AMENDED AND RESTATED GENERAL DISTRIBUTOR AGREEMENT
EX-3
AMENDED AND
RESTATED
This
Amended and Restated General Distributor Agreement is by and among XXXXXXX
NATIONAL LIFE INSURANCE COMPANY (JNL), a Michigan corporation, XXXXXXX NATIONAL
LIFE INSURANCE COMPANY OF NEW YORK (JNLNY), a New York corporation (together,
“COMPANY”), and XXXXXXX NATIONAL LIFE DISTRIBUTORS, LLC (JNLD), a Delaware
limited liability company (the “Agreement”).
Reference
is made to the following agreements, which the parties now wish to combine,
amend, and restate in their entirety: General Distributor Agreement between JNL
and JNLD dated June 30, 1998 (Xxxxxxx National Separate Account-I); General
Distributor Agreement between JNL and JNLD dated June 30, 1998 (Xxxxxxx National
Separate Account III); General Distributor Agreement between JNL and JNLD dated
August 2, 1999 (Xxxxxxx National Separate Account V); General Distributor
Agreement between JNL and JNLD dated March 29, 2004 (Xxxxxxx National Separate
Account IV); General Distributor Agreement between JNL and JNLD dated May 3,
2004 (Xxxxxxx National Separate Account IV); General Distributor Agreement
between JNLNY and JNLD dated June 30, 1998 (JNLNY Separate Account I); General
Distributor Agreement between JNLNY and JNLD dated December 29, 1999 (JNLNY
Separate Account II); and General Distributor Agreement between JNLNY and JNLD
dated March 29, 2004 (JNLNY Separate Account IV). This Agreement
supercedes all prior agreements and understandings, both oral and written, among
the parties with respect to the below subject matter, including the Amended and
Restated General Distributor Agreement dated October 25, 2005.
I
COMPANY
issues variable and fixed annuity contracts and variable universal life
insurance policies (the “Variable Products”) through its separate accounts named
in attached and incorporated Appendix A. JNLD agrees to distribute
the Variable Products to Selling Broker Dealers (as defined in Section III) and
insurance agencies for sale to the public and to provide sales services, subject
to this Agreement’s terms and conditions. JNLD is registered as a
broker-dealer under the Securities Exchange Act of 1934, as amended (the “1934
Act”), and is a member of the National Association of Securities Dealers, Inc.
(NASD).
II
COMPANY
authorizes JNLD and JNLD agrees to serve, during the term of this Agreement, as
the distributor of the Variable Products. JNLD will distribute the
Variable Products to Selling Broker-Dealers and insurance agencies to sell, at a
price to be set by COMPANY, to purchasers permitted to buy such Variable
Products as specified in the applicable prospectus.
III
Company
authorizes JNLD, subject to disapproval by COMPANY, to select broker-dealers
(“Selling Broker Dealers”) to enter into separate written agreements (“Selling
Agreements”) with Company and JNLD to participate as JNLD shall deem appropriate
in the distribution of the Variable Products. Selling Broker Dealers
must be registered under the 1934 Act and members of the NASD, and either
licensed as an insurance agency or affiliated with an insurance agency, which
insurance agency must also execute the Selling Agreement. The
Selling Agreements shall be in a form acceptable to COMPANY. Each
Selling Broker-Dealer and its registered representatives soliciting applications
for Variable Products (“Representatives”) shall be duly and appropriately
licensed, appointed by COMPANY, registered and otherwise qualified for the sale
of Variable Products under the NASD rules and applicable federal and state
securities and insurance laws. Each Selling Broker-Dealer shall be
responsible for its Representatives continuing compliance with all applicable
securities laws and regulations including, but not limited to, registration
requirements, and with all applicable state laws.
IV
Each Selling Agreement shall provide as
follows, in words or substance with respect to the training and supervision of
Representatives and other persons associated with such Selling-Broker Dealer who
are involved directly or indirectly in the offer or sale of
Contracts:
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A.
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All
such persons shall be subject to the control of such Selling-Broker Dealer
with respect to such persons’ activities in connection with the sale of
Variable Products. Such Selling-Broker Dealer shall be
responsible for training and supervision of all such
persons. JNLD and COMPANY shall not have responsibility for the
training and supervision of any person associated with such Selling-Broker
Dealer. JNLD shall require such Selling Broker-Dealer to agree
to comply with COMPANY’s position regarding legal and ethical business
standards for its producers and to engage in active and fair competition
as required by all applicable laws, rules and
regulations.
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B.
