraudulent or unauthorized acts or
omissions by Broker-Dealer or General Agent or any Agent, including without
limitation:
a. Violation(s) by Broker-Dealer, General Agent or an Agent of federal or state
securities law or regulations, insurance law or regulations(s), or any rule or
requirement of the NASD;
b. Unauthorized use of sales or advertising material, any oral or written
misrepresentations, or any unlawful sales practices concerning the Contracts, by
Broker-Dealer, General Agent or an Agent;
c. Claims for the unlawful payment of compensation by Life Company or
Distributor or claims by Agents or other agents or representatives of General
Agent or Broker-Dealer for commissions or other compensation or remuneration of
any type;
d. Any failure on the part of Broker-Dealer, General Agent, or an Agent to
submit Premium or applications to Life Company, or to submit the correct amount
of a Premium, on a timely basis and in accordance with this Agreement;
e. Any failure on the part of Broker-Dealer, General Agent, or an Agent to
deliver Contracts to purchasers thereof on a timely basis as provided in this
Agreement; or
f. A breach by Broker-Dealer or General Agent of any provision of this
Agreement.
This indemnification will be in addition to any liability which Broker-Dealer
and General Agent may otherwise have.
11.2 Indemnification by Distributor and Life Company. Distributor and Life
Company, jointly and severally, shall indemnify and hold harmless Broker-Dealer
and General Agent and each person who controls or is associated with
Broker-Dealer or General Agent within the meaning of such terms under the
federal securities laws, and any officer, director, employee or agent of the
foregoing, against any and all losses, claims, damages or liabilities, joint or
several (including any investigative, legal and other expenses reasonably
incurred on connection with, and any reasonable amounts paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they or any of
them may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise out of
or are based upon any breach by Distributor or Life Company of any provision of
this Agreement. This indemnification will be in addition to any liability that
Distributor and Life Company may otherwise have.
11.3 Notice of Indemnification and Rights. After receipt by a party entitled to
indemnification ("indemnified party") under this Article XI of notice of the
commencement of any action, if a claim in respect thereof is to be made against
any person obligated to provide indemnification under this Article XI
("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 to so notify the indemnifying party will not relieve
it from any liability under this Article XI , except to the extent that the
omission results in a failure of actual notice to the indemnifying party and
such indemnifying party is damaged as a result of the failure to give such
notice. The indemnifying party will be entitled to participate in the defense of
the indemnified party but such participation will not relieve such indemnifying
party of the obligation to reimburse the indemnified party for reasonable legal
and other expenses incurred by such indemnified party in defending himself,
herself or itself. The indemnification provisions contained in this Article XI
shall remain operative in full force and effect, regardless of any termination
of this Agreement. A successor by law of Distributor or Life Company, as the
case may be, shall be entitled to the benefits of the indemnification provisions
contained in this Article XI.
ARTICLE XII
Term and Termination
12.1 Term. This Agreement shall continue in force for a term of one year from
the Effective Date and thereafter shall automatically be renewed each year for a
further one-year period, provided that any party may unilaterally terminate this
Agreement with or without cause upon thirty (30) days prior written notice of
termination to the other parties.
12.2 Automatic Termination. This Agreement, shall automatically terminate upon
its breach by a party hereto provided that such breach is not cured within
thirty (30) days of written notice of the breach given to the breaching party,
or in the event the Distributor or Broker-Dealer ceases to be a registered
broker-dealer, a member of the NASD, or General Agent ceases to be properly
licensed or upon the filing by any party hereto for protection under any state
or federal bankruptcy.
12.3 Continuation Certain Agreements. In the event of termination of the
Agreement, all authorization rights and obligations shall cease except for the
agreements of the parties contained in Articles VIII, IX, X, and XI.
ARTICLE XIII
Miscellaneous
13.1 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.
13.2 Counterparts. This Agreement may be executed in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
13.3 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.
13.4 Notices. All notices under this Agreement shall be given in writing and
addressed as follows: If to Life Company:
MetLife Investors Insurance Company
00 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx XX 00000
Attention: Installations
If to Distributor:
MetLife Investors Distribution Company
00 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Installations
If to Broker-Dealer or General Agent:
Firm Name
Address
Address
City State Zip Code
Attn: ________________
or to such other address as such party may hereafter specify in writing. Each
such notice shall be either hand delivered or transmitted by certified United
States mail, return receipt requested, and shall be effective upon delivery.
13.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, excluding its conflict of
laws provisions.
13.6 Scope of Sales Material References. For purposes of this Agreement, all
references to sales, promotional, marketing, or advertising material shall
include, without limitation, advertisements (such as material published, or
designed for use in, a newspaper, magazine or other periodical, radio,
television, 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 brochures, circulars, research reports, market letters, form
letters, seminar tests, reprints or excerpts of any other advertisement, sales
literature or published article), and educational or training materials or other
communications distributed or made generally available to some or all Agents or
employees of Broker-Dealer or General Agent.
13.7 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 conditions of this Agreement shall not be construed as a waiver
of any of the conditions, but the same shall remain in full force and effect. No
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.
13.8 Scope of Agreement. All schedules and Exhibits to this Agreement are part
of the Agreement.
13.9 Arbitration. It is understood that the following agreement to arbitrate by
the parties does not constitute a waiver of the right to seek a judicial forum
to the extent that such a waiver would be void under applicable law. a. The
parties each agree that, except as inconsistent with the preceding sentence, all
claims or controversies, and any related issues, which may arise at any time
between the parties (including their directors, officers, employees,
representatives, or agents) with respect to any subject matter; any transaction,
order, or direction; any conduct of the parties or their directors, officers,
employees, representatives, or agents; any construction, performance, or breach
of this Agreement or any other agreement between the Parties, whether entered
into prior to, on, or subsequent to the date hereof; any breach of any common
law or statutory duty; or any violation of any federal or state law of any
nature shall be resolved by binding arbitration other than by lawsuit in a court
of law or equity.
b. Any arbitration pursuant to this Agreement shall be in accordance with and
governed by a mutually agreeable arbitration forum, but in the absence of such
agreement, the Code of Arbitration Procedure of the NASD, if the NASD accepts
jurisdiction, and, if not, then the American Arbitration Association. There
shall be at least three arbitrators unless otherwise agreed by the parties. The
award of the arbitrators, or of the majority of them, shall be final and binding
upon the parties, and judgment upon the award rendered may be entered in any
federal or state court having jurisdiction. Any arbitration shall be commenced
by delivery to the other party of a written demand for arbitration setting forth
in detail the claim or controversy to be arbitrated.
c. The arbitrators shall be entitled to order specific performance of the
obligations imposed by this Agreement.
d. Unless the arbitrators shall provide otherwise, each party will be
responsible for (i) all fees and expenses of its respective counsel,
accountants, actuaries and any other representatives in connection with the
arbitration and (ii) one-half (1/2) of expenses of the arbitration, including
the fees and expenses of the arbitrators.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly approved officers.
BROKER-DEALER:
By:______________________________________
Name __________________________
Title ___________________________
GENERAL AGENT:
By: _____________________________________
Name __________________________
Title ___________________________
METLIFE INVESTORS INSURANCE COMPANY
By:______________________________________
Xxxxx Xxxxxxxxxxx
Co-President
METLIFE INVESTORS DISTRIBUTION COMPANY
By: ______________________________________
Xxxxxxx X. Xxxxxxx
Exec. Vice President
