WHOLESALING AGREEMENT
AGREEMENT dated as of March 1, 1995 by and between SMA LIFE ASSURANCE COMPANY, a
Delaware insurance company ("Company"), ALLMERICA INVESTMENTS, INC., a
Massachusetts corporation (the "Underwriter"), PIONEER FUNDS DISTRIBUTOR, INC.,
a Massachusetts corporation (the "Distributor"), and the insurance agency
affiliates of the Distributor listed on Schedule 1 to this Agreement
(hereinafter referred to as "Distributor Agency Affiliates).
WITNESSETH:
WHEREAS, the Company proposes to register with the Securities and Exchange
Commission interests in certain variable annuity contracts and variable life
insurance contracts under the Securities Act of 1933 and to issue and sell such
contracts through Underwriter acting as the principal underwriter for such
contracts; and
WHEREAS, the Company, Underwriter and Distributor desire to establish an
arrangement whereby the Distributor will act as a wholesaler for such variable
annuity contracts and variable life insurance contracts and, as such, will
recruit business firms to distribute such contracts;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
Underwriter and Distributor hereby agree as follows:
1. Definitions
a. Account -- Each and any separate account established by the Company and
listed on Schedule 2 to this Agreement, as amended from time to time. The
phrase "Account supporting the Contracts" or "Account supporting a class
of Contracts" shall mean the separate account identified in such Contracts
as the separate account to which the Purchase Payments made under such
Contracts are allocated and as to which income, gains and losses, whether
or not realized, from assets allocated to such separate account, are, in
accordance with such Contracts, credited to or charged against such
separate account without regard to other income, gains, or losses of a
Company or any other separate account established by such Company.
b. Contracts -- The variable annuity contracts or variable life insurance
contracts described more specifically on Schedule 3 to this Agreement, as
amended from time to time. The term "Contracts" shall include any riders
to such contracts and any other contracts offered in connection therewith
or any contracts for which such Contracts may be exchanged or converted.
The phrase "a class of Contracts" shall mean those variable annuity
contracts or variable life insurance contracts, as the case may be, issued
on the same policy form or forms and covered by the same Registration
Statement, as shown on Schedule 3 to this Agreement.
c. Registration Statement -- At any time while this Agreement is in
effect, the currently effective registration statement filed with the SEC
under the 1933 Act, or currently effective post-effective amendment
thereto, relating to a class of Contracts, including financial statements
included in, and all exhibits to, such registration statement or
post-effective amendment. (For purposes of Sections 5.a and 11 of this
Agreement, however, the term "Registration Statement" means any document
that is or at any time was a Registration Statement within the meaning of
this Section 1.c.)
d. Prospectus -- The prospectus and any statement of additional
information included within a Registration Statement, except that, if the
prospectus and statement of additional information most recently filed
with the SEC pursuant to Rule 497 under the 1933 Act after the date on
which the Registration Statement became effective differs from the
prospectus and statement of additional information included within the
Registration Statement at the time it became effective, the term
"Prospectus" shall refer to the most recently filed prospectus and
statement of additional information
filed under Rule 497 under the 1933 Act from and after the date on which
they each shall have been filed. (For purposes of Sections 5.a and 11 of
this Agreement, however, the term "any Prospectus" means any document that
is or at any time was a Prospectus within the meaning of this Section
1.c.)
e. Fund -- Pioneer Variable Contracts Trust
f. Fund Registration Statement -- At any time while this Agreement is in
effect, the currently effective registration statement filed with the SEC
under the 1933 Act, or currently effective post-effective amendment
thereto, for shares of the Fund. (For purposes of Section 11 of this
Agreement, however, the term "Fund Registration Statement" means any
document that is or at any time was a Fund Registration Statement within
the meaning of this Section 1.f.)
g. Fund Prospectus -- At any time while this Agreement is in effect, the
prospectus and statement of additional information for the Fund most
recently filed with the SEC pursuant to Rule 497 under the 1933 Act. (For
purposes of Section 11 of this Agreement, however, the term "Fund
Prospectus" means any document that is or at any time was a Fund
Prospectus within the meaning of this Section 1.g.)
h. 1933 Act -- The Securities Act of 1933, as amended.
i. 1934 Act -- The Securities Exchange Act of 1934, as amended.
j. 1940 Act -- The Investment Company Act of 1940, as amended.
k. SEC -- The Securities and Exchange Commission.
l. NASD -- The National Association of Securities Dealers, Inc.
m. Regulations - The rules and regulations promulgated by the SEC under
the 1933 Act, the 1934 Act and the 1940 Act as in effect at the time this
Agreement is executed or thereafter promulgated, and as they may be
amended from time to time.
n. Territory -- The fifty states of the United States, the District of
Columbia, and all other territories of the United States.
o. State -- any state or commonwealth of the United States, the District
of Columbia or any other territory of the United States.
p. Broker-Dealer -- An entity registered as a broker-dealer and licensed
as a life insurance agent or affiliated with an entity so licensed, and
recruited by the Distributor and subsequently authorized by the Company
and Underwriter to distribute the Contracts pursuant to a sales agreement
with the Company and Underwriter entered into in accordance with Section 3
of this Agreement.
q. Associated Person -- This term as used in this Agreement shall have the
meaning assigned to it in the 1934 Act.
r. Representative -- An Associated Person of the Distributor or a
Broker-Dealer registered with the NASD as a registered representative or
principal of the Distributor or Broker-Dealer, as the case may be.
s. Purchase Payment -- A payment made under a Contract by an applicant or
purchaser to purchase benefits under the Contract.
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t. Procedures -- The administrative procedures prepared and distributed by
the Company, as such may be amended or supplemented from time to time,
relating to the solicitation, sale and delivery of the Contracts.
u. Participation Agreement -- The agreement dated as of December 22, 1994
among the Company, Distributor and the Fund relating to the investment of
assets of the separate accounts of the Company in the Fund.
