PRINCIPAL UNDERWRITING AGREEMENT
BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY
AND
METLIFE INVESTORS DISTRIBUTION COMPANY
This Principal Underwriting Agreement (hereinafter referred to as the
"Agreement") is made effective as of the _____ day of May, 2018, by and between
METROPOLITAN LIFE INSURANCE COMPANY ("MetLife Insurance"), a stock life
insurance company originally incorporated under the laws of the State of New
York in 1868 and currently subject to the laws of the State of New York, and
METLIFE INVESTORS DISTRIBUTION COMPANY ("MLIDC" or the "Principal
Underwriter"), a corporation organized in the State of Missouri. MLIDC is an
indirect, wholly-owned subsidiary of MetLife, Inc., a publicly-traded company
("MetLife"). MetLife Insurance is a direct wholly-owned subsidiary of MetLife.
MLIDC and MetLife Insurance each have their principal office located at 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000. MLIDC and MetLife Insurance are herein
sometimes referred to individually as a "party" and collectively as the
"parties."
WHEREAS, MetLife Insurance is licensed to issue certain insurance products
("Products," or each, a "Product"), including, but not limited to, variable
annuity contracts and variable life insurance policies, which are funded by and
offered through separate accounts ("Separate Accounts," or each, a "Separate
Account") that are registered as unit investment trusts with the Securities and
Exchange Commission ("SEC") under the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, MLIDC is a broker-dealer registered under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and a member in good standing of
the Financial Industry Regulatory Authority, Inc. ("FINRA");
WHEREAS, MetLife Insurance and MLIDC desire to enter into this Agreement,
pursuant to which MLIDC will distribute (as requested) and act as the principal
underwriter with respect to the Products and provide related services, all as
more particularly described herein; and
WHEREAS, this Agreement is intended to and shall amend and restate any and
all prior agreements as to the subject matter of this Agreement, including, but
not limited to, the distribution of the Products.
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
APPOINTMENT; DISTRIBUTION AND UNDERWRITING SERVICES
1. MetLife Insurance hereby appoints MLIDC, during the term of this
Agreement, subject to the registration requirements of the Securities Act of
1933, as amended (the "Securities Act") and the 1940 Act and provisions of the
Exchange Act, to be the distributor and principal underwriter for the Products
issued through the Separate Accounts. MLIDC accepts
such appointment and agrees to act as the distributor of the Products in
accordance with specific instructions (if any) from MetLife Insurance
pertaining thereto, and as the principal underwriter for the Products, subject
to the terms and conditions hereof. MLIDC shall at all times function as and be
deemed to be an independent contractor and nothing herein shall be construed as
designating MLIDC or its agents, officers, or employees as agents, officers, or
employees of MetLife Insurance solely by virtue of their activities in
connection with MLIDC's services concerning the Products hereunder. MLIDC shall
distribute the Products and provide the services hereunder in accordance with
(i) applicable laws, including the rules of FINRA; (ii) the terms set by
MetLife Insurance; and (iii) the provisions of the applicable prospectus or
disclosure document concerning the Product.
2. The Principal Underwriter shall provide general sales and distribution
services in respect of the Products, subject to such instructions or guidelines
as may be specified by MetLife Insurance from time to time.
3. Anything in this Agreement to the contrary notwithstanding, MetLife
Insurance retains the ultimate right to control the offer and sale of the
Products, including the right to suspend sales in any jurisdiction or
jurisdictions, to appoint and discharge agents of MetLife Insurance, or to
refuse to sell a Product to any applicant for any reason whatsoever, provided
that any sales suspension or withdrawal shall not affect the Principal
Underwriter's right to any representations, warranties or covenants under this
Agreement with respect to distribution services occurring prior thereto.
