MARKETING COORDINATION AGREEMENT
THIS AGREEMENT entered into by and between Sun Life Insurance and Annuity
Company of New York ("Sun Life (N.Y.)"), a New York corporation, and MFS Fund
Distributors, Inc. ("MFD"), a Delaware corporation and Clarendon Insurance
Agency, Inc. ("Clarendon"), a Massachusetts corporation.
WITNESSETH
WHEREAS Sun Life (N.Y.) proposes to issue and offer for sale certain life
insurance and annuity contracts (the "Plans") which may or may not be deemed to
be securities under the Securities Act of 1933 ("33 Act"); and
WHEREAS MFD and Clarendon are registered as broker-dealers with the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act
of 1934 ("34 Act") and are members of the National Association of Securities
Dealers, Inc. ("NASD"); and
WHEREAS MFD and Clarendon propose to coordinate the marketing of the Plans
and to perform certain administrative services in conjunction therewith,
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
I
THE PLANS
A. TYPE OF PLANS
The Plans issued by Sun Life (N.Y.) to which this Agreement applies are
listed in Exhibit A. Exhibit A may be amended from time to time as agreed upon
by Sun Life (N.Y.), MFD and Clarendon.
B. SUSPENSION/RESTRICTION
Sun Life (N.Y.) may, at its option and at its sole discretion, suspend or
restrict in any manner the sale or method of distribution of all or any of the
Plans, including sales by all or any individuals licensed to sell Sun Life
(N.Y.)'s products. If any suspension or
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restriction is required by any regulatory authority having jurisdiction,
written notice shall be given to MFD and Clarendon immediately upon receipt
by Sun Life (N.Y.) of notice of such required suspension and restriction. In
all other cases, Sun Life (N.Y.) will provide thirty (30) days' prior written
notice to MFD and Clarendon of any such suspension and restriction.
C. PLAN CHANGES
Sun Life (N.Y.) may, at its option and at its sole discretion, amend, add
or delete features to all or any of the Plans. In the event of any such
amendment, addition, or deletion, Sun Life (N.Y.) will provide written notice of
such change to MFD and Clarendon. If the change is required by any regulatory
authority having jurisdiction, written notice shall be given to MFD and
Clarendon immediately upon receipt by Sun Life (N.Y.) of notice of such required
change. In all other cases, Sun Life (N.Y.) will provide written notice to MFD
and Clarendon at least thirty (30) days prior to the effective date of such
change.
II
MARKETING COORDINATION AND SALES ADMINISTRATION
A. GENERAL DISTRIBUTOR
Clarendon is hereby appointed by Sun Life (N.Y.) as the General Distributor
of the Plans. Clarendon shall, at all times, when performing its functions
under this Agreement, be registered as a securities broker-dealer with the SEC
and the NASD and shall be licensed or registered as a securities broker-dealer
and, as applicable, a life insurance agency, in those jurisdictions where the
performance of the duties contemplated by this Agreement would require such
licensing and registration.
B. DISTRIBUTION AGREEMENTS
Clarendon will distribute the Plans pursuant to either a Sales Operations
and General Agent Agreement or a Broker-Dealer Supervisory and Service Agreement
and Registered Representative's Agent Agreement (the "Distribution Agreements").
Copies of the Distribution Agreements as currently in effect are attached as
Exhibits B, C, D, and E respectively. Clarendon, through MFD, shall negotiate
all Distribution
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Agreements on behalf of Sun Life (N.Y.) and all such Distribution Agreements
shall be substantially in the form of the Distribution Agreements attached
hereto unless otherwise agreed to by Sun Life (N.Y.). No Commission Schedule
attached to any Distribution Agreement may provide for commission payments in
excess of specified maximums established by Sun Life (N.Y.) from time to
time. The originals of such agreements and all correspondence, memoranda and
other documents relating to the Distribution Agreements shall be retained by
Sun Life (N.Y.) at its Home Office in the State of New York.
C. AGENTS/REGISTERED REPRESENTATIVES ("AGENTS")
1. APPOINTED AND TERMINATION OF AGENTS
(a) Sun Life (N.Y.) will appoint and dismiss individuals as its
agents in those jurisdictions in which Sun Life (N.Y.) transacts an
insurance business. Sun Life (N.Y.) reserves the right to terminate
any and all such appointments as its agent and will provide written
notice of any such termination to the appropriate regulatory
authority.