2. Appointment and Wholesaling Right
a. The Company hereby authorizes the Distributor to represent the Company
in the wholesaling activities contemplated by this Agreement. Where
required by relevant state insurance law, the Company hereby appoints the
Distributor as an agent under such state insurance laws to represent the
Company in the wholesaling activities contemplated by this Agreement. In
those states in which the Distributor is not licensed as an insurance
agent and the relevant state insurance law requires that the Distributor
be licensed as an insurance agent, the Company hereby appoints the
appropriate entity or individual ("Distributor Agency Affiliate")
affiliated with the Distributor (as set forth on Schedule 1 to this
Agreement, as such Schedule may be amended from time to time by the
Distributor to reflect changes in the licensing status, if any, as
required by relevant state insurance law of the Distributor or Distributor
Agency Affiliates) as its agent under the insurance laws to engage in such
wholesaling activities. The Underwriter hereby authorizes the Distributor
under applicable securities laws to engage in the activities contemplated
in this Agreement relating to the wholesaling of the Contracts for which
the Underwriter acts or may act as principal underwriter.
b. The Distributor (both on its own behalf and on behalf of Distributor
Agency Affiliates) undertakes to use its best efforts to recruit
Broker-Dealers in accordance with Section 3 of this Agreement, consistent
with market conditions and compliance with its responsibilities under the
federal securities laws and NASD rules and regulations. The obligations of
the Distributor and Distributor Agency Affiliates hereunder are further
subject to the accuracy of the representations and warranties of the
Company and Underwriter contained in this Agreement and to the performance
by the Company of its obligations hereunder.
c. The appointment and authorization of the Distributor and Distributor
Agency Affiliates to engage in wholesaling activities pursuant to this
Agreement is exclusive as to the Contracts listed on Schedule 3, as
amended from time to time in accordance with Section 2.e of this
Agreement. Neither the Company nor Underwriter shall authorize any other
person (as principal underwriter or otherwise) to engage in wholesaling or
distribution activities with respect to the Contracts or to recruit
business firms to engage in wholesaling or distribution activities with
respect to the Contracts (other than business firms recommended by the
Distributor pursuant to Section 3 of this Agreement) without the
Distributor's prior written consent, nor shall the Company or Underwriter
separately engage in wholesaling or distribution activities relating to
the Contracts.
The Company shall design the Contracts, subject to consultation with the
Distributor and subject to the Distributors's right to refuse to engage in
wholesaling activities with respect to a class of Contracts that the
Distributor reasonably determines to be unattractive from a marketing or
business perspective. The Contracts shall be issued by the Company and the
variable portion thereof shall be supported by the Accounts. The Company
alone shall be responsible for filing the initial Registration Statements
and any amendments thereto with the SEC in accordance with the 1933 Act,
1934 Act, 1940 Act and the Regulations to register interests in each class
of Contracts. The Company will not make any amendment or rider to the
Contracts or a class of Contracts, or file a Registration Statement, or
make an amendment to a Registration Statement or supplement to a
Prospectus, without the Distributor having been given the opportunity to
review any such filing, amendment, rider or supplement. However, such
opportunity to review shall not make the
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Distributor responsible for the content of any such filing, amendment,
rider or supplement; the Company alone shall be responsible for such
content.
Each Company shall register its Accounts with the SEC. The subaccounts of
each Account available under the Contracts or a class of Contracts are
listed on Schedule 3 to this Agreement, as amended from time to time. All
amounts available under the Contracts shall be invested only in the Fund
(through the Account(s) supporting the Contracts) and/or allocated to the
Company's general account, provided that such amounts may also be invested
in an investment company or investment vehicle other than the Fund if: (1)
such other investment company is advised by the Fund's investment adviser;
(2) the Fund and/or Distributor, in their sole discretion, consents to the
use of such other investment company or investment vehicle; (3) there is a
substitution of the Fund made in accordance with Section 10.1(e) of the
Participation Agreement; or (4) the Participation Agreement is terminated
pursuant to Article X of the Participation Agreement. The Company will not
take action to operate any Account, or any subaccount(s) of an Account
listed on Schedule 3 to this Agreement, as amended from time to time, as a
management investment company under the 1940 Act without the Fund's and
Distributor's prior written consent.
d. The Company shall obtain appropriate authorizations, to the extent
necessary, whether by registration, qualification, approval or otherwise,
for the issuance and sale of the Contracts in each State in the Territory
(provided, however, that it shall be within the Company's discretion
whether to obtain such authorization in Guam). From time to time, the
Company shall notify the Distributor in writing of all States in the
Territory in which each class of Contracts can then lawfully be offered.
To the extent that the Company is not authorized to issue the Contracts or
any class of Contracts in any State in the Territory, the Company shall
employ all reasonable efforts to obtain such authorization in such State
(provided, however, that it shall be within such Company's discretion
whether to obtain such authorization in Guam).
e. The Distributor may unilaterally amend Schedule 1 from time to time
pursuant to Section 2.a of this Agreement. The parties to this Agreement
may amend Schedules 2 and 3 to this Agreement from time to time by mutual
agreement to reflect changes in or relating to the Contracts and the
Accounts and to add new classes of variable annuity contracts and variable
life insurance contracts to be issued by the Company or which the
Distributor will act as wholesaler. The provisions of this Agreement shall
be equally applicable to each such class of Contracts, unless the context
otherwise requires. Schedule 4 to this Agreement may be amended only by
mutual agreement of the parties to this Agreement pursuant to Section 9 of
this Agreement.
3. Recruitment of Broker-Dealers and Related Responsibilities
a. The Company and Underwriter hereby authorize the Distributor and any
Distributor Agency Affiliates to contact and recommend business firms to
act as Broker-Dealers for the sale of the Contracts. The Company shall
have the right to reject any such recommendation, but shall not do so
arbitrarily or unreasonably.
b. The Company and Underwriter shall have the responsibility for: (i)
executing appropriate sales agreements with the business firms recommended
by the Distributor or Distributor Agency Affiliates and (ii) except as
limited in Section 9.c of this Agreement, appointing such business firms,
and/or Associated Persons of such firms, as insurance agents of the
Company in those States where such business firms and/or Associated
Persons possess insurance agent licenses. None of the Distributor,
Distributor Agency Affiliates, the Company or Underwriter shall have
responsibility for, or bear the cost of, any registration or licensing of
Broker-Dealers or any of their Associated Persons with the
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SEC, NASD or any state insurance governmental or regulatory agency. The costs of
appointment shall be borne as provided in Section 9.c hereof. The Company shall
maintain the appointment records of all agents appointed by the Company to
distribute the Contracts or, if required by relevant state law, to engage in the
wholesaling activities contemplated by this Agreement.
