AMENDED AND RESTATED
UNDERWRITING AND DISTRIBUTION AGREEMENT
(DECEMBER 2009)
AGREEMENT made this 1 day of December 2009, by and between Xxxx
Xxxxxxx Life Insurance Company of New York ("Xxxx Xxxxxxx New York"), a New York
corporation, and Xxxx Xxxxxxx Distributors, LLC, ("JHD") a Delaware limited
liability company.
WITNESSETH:
WHEREAS, Xxxx Xxxxxxx New York sells certain insurance products listed
on Exhibit A hereto (the "Insurance Contracts"), some of which are regulated as
securities under the federal securities laws (the "Registered Insurance
Contracts"), and
WHEREAS, JHD is registered with the Securities and Exchange Commission
("SEC") as a broker-dealer under the 1934 Act, is a member of the Financial
Industry Regulatory Authority ("FINRA") and has been duly appointed and licensed
as an insurance agent of Xxxx Xxxxxxx New York; and
WHEREAS, Xxxx Xxxxxxx New York wishes to (i) arrange for the
underwriting of all Registered Insurance Contracts as set forth on Exhibit A
hereto through JHD in conformity with the requirements of the Securities
Exchange Act of 1934 ("1934 Act"); (ii) arrange for the distribution of all of
its Insurance Contracts as set forth in that Exhibit through JHD and (iii)
authorize JHD to enter into agreements with selling entities with respect
thereto; and
WHEREAS, Xxxx Xxxxxxx New York (then known as The Manufacturers Life
Insurance Company of New York) entered into an Underwriting and Distribution
Agreement dated January 1, 2002 with JHD (then known as Manulife Financial
Securities, LLC" ("MFS")) whereby MFS was appointed as its principal underwriter
and exclusive representative for the distribution of Xxxx Xxxxxxx New York
insurance products, and a subsequent amendment thereto dated October 5, 2004 to
reflect those name changes and to add provisions relating to compliance with
Rule 38a-1 under the Investment Company Act of 1940 and Rule 206(4)-7 under the
Investment Advisors Act of 1940 (as amended to date, the "Underwriting and
Distribution Agreement"); and
WHEREAS the parties wish to amend and restate the Underwriting and
Distribution Agreement including to incorporate amendments to date and to revise
the Exhibit listing Insurance Contracts subject to its terms.
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) Xxxx Xxxxxxx New York hereby appoints JHD as the principal
underwriter of, and its exclusive representative for the distribution of, the
Insurance Contracts, and JHD hereby agrees to use its best efforts to arrange
for the sale of the Insurance Contracts by general agents and, in connection
with Registered Insurance Contracts, by other broker-dealers registered under
the 1934 Act. JHD agrees to assist such entities and their representatives and
associated persons to the extent that and in such manner as JHD shall deem
appropriate in order to enhance the sale of Insurance Contracts and the payment
of purchase payments thereunder.
(b) The territory to which this Agreement shall apply shall be limited
to the State of New York.
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2. (a) With the consent of Xxxx Xxxxxxx New York, JHD may execute
agreements for the sale and distribution of the Insurance Contracts ("Selling
Agreements") with (i) other general agents/broker-dealers duly qualified under
applicable Federal and state laws to offer and sell the Registered Insurance
Contracts; and (ii) general agents to offer and sell Xxxx Xxxxxxx New York
insurance products other than the Registered Insurance Contracts. Xxxx Xxxxxxx
New York may, in its sole discretion, refuse to consent to a Selling Agreement
or refuse to appoint a general agent or sub-agent pursuant thereto.
(b) Such Selling Agreements shall contain such terms and
conditions as JHD shall deem appropriate and which are acceptable to Xxxx
Xxxxxxx New York. Such agreements may provide that any confirmation required to
be sent in connection with the issuance of Insurance Contracts or the receipt of
purchase payments thereunder will be sent by Xxxx Xxxxxxx New York. All Selling
Agreements shall provide that no commission or expense allowance shall be paid
in excess of the limitations imposed by Section 4228 of the New York Insurance
Law. Commissions and expense allowances paid by JHD pursuant to a Selling
Agreement shall not exceed the amounts payable to JHD by Xxxx Xxxxxxx New York
hereunder with respect to the Insurance Contracts. All such compensation plans
shall be on the same basis, whether commission based or fund based, as the
corresponding compensation plan between Xxxx Xxxxxxx New York and JHD pursuant
hereto, and payments shall have the same timing and duration.
(c) JHD shall provide Xxxx Xxxxxxx New York with information
regarding the commissions and expense allowances payable by JHD under each
Selling Agreement upon its inception, and shall advise Xxxx Xxxxxxx New York
upon the implementation of any revision to a plan of compensation thereunder.
Such information shall
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thereafter be maintained by Xxxx Xxxxxxx New York in its files for a period of
not less than six years.
