DISTRIBUTION AGREEMENT
THIS AGREEMENT made as of the ____ day of ____, 2001, by and between
The American Life Insurance Company of New York, a New York stock life insurance
company ("American Life"), on its own behalf and on behalf of its separate
account, The American Separate Account 5 (the "Separate Account"), and Inviva
Securities Corporation, a Delaware corporation and a registered broker-dealer
(the "Distributor").
WITNESSETH:
WHEREAS, the Distributor is registered as a broker-dealer with the
Securities and Exchange Commission (the "SEC") under the Securities Exchange Act
of 1934 (the "1934 Act") and is a member of the National Association of
Securities Dealers, Inc. (the "NASD");
WHEREAS, the Separate Account was established on May 4, 2001 pursuant
to Section 4240 of the New York Insurance Law by resolution of American Life's
Board of Directors and registered as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act") on June 8, 2001;
WHEREAS, American Life proposes to issue, through the Separate Account,
certain contracts (the "Contracts"), which may be deemed to be securities under
the Securities Act of 1933 (the "1933 Act");
WHEREAS, the parties desire to have the Distributor act as principal
underwriter for the Contracts and assume such supervisory responsibility as is
required by federal and state securities law and applicable requirements of the
NASD for the securities activities of any "person associated" (as that term is
defined in Section 3(a)(18) of the 0000 Xxx) with the Distributor (the
"Associated Persons"); and
WHEREAS, the parties desire to have American Life perform certain
services in connection with the sale of the Contracts.
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, the parties agree as follows:
1. The Distributor will act as the principal underwriter of the
Contracts in each state or other jurisdiction where the Contracts may legally be
sold. The Distributor will from time to time enter into separate written
agreements ("Selling Agreements") on such terms and conditions as the parties
may determine not inconsistent with this Agreement, with one or more individuals
or organizations which agree to participate in the distribution of the
Contracts. Such individuals or organizations ("Dealers") shall be registered as
broker-dealers under the 1934 Act and members of the NASD. Each such Dealer and
its representatives soliciting applications for Contracts shall be duly and
appropriately licensed for the sale of the Contracts under applicable insurance
law and/or securities law of each state or other jurisdiction in which the
Dealer or representative is required to be so licensed. The Selling Agreements
shall be in such form as approved by American Life.
2. The Distributor will assume such supervisory responsibility for the
securities activities of, and for securities law compliance by, its Associated
Persons, as is required by applicable federal and state law and NASD
requirements, including the NASD Conduct Rules. The Distributor will have such
responsibility as is contemplated by Section 15(b)(4)(E) of the 1934 Act in
connection with the training, supervision and control of its Associated Persons.
The parties understand that certain sales literature and materials intended for
use in connection with the sale of Contracts may require filings with and/or
approvals from the SEC, NASD and other regulatory authorities. In advance of
using any such literature or materials, the Distributor will obtain the approval
of American Life and will make any such required regulatory filing or seek any
such required approval. The Distributor will provide appropriate training
materials for its Associated Persons, use its best efforts to prepare them to
complete satisfactorily any and all applicable NASD and state qualification
exams, register the Associated Persons as its registered representatives before
they engage in securities activities, and supervise them in the performance of
such activities. It is understood and agreed that the office of the Distributor
at 000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 will be
designated the Office of Supervisory Jurisdiction of the Distributor and will
perform such functions as are agreed to by American Life and the Distributor.
3. Distributor shall ensure that each Dealer supervises its registered
representatives. Dealers shall assume any legal responsibilities of American
Life and the Separate Account for the acts, omissions or defalcations of its
registered representatives insofar as they relate to the sale of the Contracts.
Applications for Contracts solicited by such Dealers through their registered
representatives shall be transmitted directly to American Life , and if received
by Distributor, shall be forwarded to American Life. All payments under the
Contracts received by the Distributor shall be remitted promptly to American
Life. Checks or money orders in payment under the Contracts will be drawn to the
order of "The American Life Insurance Company of New York."
4. American Life will reimburse the Distributor for all costs and
expenses incurred by the Distributor in furnishing the services, materials, and
supplies required by the terms of this Agreement.
5. American Life will be responsible for paying, on behalf of
Distributor, any compensation to Dealers and their registered representatives
due under the terms of any Selling Agreement.
6. The Distributor will be responsible for compliance with respect to
the maintenance and preservation in accordance with all applicable federal and
state securities laws and regulations, including Rules 17a-3 and 17a-4 under the
1934 Act, of all books and records required to be maintained in connection with
the offer and sale of the Contracts being distributed pursuant to this
Agreement. American Life shall maintain and preserve such books and records on
behalf of and as the agent for the Distributor in conformity with the
requirements of Rules 17a-3 and 17a-4 under the 1934 Act. Such books and records
shall be the property of the Distributor and shall at all times be subject to
inspection by the NASD and the SEC in accordance with Section 17(a) of the 1934
Act. American Life, acting as agent for the Distributor upon or prior to
completion of
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each transaction for which a confirmation is legally required, will send a
written confirmation for each such transaction reflecting the facts of the
transaction.
7. The Distributor will execute such papers and do such acts and things
as shall from time to time be reasonably requested by American Life for the
purpose of (a) maintaining the registration statements relating to the Contracts
and the Separate Account under the 1933 Act and the 1940 Act, and (b) qualifying
and maintaining qualification of the Contracts for sale under the applicable
laws of any state. It will, however, remain the responsibility of American Life
to obtain and maintain all necessary approvals and registration of the Contracts
with all relevant regulatory authorities.
8. The Distributor is not authorized to give any information, or to
make any representations concerning the Contracts or the Separate Account other
than those contained in the current registration statement, prospectuses or
statements of additional information (as amended from time to time) for the
Contracts filed with the SEC or such sales literature and materials as may be
authorized by American Life.
9. Each party hereto shall advise the other promptly of (a) any action
of the SEC or any authorities of any state or territory, of which it has
knowledge, affecting registration or qualifications of the Accounts or the
Contracts, or the right to offer the Contracts for sale, and (b) the happening
of any event which makes untrue any statement, or which requires the making of
any change in the registration statements or prospectuses or statements of
additional information in order to make the statements therein not misleading.
10. There shall be no net compensation for either the services provided
by the Distributor or the services provided by American Life in connection with
this Agreement.
11. The obligations of the Distributor under this Agreement relate
solely to its status as the principal underwriter of the Contracts.
12. The services of the Distributor and American Life under this
Agreement are not deemed to be exclusive and the Distributor and American Life
shall be free to render similar services to others, including, without
limitation, such other separate investment accounts as are now or hereafter
established by American Life, any affiliate of American Life, the Distributor or
any affiliate of the Distributor.
13. This Agreement may be terminated (a) at any time by either party
upon not less than 60 days' written notice to the other party; or (b) at any
time upon the mutual written consent of the parties. The Distributor shall not
assign nor delegate its responsibilities under this Agreement without the
written consent of American Life.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
15. If any provision of this Agreement is held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement will
not be affected thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE AMERICAN LIFE INSURANCE COMPANY OF NEW YORK, on its own behalf and
on behalf of The American Separate Account 5
By:
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Title:
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INVIVA SECURITIES CORPORATION
By:
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Title:
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