c. Any sales agreement entered into by the Company and/or Underwriter with
a Broker-Dealer shall provide that:
(i) The Broker-Dealer (or an affiliated person duly registered as a
broker-dealer with the SEC) shall train, supervise, and be solely
responsible for the conduct of all of its Associated Persons in the
proper method of solicitation, sale and delivery of the Contracts
for the purpose of complying on a continuous basis with the NASD
Rules of Fair Practice and with federal and state securities and
insurance law requirements applicable in connection with the
offering and sale of the Contracts;
(ii) Purchase Payments shall be made payable to the Company and
shall be delivered together with all applications and related
information in accordance with the Procedures;
(iii) The Broker-Dealer shall be solely responsible for all
compensation paid to its Representatives and all related tax
reporting that may be required under applicable law;
(iv) The Broker-Dealer and its Representatives shall not use,
develop or distribute any promotional, sales or advertising material
that has not been approved in writing by the Company, Underwriter
and Distributor and filed with the appropriate governmental or
regulatory agencies; and
(v) The Broker-Dealer shall not have authority, on behalf of the
Company, Underwriter, Distributor or Distributor Agency Affiliates:
to make, alter or discharge any Contract or other contract entered
into pursuant to a Contract; to waive any Contract forfeiture
provision; to extend the time of paying any Purchase Payment; to
receive any monies or Purchase Payments (except for the sole purpose
of forwarding monies or Purchase Payments to the Company); or to
expend, or contract for the expenditure of, funds of the Company,
Underwriter, Distributor or Distributor Agency Affiliates.
d. The Distributor and Distributor Agency Affiliates shall provide
assistance to the Company in the appointment procedure applicable to
Broker-Dealers and their Representatives as may be reasonably acceptable
to the Company.
e. The Distributor shall train, supervise, and be solely responsible for
the conduct of all of its Associated Persons (including Distributor Agency
Affiliates, but not Broker-Dealers or their Representatives unaffiliated
with the Distributor or Distributor Agency Affiliates), for the purpose of
complying on a continuous basis with the NASD Rules of Fair Practice and
with federal and state securities and insurance laws applicable to the
wholesaling activities contemplated in this Agreement. The Distributor and
Distributor Agency Affiliates shall be responsible for the maintenance of
licenses, certifications or permits that they determine to be necessary
for themselves and/or their Associated Persons pursuant to any federal or
state securities law or state insurance law.
f. None of the Distributor, Distributor Agency Affiliates, the Company or
Underwriter will have any supervisory responsibility (as such supervision
is contemplated by the 1934 Act or the NASD's Rules of Fair Practice) with
respect to Broker-Dealers or their Representatives. Under no circumstances
will the Distributor or Distributor Agency Affiliates be responsible for
Broker-Dealers' or their Representatives' failure to comply with
applicable law or the Procedures.
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g. The Distributor shall not have authority on behalf of the Company; to
make, alter or discharge any Contract or other contract entered into
pursuant to a Contract; to waive any Contract forfeiture provision; to
extend the time of paying any Purchase Payment; or to receive any monies
or Purchase Payments. The Distributor shall not expend, nor contract for
the expenditure of, funds of the Company; nor shall the Distributor
possess or exercise any authority on behalf of the Company other than that
expressly conferred on the Distributor by this Agreement.
h. The Distributor and Distributor Agency Affiliates shall act as
independent contractors in the performance of their duties and obligations
under this Agreement and nothing contained in this Agreement shall
constitute the Distributor or any Distributor Agency Affiliate or their
respective Associated Persons as employees of the Company or Underwriter
in connection with the wholesaling activities contemplated by this
Agreement or otherwise.
4. Marketing and Sales
a. The Company shall be responsible for the design and cost of initial
promotional, sales and advertising material relating to the Contracts,
which include the marketing brochure, application, broker-dealer guide
book, and asset allocator worksheet.
Prior to use with any member of the public, the Company shall provide to
the Distributor copies of all promotional, sales and advertising material
developed by the Company for the Distributor's review and written
approval. Upon receipt of such material from the Company, the Distributor
shall be given a reasonable amount of time to complete its review. The
Distributor will respond on a prompt and timely basis in approving any
such material. Failure to respond shall not relieve the Company of the
obligation to obtain the prior written approval of the Distributor.
In the event that the Distributor shall design any promotional, sales or
advertising material relating to the Contracts, the Distributor shall
provide to the Company copies of such material for the Company's review
and written approval. Upon receipt of such material from the Distributor,
the Company shall be given a reasonable amount of time to complete its
review. The Company will respond on a prompt and timely basis in approving
any such material. Failure to respond shall not relieve the Distributor of
the obligation to obtain the prior written approval of the Company.
The Underwriter shall be responsible for filing, as required, all
promotional, sales or advertising material, whether developed by the
Company, Underwriter or Distributor, with the NASD and any federal and
state securities governmental or regulatory agencies. The Company shall be
responsible for filing, as required, such material, whether developed by
the Company, Underwriter or Distributor, with any state insurance
governmental or regulatory agencies. Neither the Distributor nor
Distributor Agency Affiliates shall have any responsibility for any of the
filings referred to in this paragraph.
If any such promotional, sales or advertising material names the Fund or
the Fund's investment adviser, the Company shall furnish such material to
the Fund or the Fund's distributor (if other than the Distributor) prior
to its use. Such material shall not be used unless written approval has
been obtained from the Fund or the Fund's distributor. Failure of the Fund
or the Fund's distributor to respond shall not relieve the Company or
Underwriter of the obligation to obtain the prior written approval of the
Fund or the Fund's distributor.
b. The Distributor acknowledges that the Company shall have the
unconditional right to reject, in whole or in part, any application for a
Contract. In the event an application is rejected, any Purchase Payment
submitted will be returned by or on behalf of the Company to the
applicant. The Company will notify the Distributor and the Broker-Dealer
who submitted the Purchase Payment of such action. In the event that a
purchaser exercises his/her free look right under his/her Contract,
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any amount to be refunded as provided in such Contract will be so refunded
to the purchaser by or on behalf of the Company. The Company will notify
the Distributor and the Broker-Dealer who solicited the sale of the
Contract of such action.
c. The Company and Distributor shall equally share the costs (other than
those borne by the Fund pursuant to the Participation Agreement) for
printing any preliminary and all definitive Prospectuses for the Contracts
and Fund Prospectuses and any supplements thereto.
d. The Distributor will pay the following expenses related to its
wholesaling activities contemplated by this Agreement:
(i) the compensation, if any, of its Associated Persons;
(ii) expenses associated with the initial licensing, if any, and
training of its Associated Persons involved in the wholesaling
activities;
(iii) the printing and mailing of any promotional, sales or
advertising material for use in connection with the distribution of
the Contracts;
(iv) the printing, mailing, and all other activities associated with
proxy solicitations;
(v) expenses associated with telecommunications with the Company at
the sites of the Distributor or its Associated Persons, including
site installations and purchases, leases or rentals of modems,
terminals and other hardware, and lease line telephone charges; and
(vi) any other expenses incurred by the Distributor or its
Associated Persons for the purpose of carrying out the obligations
of the Distributor hereunder.
