EXHIBIT (3)(B)
PACIFIC LIFE & ANNUITY COMPANY
VARIABLE CONTRACT SELLING AGREEMENT
This Agreement ("Agreement") is made as of _______________________, 19__ by
and among PACIFIC LIFE & ANNUITY COMPANY ("PL&A"), PACIFIC SELECT DISTRIBUTORS,
INC. ("Distributor"), a broker/dealer registered with the Securities and
Exchange Commission ("SEC") pursuant to the Securities Exchange Act of 1934, as
amended ("Exchange Act"), and a member of the National Association of Securities
Dealers, Inc. ("NASD"), _____________________________________ ("Broker/Dealer"),
and each undersigned agency (jointly and severally referred to herein as
"Agency"); Broker/Dealer and Agency jointly and severally hereinafter referred
to collectively as "Selling Entities".
This Agreement is for the purpose of providing for the distribution of
certain variable life insurance policies and/or annuity contracts set forth in
Schedule A hereto and of any successor additional SEC registered insurance
products (as discussed in Paragraph [3] of this Agreement) issued by PL&A and
distributed by Distributor through representatives who are both (a) state
insurance licensed and appointed agents of PL&A and associated with the Agency
and (b) NASD registered representatives of Broker/Dealer who are appropriately
licensed both with the NASD and with the relevant states. The variable life
insurance and/or annuity contracts set forth in Schedule A hereto, as such
Schedule may be amended and/or restated from time to time to include any
successor or additional SEC registered insurance products, and together with any
riders to such contracts, are referred to collectively herein as the
"Contracts".
1. APPOINTMENT
In consideration of the mutual promises and covenants contained in this
Agreement, PL&A and Distributor appoint Broker/Dealer and those persons
associated with Agency who are NASD registered representatives of Broker/Dealer
and state insurance licensed agents of PL&A to solicit and procure applications
for the Contracts.
These appointments are not deemed to be exclusive in any manner and extend
only to those jurisdictions, set forth in Schedule B hereto as such Schedule B
may be amended from time to time by PL&A in its sole discretion, where the
Contracts specified in such Schedule B have been approved for sale.
From time to time, PL&A will provide Selling Entities with information
regarding the jurisdictions in which PL&A is authorized to solicit applications
for the Contracts and any limitations on the availability of such Contracts in
any jurisdiction.
2. RESPONSIBILITIES
Broker/Dealer is authorized to collect the premium on the Contracts and
must remit such premiums to PL&A in the manner set forth in the applicable
Compensation Schedule set forth in one of the Schedule Ds. Contract applications
shall be taken only on preprinted, state-appropriate application forms supplied
by PL&A. All completed applications, supporting documents and payments are the
sole property of PL&A and must be promptly delivered to PL&A. All applications
are subject to acceptance by PL&A at its sole discretion.
3. NEW PRODUCTS
Distributor may propose and PL&A may issue additional or successor
products, in which event Broker/Dealer will be informed of the new product and
its related Compensation Schedule. If Broker/Dealer does not agree to distribute
such new product(s), it must notify PL&A in writing within 30 days of receipt of
the Compensation Schedule for such new product(s). If Broker/Dealer does not
indicate disapproval of the new product(s) or the terms contained in its related
Compensation Schedule, Broker/Dealer will be deemed to have thereby agreed (a)
to distribute such new product(s) and agreed to its related Compensation
Schedule, which shall be attached to and made a part of this Agreement as an
amendment or addendum to the applicable Schedule D, or as
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a new Schedule D hereto, and (b) to the amendment of Schedules A and B to this
Agreement to name such new product(s) and to identify where their offer and sale
has been approved.