2. TRAINING OF AGENTS
MFD shall train agents appointed by Sun Life (N.Y.) to properly
solicit applications for the Plans in accordance with guidelines
established by Sun Life (N.Y.).
3. COORDINATION OF AGENT SUPERVISION
MFD shall coordinate the supervision of agents appointed by Sun Life
(N.Y.) and associated with broker-dealers with which Sun Life (N.Y.) has
Selling Agreements in connection with the offering and sale of the Plans.
MFD will establish and Sun Life (N.Y.) will approve such rules and
procedures as may be necessary to insure proper supervision of agents.
4. SALES ASSISTANCE TO AGENTS
MFD shall provide sales assistance to agents of Sun Life (N.Y.). This
sales assistance shall include, but not be limited to, assistance from
MFD's field representatives as well as from MFD's home office personnel.
MFD shall also prepare sales promotional programs for the Plans and assist
the agents in utilizing the programs. In addition, MFD shall provide
broker-dealers and agents with sufficient quantities of any applicable
sales promotional materials, prospectuses, sample Plans, applications and
service forms.
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5. PAYMENT OF COMMISSIONS TO AGENTS
All commission payments required to be made pursuant to the
Distribution Agreements shall be made by Sun Life (N.Y.).
D. SALES MATERIAL AND OTHER DOCUMENTS
1. MFD'S RESPONSIBILITIES
MFD shall be responsible for the design, preparation and printing of
all promotional material to be used in the distribution of the Plans
and the approval of such promotional material by the SEC and the NASD
where required.
MFD shall obtain sufficient quantities of prospectuses of the mutual
funds underlying any Plans for distribution to broker-dealers, agents,
and Plan purchasers.
2. SUN LIFE (N.Y.)'S RESPONSIBILITIES
a). Sun Life (N.Y.) or its agent shall be responsible for the
design, preparation and printing of Plans, applications for Plans and
forms becoming part of the Plans and service forms.
b). Sun Life (N.Y.) shall provide MFD with sufficient quantities
of any prospectuses for the Plans and the separate accounts,
applications and sample Plans (including any endorsements).
c). Sun Life (N.Y.) shall be responsible for the approval of
promotional material by New York state and other insurance regulatory
authorities, if required.
3. SUN LIFE (N.Y.)'S RIGHT TO APPROVE
Sun Life (N.Y.) shall review and approve or disapprove, in writing,
PRIOR TO ITS USE, all sales promotional material proposed by MFD or in
use. Sun Life (N.Y.) reserves the right to require modification or
withdrawal from use of any such material to comply with applicable
laws, rules and regulations.
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E. ADVERTISING
Neither MFD nor any of its agents or affiliates shall print, publish or
distribute any advertisement, circular or any document relating to the Plans or
relating to Sun Life (N.Y.) unless such advertisement, circular or document
shall have been approved by Sun Life (N.Y.). Neither Sun Life (N.Y.) nor any of
its agents or affiliates shall print, publish or distribute any advertisement,
circular or any document relating to the Plans or relating to MFD unless such
advertisement, circular or document shall have been approved in writing by MFD.
However, nothing herein shall prohibit any person from advertising annuities in
general or on a generic basis.
F. SALES RECORDS - PRODUCTION REPORTS
Sun Life (N.Y.) shall establish and maintain sales records in such form as
it may deem appropriate, and shall provide MFD with such reports and materials
relative to the marketing and distribution of Plans as may reasonably be
required by MFD.
G. BOOKS, RECORDS AND SUPERVISION
1. BOOKS AND RECORDS
Clarendon may request that all or some of the books and records
required to be maintained by it as a registered broker-dealer in connection
with the offer and sale of the Plans be prepared and maintained by Sun Life
(N.Y.) or MFD. Sun Life (N.Y.) and MFD agree to prepare and maintain such
books and records at their respective costs upon request, and agree that
such books and records are the property of Clarendon, that they will be
made and preserved in accordance with Rules 17a-3 and 17a-4 under the 34
Act and that they will be subject to examination by the SEC in accordance
with Section 17(a) of the 34 Act.