Except for such expenses and the expenses described in Section 4.c
of this Agreement, the Distributor shall not be responsible for any
expenses relating to the Contracts or distribution of the Contracts
or the processing of Contracts or applications, including without
limitation any expenses incurred in connection with the return of
Purchase Payments solicited by Broker-Dealers for applications
rejected or not timely received by the Company, or relating to any
of the matters or acts contemplated by this Agreement.
e. The Company will pay all expenses in connection with:
(i) the preparation and filing with appropriate governmental or
regulatory agencies of the Registration Statements and each
preliminary Prospectus and definitive Prospectus;
(ii) the preparation and issuance of the Contracts;
(iii) any authorization, registration, qualification or approval of
the Contracts required under the securities, blue-sky laws or
insurance laws of the States in the Territory;
(iv) registration fees for the Contracts payable to the SEC, the
NASD or any other governmental or regulatory agency;
(v) the mailing of Prospectuses for the Contracts and Fund
Prospectuses, any supplements thereto, as required by federal
securities laws, and periodic reports relating to the Fund or the
Accounts to Contract owners;
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(vi) the preparation and printing of administrative forms utilized
in connection with the distribution of the Contracts;
(vii) the preparation of Contract Owner lists for the purposes of
proxy solicitations;
(viii) compensation as provided in Section 9 hereof; and
(ix) any other expenses related to the distribution of the Contracts
except those set forth in Section 4.d of this Agreement and except
as provided in Section 4.c of this Agreement.
f. The Company alone shall be responsible for and bear the cost of
administration of the Contracts following their issuance including all
Contract Owner service and communication activities, but the Distributor
shall be responsible for answering inquiries from Broker-Dealers or
Representatives regarding the investment performance of the Contracts as
permitted by applicable law.
g. The Company, as agent for the Underwriter, will confirm to each
applicant for and owner of a Contract in accordance with Rule 10b-10 under
the 1934 Act its acceptance of Purchase Payments and such other
transactions as are required by Rule 1Ob-10 or administrative
interpretations thereunder and in accordance with Release 8389 under the
1934 Act.
h. At the end of 15 months from the date (a) on which the Company notifies
the Underwriter that it has received approval of the Contracts from twenty
(20) or more states (as provided in Section 2(d), or (b) on such date as
the Contracts may be legally distributed under the federal securities
laws, or (c) from March 1, 1995, whichever is later, the Underwriter
agrees to reimburse the Company for development and administrative costs
of the Contracts based on the following schedule:
Aggregate Sales Reimbursement
--------------- -------------
$0 up to $60,000,000 $250,000
$60,000,001 to $70,000,000 $200,000
$70,000,001 to $80,000,000 $150,000
$80,000,001 to $90,000,000 $100,000
$90,000,001 to $100,000,000 $ 50,000
$100,000,001 and over $ 0
5. Representations and Warranties
a. The Company and Underwriter each represent and warrant to the
Distributor and each Distributor Agency Affiliate, on the effective date
of each Registration Statement for the Contracts (or class of Contracts)
and at each time that a Contract is sold and, with respect to Clauses
(vii), (viii), (xi) and (xii) below, also on the date of this Agreement,
as follows:
(i) The Registration Statement has been declared effective by the
SEC or has become effective in accordance with the Regulations.
(ii) The Registration Statements and the Prospectuses each comply in
all material respects with the provisions of the 1933 Act and the
1940 Act and the Regulations, and neither the Registration
Statements nor the Prospectuses contain an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
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misleading, in light of the circumstances in which they were made;
provided, however, that none of the representations and warranties
in this Section 5.a(2) shall apply to statements in or omissions
from the Registration Statements or Prospectuses made in reliance
upon and in conformity with information furnished to the Company in
writing by the Distributor expressly for use in the Registration
Statements.
(iii) Neither the Company nor Underwriter has received any notice
from the SEC with respect to the Registration Statement or the
Account supporting the Contracts described in the Registration
Statements pursuant to Section 8(e) of the 1940 Act and no stop
order under the 1933 Act has been issued and no proceeding therefor
has been instituted or threatened by the SEC.
(iv) The accountants who certified the financial statements included
in the Registration Statements and Prospectuses are independent
public accountants as required by the 1933 Act and the Regulations.
(v) The financial statements included in the Registration Statements
present fairly the respective financial positions of the Company and
the Account supporting the Contracts described in the Registration
Statements as of the dates indicated; and such financial statements
have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis.
(vi) Subsequent to the respective dates as of which information is
given in the Registration Statement or the Prospectus, there has not
been any material adverse change in the condition, financial or
otherwise, of the Company, Underwriter or the Account supporting the
Contracts described in the Registration Statements that would cause
such information to be materially misleading.
(vii) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of its state of
domicile with full power and authority to own, lease and operate its
properties and conduct its business in the manner described in the
Prospectus; is duly qualified to transact the business of a life
insurance company; and is in good standing, in each State in the
Territory in which the Contracts are or will be offered.
(viii) The Underwriter has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Massachusetts with full power and authority to own,
lease and operate its properties and conduct its business in the
manner described in the Prospectuses; is duly registered as a
broker-dealer with the SEC and with the securities commission of
every state in the Territory with which such registration is
required; and is a member in good standing with the NASD.
(ix) Each Account supporting the Contracts described in the
Registration Statements has been duly authorized and established and
is validly existing as a separate account under the insurance code
of the respective Company's state of domicile, and is duly
registered with the SEC as a unit investment trust under the 0000
Xxx.
(x) The form of the Contracts has been approved to the extent
required by the Insurance Commissioner of each Company's respective
state of domicile and by the governmental agency responsible for
regulating insurance companies in each other State in the Territory
in which the contracts are offered.
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(xi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated in this Agreement have
been duly authorized by all necessary corporate action by the
Company and Underwriter and when so executed and delivered this
Agreement will be the valid and binding obligation of the Company
and Underwriter enforceable in accordance with its terms.
(xii) The consummation of the transactions contemplated by this
Agreement, and the fulfillment of the terms of this Agreement, will
not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the charter or bylaws of the Company or
Underwriter, or any indenture, agreement, mortgage, deed of trust,
or other instrument to which the Company or Underwriter is a party
or by which either is bound, or violate any law, or, to the best of
the Company's or Underwriter's knowledge, any order, rule or
regulation applicable to the Company or Underwriter of any court or
of any federal or state regulatory body, administrative agency or
any other governmental instrumentality having jurisdiction over the
Company or Underwriter or any of their respective properties.