3. Xxxx Xxxxxxx New York will prepare and maintain all books and
records relating to the Insurance Contracts including such books and records as
JHD is required to maintain under the 1934 Act to the extent such requirements
are applicable to the Registered Insurance Contracts. For purposes of this
Agreement, books and records maintained for JHD for the Registered Insurance
Contracts shall be deemed to be the property of JHD and shall be subject at all
times to examination by the SEC, FINRA and other appropriate governmental
agencies in accordance with Section 17(a) of the 1934 Act.
4. JHD will not accept or receive on behalf of Xxxx Xxxxxxx New York
any Registered Insurance Contract purchase payment. JHD will not permit any
other broker-dealer to participate in the distribution of the Registered
Insurance Contracts unless such broker-dealer agrees that (i) it will not accept
any purchase payment other than the first and (ii) it will not accept any first
purchase payment unless made payable to Xxxx Xxxxxxx New York. Such
broker-dealer must also agree to forward promptly to Xxxx Xxxxxxx New York at
the service office designated by it any first purchase payment received by such
broker-dealer together with a completed Registered Insurance Contract
application. Xxxx Xxxxxxx New York reserves the right to reject any application
in its sole discretion.
5. Xxxx Xxxxxxx New York will furnish to JHD currently effective
prospectuses relating to Registered Insurance Contracts in such numbers as JHD
may reasonably require from time to time. JHD shall be responsible for the
review of sales materials and agrees to use its best efforts to obtain any
approvals or clearances required from the NASD or other
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regulatory authorities, if applicable, with respect to such sales materials. Any
sales materials prepared by JHD or its designee, must be approved by Xxxx
Xxxxxxx New York prior to use.
6. (a) Xxxx Xxxxxxx New York agrees to reimburse JHD for services and
facilities provided by JHD to Xxxx Xxxxxxx New York pursuant to this Agreement.
The charge to Xxxx Xxxxxxx New York for such services and facilities shall be at
cost and shall include all direct and directly allocable expenses, reasonably
and equitably determined to be attributable to Xxxx Xxxxxxx New York by JHD,
plus a reasonable charge for direct overhead, the amount of such charge for
overhead to be agreed upon by the parties from time to time.
(b) Subject to New York Insurance Department Regulation 33, the
bases for determining such charges to Xxxx Xxxxxxx New York shall be those used
by JHD for internal cost distribution (including, where appropriate, time
records prepared at least annually for this purpose). Such bases shall be
modified and adjusted by mutual agreement where necessary or appropriate to
reflect fairly and equitably the actual incidence of cost incurred by JHD on
behalf of Xxxx Xxxxxxx New York.
(c) JHD's determination of charges hereunder shall be presented
to Xxxx Xxxxxxx New York, and if Xxxx Xxxxxxx New York objects to any such
determination, it shall so advise JHD within thirty (30) days of receipt of
notice of said determination. Unless the parties can reconcile any such
objection, they shall agree to the selection of a firm of independent certified
public accountants which shall determine the charges properly allocable to Xxxx
Xxxxxxx New York and shall, within a reasonable time, submit such determination,
together with the basis therefore, in writing to JHD and Xxxx Xxxxxxx New York
whereupon such determination shall be binding. The expenses of such a
determination by a firm of
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independent certified public accountants shall be borne equally by JHD and Xxxx
Xxxxxxx New York.
(d) JHD shall submit to Xxxx Xxxxxxx New York within thirty (30)
days of the beginning of each calendar quarter a written statement of the amount
estimated to be owed by Xxxx Xxxxxxx New York for services and the use of
facilities pursuant to this Agreement in that calendar quarter, and Xxxx Xxxxxxx
New York shall pay to JHD within fifteen (15) days following receipt of such
written statement the amount set forth in the statement.
(e) Within thirty (30) days after the end of each calendar year,
JHD will submit to Xxxx Xxxxxxx New York a detailed written statement of the
charges due from Xxxx Xxxxxxx New York to JHD in that calendar year, included in
any previous statements, and any balance payable or to be refunded as shown in
such statement shall be paid or refunded within fifteen (15) days following
receipt of such written statement by Xxxx Xxxxxxx New York.
7. (a) All commissions and expense allowances in connection with
Insurance Contract sales shall be paid by or on behalf of JHD in accordance with
the terms of the applicable Selling Agreement then in effect.
(b) With respect to Registered and non-registered Insurance
Contracts, JHD authorizes Xxxx Xxxxxxx New York to make an electronic payment or
credit of commissions and expense allowances due from JHD to general
agents/broker dealers which (1) have entered into Selling Agreements with JHD;
and (2) participate in an electronic premium and funds transfer system utilized
by Xxxx Xxxxxxx New York. JHD will be responsible for furnishing Xxxx Xxxxxxx
New York with any records and information necessary to determine the amounts to
be so paid or credited. It is understood and agreed that such payments and
credits shall be made solely on JHD's behalf, and that Xxxx Xxxxxxx New York
assumes no direct
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obligation under any Selling Agreement to pay commissions and expense allowance
to such general agents/broker-dealers. Any amounts due to JHD in excess of such
payments or credits shall be remitted directly to JHD in accordance with Section
6 hereof.