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Such
Selling Broker-Dealer shall be required to assume full responsibility for
continued compliance by itself and its associated persons (as defined in
Section 3(a)(18) of the 0000 Xxx) with the NASD Conduct Rules (“NASD
Rules”) and applicable federal and state securities and insurance
laws. Such Selling-Broker Dealer shall be specifically charged
with the responsibility of supervising its representatives’ compliance
with all applicable suitability requirements under federal or state law or
the regulations of the NASD. Such Selling Broker-Dealer shall
be specifically charged with providing or arranging for adequate training
to ensure that representatives have thorough knowledge of each Variable
Product for sale and the ability to make appropriate product presentations
and suitability determinations in compliance with applicable
law. Such Selling Broker-Dealer and its representatives shall
not recommend the purchase of a Variable Product to a prospective
purchaser unless they have reasonable grounds to believe that such
purchase is suitable for the prospective purchaser and is in accordance
with applicable regulations of any regulatory authority, including the
Securities and Exchange Commission (SEC) and the
NASD.
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V
The
parties hereto recognize that any Representative selling Variable Products as
contemplated by this Agreement shall be acting as an insurance agent of
COMPANY. Such Representatives shall not be considered agents or
employees of JNLD, unless any contract between JNLD and any such person
specifically provides otherwise. Further, it is intended by the
parties hereto that such Representatives have and shall continue to be
considered to have a common law independent contractor relationship with COMPANY
and not to be considered common law employees of COMPANY, unless any contract
between COMPANY and any person selling the Variable Products specifically
provides otherwise.
VI
JNLD
shall be fully responsible for carrying out all compliance and supervisory
obligations in connection with the distribution of the Variable Products, as
required by NASD Rules, and by federal and any applicable state
laws. JNLD shall assume full responsibility for training and
oversight of its representatives engaged directly or indirectly in the
distribution of the Variable Products to Selling Broker-Dealers, and shall have
the authority to require that disciplinary action be taken with respect to its
representatives. JNLD agrees to comply with COMPANY’s position
regarding legal and ethical business standards and to engage in active and fair
competition as required by all applicable laws, rules and
regulations.
VII
COMPANY and JNLD each agree to carry
out its activities and obligations under this Agreement in continuous compliance
with the federal and state laws and regulations, including those governing
securities and insurance related activities or transactions, as
applicable. Each shall notify the other parties immediately in
writing if it fails to comply with any applicable law or
regulation.
VIII
COMPANY
reserves the right to review and accept or reject all applications for Variable
Products. All applications forwarded to COMPANY shall be approved by
an appropriate registered principal of the submitting Selling-Broker Dealer in
accordance with all applicable rules and regulations, including but not limited
to those regarding suitability. All premium payments for such
Variable Products shall be sent promptly to the office designated for such by
COMPANY.
IX
COMPANY
shall furnish JNLD with copies of such information, financial statements and
other documents requested by JNLD for use in connection with the distribution of
the Variable Products, as may be deemed reasonable by
COMPANY. COMPANY shall provide to JNLD such number of copies of the
currently effective prospectuses and any supplements, as JNLD and COMPANY shall
agree upon from time to time. COMPANY reserves the right to require
the recall of any material approved by it at any time for any reason, and JNLD
shall promptly comply, and use its best efforts to cause all Selling
Broker-Dealers to promptly comply.
X
JNLD is
not authorized to give any information, make any representations, or authorize
anyone else to give any information or make any representation concerning
COMPANY or the separate accounts, other than as contained in the current
SEC-filed registration statement or such sales literature as may be authorized
by COMPANY.
XI
COMPANY, as agent for
JNLD, shall confirm to each applicant for and purchaser of a Variable Product
acceptance of Premiums and such other transactions as are required by Rule
10b-10 under the 1934 Act, including administrative interpretations
thereunder. COMPANY shall maintain and preserve such books and records
with respect to such confirmations in conformity with the requirements of Rules
17a-3 and 17a-4 under the 1934 Act to the extent such requirements apply.
COMPANY shall maintain all such books and records and hold such books and
records on behalf of and as agent for JNLD whose property they are and shall
remain, and acknowledges that such books and records are at all times subject to
inspection by the SEC in accordance with Section 17(a) of the 1934
Act.
XII
The
parties to this Agreement agree to keep necessary records as indicated by
applicable state and federal law and to render the necessary assistance to one
another for the accurate and timely preparation of such records. Each
party shall make such books and records reasonably available to the other
party. The parties shall promptly furnish each other with any reports
and information the other party may reasonably request for the purpose of
meeting its reporting and recordkeeping requirements under the insurance laws of
any state, under any applicable federal or state securities laws, rules or
regulations, or under the rules of the NASD.
XIII
Commissions
payable with respect to Variable Products shall be paid by COMPANY as agent for
JNLD, and nothing herein shall obligate JNLD to otherwise or directly pay any
commissions or other remuneration to the Selling Broker-Dealers/Representatives
selling the Variable Products or to reimburse such Selling
Broker-Dealers/Representatives for expenses incurred by them, nor shall JNLD
have any interest whatsoever in any commissions or other remuneration payable to
any Selling Broker-Dealer/Representative by COMPANY.