(xiii) No consent, approval, authorization or order of any court or
governmental authority or agency is required for the issuance or
sale of the Contracts or for the consummation of the transactions
contemplated by this Agreement, that has not been obtained.
(xiv) The Company has filed with the SEC all statements and other
documents required for registration under the provisions of the 1940
Act and the Regulations thereunder of the Account supporting the
Contracts described in the Registration Statement, and such
registration has been effected; there are no agreements or documents
required by the 1933 Act, the 1940 Act, or the Regulations to be
filed with the SEC as exhibits to the Registration Statement, that
have not been so filed; and the Company has obtained all exemptive
or other orders of the SEC necessary to make the public offering and
consummate the sale of the Contracts pursuant to this Agreement and
to permit the operation of the Accounts supporting the Contracts
described in the Registration Statements, as contemplated in the
Prospectuses.
(xv) The Contracts have been duly authorized by the Company and
conform to the descriptions thereof in the Registration Statements
and the Prospectuses and, when issued as contemplated by the
Registration Statements, will constitute legal, validly issued and
binding obligations of the Company in accordance with their terms.
b. The Distributor represents and warrants to the Company on the date
hereof as follows:
(i) the Distributor has taken all action including, without
limitation, those necessary under its articles of incorporation,
by-laws and applicable state corporate law, necessary to authorize
the execution, delivery and performance of this Agreement and all
transactions contemplated hereunder.
(ii) the Distributor is and during the term of this Agreement shall
remain duly registered as a broker-dealer under the 1934 Act, a
member in good standing with the NASD, and duly registered as a
broker-dealer under applicable state securities laws.
6. Additional Responsibilities of the Company
a. The Company shall use its best efforts:
(i) to maintain the registration of the Contracts with the SEC and
any state securities commissions of any State in the Territory where
the securities or blue-sky laws of such State require registration
of the Contracts, including without limitation using its best
efforts to prevent
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a stop order from being issued or if a stop order has been issued to
cause such stop order to be withdrawn;
(ii) to gain approval or other authorization of the Contract forms
where required under the insurance laws and regulations of each
State in the Territory (provided, however, that it shall be within
the Company's discretion whether to obtain such approval or
authorization in Guam); and
(iii) to keep such registration, approval and authorization in
effect thereafter so long as the Contracts are outstanding.
b. During the term of this Agreement the Company shall take all action
required to cause each class of Contracts to comply, and to continue to
comply, as annuity contracts or life insurance contracts, as the case may
be, and to cause the Registration Statements and the Prospectus for each
class of Contracts to comply, and to continue to comply, with: all
applicable federal laws and regulations and all applicable laws and
regulations of each State in the Territory.
c. The Company, during the term of this Agreement, shall notify the
Distributor immediately:
(i) when each Registration Statement has become effective or any
post-effective amendment with respect to the Registration Statement
thereafter becomes effective;
(ii) of any request by the SEC for any amendment to a Registration
Statement or supplement to a Prospectus or for additional
information;
(iii) of any event that makes any material statement made in a
Registration Statement or a Prospectus untrue in any material
respect or results in a material omission in a Registration
Statement or a Prospectus;
(iv) of the issuance by the SEC of any stop order with respect to a
Registration Statement or any amendment thereto, 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
class of Contracts);
(v) in which States in the Territory registration of the Contracts
(or class of Contracts) is required under the securities or blue-sky
laws, and when such registrations have become effective.
d. The Company shall furnish to the Distributor without charge promptly
after filing five (5) copies of each Registration Statement as originally
filed and any pre-effective or post-effective amendment thereto, including
financial statements and all exhibits, including exhibits incorporated
therein by reference.
e. The Company shall timely file all reports, statements and amendments
required to be filed by or for each Account or class of Contracts under
the 1933 Act and/or the 1940 Act or the Regulations.
f. The Company shall deliver to the Distributor, as soon as practicable
after it becomes available, the Annual Statements for the Company and for
each Account in the form filed with their respective state of domicile,
and any quarterly reports upon the Distributor's request.
g. The Company and Underwriter will provide the Distributor access to such
records, officers and employees of the Company, Underwriter and each
Account at reasonable times as is necessary to enable the Distributor to
fulfill its obligations under the federal securities laws and NASD rules.
The Distributor will provide the Company and Underwriter access to such of
its records, officers and employees at reasonable times as is necessary to
enable the Company and Underwriter to fulfill their obligations under the
federal securities laws and NASD rules.
11
7. Confidentiality
a. The Company and Underwriter acknowledge that the names and addresses of
all customers and prospective customers (for purposes of this Section 7.a,
the terms "customers" and "prospective customers" shall not mean
Broker-Dealers) of the Distributor, of its parent company and of any
affiliated person of the Distributor, Distributor Agency Affiliates or of
any Broker-Dealer that may come to the attention of the Company,
Underwriter or any person affiliated with the Company or Underwriter as a
result of their relationship with the Distributor, its parent company or
any affiliated person of the Distributor, Distributor Agency Affiliates or
any Broker-Dealer and not from any independent source, are confidential
and shall not be used by the Company or Underwriter or any person
affiliated with the Company or Underwriter for any purpose whatsoever
except as may be necessary in connection with the administration of the
Contracts sold by the Broker-Dealers, including responses to specific
requests made to the Company for service by Contract owners or efforts to
prevent the replacement of such Contracts or to encourage the exercise of
options under the terms of the Contracts. The restrictions set forth in
the previous sentence do not apply if and to the extent a Broker-Dealer
knowingly discloses the names and addresses of its customers or
prospective customers to the Company or Underwriter outside the operation
of this Agreement. In no event shall the names and addresses of such
customers and prospective customers be furnished by the Company,
Underwriter or any of their affiliated persons to any other person. The
intent of this paragraph is that neither the Company nor Underwriter, nor
persons affiliated with the Company or Underwriter, shall utilize, or
permit to be utilized, their knowledge of the Distributor, of its parent
company or of any affiliated person of the Distributor, Distributor Agency
Affiliates or any Broker-Dealer, derived as a result of the relationship
created through the funding and sale of the Contracts or the solicitation
of sales of any product or service. This paragraph shall remain operative
and in full force and effect regardless of the termination of this
Agreement, and shall survive any such termination.
