Exhibit 1
Underwriting Agreements
Form of Underwriting with MML Distributors, LLC
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FORM OF UNDERWRITING AND
SERVICING AGREEMENT
This UNDERWRITING AND SERVICING AGREEMENT is made this 1st day of May, 1996, by
and between MML Distributors, LLC ("MML DISTRIBUTORS") and C.M. Life Insurance
Company ("C.M. Life"), on its own behalf and on behalf of _______________
Separate Account (the "Separate Account"), a separate account of C.M. Life, as
follows:
WHEREAS, the Separate Account was established on _____________ pursuant to
authority of the Board of Directors of C.M. Life in order to set aside and
invest assets attributable to certain variable annuity contracts (the
"Contracts") issued by C.M. Life; and
WHEREAS, C.M. Life has registered the Separate Account under the Investment
Company Act of 1940, as amended, (the "1940 Act") and has registered the
Contracts under the Securities Act of 1933, as amended, (the "1933 Act"); and
WHEREAS, C.M. Life will continue the effectiveness of the registrations of the
Separate Account under the 1940 Act and the Contracts under the 1933 Act; and
WHEREAS, C.M. Life intends for the Contracts to be sold by agents and brokers
who are required to be registered representatives of a broker-dealer that is
registered with the Securities and Exchange Commission (the "SEC") under the
Securities Exchange Act of 1934 ("1934 Act") and a member of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, C.M. Life desires to engage MML DISTRIBUTORS, a broker-dealer
registered with the SEC under the 1934 Act and a member of the NASD, to act as
the principal underwriter ("Underwriter") of the Contracts, and to otherwise
perform certain duties and functions that are necessary and proper for the
distribution of the Contracts as required under applicable federal and state
securities laws and NASD regulations, and MML DISTRIBUTORS desires to act as
Underwriter for the sale of the Contracts and to assume such responsibilities;
NOW, THEREFORE, the parties hereto agree as follows:
1. Underwriter. C.M. Life hereby appoints MML DISTRIBUTORS as, and MML
DISTRIBUTORS agrees to serve as, Underwriter of the Contracts during the
term of this Agreement for purposes of federal and state securities laws.
C.M. Life reserves the right, however, to refuse at any time or times to
sell any Contracts hereunder for any reason, and C.M. Life maintains
ultimate responsibility for the sales of the Contracts.
MML DISTRIBUTORS shall use reasonable efforts to sell the Contracts but
does not agree hereby to sell any specific number of Contracts and shall be
free to act as underwriter of other securities. MML DISTRIBUTORS agrees to
offer the Contracts for sale in accordance with the prospectus then in
effect for the Contracts.
2. Services. MML DISTRIBUTORS agrees, on behalf of C.M. Life and the Separate
Account, and in its capacity as Underwriter, to undertake at its own
expense except as otherwise provided herein, to provide certain sales,
administrative and supervisory services relative to the Contracts as
described below, and otherwise to perform all duties that are necessary
and proper for the distribution of the Contracts as required under
applicable federal and state securities laws and NASD regulations.
3. Selling Group. MML DISTRIBUTORS may enter into sales agreements for the
sale of the Contracts with independent broker-dealer firms ("Independent
Brokers") whose registered representatives have been or shall be licensed
and appointed as life insurance agents of C.M. Life. All such agreements
shall be in a form agreed to by C.M. Life. All such agreements shall
provide that the Independent Brokers must assume
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full responsibility for continued compliance by itself and its associated
persons with the NASD Rules of Fair Practice (the "Rules") and all
applicable federal and state securities and insurance laws. All associated
persons of such Independent Brokers soliciting applications for the
Contracts shall be duly and appropriately licensed and appointed for the
sale of the Contracts under the Rules and applicable federal and state
securities and insurance laws.
4. Compliance and Supervision. All persons who are engaged directly or
indirectly in the operations of MML DISTRIBUTORS and C.M. Life in
connection with the offer or sale of the Contracts shall be considered a
"person associated" with MML DISTRIBUTORS as defined in Section 3(a)(18) of
the 1934 Act. MML DISTRIBUTORS shall have full responsibility for the
securities activities of each such person as contemplated by Section 15 of
the 1934 Act.