8. Subject to Section 3 hereof, all books, records, and files
established and maintained by JHD by reason of its performance under this
Agreement which, absent this Agreement, would have been held by Xxxx Xxxxxxx New
York, shall be deemed the property of Xxxx Xxxxxxx New York, and shall be
subject to examination at all times by Xxxx Xxxxxxx New York and persons
authorized by it or any governmental agency having jurisdiction over it.
With respect to original documents which would otherwise be held
by Xxxx Xxxxxxx New York and which may be obtained by JHD in performing under
this Agreement, JHD shall deliver such documents (whether in original form or in
a durable medium consistent with Regulation No. 152) to Xxxx Xxxxxxx New York
within thirty (30) days of their receipt by JHD except where continued custody
of such documents is necessary to perform hereunder.
9. JHD shall have no right to incur any indebtedness on behalf of Xxxx
Xxxxxxx New York pursuant to this Agreement. JHD hereby authorizes Xxxx Xxxxxxx
New York to set off JHD's liabilities to Xxxx Xxxxxxx New York against any and
all amounts otherwise payable to JHD pursuant hereto.
10. (a) JHD will provide Xxxx Xxxxxxx New York with written compliance
policies and procedures as required by Rule 38a-1 for the Separate Accounts
("Rule 38a-1 Policies and Procedures") for approval by Xxxx Xxxxxxx New York.
The Rule 38a-1 Policies and Procedures shall be reasonably designed to prevent,
detect, and correct any material violations of the federal securities laws as
defined in Rule 38a-1.
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(b) JHD will promptly provide Xxxx Xxxxxxx New York's Chief
Compliance Officer with any material changes that are made to the Rule 38a-1
Policies and Procedures. JHD agrees to cooperate with Xxxx Xxxxxxx New York in
any review of the Rule 38a-1 Policies and Procedures conducted by the Chief
Compliance Officer of Xxxx Xxxxxxx New York to determine the adequacy of the
Rule 38a-1 Policies and Procedures and the effectiveness of their
implementation. Such cooperation includes, without limitation, furnishing such
certifications and documentation as Xxxx Xxxxxxx New York's Chief Compliance
Officer shall reasonably request from time to time and implementing changes to
the Rule 38a-1 Policies and Procedures that are reasonably requested by and
satisfactory to Xxxx Xxxxxxx New York's Chief Compliance Officer.
(c) JHD will provide Xxxx Xxxxxxx New York with ongoing, direct,
and immediate access to its compliance personnel and shall cooperate with Xxxx
Xxxxxxx New York's Chief Compliance Officer in carrying out Xxxx Xxxxxxx New
York's obligations under Rule 38a-1 to oversee the compliance program of JHD.
(d) JHD will promptly notify Xxxx Xxxxxxx New York in the event
that a material compliance matter, as defined in Rule 38a-1, occurs with respect
to the Rule 38a-1 Policies and Procedures will cooperate with Xxxx Xxxxxxx New
York in providing Xxxx Xxxxxxx New York with any required reports in the event
any material compliance matter occurs.
(e) JHD, and anyone acting under its direction, will refrain
from, directly or indirectly, taking any action to coerce, manipulate, mislead,
or fraudulently influence Xxxx Xxxxxxx New York's Chief Compliance Officer in
the performance of his or her responsibilities under Rule 38a-1.
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11. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
12. This Agreement shall take effect as of the date set forth above
and 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.
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XXXX XXXXXXX LIFE INSURANCE
COMPANY OF NEW YORK
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxx, President
Attest: /s/ Xxxxx Xxxxxx
----------------------------
XXXX XXXXXXX DISTRIBUTORS, LLC
By /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Xxxxxxxx Xxxxxx, Chief Compliance
Officer of JHD
Attest: /s/ Xxxxx Xxxxxx
----------------------------
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EXHIBIT A
INSURANCE CONTRACTS
(Products which are not Registered Insurance Contracts are identified as
such.)
(i) Individual variable annuities or fixed and variable annuities
(ii) Fixed annuities (registered and non-registered)
(iii) Term life insurance (non-registered)
(iv) Universal life insurance (non-registered)
(v) Variable life insurance
(vi) Variable universal life insurance
(vii) Group annuities (non-registered)
(viii) Such other Insurance Products as are from time to time agreed to by
the parties to the foregoing Agreement and added to this Exhibit A.
Notwithstanding the foregoing, the following insurance products issued by Xxxx
Xxxxxxx New York on and after January 1, 2010 shall not be Insurance Contracts
for the purposes of this Agreement:
(1) Non-registered fixed annuities funding tax advantaged structured
settlements.
(2) Non-registered group annuities guaranteeing benefits under employee
benefit plans, other than guaranteed interest rate products and guaranteed
living benefits riders.
(3) Non-registered group annuities sold to pension, welfare or benefit
plans, foundations, endowments or similar institutions for investments, other
than as sold by the Retirement Plan Services unit of Xxxx Xxxxxxx New York.
(4) Non-registered group annuities issued as funding agreements.
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