8. Records
The Company, Underwriter, Distributor and Distributor Agency Affiliates
shall each maintain such accounts, books and other documents as are
required to be maintained by each of them by applicable laws and
regulations and shall preserve such accounts, books and other documents
for the periods prescribed by such laws and regulations. The accounts,
books and records of the Company, Underwriter, the Account, the
Distributor and Distributor Agency Affiliates as to all transactions
hereunder shall be maintained so as to clearly and accurately disclose the
nature and details of the transactions, including such accounting
information as necessary to support the reasonableness of the amounts paid
by the Company hereunder. Each party shall have the right to inspect and
audit such accounts, books and records of the other party during normal
business hours upon reasonable written notice to the other party. Each
party shall keep confidential all information obtained pursuant to such an
inspection or audit, and shall disclose such information to third parties
only upon receipt of written authorization from the other party, except as
required by law.
9. Broker-Dealer Compensation and Distributor Promotional Allowances
a. The Company shall compensate Broker-Dealers for sales of the Contracts
by the Broker-Dealers pursuant to Schedule 4 to this Agreement, as such
Schedule may be amended from time to time upon mutual agreement of the
parties to this Agreement. Such compensation shall be based on Purchase
Payments received and accepted by the Company for all Contracts issued on
applications obtained by the Broker-Dealers or any of their respective
Representatives. The Company will pay compensation due Broker-Dealers in
accordance with the procedures set forth on Schedule 4. The compensation
provided for in this Section 9 shall be payable to the Broker-Dealer in
accordance with the Sales Agreement between the Underwriter and the
Broker-Dealer for so long as the Contracts
12
are outstanding regardless of whether this Agreement is still in effect.
In addition to the Compensation payable to Broker-Dealers, the Company
shall pay Distributor a Promotional Allowance as a reimbursement for its
expenses incurred relating to its wholesaling activities contemplated by
this Agreement. Promotional Allowances shall be payable to Distributor in
such amount and in accordance with the procedures as set forth on Schedule
4, as such Schedule may be amended from time to time upon mutual agreement
of the parties to this Agreement. Promotional Allowances shall be payable
to Distributor for so long as the Contracts are outstanding and this
Agreement remains in effect.
If any State in the Territory by insurance rule, regulation or statute,
prohibits payment of Promotional Allowances to the Distributor, the
Distributor shall designate in writing a business entity or natural
person, including Distributor Agency Affiliates, meeting the requirements
of such State to receive any amounts that may otherwise be payable to the
Distributor hereunder. The Distributor may change such designation from
time to time upon written notice to the Company. Any payments made by the
Company to any person or entity so designated by the Distributor shall
discharge the Company's liability to the Distributor hereunder.
If a purchaser rescinds a Contract or exercises a right to surrender a
contract for return of all Purchase Payments, the Distributor will pay on
demand the amount of any Promotional Allowances it received on the
Purchase Payments returned.
b. Indebtedness. Nothing in this Agreement shall be construed as giving
the Distributor the right to incur any indebtedness on behalf of the
Company.
c. Appointment Fees. The Company will pay the initial and renewal fees for
agent appointment by the Company of duly licensed Distributor Agency
Affiliates and Broker-Dealers and their respective Associated Persons;
provided, however, (a) that if total annual sales of the Contracts do not
exceed $20 million during any calendar year beginning after December 31,
1996, the Distributor will reimburse the Company for the total amount of
initial or renewal fees paid by the Company during such calendar year(s),
and (b) that the Company reserves the right to refuse to pay renewal fees
for individuals not meeting such minimal sales as may be agreed upon from
time to time.
d. Reporting The Distributor shall be responsible for all tax reporting
information, if any, that the Distributor is required to provide under
applicable tax law to its Associated Persons with respect to the
Contracts. Nothing contained in this Agreement or any sales agreement with
a Broker-Dealer is to be construed to require the Distributor to provide
any tax reporting information directly or indirectly to any Broker-Dealer
or its Representatives.
e. Survival. This Section 9 shall remain operative and in full force and
effect regardless of the termination of this Agreement, and shall survive
any such termination.
10. Investigation and Proceedings
a. The Company, Underwriter and Distributor will cooperate fully in any
securities or insurance governmental or regulatory investigation or
proceeding or judicial proceeding arising in connection with the offering,
sale or distribution of the Contracts for which the Distributor acts as
wholesaler pursuant to this Agreement. Without limiting the foregoing, the
Company, Underwriter and Distributor agree to notify one another promptly
of any customer complaint or notice of any governmental or regulatory
investigation or proceeding or judicial proceeding received by any of them
with respect to the Company, Underwriter, Distributor or any of their
respective Associated Persons or that may affect the issuance of any
Contract for which the Distributor acts as wholesaler pursuant to this
Agreement.
13
b. In the case of a substantive customer complaint, the Company,
Underwriter, Distributor and Distributor Agency Affiliates will cooperate
in investigating such complaint and any response by the Company or
Underwriter, as one party, or the Distributor or Distributor Agency
Affiliates, as another party, to such complaint will be sent to the other
party for approval not less than five business days prior to its being
sent to the customer or any governmental or regulatory agency, except that
if a more prompt response is required, the proposed response shall be
communicated by telephone, telegraph or facsimile. Neither such party will
release any such response without the other party's prior written
approval, unless otherwise required by applicable law.
11. Indemnification
a. The Company and Underwriter, jointly and severally, shall indemnify and
hold harmless the Distributor and Distributor Agency Affiliates and each
person who controls or is associated with the Distributor or Distributor
Agency Affiliates 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 amounts paid in settlement
of, any action, suit or proceeding or any claim asserted), to which the
Distributor, Distributor Agency Affiliates and/or such person may become
subject, under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement, Prospectus, blue sky application or other document
executed by the Company specifically for the purpose of qualifying
any or all of the Contracts for sale under the securities laws of
any State, promotional, sales or advertising material for the
Contracts, or the Contracts themselves (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in
which they were made; provided that this obligation to indemnify
shall not apply if such untrue statement or omission or such alleged
untrue statement or alleged omission was made in reliance upon and
in conformity with information furnished in writing to the Company
or Underwriters by the Distributor specifically for use in the
preparation of any such Registration Statement, Prospectus or
blue-sky application or other document, material or Contract (or any
such amendment or supplement thereto); or
(ii) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Fund
Registration Statement, Fund Prospectus, blue sky application or
other document executed by the Fund specifically for the purpose of
qualifying any or all of the shares of the Fund for sale under the
securities law of any State, or in any promotional, sales or
advertising material or written information relating to the shares
of the Fund authorized by the Fund (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they
were made, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
information furnished in writing to the Distributor or the Fund by
the Company specifically for use in the preparation of any such Fund
Registration Statement, Fund Prospectus, blue-sky application or
other document (or any such amendment or supplement thereto); or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement or omission or alleged omission of a material fact
by or on behalf of the Company or Underwriter (other than statements
or representations contained in the Fund Registration Statement,
Fund Prospectus or
14
promotional, sales or advertising material of the Fund that were not
supplied by the Company, Underwriter or persons under their control)
or wrongful conduct of the Company or Underwriter or persons under
their control with respect to the sale or distribution of the
Contracts; or
(iv) result because of the terms of any Contract or because of any
material breach by the Company or Underwriter of any terms of this
Agreement or of any Contract or that proximately result from any
activities of the Company' or Underwriter' officers, directors,
employees or agents or their failure to take action in connection
with the sale of a Contract, to the extent of the Company's or
Underwriter's obligations under this Agreement or otherwise, or the
processing or administration of the Contracts.