H. SUPERVISION
Clarendon has and assumes full responsibility for the securities
activities of all persons associated with Sun Life (N.Y.) and MFD who
maintain books and records on behalf of Clarendon. Sun Life (N.Y.) and MFD
acknowledge that Clarendon has full responsibility for all such persons in
connection with their training, supervision and control as contemplated by
the 34 Act.
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III
COMPENSATION
A. GENERAL
For performing marketing coordination and sales administration services
under this Agreement, MFD and Clarendon will be compensated by Sun Life (N.Y.)
pursuant to Exhibit F - Schedule of Fees.
B. TIME OF PAYMENT
Sun Life (N.Y.) will pay all compensation due MFD and Clarendon hereunder
on a weekly basis, in accordance with the Schedule of Fees.
C. CHANGES IN COMPENSATION
Compensation payable under this Agreement may be increased or decreased to
reflect any change in marketing coordination responsibilities. The Schedule of
Fees may be amended or changed only upon mutual agreement of the parties as to
amount and effective date. Any such amendments or changes are subject to
approval by the New York State Insurance Department.
D. INDEBTEDNESS
Nothing in this Agreement shall be construed as giving MFD or Clarendon the
right to incur any indebtedness on behalf of Sun Life (N.Y.). However, Sun Life
(N.Y.) may offset amounts owed it by MFD or Clarendon under this Agreement
against amounts payable to MFD or Clarendon for any reason; and MFD and
Clarendon may offset amounts owed them by Sun Life (N.Y.) under this Agreement
against any amounts payable to Sun Life (N.Y.) for any reason, provided that no
such offset is permitted in connection with Plan premiums or purchase payments
and payments under the Plans.
IV
OTHER PROVISIONS
A. PRODUCT DEVELOPMENT
MFD shall assist Sun Life (N.Y.) or its agent in the design and
development of life insurance and annuity products for distribution pursuant
to the Distribution Agreements. This assistance may include conducting
market research studies as reasonably requested by Sun Life (N.Y.),
consulting with respect to product design, and assisting in the
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development of sales training, sales promotional and advertising material
relating to new insurance and annuity products. MFD acknowledges that all such
studies and materials are the property of Sun Life (N.Y.).
B. OWNERSHIP OF BUSINESS RECORDS
Sun Life (N.Y.) shall own all business records maintained by MFD or
Clarendon pertaining to the duties and responsibilities of MFD and Clarendon
under this Agreement. Such records shall be delivered to Sun Life (N.Y.)
promptly upon reasonable request or upon termination of this Agreement. MFD
and Clarendon will maintain all records and accounts in accordance with Sun
Life (N.Y.)'s standards or requirements, or otherwise, with generally
accepted procedures as they apply to the accounting and insurance industry.
MFD and Clarendon will also at Sun Life (N.Y.)'s request make any such
records available to Sun Life (N.Y.)'s auditors or to any governmental
authority having jurisdiction over Sun Life (N.Y.), and such records shall be
open to inspection at all times by Sun Life (N.Y.) or its designees.
C. APPROVAL OF PRACTICES AND PROCEDURES
Sun Life (N.Y.) shall have the right to review and approve the standards,
practices and procedures utilized by MFD and Clarendon in fulfilling their
obligations under the Agreement. Sun Life (N.Y.) reserves the right, from time
to time, to prescribe rules and regulations respecting the conduct of the
business covered hereby.
D. COMPLAINTS
1. MFD shall immediately forward to Sun Life (N.Y.) any material received
by MFD or Clarendon relating to any complaint concerning Sun Life (N.Y.) or
the Plans.
2. In the case of complaints or inquiries relating to the Plans
distributed pursuant to the Distribution Agreements, Sun Life (N.Y.) may,
at its option, request MFD to investigate such complaints or inquiries. In
such instances, MFD shall promptly forward to Sun Life (N.Y.) copies of all
material relating to such investigations.
E. LIMITATIONS ON AUTHORITY
MFD and Clarendon shall have authority only as expressly granted in this
agreement. No party to this Agreement shall enter into any
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proceeding in a court of law or before a regulatory agency in the name of any
other party, without the express written consent of that party. Further, if
any legal or administrative proceedings are commenced against any party
arising out of the obligations, duties or services performed under this
Agreement by any third party or any federal, state or other governmental or
regulatory authority, that party, as the case may be, shall immediately
notify the other parties of this fact.
