Exhibit (3)
UNDERWRITING AGREEMENT
AGREEMENT made this 15th day of May, 2003, by and between ML Life
Insurance Company of New York ("ML of New York"), a New York corporation, and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S"), a Delaware
corporation.
W I T N E S S E T H :
WHEREAS, ML of New York has established a separate account entitled
the ML of New York Variable Annuity Separate Account D for the purpose of
issuing certain variable annuity contracts ("Contracts");
WHEREAS, ML of New York wishes to arrange for the underwriting of the
Contracts in conformity with the requirements of the Securities Exchange Act of
1934 ("1934 Act"); and
WHEREAS, MLPF&S is registered with the Securities and Exchange
Commission ("SEC") as a broker-dealer under the 1934 Act and is a member of
the National Association of Securities Dealers, Inc. ("NASD");
NOW, THEREFORE, the parties hereto agree as follows:
1. ML of New York hereby appoints MLPF&S as its exclusive
representative for the distribution of the Contracts, and MLPF&S hereby agrees
to use its best efforts to sell and distribute the Contracts through its
registered representatives; provided, that with the approval of ML of New York,
MLPF&S may arrange with other broker-dealers for the sale of the Contracts and
execute agreements relating thereto upon such terms and conditions as MLPF&S
deems appropriate.
2. Unless otherwise permitted by applicable law, each person engaged in
the sale of the Contracts must be both an agent of ML of New York and a "person
associated with a broker or dealer" as that term is defined in Section 3(a)(18)
of the 1934 Act. With respect to all persons associated with it who will be
engaged in the sale of the Contracts, MLPF&S will be responsible for their
training, qualification, registration, supervision and control in the manner and
to the extent required by the applicable rules of the SEC and NASD and by any
applicable securities laws or rules of the various states relating to the sale
of the Contracts. ML of New York reserves the right to refuse to appoint any
person proposed to be associated with MLPF&S as an agent, or if appointed, to
terminate such appointment in its sole discretion. From time to time as
requested by ML of New York, MLPF&S will furnish to it a list of all persons
associated with it authorized to sell the Contracts.
3. MLPF&S will prepare and maintain all books and records relating to
the Contracts which are required to be maintained by it under the 0000 Xxx.
4. MLPF&S will not accept or receive on behalf of ML of New York any
Contract purchase payment except the first. Any first payment received by
MLPF&S will be made payable to ML of New York and will be forwarded promptly to
ML of New York, or the service office designated by it. ML of New York reserves
the right to reject any contract request in its sole discretion.
5. ML of New York will furnish MLPF&S currently effective prospectuses
relating to the Contracts in such numbers as MLPF&S may reasonably require from
time to time. MLPF&S will use its best efforts to obtain any approvals or
clearances required from the NASD with respect to all sales materials relating
to the Contracts. Any sales materials relating to the Contracts prepared by
MLPF&S must be approved by ML of New York prior to their use.
6. All commissions payable by ML of New York in connection with
Contract sales will be payable to the appropriate general agent affiliated with
MLPF&S in accordance with terms of the agreement with such general agent then
in effect. If any provision of any such agreement applicable to the Contracts
conflicts with any provision of this Agreement, the provision of this Agreement
shall govern.
7. This Agreement may be terminated at any time by either party
hereto on sixty (60) days' written notice.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
ML LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Vice President and Senior Counsel
ATTEST
/s/ XXXXXXXX XXXXX
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XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
First VP & Assistant General Counsel
ATTEST
/s/ XXXXXXXX XXXXX
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