This indemnification obligation will be in addition to any liability
that the Company or Underwriter may otherwise have; provided,
however, that no person shall be entitled to indemnification
pursuant to this Section 11.a if such loss, claim, damage or
liability is due to the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the person seeking
indemnification.
b. The Distributor shall indemnify and hold harmless the Company and
Underwriter and each person who controls or is associated with the Company
or Underwriter 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 amounts paid in settlement
of, any action, suit or proceeding or any claim asserted), to which the
Company and/or any such person 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:
(i) any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or blue-sky
application or other document executed by the Company specifically
for the purposes of qualifying any or all of the Contracts for sale
under the securities law of any State (or any amendment or
supplement to the foregoing), or omission or alleged omission to
state therein a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, in
light of the circumstances in which they were made, in each case to
the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with information furnished in
writing to the Company or Underwriter by the Distributor
specifically for use in the preparation of any such Registration
Statement, Prospectus, such blue-sky application or other document
(or any such amendment or supplement thereto); or
(ii) any use of promotional, sales or advertising material for the
Contracts not authorized by the Company or any verbal or written
misrepresentations or any unlawful sales practices concerning the
Contracts by the Distributor or Distributor Agency Affiliates under
federal securities laws or NASD regulations (but not including state
insurance laws compliance with which is a responsibility of the
Company or Underwriter under this Agreement or otherwise); or
(iii) claims by agents, representatives or employees of the
Distributor for compensation or other remuneration of any type; or
(iv) any material breach by the Distributor or Distributor Agency
Affiliates of any provision of this Agreement.
15
This indemnification obligation will be in addition to any liability
that the Distributor may otherwise have; provided, however, that no
person shall be entitled to indemnification pursuant to this Section
11.b if such loss, claim, damage or liability is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty by the person seeking indemnification.
c. After receipt by a party entitled to indemnification ("indemnified
party") under this Section 11 of notice of the commencement of any action,
if a claim in respect thereof is to be made by the indemnified party
against any person obligated to provide indemnification under this Section
11 ("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
Section 11, except to the extent that the omission results in a failure of
actual notice to the indemnifying party and such indemnifying party is
damaged solely as a result of the failure to give such notice. The
indemnifying party, upon the request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnified
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
d. The indemnification provisions contained in this Section 11 shall
remain operative in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company or by or on behalf of
any controlling person thereof, (ii) delivery of any Contracts and
Purchase Payments therefor, or (iii) any termination of this Agreement. A
successor by law of the Distributor or the Company, as the case may be,
shall be entitled to the benefits of the indemnification provisions
contained in this Section 11.
12. Termination
a. This Agreement may be terminated at the option of any party upon six
months advance written notice to the other parties, such termination to be
effective no earlier than one year following the date on which the first
Contract is issued to the public.
b. This Agreement shall terminate automatically if it is assigned. This
Agreement may be terminated at the option of the Company and Underwriter,
as one party, or the Distributor and Distributor Agency Affiliates, as one
party, upon the other party's material breach of any provision of this
Agreement.
c. Upon termination of this Agreement all authorizations, rights and
obligations shall cease except: (i) the obligation to settle accounts
hereunder, as set forth in Schedule 4; (ii) the provisions contained in
Sections 7, 9 and 11 of this Agreement, and (iii) the indemnification
provisions set forth in Section 11 of this Agreement, or as otherwise
specifically noted in this Agreement.
16
13. 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 to this Agreement are
entitled to under state and federal laws. Failure of the Distributor or
Distributor Agency Affiliates, as one party, or the Company or
Underwriter, as another party, to insist upon strict compliance by the
other party 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.
14. Notices
All notices hereunder are to be made in writing and shall be given:
if to the Company to:
Xxxx X. Xxxxx, Director
SMA Life Assurance Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
if to the Underwriter:
Xxxxxxx X. Xxxxxx, President
Allmerica Investments Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
if to the Distributor or Distributor Agency Affiliates, to:
Xxxxxx Xxxxxxxx
Senior Vice President
Pioneer Funds Distributor, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
or such other address as such party may hereafter specify in writing. Each
such notice to a party shall be either hand delivered or transmitted by
registered or certified United States mail with return receipt requested,
and shall be effective upon delivery.
15. Interpretation, Jurisdiction Etc.
This Agreement constitutes the whole agreement between the parties to this
Agreement relating to the wholesaling activities contemplated in this
Agreement, and supersedes all prior oral or written negotiations between
the parties to this Agreement with respect to the subject matter of this
Agreement. The parties acknowledge that the Company, the Distributor and
the Fund have entered into the Participation Agreement in contemplation of
entering into this Agreement. This Agreement shall be construed and the
provisions of this Agreement interpreted under and in accordance with the
internal laws of the Commonwealth of Massachusetts without giving effect
to principles of conflict of laws.
17
16. Arbitration
Any controversy or claim arising out of or relating to this Agreement, or
the breach of this Agreement, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
17. Headings
The headings in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions of this
Agreement or otherwise affect their construction or effect.
18. Counterparts
This Agreement may be executed in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
19. Severability
This is a severable agreement and in the event that any part or parts of
this Agreement shall be held to be unenforceable to its or their full
extent, then it is the intention of the parties to this Agreement that
such part or parts shall be enforced to the extent permitted under the
law, and, in any event, that all other parts of this Agreement shall
remain valid and duly enforceable as if the unenforceable part or parts
had never been a part of this Agreement.