4. SUBAGENTS
Agency is authorized to appoint Subagents to solicit sales of the Contracts
("Subagents"); provided, however, that PL&A shall have the right in its sole
discretion to terminate the appointment of any Subagent upon notice from PL&A to
Agency. Agency warrants that no Subagent shall commence solicitation nor aid,
directly or indirectly, in the solicitation of any application for any Contract
unless, at the time of such solicitation or aid, such Subagent is appropriately
licensed for such product under applicable insurance laws and is an NASD
registered representative of Broker/Dealer.
Selling Entities each represent that they have, for each Subagent,
fulfilled all requirements set forth in the form of general letter of
recommendation set forth in Schedule C hereto; and agree, upon reasonable
request by PL&A, to furnish proof of such fulfillment as PL&A may require.
5. SALES MATERIAL
Neither Selling Entities nor any of their respective Subagents, officers,
directors, employees, affiliates, representatives or agents shall utilize in
their marketing efforts for the Contracts any written brochure, prospectus,
descriptive literature, printed and published material, audio-visual material or
standard letters; provided, however, that they may: (a) use material that has
been provided preprinted by PL&A or Distributor, and (b) use material, the use
of which PL&A or Distributor has specifically approved, in writing, prior to
such use. In order for PL&A or Distributor to review and approve materials not
produced by PL&A in accordance with clause (b) above, Broker/Dealer must provide
PL&A and Distributor with evidence that any material proposed to be used was
filed with the NASD in accordance with applicable rules and copies of
correspondence with the NASD relating to the proposed material.
6. RECORDS
In accordance with the requirements of federal and state laws and rules of
applicable self-regulatory organizations as defined in the Exchange Act ("SROs")
including but limited to the Rules of Fair Practice of the NASD ("NASD Rules"),
Selling Entities shall maintain complete records concerning the sale of the
Contracts, information regarding the customs relating to the sale and/or
servicing of the Contracts, including the manner and extent of distribution of
any sales, marketing or other solicitation material, shall make such records and
files available to staff of PL&A or Distributor at such times as PL&A or
Distributor may reasonably request and shall make such material available to
personnel of state insurance departments, the NASD or other regulatory agency,
including the SEC, that have regulatory authority over PL&A or Distributor.
7. DELIVERY OF PROSPECTUSES
Selling Entities warrant that each solicitation, specifically including any
solicitation effected by any Subagent, will be made by use of a currently
effective prospectus, that a prospectus will be delivered concurrently with each
sales presentation and that no statements shall be made to a client superseding
or controverting any statement made in the prospectus. PL&A and Distributor
shall furnish Selling Entities, at no cost to Selling Entities, reasonable
quantities of prospectuses and such other material as PL&A and Distributor deem
necessary to aid in the solicitation of Contracts.
8. BROKER/DEALER REPRESENTATIONS
The representations, warranties and covenants of Broker/Dealer set forth in
this Agreement are continuous during the term of this Agreement and
Broker/Dealer agrees to notify each of PL&A and Distributor immediately, in
writing, if, at any time during the course of this Agreement, any of the
representations, warranties or covenants set forth herein become inaccurate or
untrue of the facts related thereto.
Broker/Dealer represents, warrants and covenants that:
(a) Broker/Dealer is affiliated with Agency which is an entity properly
licensed under the insurance laws of the jurisdiction(s) in which Broker/Dealer
will act under this Agreement;
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(b) Broker/Dealer is registered with the SEC as a broker/dealer under the
Exchange Act, a member of the NASD and will, throughout the duration of this
Agreement, remain in compliance with the requirements of the NASD and of the
Exchange Act, including but not limited to laws requiring that the Broker/Dealer
and each of its Subagents/registered representatives be appropriately securities
registered, insurance licensed and appointed by PL&A, and such other applicable
federal or state laws;
(c) Broker/Dealer has established rules, procedures, and supervisory and
inspection techniques necessary to train and to supervise diligently the
activities of its NASD registered representatives who are state insurance
licensed and appointed agents of PL&A;
(d) Broker/Dealer shall ensure that no registered representative of
Broker/Dealer, including any Subagent, shall sell or recommend for sale any
Contract to any person without reasonable grounds for believing, after
appropriate inquiry, that the purchase of that Contract is suitable for that
person;
(e) Upon request by PL&A and Distributor, Broker/Dealer will furnish such
appropriate records as are necessary to document the training, licensing and
diligent supervision required by subparagraph (b) above, and client suitability
determinations required by subparagraph (c) above.