MML DISTRIBUTORS shall be fully responsible for carrying out all
compliance, supervisory and other obligations hereunder with respect to the
activities of its registered representatives as required by the Rules and
applicable federal and state securities laws. Without limiting the
generality of the foregoing, MML DISTRIBUTORS agrees that it shall be fully
responsible for:
(a) ensuring that no representative of MML DISTRIBUTORS shall offer or
sell the Contracts until such person is appropriately licensed,
registered, or otherwise qualified to offer and sell such Contracts
under the federal securities laws and any applicable securities laws
of each state or other jurisdiction in which such Contracts may be
lawfully sold, in which C.M. Life is licensed to sell the Contracts,
and in which such person shall offer or sell the Contracts; and
(b) training and supervising C.M. Life's agents and brokers who are also
registered representatives of MML DISTRIBUTORS for purposes of
complying on a continuous basis with the Rules and with federal and
state securities laws applicable in connection with the offering and
sale of the Contracts. In this connection, MML DISTRIBUTORS shall:
(i) jointly conduct with C.M. Life such training (including the
preparation and utilization of training materials) as in the
opinion of MML DISTRIBUTORS and C.M. Life is necessary to
accomplish the purposes of this Agreement;
(ii) establish and implement reasonable written procedures for
supervision of sales practices of registered representatives of
MML DISTRIBUTORS who sell the Contracts;
(iii) provide a sufficient number of registered principals and an
adequately staffed compliance department to carry out the
responsibilities as set forth herein;
(iv) take reasonable steps to ensure that C.M. Life agents and
brokers who are also registered representatives of MML
DISTRIBUTORS recommend the purchase of the Contracts only upon
reasonable grounds to believe that the purchase of the Contracts
is suitable for such applicant; and
(v) impose disciplinary measures on agents of C.M. Life who are also
registered representatives of MML DISTRIBUTORS as required.
The parties hereto recognize that any registered representative of MML
DISTRIBUTORS or Independent Broker selling the Contracts as
contemplated by this Agreement shall also be acting as an insurance
agent of C.M. Life or as an insurance broker, and that the rights of
MML DISTRIBUTORS and Independent Broker to supervise such persons
shall be limited to the extent specifically described herein or
required under applicable federal or state securities laws or NASD
regulations.
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5. Registration and Qualification of Contracts. C.M. Life has prepared or
caused to be prepared a registration statement describing the Contracts,
together with exhibits thereto (hereinafter referred to as the
"Registration Statement"). The Registration Statement includes a
prospectus (the "Prospectus") for the Contracts.
C.M. Life agrees to execute such papers and to do such acts and things as
shall from time-to-time be reasonably requested by MML DISTRIBUTORS for the
purpose of qualifying and maintaining qualification of the Contracts for
sale under applicable state law and for maintaining the registration of the
Separate Account and interests therein under the 1933 Act and the 1940 Act,
to the end that there will be available for sale from time-to-time such
amounts of the Contracts as MML DISTRIBUTORS may reasonably request. C.M.
Life shall advise MML DISTRIBUTORS promptly of any action of the SEC or any
authorities of any state or territory, of which it is aware, affecting
registration or qualification of the Separate Account, or rights to offer
the Contracts for sale.
If any event shall occur as a result of which it is necessary to amend or
supplement the Registration Statement in order to make the statements
therein, in light of the circumstances under which they were or are made,
true, complete or not misleading, C.M. Life will forthwith prepare and
furnish to MML DISTRIBUTORS, without charge, amendments or supplements to
the Registration Statement sufficient to make the statements made in the
Registration Statement as so amended or supplemented true, complete and not
misleading in light of the circumstances under which they were made.
6. Representations of C.M. Life. C.M. Life represents and warrants to MML
DISTRIBUTORS and to the Independent Brokers as follows:
(a) C.M. Life is an insurance company duly organized under the laws of the
Commonwealth of Massachusetts and is in good standing and is
authorized to conduct business under the laws of each state in which
the Contracts are sold, that the Separate Account was legally and
validly established as a segregated asset account under the Insurance
Code of Massachusetts, and that the Separate Account has been properly
registered as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account
for the Contracts.
