EXHIBIT 6(e)
Xxxxxxx Investor Services, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PARTICIPATING CONTRACT AND POLICY AGREEMENT
Dear Sirs:
We (sometimes hereinafter referred to as "Investor Services") are the
Principal Underwriter of shares of Xxxxxxx Variable Life Investment Fund (the
"Fund"), a no-load, open-end, diversified registered management investment
company established in 1985 as a Massachusetts business trust. The Fund is a
series fund consisting of the Money Market Portfolio, Managed Bond Portfolio,
Managed Capital Growth Portfolio, Managed Diversified Portfolio and the Managed
International Portfolio (individually or collectively hereinafter referred to as
the "Portfolio" or the "Portfolios"). Additional Portfolios may be created from
time to time. The Fund is the funding vehicle for variable annuity contracts and
variable life insurance policies ("Participating Contracts and Policies") to be
offered to the separate accounts (the "Accounts") of certain life insurance
companies ("Participating Insurance Companies"). Owners of Participating
Contracts and Policies will designate a portion of their premium to be invested
in insurance company separate accounts or sub-accounts which invest in, or
represent an investment in, directly or indirectly, shares of beneficial
interest ("Shares") of the Portfolios of the Fund. You are a registered
broker-dealer which intends to offer and sell Participating Contracts and
Policies. In connection with such offer and sale you will be obligated to
deliver the prospectuses of such Participating Contracts and Policies and,
contemporaneously therewith, the prospectus of the Fund. Sales of Shares to
Participating Insurance Companies or their affiliates or the separate accounts
of either shall be effected solely by us as principal underwriter of the Fund,
and not by you; provided, however, that you shall be our agent in connection
with the receipt of purchase orders for Fund Shares and not in connection with
their offer and sale. The relationship between us shall be further governed by
the following terms and conditions:
1. To the extent, if any, that your activities or the activities of the
Participating Insurance Companies in connection with the sale of
Participating Contracts and Policies may constitute the sale of
Shares, you and we agree that (i) we are the sole "principal
underwriter" of the Fund and the sole "underwriter" of the Shares as
those terms are defined in the Investment Company Act of 1940 (the
"1940 Act") and the Securities Act of 1933 (the "1933 Act"),
respectively, and (ii) neither you nor the Participating Insurance
Companies or the Accounts shall be deemed to be "principal
underwriters" of the Fund or "underwriters" of the Fund within the
meaning of the 1940 Act and the 1933 Act, respectively.
2. You hereby represent and warrant to us as follows:
(a) You are a corporation duly organized and validly existing in good
standing under the laws of the State of Washington and have full
power and authority to enter into this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by you and is a valid and binding obligation enforceable against
you in accordance with its terms.
(c) Your compliance with the provisions of this Agreement will not
conflict with or result in a violation of the provisions of your
charter or by-laws, or any statute or any judgment, decree,
order, rule or regulation of any court or governmental agency or
body having jurisdiction.
3. We hereby represent and warrant to you as follows:
(a) A registration statement (File No. 2-96461) on Form N-lA with
respect to the Shares (x) has been prepared by the Fund in
conformity with the requirements of the 1940 Act and the 1933 Act
and all applicable published instructions, rules and regulations
(the "Rules and Regulations") of the
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Securities and Exchange Commission (the "Commission"), (y) has
been filed with the Commission, and (z) is currently effective.
The registration statement, including financial statements and
exhibits, and the final prospectus, including the statement of
additional information, as subsequently amended and supplemented,
are herein respectively referred to as the "Registration
Statement" and the "Prospectus".
(b) The Registration Statement and the Prospectus and any amendment
or supplement thereto will contain all statements required to be
stated therein and will comply in all material respects with the
requirements of the 1940 Act, the 1933 Act and the Rules and
Regulations, and the Registration Statement and any
post-effective amendment thereto will not contain or incorporate
by reference any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the
Prospectus and any amendment or supplement thereto will not
contain or incorporate by reference any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(c) We are a corporation duly organized and validly existing in good
standing under the laws of The Commonwealth of Massachusetts and
have full power and authority to enter into this Agreement.
(d) This Agreement has been duly authorized, executed and delivered
by us and is a valid and binding obligation enforceable against
us in accordance with its terms.
(e) Our compliance with all of the provisions of this Agreement will
not conflict with or result in a violation of the provisions of
our charter or by-laws, or any statute or any judgment, decree,
order, rule or regulation of any court or governmental agency or
body having jurisdiction over us .
4. You hereby covenant and agree with us as follows:
(a) You shall be an independent contractor and neither you nor any of
your directors, partners, officers or employees as such, is or
shall be an employee of us or of the Fund. You are responsible
for your own conduct and the employment, control and conduct of
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your agents and employees and for injury to such agents or
employees or to others through your agent or employees.