9. AGENCY REPRESENTATIONS
The representations, warranties and covenants of Agency set forth in this
Agreement are continuous during the term of this Agreement and Agency agrees to
notify each of PL&A and Distributor immediately, in writing, if, at any time
during the course of this Agreement, any of the representations, warranties or
covenants set forth herein become inaccurate or untrue of the facts related
thereto.
Agency represents, warrants and covenants that it will, and will cause each
Subagent to, comply fully with the requirements of state insurance law and
applicable federal laws, including but not limited to assuring appropriate state
insurance licensing and appointment by PL&A, and will establish rules and
procedures necessary to supervise diligently the activities of licensed and
appointed agents of PL&A associated with Agency. Upon request by PL&A or
Distributor, Agency will furnish such appropriate records as are necessary to
document such diligent supervision.
10. PL&A REPRESENTATIONS
PL&A represents that the prospectus(es) and registration statement(s)
relating to the Contracts that are and shall be in effect from time to time
contain no untrue statements of material fact and do not omit to state material
facts, the omission of which makes any statement contained in such
prospectus(es) and registration statement(s) misleading.
11. COMPENSATION
11.1 PL&A, through Distributor, will remit to Broker/Dealer or Agency
compensation as set forth in the applicable Schedule D hereto, which payments or
termination thereof shall be governed by the administrative rules established by
PL&A in its sole discretion. Selling Entities shall pay all Subagents. PL&A
reserves the right not to pay compensation on a Contract, the premium for which
is paid in whole or in part by the loan or surrender value of any other life
insurance policy or annuity contract issued by PL&A.
11.2 PL&A may offset, against any claim for commission and any other
compensation payable to Broker/Dealer or Agency under this Agreement, any
existing or future indebtedness of, respectively, Broker/Dealer or Agency,
whether fixed or contingent, whether such indebtedness arises under this
Agreement or otherwise. Such indebtedness shall constitute a first lien against
any such compensation. Neither Broker/Dealer nor Agency may offset, against any
such indebtedness, any compensation accruing under this Agreement.
12. COMPLAINTS AND INVESTIGATIONS
PL&A, Distributor, Broker/Dealer and Agency agree to cooperate fully in any
insurance or securities regulatory investigation or proceeding or judicial
proceeding with respect to PL&A,
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Distributor, Broker/Dealer and/or Agency, their affiliates and their agents or
representatives to the extent that such investigation or proceeding is in
connection with the Contracts distributed under this Agreement. Without limiting
the foregoing:
(a) Selling Entities shall promptly notify PL&A and Distributor of any
complaint or comment regarding the Contracts and/or any allegation that Selling
Entities or any of its Subagents/representatives violated any law, regulation or
rule in soliciting applications for or servicing the Contracts. Selling Entities
shall promptly investigate such complaint or allegation, take appropriate
remedial measures and notify PL&A and Distributor of same. Selling Entities
shall provide PL&A and Distributor with full details of and correspondence
relating to any of the foregoing, including copies of all legal documents
pertaining thereto.
(b) Selling Entities shall cooperate fully with PL&A and Distributor in any
regulatory proceeding or judicial proceeding involving the solicitation of
applications for or the servicing of Contracts by the Selling Entities or any of
their representatives.