MetLife Insurance shall promptly notify the Principal Underwriter in the event
there is a change in or modification to the qualifications of the Products to
be offered or sold in any of the states or jurisdictions. Further, the
Principal Underwriter and its representatives shall not have authority, on
behalf of MetLife Insurance to: make, alter, or discharge any Product; to waive
any Product forfeiture provision; to extend the time of paying any premium; or
to receive any monies or premiums. The Principal Underwriter shall not expend,
nor contract for the expenditure of, the funds of MetLife Insurance. The
Principal Underwriter shall not possess or exercise any authority on behalf of
MetLife Insurance other than that expressly conferred on the Principal
Underwriter by this Agreement. The Principal Underwriter shall be held to the
exercise of reasonable care in carrying out the provisions of this Agreement.
4. To the extent necessary to distribute the Products, the Principal
Underwriter shall be duly registered or otherwise qualified under all
applicable securities laws of any state or other jurisdiction in which the
Principal Underwriter is licensed or otherwise authorized to distribute the
Products, if required. The Principal Underwriter shall be responsible for the
training, supervision, and control of its representatives for the purpose of
the FINRA Conduct Rules and all applicable federal and state securities law
requirements.
5. MetLife Insurance hereby authorizes the Principal Underwriter to enter
into or renew, as applicable, separate written agreements, on such terms and
conditions not inconsistent with this Agreement, with one or more organizations
or intermediaries which agree to participate in any such requested the
distribution of the Products, or as necessary to
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continue to pay trial commissions or make other authorized payments to selling
firms under Products that have been issued as the effective date of this
Agreement. Such intermediaries (hereafter "Intermediaries" or individually, an
"Intermediary") shall be both registered as a broker-dealer under the Exchange
Act and a member in good standing of FINRA or be exempt from such registration
and FINRA membership requirements as a broker-dealer under the Exchange Act and
FINRA rules. Each Intermediary and its agents or representatives soliciting
applications for Products shall be duly and appropriately licensed, registered
or otherwise qualified for the sale of such Products under the insurance laws
and any applicable blue-sky laws of each state or other jurisdiction in which
MetLife Insurance is licensed to sell the Products.
REPRESENTATIONS OF PRINCIPAL UNDERWRITER
6. The Principal Underwriter represents and warrants that it is, and
during the term of this Agreement shall remain, registered as a broker-dealer
under the Exchange Act, admitted as a member in good standing with FINRA, and
duly registered under applicable state securities laws, and that the Principal
Underwriter is and shall remain during the term of this Agreement in compliance
with Section 9(a) of the 1940 Act.
MARKETING MATERIALS; EXPENSES
7. MARKETING MATERIALS; PREPARATION AND FILING. MetLife Insurance shall
design and develop all promotional, sales, and advertising material relating to
the Products and any other marketing-related documents for use in the offer and
sale of the Products, subject to review and approval by the Principal
Underwriter of such material and documents in accordance with applicable laws.
The Principal Underwriter shall be responsible for filing such material with
FINRA and any state securities regulatory authorities requiring such filings.
MetLife Insurance shall be responsible for filing all promotional, sales, or
advertising material, as required, with any state insurance regulatory
authorities. MetLife Insurance shall be responsible for preparing and
maintaining the Product forms and filing them with applicable state insurance
regulatory authorities, and for preparing and maintaining the prospectuses and
registration statement for the Products and filing them with the SEC and state
regulatory authorities, to the extent required. MetLife Insurance warrants that
the prospectuses and registration statements for the Products contain no
intentional misstatements or omissions of material fact. The Principal
Underwriter shall notify MetLife Insurance promptly of any comments provided by
the SEC, FINRA, or any securities or insurance regulatory authority on any
materials described above, and will cooperate in resolving and implementing any
comments, as applicable. The Principal Underwriter shall not use any materials
that have not been approved by MetLife Insurance.
8. MetLife Insurance shall pay or cause to be paid expenses of any
registration or qualification of the Products for sale under federal securities
laws and, if applicable, the securities or insurance laws of any state or other
jurisdiction, if applicable.
9. MetLife Insurance shall arrange for the payment of commissions directly
to those Intermediaries who sell Products under agreements entered into
pursuant to paragraph 5
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hereof, in amounts as may be agreed to by MetLife Insurance and specified in
such written agreements.