(b) All persons that will be engaging in the offer or sale of the
Contracts will be authorized insurance agents of C.M. Life.
(c) The Registration Statement does not and will not contain any
misstatements 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 or are
made, not materially misleading.
(d) C.M. Life shall make available to MML DISTRIBUTORS copies of all
financial statements that MML DISTRIBUTORS reasonably requests for use
in connection with the offer and sale of the Contracts.
(e) No federal or state agency or bureau has issued an order preventing or
suspending the offer of the Contracts or the use of the Registration
Statement, or of any part thereof, with respect to the sale of the
Contracts.
(f) The offer and sale of the Contracts is not subject to registration, or
if necessary, is registered, under the Blue Sky laws of the states in
which the Contracts will be offered and sold.
(g) The Contracts are qualified for offer and sale under the applicable
state insurance laws in those states in which the Contracts shall be
offered for sale. In each state where such qualification is effected,
C.M. Life shall file and make such statements or reports as are or may
be required by the laws of such state.
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(h) This Agreement has been duly authorized, executed and delivered by
C.M. Life and constitutes the valid and legally binding obligation of
C.M. Life. Neither the execution and delivery of this Agreement by
C.M. Life nor the consummation of the transactions contemplated herein
will result in a breach or violation of any provision of the state
insurance laws applicable to C.M. Life, any judicial or administrative
orders in which it is named or any material agreement or instrument to
which it is a party or by which it is bound.
7. Representations of MML DISTRIBUTORS. MML DISTRIBUTORS represents and
warrants to C.M. Life as follows:
(a) MML DISTRIBUTORS is duly registered as a broker-dealer under the 1934
Act and is a member in good standing of the NASD and, to the extent
necessary to perform the activities contemplated hereunder, is duly
registered, or otherwise qualified, under the applicable securities
laws of every state or other jurisdiction in which the Contracts are
available for sale.
(b) This Agreement has been duly authorized, executed and delivered by MML
DISTRIBUTORS and constitutes the valid and legally binding obligation
of MML DISTRIBUTORS. Neither the execution and delivery of this
Agreement by MML DISTRIBUTORS nor the consummation of the transactions
contemplated herein will result in a breach or violation of any
provision of the federal or state securities laws or the Rules,
applicable to MML DISTRIBUTORS, or any judicial or administrative
orders in which it is named or any material agreement or instrument to
which it is a party or by which it is bound.
(c) MML DISTRIBUTORS shall comply with the Rules and the securities laws
of any jurisdiction in which it sells, directly or indirectly, any
Contracts.
8. Expenses. MML DISTRIBUTORS shall be responsible for all expenses incurred
in connection with its provision of services and the performance of its
obligations hereunder, except as otherwise provided herein.
C.M. Life shall be responsible for all expenses of printing and
distributing the Prospectuses, and all other expenses of preparing,
printing and distributing all other sales literature or material for use in
connection with offering the Contracts for sale.
9. Sales Literature and Advertising. MML DISTRIBUTORS agrees to ensure that
it uses and distributes only the Prospectus, statements of additional
information, or other applicable and authorized sales literature then in
effect in selling the Contracts. MML DISTRIBUTORS is not authorized to
give any information or to make any representations concerning the
Contracts other than those contained in the current Registration Statement
filed with the SEC or in such sales literature as may be authorized by C.M.
Life.
MML DISTRIBUTORS agrees to make timely filings with the SEC, the NASD, and
such other regulatory authorities as may be required of any sales
literature or advertising materials relating to the Contracts and intended
for distribution to prospective investors. C.M. Life shall review and
approve all advertising and sales literature concerning the Contracts
utilized by MML DISTRIBUTORS. MML DISTRIBUTORS also agrees to furnish to
C.M. Life copies of all agreements and plans it intends to use in
connection with any sales of the Contracts.