13. INDEMNIFICATION
13.1 PL&A and Distributor agree to indemnify and hold harmless Selling
Entities, their officers, directors, agents and employees, against any and all
losses, claims, damages, or liabilities to which they may become subject under
the Securities Act, the Exchange Act, the Investment Company Act of 1940, or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact or any omission or alleged omission to state a
material fact required to be stated or necessary to make the statements made not
misleading in the registration statement for the Contracts or for the shares of
Pacific Select Fund (the "Fund") filed pursuant to the Securities Act, or any
prospectus included as a part thereof, as from time to time amended and
supplemented, or in any advertisement or sales literature provided by PL&A and
Distributor.
13.2 Selling Entities agree to, jointly and severally, hold harmless and
indemnify PL&A and Distributor and any of their respective affiliates,
employees, officers, agents and directors (collectively, "Indemnified Persons")
against any and all claims, liabilities and expenses (including, without
limitation, losses occasioned by any rescission of any Contract pursuant to a
"free look" provision or by any return of initial purchase payment in connection
with an incomplete application), including, without limitation, reasonable
attorneys' fees and expenses and any loss attributable to the investment
experience under a Contract, that any Indemnified Person may incur from
liabilities resulting or arising out of or based upon (a) any untrue or alleged
untrue statement other than statements contained in the registration statement
or prospectus relating to any Contract, (b) (i) any inaccurate or misleading, or
allegedly inaccurate or misleading sales material used in connection with any
marketing or solicitation relating to any Contract, other than sales material
provided preprinted by PL&A or Distributor, and (ii) any use of any sales
material that either has not been specifically approved in writing by PL&A or
Distributor or that, although previously approved in writing by PL&A or
Distributor, has been disapproved, in writing by either of them, for further
use, or (c) any act or omission of a Subagent, director, officer or employee of
Selling Entities, including, without limitation, any failure of Selling Entities
or any Subagent to be registered as required as a broker/dealer under the 1934
Act, or licensed in accordance with the rules of any applicable SRO or insurance
regulator.
14. FIDELITY BOND
Selling Entities each represent and covenant that all directors, officers,
employees and Subagents of Selling Entities licensed pursuant to this Agreement
or who have access to funds of PL&A are and will continue to be covered by a
blanket fidelity bond including coverage for larceny, embezzlement and other
defalcation, issued by a bonding company rated A- or better from A.M. Best or
equivalent rating from another nationally recognized statistical rating
organization. This bond shall be maintained at Broker/Dealer's and/or Agency's
expense. Such bond shall be at least equivalent to the minimal coverage required
under the NASD Rules, and endorsed to extend coverage to life insurance and
annuity transactions. Selling Entities acknowledge that PL&A may require
evidence that such coverage is in force, and Broker/Dealer or Agency shall
promptly give notice to PL&A of any notice of cancellation or change of
coverage.
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Selling Entities each assign any proceeds received from the fidelity bond
company, error and omissions or other liability coverage, to PL&A to the extent
of PL&A's loss due to activities covered by the bond. If there is any
deficiency, Selling Entities will promptly pay PL&A the amount of such
deficiency on demand. Selling Entities each shall indemnify and hold harmless
PL&A from any such deficiency and from the cost of collection.
15. LIMITATIONS OF AUTHORITY
The Contract forms are the sole property of PL&A. No person other than PL&A
has the right or authority to: (i) make, alter or discharge any policy,
Contract, certificate, supplemental contract or form issued by PL&A; (ii) make,
alter, modify or discharge any Contract; (iii) waive or modify any provision
with respect to any Contract or policy; (iv) incur indebtedness or liability, or
expend or contract for expenditure of any funds on behalf of PL&A or the
Contracts; (v) extend the time for payment of any premiums, bind PL&A to
reinstate any terminated Contracts, or accept notes for payment of premiums;
(vi) enter into any proceeding in a court of law or before a regulatory agency
in the name of or on behalf of PL&A; or (vii) institute or file any response to
any legal proceeding in connection with any matter pertaining to the Contracts
on behalf of PL&A without the prior written consent of PL&A (except that if
Selling Entities themselves are named as a party or parties in such proceedings
each named party may enter into legal proceedings on its own behalf without the
written consent of PL&A).