(b) You or one or more Participating Insurance Companies will be
responsible for insuring compliance with all applicable laws and
regulations of any regulatory body having jurisdiction over you
or Participating Contracts and Policies.
(c) No person is authorized to make any representations concerning
Shares except those contained in the prospectus and statement of
additional information relating thereto and in such printed
information as issued by us for use as information supplemental
to the prospectus. In offering Participating Contracts and
Policies you shall, with respect to the Fund and the Shares, rely
solely on the representations contained in the prospectus and
statement of additional information and in the above-mentioned
supplemental information.
(d) You are not entitled to any compensation whatsoever from us or
the Fund with respect to offers of Participating Contracts and
Policies.
5. We hereby covenant and agree with you as follows:
(a) If, at any time when a prospectus relating to the Shares is
required to be delivered under the 1940 Act, the 1933 Act or the
Rules and Regulations, we become aware of the occurrence of any
event as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which
made, not misleading, or if we become aware that it has become
necessary at any time to amend or supplement the Prospectus to
comply with the 1940 Act, the 1933 Act or the Rules and
Regulations, we will promptly notify you and promptly request the
Fund to prepare and to file with the Commission an amendment to
the Registration Statement or supplement to the Prospectus which
will correct such statement or omission or an amendment or
supplement which will effect such compliance, and deliver to you
copies of any such amendment or supplement.
(b) We will cooperate with you in taking such action as may be
necessary to qualify the Shares for offering and sale under the
securities or Blue Sky laws of any state or jurisdiction as you
may request and will continue such qualification in effect so
long
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as is required by applicable law in connection with the
distribution of Shares.
6. We reserve the right in our discretion, without notice, to suspend sales or
withdraw the offering of Shares entirely, as to any person or generally. We
reserve the right to amend this agreement at any time and you agree that
the sale of Participating Contracts and Policies, after notice of any such
amendment has been sent to you, shall constitute your agreement to any such
amendment.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any prospectus and statement
of additional information relating to the Shares and printed information
supplemental thereto, we shall furnish you with such copies as you
reasonably request upon the payment of reasonable charges therefor by you
or one or more Participating Insurance Companies. If we elect not to
provide such copies of such documents, you or one or more Participating
Insurance Companies shall bear the entire cost of printing copies for your
use. You shall not use such copies of such documents printed by you or one
or more Participating Insurance Companies until you shall have furnished us
with a copy thereof and we either have given you written approval for use
or twenty days shall have elapsed following our receipt thereof and we have
not objected thereto in writing.
8. (a) You will indemnify and hold harmless Investor Services and each of its
directors and officers and each person, if any, who controls Investor
Services within the meaning of Section 15 of the 1933 Act, against any
loss, liability, damages, claim or expense (including the reasonable
cost of investigating or defending any alleged loss, liability,
damages, claim or expense and reasonable counsel fees incurred in
connection therewith), arising by reason of any person's acquiring any
Shares, which may be based upon the 1933 Act or any other statute or
common law, and which (i) may be based upon any wrongful act by you,
any of your employees or representatives, any affiliate of or any
person acting on behalf of you, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in
a registration statement or prospectus covering Shares or any
amendment thereof or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading if
such a statement or omission was made in reliance upon information
furnished to us or the Fund by you, or (iii) may be based on any
untrue statement or alleged untrue statement of a material
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fact contained in a registration statement or prospectus covering
insurance products sold by you, or any amendments or supplement
thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement or statements therein not misleading, unless such statement
or omission was made in reliance upon information furnished to you or
a Participating Insurance Company by or on behalf of Investor Services
or the Fund; provided, however, that in no case (i) is the indemnity
by you in favor of any person indemnified to be deemed to protect
Investor Services or any such person against any liability to which
Investor Services or any such person would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the
performance of its or his duties or by reason of its or his reckless
disregard of its obligations and duties under this Agreement, or (ii)
are you to be liable under your indemnity agreement contained in this
paragraph with respect to any claim made against Investor Services or
any person indemnified unless Investor Services or such person, as the
case may be, shall have notified you in writing within a reasonable
time after the summons or other first legal process giving information
of the nature of the claim shall have been served upon Investor
Services or upon such person (or after Investor Services or such
person shall have received notice of such service on any designated
agent), but failure to notify you of any such claim shall not relieve
you from any liability which you may have to Investor Services or any
person against whom such action is brought otherwise than on account
of your indemnity agreement contained in this paragraph. You shall be
entitled to participate, at your own expense, in the defense, or, if
you so elect, to assume the defense of any suit brought to enforce any
such liability, but, if you elect to assume the defense, such defense
shall be conducted by counsel chosen by you and satisfactory to
Investor Services, or to its officers or directors, or to any
controlling person or persons, defendant or defendants in the suit. In
the event that you assume the defense of any such suit and retain such
counsel, Investor Services or such officers or directors or
controlling person or persons, defendant or defendants in the suit,
shall bear the fees and expenses of any additional counsel retained by
them, but, in case you do not elect to assume the defense or any such
suit, you shall reimburse Investor Services and such officers,
directors or controlling person or persons, defendant of defendants in
such suit, for the reasonable fees and expenses of any counsel
retained
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by them. You agree promptly to notify Investor Services of the
commencement of any litigation or proceedings against it in connection
with the offer, issue and sale of any shares.