10. REIMBURSEMENT AND COMPENSATION. MetLife Insurance agrees to reimburse
the Principal Underwriter for direct expenses incurred by the Principal
Underwriter on behalf of MetLife Insurance. Such direct expenses shall include,
but not be limited to, (a) commissions and trail commissions payable under
selling agreements in connection with the Products among Intermediaries,
MetLife Insurance and the Principal Underwriter, (b) the costs of goods and
services purchased from outside vendors, (c) travel expenses and (d) state and
federal regulatory fees incurred on behalf of MetLife Insurance. The Principal
Underwriter shall present a statement after the end of each quarter with
respect to expense reimbursement as provided in this Section 10 and the
apportionment of other services rendered and the direct expenses incurred in
connection therewith. Settlements are due and payable quarterly in arrears
within thirty (30) days of presentation of a statement. The Principal
Underwriter agrees that its compensation for services rendered hereunder shall
be limited to reimbursement of actual expenses.
BOOKS AND RECORDS; REPORTS
11. MetLife Insurance, each Separate Account, and the Principal
Underwriter shall cause to be maintained and preserved all books of account and
related financial records as are required of it by applicable laws and
regulations. The books, accounts and records of MetLife Insurance, the Separate
Account and the Principal Underwriter shall be maintained so as to clearly and
accurately disclose the nature and details of the transactions. All records
maintained by MetLife Insurance in connection with this Agreement shall be
maintained and held by MetLife Insurance on behalf of, and as agent for, the
Principal Underwriter, whose property they are and shall remain, and such books
and records will at all times be subject to inspection by authorized
representatives of the SEC and FINRA. MetLife Insurance shall have access to
all records maintained in connection with the Products.
12. The Principal Underwriter shall keep confidential any information
obtained pursuant to this Agreement and shall disclose such information only if
MetLife Insurance has authorized such disclosure or if such disclosure is
expressly required by applicable federal or state regulatory authorities, legal
process, subpoena, or court order.
13. MetLife Insurance, as agent for the Principal Underwriter, shall
confirm to each purchaser of a Product, in accordance with Rule 10b-10 under
the Exchange Act, acceptance of premiums and such other transactions as are
required by and in accordance with Rule 10b-10 and administrative
interpretations thereunder.
14. The Principal Underwriter shall cause MetLife Insurance and each
Separate Account to be furnished with such reports as either or both may
reasonably request for the purpose of meeting reporting and record keeping
requirements under the 1933 Act, the Exchange Act, and the 1940 Act and rules
thereunder, as well as the insurance laws of the state of [New York] and any
other applicable states or jurisdictions.
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15. The Principal Underwriter and MetLife Insurance shall submit to all
regulatory and administrative bodies having jurisdiction over the present and
future operations of each Separate Account, any information, reports, or other
material which any such body by reason of this Agreement may request or require
pursuant to applicable laws or regulations.
MAINTAINING REGISTRATIONS AND APPROVALS
16. MetLife Insurance shall be responsible for maintaining the
registration of the Products with the SEC and any state securities regulatory
authority with which such registration is required, and for gaining and
maintaining approval of the Product forms where required under the insurance
laws and regulations of each state or other jurisdiction in which the Products
are to be offered.
INVESTIGATIONS AND PROCEEDINGS
17. Each party hereto shall advise the other promptly of (i) any action of
the SEC or any authorities of any state or territory, of which it has
knowledge, affecting registration or qualification of each Separate Account and
the Products, or the right to offer the Products for sale, and (ii) the
happenings of any event that makes untrue any statement or which requires the
making of any change, in the registration statement or prospectus for the
Products in order to make the statements therein not misleading.
18. MetLife Insurance, the Principal Underwriter and each Separate Account
agree to cooperate fully in any regulatory inspection, inquiry, investigation,
or proceeding or any judicial proceeding with respect to MetLife Insurance,
each Separate Account, or the Principal Underwriter, their affiliates and their
representatives to the extent that such inspection, inquiry, investigation, or
proceeding is in connection with the Products distributed under this Agreement.