XIV
Each party will promptly notify the
other parties of any customer complaint or notice of any regulatory
investigation or proceeding received by such party or their respective
affiliates relating to the Variable Products or any threatened or filed
arbitration action or civil litigation arising out of the offer or sale of the
Variable Products. The parties shall cooperate fully in investigating
and responding to any such complaint, regulatory investigation or proceeding,
arbitration, or civil litigation, and in any settlement or trial of any actions
arising out of the conduct of business under this Agreement.
JNLD will include in each Selling
Agreement a notification provision comparable to this Paragraph requiring the
Selling Broker-Dealer (a) to notify JNLD and COMPANY promptly of any complaint
or claim or any notice of any regulatory investigation or proceeding received by
the Selling-Broker Dealer or its affiliates relating to JNLD, COMPANY, any
associated person of JNLD or COMPANY, and any Variable Product, or any
threatened or filed arbitration action or civil litigation arising out of
solicitation of the Variable Products, and (b) to cooperate with COMPANY and
JNLD in investigating and resolving such matter.
XV
Each
party (the “Indemnifying Party”) hereby agrees to release, indemnify, and hold
harmless the other parties, its officers, directors, employees, agents,
servants, predecessors or successors from any claims or liability arising out of
the breach of this Agreement by the Indemnifying Party or arising out of acts or
omissions of the Indemnifying Party or its agents, appointees, independent
contractors or employees not authorized by this Agreement, including the
violation of the federal and state securities laws, state insurance laws, and
tax laws, including the Employee Retirement Income Security Act of 1974 (ERISA),
or arising from acts of misrepresentation or false declaration concerning the
products sold hereunder.
XVI
No party
will disclose Confidential Information (as defined below) to any person or
entity other than their respective Representatives (as defined below) or use
Confidential Information other than in connection with their activities under
this Agreement, unless and to the extent (i) if the Confidential Information
relates to a party or an affiliate thereof, such party otherwise agreed in
writing to such usage, or (ii) if the Confidential Information relates to a
client or prospective client of a party or an affiliate, such client and such
party or affiliate otherwise agrees in writing to such usage.
“Confidential
Information” relating to any person or entity means all information
concerning the identity of, and the finances, business, operations, prospects,
procedures, or relationships relating to such person or entity, which is
received verbally or in writing by a party from the other party, unless and to
the extent such information either becomes generally available to the public
other than through disclosure by the receiving party or becomes available to the
receiving party on a non-confidential basis from a person other than the other
party, who to the receiving party’s knowledge, is not prohibited from disclosing
the information. Without limitation of the foregoing, COMPANY agrees
to keep the identity of each client and all information of any nature relating
to each client confidential and shall use such information only for the purposes
set forth in this Agreement and not otherwise. “Representatives” of a
party means its directors, officers, employees, attorneys, agents, and other
representatives that are designated and provided in writing from time to time to
the other party upon request of the other party.
The
parties may disclose Confidential Information to the extent required by
applicable law or at the request of any regulatory or supervisory authority
having jurisdiction over that party.
XVII
No
amendment or supplement to this Agreement shall bind the parties unless in
writing, signed by duly authorized officers, except for any changes to Appendix
A. The parties agree to be bound by any changes to Appendix A of
which there is notice, and for which no signatures will be
required.
This
Agreement shall remain in effect unless terminated as hereinafter
provided. This Agreement shall automatically terminate in the event
of its assignment by JNLD. This Agreement may be terminated by either
party hereto at any time upon not less than 60 days’ written notice to the other
party.
XVIII
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been given on the date of service if
served personally on the party to whom notice is to be given, or on the date of
mailing if sent by first class mail, registered or certified, postage prepaid
and properly addressed as follows:
TO
COMPANY:
Xxxxxxx National Life Insurance
Company
0 Xxxxxxxxx Xxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxx X.
Xxxxx
And/or
Xxxxxxx
National Life Insurance Company of New York
0000
Xxxxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
X. Xxxxx
TO
JNLD:
Xxxxxxx National Life Distributors,
LLC
0000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X.
Xxxx
IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be signed on
their behalf by their respective officers thereunto duly
authorized.
This Agreement is effective as of the
_1st_ day
of __June_____, 2006.
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY
By:
Xxxxxx X. Xxxxx
Its: Senior Vice President and
General
Counsel
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XXXXXXX
NATIONAL LIFE INSURANCE COMPANY OF NEW
YORK
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By:
Xxxxxx X. Xxxxx
Its: Senior Vice President and
General Counsel
XXXXXXX
NATIONAL LIFE DISTRIBUTORS, LLC
By:
Its:
APPENDIX
A
Dated
June 1, 2006
Xxxxxxx
National Life Insurance Company:
Xxxxxxx
National Separate Account I
Xxxxxxx
National Separate Account III
Xxxxxxx
National Separate Account IV
Xxxxxxx
National Separate Account V
Xxxxxxx
National Life Insurance Company of New York:
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