10. Applications. All applications for Contracts shall be made on application
forms supplied by C.M. Life, and shall be remitted by MML DISTRIBUTORS or
Independent Brokers promptly, together with such forms and any other
required documentation, directly to C.M. Life at the address indicated on
such application or to such other address as C.M. Life may, from time to
time, designate in writing. All applications are subject to acceptance or
rejection by C.M. Life at its sole discretion.
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11. Payments. All money payable in connection with any of the Contracts,
whether as premiums, purchase payments or otherwise, and whether paid by,
or on behalf of any applicant or Contract owner, is the property of C.M.
Life and shall be transmitted immediately in accordance with the
administrative procedures of C.M. Life without any deduction or offset for
any reason, including by example but not limitation, any deduction or
offset for compensation claimed by MML DISTRIBUTORS. Checks or money
orders as payment on any Contract shall be drawn to the order of "C.M.
Life Insurance Company." No cash payments shall be accepted by MML
DISTRIBUTORS in connection with the Contracts. Unless otherwise agreed to
by C.M. Life in writing, neither MML DISTRIBUTORS nor any of C.M. Life's
agents nor any broker shall have an interest in any surrender charges,
deductions or other fees payable to C.M. Life as set forth herein.
12. Insurance Licenses. C.M. Life shall apply for and maintain the proper
insurance licenses and appointments for each of the agents and brokers
selling the Contracts in all states or jurisdictions in which the Contracts
are offered for sale by such person. C.M. Life reserves the right to
refuse to appoint any proposed agent or broker, and to terminate an agent
or broker once appointed. C.M. Life agrees to be responsible for all
licensing or other fees required under pertinent state insurance laws to
properly authorize agents or brokers for the sale of the Contracts;
however, the foregoing shall not limit C.M. Life's right to collect such
amount from any person or entity other than MML DISTRIBUTORS.
13. Agent/Broker Compensation. Commissions or other fees due all brokers and
agents in connection with the sale of Contracts shall be paid by C.M. Life,
on behalf of MML DISTRIBUTORS, to the persons entitled thereto in
accordance with the applicable agreement between each such broker or agent
and C.M. Life or a general agent thereof. MML DISTRIBUTORS shall assist
C.M. Life in the payment of such amounts as C.M. Life shall reasonably
request, provided that MML DISTRIBUTORS shall not be required to perform
any acts that would subject it to registration under the insurance laws of
any state. The responsibility of MML DISTRIBUTORS shall include the
performance of all activities by MML DISTRIBUTORS necessary in order that
the payment of such amounts fully complies with all applicable federal and
state securities laws. Unless applicable federal or state securities law
shall require, C.M. Life retains the ultimate right to determine the
commission rate paid to its agents.
14. MML DISTRIBUTORS Compensation. As payment for its services hereunder, MML
DISTRIBUTORS shall receive an annual fee that has the following components:
(1) a fixed fee in the amount of $_____ per year, and (2) a variable fee
in the amount of ___ basis points (.000x) per year of new sales of the
Contracts. Payments shall commence and be made no later than December 31
of the year in which a Contract is issued. The variable component of the
fee shall be paid to MML DISTRIBUTORS' affiliate, MML Insurance Agency,
Inc. ("MMLIAI"). The fixed component shall be renegotiated annually
commencing in 1997. The last agreed-to amounts for each of these fees
shall remain in effect until the new fees are mutually agreed upon and are
set forth in schedules attached hereto.
15. Books and Records. MML DISTRIBUTORS and C.M. Life shall each cause to be
maintained and preserved for the period prescribed such accounts, books,
and other documents as are required of it by the 1934 Act and any other
applicable laws and regulations. In particular, without limiting the
foregoing, MML DISTRIBUTORS shall cause all the books and records in
connection with the offer and sale of the Contracts by its registered
representatives to be maintained and preserved in conformity with the
requirements of Rules 17a-3 and 17a-4 under the 1934 Act, to the extent
that such requirements are applicable to the Contracts. The books,
accounts, and records of MML DISTRIBUTORS and C.M. Life as to all
transactions hereunder shall be maintained so as to disclose clearly and
accurately the nature and details of the transactions. The payment of
premiums, purchase payments, commissions and other fees and payments in
connection with the Contracts by its registered representatives shall be
reflected on the books and records of MML DISTRIBUTORS as required under
applicable NASD regulations and federal and state securities laws
requirements.