GENERAL PROVISIONS
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19. RIGHTS, REMEDIES, ETC. ARE CUMULATIVE. 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 either
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.
20. NON-EXCLUSIVITY. Each of the parties acknowledges and agrees that this
Agreement, including the services provided by the Principal Underwriter
hereunder and the arrangements described herein, is intended to be
non-exclusive, and that each of the parties is free to enter into similar
agreements and arrangements with other entities.
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21. SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
permitted assigns; PROVIDED, HOWEVER, that neither this Agreement nor any
rights, privileges, duties or obligations of the parties hereunder may be
assigned by a party without the prior written consent of the other party to
this Agreement.
22. TERMINATION. This Agreement shall terminate automatically: (a) if the
Agreement is assigned without the prior written consent of the other party; or
(b) in the event that the Principal Underwriter ceases to be a registered
broker-dealer under the Exchange Act and/or a member in good standing of FINRA.
This Agreement may be terminated: (a) at any time by mutual consent of the
parties; (b) at any time, for any reason, by either party on sixty (60) days'
written notice to the other party; or (c) by either party if the other party
materially breaches any of the terms of this Agreement and fails to cure the
breach within thirty (30) days of notification by the other party of such
breach. Upon termination of this Agreement, all authorizations, rights and
obligations shall cease except the obligation to settle accounts, including
commissions for Products (if applicable) in effect at the time of termination.
The parties agree to cooperate and give reasonable assistance to one another in
effecting an orderly transition following termination.
23. REGULATION. This Agreement shall be subject to the provisions of the
1940 Act, the Securities Act, and the Exchange Act and the rules, regulations
and rulings thereunder, including such exemptions from the 1940 Act as the SEC
may grant, and to the applicable rules and regulations of FINRA, from time to
time in effect, and the terms hereof shall be interpreted and construed in
accordance therewith.
24. SEVERABILITY. If any provision or portion of any provision of this
Agreement is held to be or made invalid, illegal or unenforceable by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby, and this Agreement will be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision or portion of
any provision has never been contained herein.
25. GOVERNING LAW. This Agreement and any dispute arising hereunder shall
be interpreted, construed and enforced in accordance with the laws of the State
of New York, without reference to any conflict of laws provisions that would
cause the application of laws of any jurisdiction other than those of the State
of New York.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties, and supersedes in all respects any other prior agreements
between the parties hereto with respect to the subject matter in this
Agreement, including, but not limited to, the distribution of the Products.
27. AMENDMENTS. This Agreement may be amended from time to time by mutual
agreement and consent of the undersigned parties, provided such amendment is in
writing and duly executed.
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28. FORCE MAJEURE. Either party may be excused, and no party shall be
liable, for a delay in performance or a failure to perform its obligations in
whole or in part due to causes reasonably beyond the control of such party,
including, without limitation, war or act of war, terrorism, insurrection, riot
or civil commotion, act of public enemy, flood or other act of God, and any
such delay or failure shall not be considered a breach of this Agreement.
Notwithstanding the foregoing, FORCE MAJEURE will not include an event which a
party should reasonably be able to prevent or overcome by the exercise of due
diligence, including, but not limited to, by the implementation or exercise of
a commercially reasonable disaster recovery plan.
29. CAPTIONS. Captions in this Agreement are included for convenience or
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
30. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
be deemed one and the same agreement. Each party may deliver its signed
counterpart of this Agreement to the other party by means of electronic mail or
any other electronic medium utilizing image scan or similar technology, and
such delivery will have the same legal effect as hand delivery of an originally
executed counterpart.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO PRINCIPAL UNDERWRITING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
METROPOLITAN LIFE INSURANCE
COMPANY
BY: ______________________________
NAME: _______________
TITLE: _____________
DATE: ____________________________
METLIFE INVESTORS DISTRIBUTION
COMPANY
BY: ______________________________
NAME: _______________
TITLE: _____________
DATE: ____________________________
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