(b) Investor Services will indemnify and hold harmless you and each of
your directors and officers and each person, if any, who controls you
within the meaning of Section 15 of the 1933 Act, against any loss,
liability, damages, claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, damages, claim
or expense and reasonable counsel fees incurred in connection
therewith), arising by reason of any person's acquiring any Shares,
which may be based upon the 1933 Act or any other statute or common
law, and which (i) may be based upon any wrongful act by Investor
Services, any of its employees or representatives, or (ii) may be
based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus
covering Shares or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading unless such statement or omission was made in reliance upon
information furnished to Investor Services or the Fund by you or (iii)
may be based on any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus
covering insurance products sold by you, or any amendment or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
to you by or on behalf of Investor Services or the Fund; provided,
however, that in no case (i) is the indemnity by Investor Services in
favor of any person indemnified to be deemed to protect you or any
such person against any liability to which you or any such person
would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of your or his duties by reason
of your or his reckless disregard of your or his obligations and
duties under this Agreement, or (ii) is Investor Services to be liable
under its indemnity agreement contained in this paragraph with respect
to any claim made against you or any person indemnified unless you or
such person, as the case may be, shall have notified Investor Services
in writing within a reasonable time after the summons or other first
legal process
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giving information of the nature of the claim shall have been served
upon you or upon such person (or after you or such person shall have
received notice of such service on any designated agent), but failure
to notify Investor Services of any such claim shall not relieve
Investor Services from any liability to which Investor Services may
have to you or any person against whom such action is brought
otherwise than on account of its indemnity agreement contained in this
paragraph. Investor Services shall be entitled to participate, at its
own expense, in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any such liability, but, if it
elects to assume the defense, such defense shall be conducted by
counsel chosen by Investor Services and satisfactory to you or to your
officers or directors, or to any controlling person or persons,
defendant or defendants in the suit. In the event that Investor
Services assumes the defense of any such suit and retains such
counsel, you or such officers or directors or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by it, but, in case
Investor Services does not elect to assume the defense of any such
suit, Investor Services shall reimburse you and such officers,
directors or controlling person or persons, defendant or defendants in
such suit, for the reasonable fees and expenses of any counsel
retained by it. Investor Services agrees promptly to notify you of the
commencement of any litigation or proceedings against it in connection
with the offer issue and sale of any Shares.
9. The indemnities, representations, warranties, covenants and agreements of
each party to this Agreement as set forth in this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf
of either of such parties or any of their respective officers, directors,
partners or any controlling person, and will survive delivery of and
payment for the Shares.
10. Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law each party hereto
waives any provision of law which
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renders any provision hereof prohibited or unenforceable in any respect.
11. This Agreement constitutes the entire agreement among the parties
concerning the subject matter hereof, and supersedes any and all prior
understandings.
12. This Agreement shall automatically terminate in the event of its
assignment. This Agreement may be terminated at any time by either party by
written notice given to the other party, provided that the obligation of
each party to indemnify the other party pursuant to paragraph 8 hereof
shall apply with respect to any Shares sold before or after such
termination.
13. Any notice hereunder shall be duly given if mailed or telegraphed to the
other party hereto at the address specified below. This Agreement shall be
governed by and construed in accordance with the laws of The Commonwealth
of Massachusetts.
14. This Agreement may be executed in any number of counterparts which, taken
together shall constitute one and the same instrument. This Agreement shall
become effective upon receipt by us of your acceptance hereof.
15. This Agreement may not be modified or amended except by a written
instrument duly executed by the parties hereto.
XXXXXXX INVESTOR SERVICES, INC.
By: /s/ [Illegible]
--------------------------------------
Authorized Officer
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
The undersigned hereby accepts the offer set
forth in the above letter.
PNMR SECURITIES INC.
Dated: 12/1/92 By: /s/ [Illegible]
---------------------------- ----------------------------------------
Authorized Representative
Address: 0000 X.X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
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