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MML DISTRIBUTORS and C.M. Life, from time to time during the term of this
Agreement, shall divide the administrative responsibility for maintaining
and preserving the books, records and accounts kept in connection with the
Contracts; provided, however, in the case of books, records and accounts
kept pursuant to a requirement of applicable law or regulation, the
ultimate and legal responsibility for maintaining and preserving such
books, records and accounts shall be that of the party which is required to
maintain or preserve such books, records and accounts under the applicable
law or regulation, and such books, records and accounts shall be maintained
and preserved under the supervision of that party. MML DISTRIBUTORS and
C.M. Life shall each cause the other to be furnished with such reports as
it may reasonably request for the purpose of meeting its reporting and
recordkeeping requirements under such regulations and laws, and under the
insurance laws of the Commonwealth of Massachusetts and any other
applicable states or jurisdictions.
MML DISTRIBUTORS and C.M. Life each agree and understand that all
documents, reports, records, books, files and other materials required
under applicable Rules and federal and state securities laws shall be the
property of MML DISTRIBUTORS, unless such documents, reports, records,
books, files and other materials are required by applicable regulation or
law to be also maintained by C.M. Life, in which case such material shall
be the joint property of MML DISTRIBUTORS and C.M. Life. All other
documents, reports, records, books, files and other materials maintained
relative to this Agreement shall be the property of C.M. Life. Upon
termination of this Agreement, all said material shall be returned to the
applicable party.
MML DISTRIBUTORS and C.M. Life shall establish and maintain facilities and
procedures for the safekeeping of all books, accounts, records, files, and
other materials related to this Agreement. Such books, accounts, records,
files, and other materials shall remain confidential and shall not be
voluntarily disclosed to any other person or entity except as described
below in section 16..
16. Availability of Records. MML DISTRIBUTORS and C.M. Life shall each submit
to all regulatory and administrative bodies having jurisdiction over the
sales of the Contracts, present or future, any information, reports, or
other material that any such body by reason of this Agreement may request
or require pursuant to applicable laws or regulations. In particular,
without limiting the foregoing, C.M. Life agrees that any books and records
it maintains pursuant to paragraph 15 of this Agreement which are required
to be maintained under Rule 17a-3 or 17a-4 of the 1934 Act shall be subject
to inspection by the SEC in accordance with Section 17(a) of the 1934 Act
and Sections 30 and 31 of the 1940 Act.
17. Confirmations. C.M. Life agrees to prepare and mail a confirmation for
each transaction in connection with the Contracts at or before the
completion thereof as required by the 1934 Act and applicable
interpretations thereof, including Rule 10b-10 thereunder.
Each such confirmation shall reflect the facts of the transaction, and the
form thereof will show that it is being sent on behalf of MML DISTRIBUTORS
or Independent Broker acting in the capacity of agent for C.M. Life.
18. Indemnification. C.M. Life shall indemnify MML DISTRIBUTORS, Independent
Brokers, their registered representatives, officers, directors, employees,
agents and controlling persons and hold such persons harmless, from and
against any and all losses, damages, liabilities, claims, demands,
judgments, settlements, costs and expenses of any nature whatsoever
(including reasonable attorneys' fees and disbursements) resulting or
arising out of or based upon an allegation or finding that: (i) the
Registration Statement or any application or other document or written
information provided by or on behalf of C.M. Life includes any untrue
statement of a material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances under which
they are made, not misleading, unless such statement or omission was made
in reliance upon, and in conformity with, written information furnished to
C.M. Life by MML DISTRIBUTORS, Independent Brokers, or their registered
representatives specifically for use in the preparation thereof, or (ii)
there is a misrepresentation, breach of warranty or failure to fulfill any
covenant or warranty made or undertaken by C.M. Life hereunder.