F. ARBITRATION
Any controversy or claim arising out of any matter relating to this
Agreement or the breach of this Agreement shall be determined by arbitration
in accordance with the rules then in existence of the American Arbitration
Association, and judgment upon any award rendered in any such arbitration
proceeding may be entered in any court having jurisdiction thereof. The
Board of Arbitration shall be composed of three persons selected in the
following manner: Sun Life (N.Y.) shall have the right to select one
arbitrator, MFD and Clarendon shall have the right to select the second
arbitrator, and the two arbitrators thus selected shall have the right to
select an umpire. In the event that the parties cannot agree upon the
selection of an umpire, the parties shall agree to delegate the authority of
such election to the then President of the American Council of Life Insurance.
G. REGULATION 33
The parties to the Agreement agree that the allocation and
classification of expenses under this Agreement will be made in accordance
with New York State Insurance Department Regulation No. 33.
H. REIMBURSEMENT
To the extent that this Agreement provides for any reimbursement of
expenses, the basis for reimbursement shall be reviewed from time to time by
the parties to this Agreement, and the books, accounts and records of each
party to this Agreement shall be so maintained as to clearly and accurately
disclose the nature and details of each transaction between the parties,
including such accounting information as is necessary to support the
reasonableness of the charges made hereunder.
V
GENERAL PROVISIONS
A. WAIVER
Failure of any party to insist upon strict compliance with any of
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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.
X. XXXX
MFD and Clarendon will maintain whatever bond may be required by Sun
Life (N.Y.), and such bond shall be of a type and amount and issued by a
reputable company, all as approved by Sun Life (N.Y.).
C. BINDING EFFECT
This Agreement shall be binding on and shall inure to the benefit of the
parties to it and their respective successors and assigns.
D. INDEMNIFICATION
Each party hereby agrees to release, indemnify and hold harmless the
other party, its officers, directors, employees, agents, servants,
predecessors or successors from any claims or liability to third parties
arising out of the breach of this Agreement or arising out of the acts or
omissions of a party to this Agreement not authorized by this Agreement.
E. NOTICES
All notices, requests, demands and other communication under this
Agreement shall be in writing, and shall be deemed to have been given on the
date of service if served personally on the party to whom notice is to be
given, or on the date of mailing, if sent by First Class Mail, Registered or
Certified, postage prepaid and properly addressed as follows:
TO SUN LIFE (N.Y.)
Sun Life Insurance and Annuity Company of New York
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Secretary
TO MFD
MFS Fund Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Secretary
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TO CLARENDON
Clarendon Insurance Agency, Inc.
One Sun Life Executive Park
Xxxxxxxxx Xxxxx, Xxxxxxxxxxxxx 00000
Attention: Secretary
F. GOVERNING LAW
This Agreement shall be construed in accordance with and governed by the
laws of the State of New York.
G. COMPLIANCE
All parties agree to observe and comply with the existing laws and rules
or regulations of applicable local, state or federal regulatory authorities,
and with those which may be enacted or adopted during the term of this
Agreement regulating the business contemplated hereby in any jurisdiction in
which business described herein is to be transacted.
H. TERMINATION
This Agreement may be terminated by any of the parties upon six (6)
months' prior written notice to the other party.
I. COMMITMENT TO NEW YORK STATE INSURANCE DEPARTMENT
MFD and Clarendon acknowledge receipt of a Commitment Agreement and
related Interpretative Letter, and Plans of Operations and Separate Account
Operations, as amended, all of which have been filed by Sun Life (N.Y.) with
the New York State Insurance Department. MFD and Clarendon agree to comply
with the terms of these agreements and documents to the extent that they
provide services to Sun Life (N.Y.) of the type contemplated by these
agreements and documents.
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Executed this th day of
SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
By
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Senior Vice President
MFS FUND DISTRIBUTORS, INC.
By
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Senior Vice President
CLARENDON INSURANCE AGENCY, INC.
By
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President
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Executed this th day of
SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
By /s/ [Illegible]
------------------------------------------------
Senior Vice President
MFS FUND DISTRIBUTORS, INC.
By
------------------------------------------------
Senior Vice President
CLARENDON INSURANCE AGENCY, INC.
By /s/ [Illegible]
------------------------------------------------
President
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