16. GENERAL PROVISIONS
16.1 Waiver
Failure of any of the parties to insist promptly upon strict compliance
with any of the obligations of any other party under this Agreement will not be
deemed to constitute a waiver of the right to enforce strict compliance.
16.2 Independent Contractors
Selling Entities are each an independent contractor and not an employee or
subsidiary of PL&A or Distributor. Nothing contained in this Agreement or
otherwise shall be deemed to make any registered representative of Broker/Dealer
or any Subagent appointed by Agency an employee or agent of PL&A or Distributor
for tax or any other purposes. Neither PL&A nor Distributor shall have any
responsibility for training or supervision of any such Subagent or registered
representative or of any other employee or affiliate of any Selling Entities.
16.3 Independent Assignment
No assignment of this Agreement or of commissions or other payments under
this Agreement shall be valid without prior written consent of PL&A. Any
purported assignment in violation of this Paragraph 16.3 is void.
16.4 Notice
Any notice required or otherwise given pursuant to this Agreement may be
given electronically by facsimile or electronic mail (but not orally by
telephone) or by mail, postage paid, (including any express mail service),
transmitted to the last address communicated by the receiving party to the other
parties to this Agreement. The current address for mailing purposes of this
Agreement shall be set forth on the signature page.
16.5 Severability
To the extent this Agreement may be in conflict with any applicable law or
regulation, this Agreement shall be construed in a manner consistent with such
law or regulation. The invalidity or illegality of any provisions of this
Agreement shall not be deemed to affect the validity or legality of any other
provision of this Agreement.
16.6 Amendment
Except as expressly provided herein, this Agreement may be amended only by
a writing signed by all parties. The Schedules hereto may be amended by PL&A or
Distributor upon 10 days' written notice to Broker/Dealer and Agency which shall
be deemed received the earlier of actual receipt or 10 days after mailing or
transmission. The submission of an application for the Contracts by
Broker/Dealer or Agency after the date of any
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such amendment shall constitute such party's agreement to such amendment. No
amendment will impair the right to receive commissions as accrued with respect
to Contracts issued and applications procured prior to the amendment.
16.7 Termination
This Agreement may be terminated by any party for any reason upon 10 days'
prior written notice. It may be terminated, for cause, by any party immediately.
Termination of this Agreement shall not impair the right to receive commissions
accrued with respect to applications procured prior to the termination except as
otherwise specifically provided in the applicable Schedule D hereto.
16.8 Survival
All representations and warranties made in or pursuant to this Agreement
and the provisions of Paragraphs 11, 12 and 14.10 of this Agreement shall
survive the termination of this Agreement.
16.9 Governing Law
This Agreement shall be construed in accordance with the laws of the State
of California, without giving effect to the conflict of law provisions thereof.
Broker/Dealer and Agency consent to the jurisdiction of the courts of the State
of California and to the jurisdiction of federal courts located within
California.
16.10 Proprietary Information
Selling Entities acknowledge that information pertaining to any Distributor
program or service, including names of Contract owners, is proprietary in nature
and belongs exclusively to Distributor. Selling Entities agree that they will
not disclose any information concerning Distributor programs or services to any
person, for consideration or otherwise, unless (a) PL&A or Distributor has
authorized such disclosure in writing or (b) if such disclosure is expressly
required by state or federal regulatory authorities and PL&A and Distributor
have received notice, in writing, of such disclosure. Selling Entities agree
further that, following termination of this Agreement for any reason, they will
not solicit or otherwise contact any Contract owner for any reason except as
expressly agreed in writing by Distributor or PL&A.
16.11 Entire Agreement
This Agreement shall constitute the entire agreement among the parties and
supersedes all prior agreements and understandings, whether written or verbal.