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MML DISTRIBUTORS will indemnify C.M. Life, its officers, directors,
employees, agents and controlling persons and hold such persons harmless,
from and against any and all losses, damages, liabilities, claims, demands,
judgments, settlements, costs and expenses of any nature whatsoever
(including reasonable attorneys' fees and disbursements) resulting or
arising out of or based upon an allegation or finding that: (i) MML
DISTRIBUTORS or its registered representatives offered or sold or engaged
in any activity relating to the offer and sale of the Contracts which was
in violation of any provision of the federal securities laws or, (ii) there
is a material misrepresentation, material breach of warranty or material
failure to fulfill any covenant or warranty made or undertaken by MML
DISTRIBUTORS hereunder.
Promptly after receipt by an indemnified party under this paragraph 18 of
notice of the commencement of any action by a third party, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this paragraph 18, notify the indemnifying party
of the commencement thereof; but the omission to notify the indemnifying
party will not relieve the indemnifying party from liability which the
indemnifying party may have to any indemnified party otherwise than under
this paragraph. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election to assume the
defense thereof, the indemnifying party will not be liable to such
indemnified party under this paragraph for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
19. Independent Contractor. MML DISTRIBUTORS shall be an independent
contractor. MML DISTRIBUTORS is responsible for its own conduct and the
employment, control and conduct of its agents and employees and for injury
to such agents or employees or to others through its agents or employees.
MML DISTRIBUTORS assumes full responsibility for its agents and employees
under applicable statutes and agrees to pay all employer taxes thereunder.
20. Termination. Subject to termination as hereinafter provided, this
Agreement shall remain in full force and effect for the initial term of the
Agreement, which shall be for a two year period commencing on the date
first above written, and this Agreement shall continue in full force and
effect from year to year thereafter, until terminated as herein provided.
This Agreement may be terminated by either party hereto upon 30 days
written notice to the other party, or at any time upon the mutual written
consent of the parties hereto. This Agreement shall automatically be
terminated in the event of its assignment. Subject to C.M. Life's
approval, however, MML DISTRIBUTORS may delegate any duty or function
assigned to it in this agreement provided that such delegation is
permissible under applicable law. Upon termination of this Agreement, all
authorizations, rights and obligations shall cease except the obligations
to settle accounts hereunder, including the settlement of monies due in
connection with the Contracts in effect at the time of termination or
issued pursuant to applications received by C.M. Life prior to termination.
21. Interpretation. This Agreement shall be subject to the provisions of the
1934 Act and the rules, regulations, and rulings thereunder and of the
NASD, from time to time in effect, and the terms hereof shall be
interpreted and construed in accordance therewith. If any provision of
this Agreement shall be held or made invalid by a court decision, statute,
rule, or otherwise, the remainder of this Agreement shall not be affected
thereby. This Agreement shall be interpreted in accordance with the laws
of the Commonwealth of Massachusetts.
22. Non-exclusivity. The services of MML DISTRIBUTORS and C.M. Life to the
Separate Account hereunder are not to be deemed exclusive and MML
DISTRIBUTORS and C.M. Life shall be free to
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render similar services to others so long as their services hereunder are
not impaired or interfered with hereby.
23. Amendment. This Agreement constitutes the entire Agreement between the
parties hereto and may not be modified except in a written instrument
executed by all parties hereto.
24. Interests in and of MML DISTRIBUTORS. It is understood that any of the
policyholders, directors, officers, employees and agents of C.M. Life may
be a shareholder, director, officer, employee, or agent of, or be otherwise
interested in, MML DISTRIBUTORS, any affiliated person of MML DISTRIBUTORS,
any organization in which MML DISTRIBUTORS may have an interest, or any
organization which may have an interest in MML DISTRIBUTORS; that MML
DISTRIBUTORS, any such affiliated person or any such organization may have
an interest in C.M. Life; and that the existence of any such dual interest
shall not affect the validity hereof or of any transaction hereunder except
as otherwise provided in the Charter, Articles of Incorporation, or By-Laws
of C.M. Life and MML DISTRIBUTORS, respectively, or by specific provision
of applicable law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officials thereunto duly authorized and seals to
be affixed, as of the day and year first above written.
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ATTEST: C.M. LIFE
INSURANCE COMPANY, on its behalf
and on behalf of _______________
SEPARATE ACCOUNT
By:
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ATTEST: MML DISTRIBUTORS, LLC
By:
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