20. Regulation
This Agreement shall be subject to the provisions of the 1933 Act, 1934
Act and 1940 Act and the Regulations and the rules and regulations of the
NASD, from time to time in effect, including such exemptions from the 1940
Act as the SEC may grant, and the terms of this Agreement shall be
interpreted and construed in accordance therewith. Without limiting the
generality of the foregoing, the term "assigned" shall not include any
transaction exempted from Section 15(b)(2) of the 1940 Act.
21. Miscellaneous
For the purposes of Section 4(h), "Aggregate Sales" shall refer to the
aggregate sales through Distributor pursuant both to this Agreement and to
the Wholesaling Agreement with State Mutual Life Assurance Company of
America ("State Mutual") dated March 1, 1995 ("State Mutual Agreement").
Based on such Aggregate Sales, Distributor shall be responsible for only a
single Reimbursement amount, and such Reimbursement shall be divided
between the Company and State Mutual as they may mutually agree. For the
purposes of Section 9(c)(a), "total annual sales" shall refer to the total
annual sales through Distributor pursuant both to this Agreement and to
the State Mutual Agreement, and "total amount of initial or renewal fees"
shall refer to the aggregate amount of such fees incurred by the Company
and State Mutual.
18
IN WITNESS WHEREOF, each party hereto represents that the officer signing
this Agreement on the party's behalf is duly authorized to execute this
Agreement; and each party has caused this Agreement to be duly executed by
such authorized officer on the date specified below.
SMA Life Assurance Company
Date: March 24, 1995 By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Allmerica Investments, Inc.
Date: March 24, 1995 By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
Pioneer Funds Distributor, Inc.
(on its own behalf and on behalf of
the Distributor Agency Affiliates)
Date: April 1, 1995 By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
19
Schedule 1
Distributor Agency Affiliates
Effective March 1, 1995
Name of State(s) In
Distributor Agency Affiliate Which Licensed
---------------------------- --------------
None
20
Schedule 2
Separate Account Subaccounts
Available under the Contracts
Effective March 1, 1995
Name of Separate Account Subaccounts Fund Portfolio
------------------------ ----------- --------------
Separate Account VA-P of 251 International Growth
SMA Life Assurance Company 000 Xxxxxxx Xxxxxx
000 Xxxx Xxxxxx Growth
254 Equity-Income
255 Balanced
256 America Income
257 Money Market
21
Schedule 3
Contracts Subject to Promotional Agent Agreement
Effective March 1, 1995
SEC
Marketing Policy Registration Name of
Name Form No. No. Separate Account
---- -------- ------------ ----------------
Pioneer Vision
Variable Annuity A3023-95 33-84546 Separate Account VA-P of SMA
Life Assurance Company
22
SCHEDULE 4
BROKER-DEALER COMPENSATION AND
DISTRIBUTOR PROMOTIONAL ALLOWANCE SCHEDULE
The maximum Broker-Dealer Compensation and Distributor Promotional Allowances
payable by the Company with respect to the sale and distribution of the
Contracts shall be 6.75% of initial and subsequent Purchase Payments received
and accepted by the Company. Of this amount, 5.00% shall be payable to
Broker-Dealers as sales commissions. The remaining 1.75%* ("Promotional
Allowance") shall be payable to Distributor as reimbursement for its expenses
incurred with respect to the distribution of the Contracts ("Support Services");
provided, however, that the Company shall pay such amounts from the Promotional
Allowances to Broker-Dealers who provide Support Services, as Distributor may
from time to time direct.
Actual Promotional Allowances paid to the Distributor will be net of a charge to
the Distributor in the amount of $30 for each policy anniversary and surrender
of any Contract issued to a Trustee of a 401(k) plan where the Accumulated was
$50,000 or less. This charge will apply only to the extent that the Company
waives its policy fee for such 401(k) plans.
Commissions and Promotional Allowances will be paid according to the then
current practice of the Company but no less frequently than twice each month.
*Reduced by 0.50% for Contracts issued in Maine, Pennsylvania and South
Dakota on which an upfront premium tax is levied.
23
AMENDMENT TO WHOLESALING AGREEMENT
This amendment to the Wholesaling Agreement between Allmerica Financial Life
Insurance and Annuity Company (formerly known as SMA Life Assurance Company),
First Allmerica Financial Life Insurance Company (formerly known as State Mutual
Life Assurance Company of America), Allmerica Investments, Inc., (formerly known
as SMA Equities, Inc.) and Pioneer Funds Distributor, Inc., dated March 1, 1995,
(the "Wholesaling Agreement") is made effective this 18th day of July, 1997.
In consideration of the mutual benefits and obligations set forth herein,
the parties hereby amend the Wholesaling Agreement as follows:
1. The following paragraph is added to the end of section 9a on page 13:
If a Contract owner surrenders, pursuant to the "free look" provision, an
XXX or a Contract issued in a state which provides for a full refund
during the free look period, Pioneer Funds Distributor, Inc. (The
"Distributor") will reimburse First Allmerica Financial Life Insurance
Company (The "Company") one half (1/2) of the value of any loss incurred
by the Company as a result of the surrender. This reimbursement obligation
applies only to Contracts issued on or after July 18, 1997, and to
situations where the selling broker-Dealer has not agreed pursuant to the
Sales Agreement to pay for the loss. The Distributor agrees to pay for
such losses once a month on such basis as is mutually agreeable to the
parties. In those situations where a Contract is issued with an
endorsement providing a return of gross payments to the Contract owner
when the "free look" privilege is exercised (as opposed to the return of
the greater of gross payments or accumulated value), the Company will pay
to the Distributor one half (1/2) of the value of any gain received by the
Company as a result of the surrender. Any gains and losses described in
this paragraph will be aggregated at the end of each commission cycle and
the net amount will be paid on such basis as is mutually agreeable to the
parties.
IN WITNESS WHEREOF, the parties hereby agree as of the day and year referenced
above.
Allmerica Financial Life Insurance and
Annuity Company
Date: 12/1/97 By: /s/ Xxxxxxx X. Xxxxxx
------------------------ -----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: President
--------------------------------
First Allmerica Financial Life Insurance
Company
Date: 12/1/97 By: /s/ Xxxxxxx X. Xxxxxx
------------------------ -----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
Allmerica Investments, Inc.
Date: 12/1/97 By: /s/ Xxxxxxx Xxxxxx
------------------------ -----------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------
Title: President
--------------------------------
Pioneer Funds Distributor, Inc.
(on its own behalf and on behalf of
the Distributor Agency Affiliates)
Date: 11/20/97 By: /s/ Xxxxxx X. Xxxxxx
------------------------ -----------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------
Title: President
--------------------------------