By signing below, each of the undersigned agrees to have read and be bound
by the terms and conditions of this Agreement. Each of the undersigned
acknowledges receipt of a copy of this Agreement.
PACIFIC LIFE & ANNUITY COMPANY
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
By:______________________________________
Title:___________________________________
PACIFIC SELECT DISTRIBUTORS, INC.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
By:______________________________________
Title:___________________________________
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BROKER/DEALER:___________________________
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SCHEDULE A
PACIFIC LIFE & ANNUITY COMPANY
CONTRACTS COVERED BY THIS AGREEMENT
Contract Name Contract Number
------------- ---------------
Date:_____________________
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SCHEDULE B
JURISDICTIONS IN WHICH
PACIFIC LIFE & ANNUITY COMPANY
IS APPROVED FOR SALE OF CONTRACTS
COVERED BY THIS AGREEMENT
CONTRACT JURISDICTIONS
-------- -------------
Date:____________________
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SCHEDULE C
GENERAL LETTER OF RECOMMENDATION
Selling Entities hereby certify to PL&A that all of the following requirements
will be fulfilled in conjunction with the submission of licensing/appointment
papers for all applicants as Subagents ("Applicant") submitted by Agency. Agency
will, upon request, forward proof of compliance with same to PL&A in a timely
manner, including but not limited to general background check information, NASD
background information/reports, fingerprint reports, etc.
1. We have made a thorough and diligent inquiry and investigation relative to
each applicant's identity, residence and business reputation and declare that
each applicant is personally known to us, has been examined by us, is known to
be of good moral character, has a good business reputation, is reliable, is
financially responsible and is worthy of a license. Our inquiries and
investigations were sufficient to meet the requirements of requisite state
insurance regulation, federal securities regulation and NASD requirements. Each
individual is trustworthy, competent, and qualified to act as an agent for PL&A,
and to hold himself out in good faith to the general public. We vouch for each
applicant.
2. We have on file a X-000, X-000 or U-4 form which was completed by each
applicant. We have fulfilled all the necessary investigative requirements for
the registration of each applicant as a registered representative through our
NASD member firm, and each applicant is presently registered as an NASD
registered representative.
The above information in our files indicates no fact or condition which
would disqualify the applicant from receiving a license, and all the findings of
all investigative information is favorable.
3. We certify that all educational requirements have been met for the specific
state in which each applicant is requesting a license, and that all such persons
have fulfilled the appropriate examination, education and training requirements.
4. If the applicant is required to submit his or her picture, signature, and
securities registration in the state in which he or she is applying for a
license, we certify that those items forwarded to PL&A are those of the
applicant and that the securities registration and any insurance licenses are
true copies of the original.
5. We hereby warrant that the applicant is not applying for a license with PL&A
in order to place insurance chiefly or solely on his or her life or property,
lives or property of his or her relatives, or property or liability of his or
her associates.
6. We certify that each applicant will receive close and adequate supervision,
and that we will make inspection when needed of any or all risks written by
these applicants, to the end that the insurance interest of the public will be
properly protected.
7. We will not permit any applicant to transact insurance as an agent until duly
licensed therefor. No applicants have been given a contract or furnished
supplies, nor have any applicants been permitted to write, solicit business or
act as an agent in any capacity, and they will not be so permitted until the
certificate of authority or license applied for is received.
8. We certify that Selling Entities and applicant shall have entered into a
written agreement pursuant to which: (i) applicant is appointed a Subagent of
Agency and a registered representative of Broker/Dealer; (ii) applicant agrees
that his/her selling activities relating to securities-regulated Contracts shall
be under the supervision and control of Broker/Dealer and his/her selling
activities relating to all other Contracts shall be under the supervision and
control of Agency; and (iii) applicant's right to continue to sell such
Contracts is subject to his/her continued compliance with such agreement and any
procedures, rules or regulations implemented by Selling Entities.
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SCHEDULE D-1
COMPENSATION SCHEDULE FOR
[Product]
