Exhibit 3(b)
PRINCIPAL UNDERWRITING AGREEMENT
This Principal Underwriting Agreement (hereinafter "Agreement") is made and
entered into as of this ___ day of ______, 1999, by and between ALICNY Insurance
Company of New York ( "ALICNY") a life insurance company organized under the
laws of the state of Illinois, on its own and on behalf of each separate account
of ALICNY set forth on Attachment A, as such Attachment may be amended from time
to time (each such account herein referred to as the "Account"), and Allstate
Distributors, L.L.C. ("Distributors"), a limited liability corporation organized
under the laws of the state of Delaware.
In consideration of the mutual promises and covenants exchanged by the parties
in this Agreement, ALICNY grants to Distributors the right to be and
Distributors agrees to serve as Principal Underwriter for the sale of variable
insurance products and other insurance and investment products during the term
of this Agreement and the parties agree as follows:
ARTICLE I
DISTRIBUTORS DUTIES AND OBLIGATIONS
1.01 Distributors, a broker-dealer registered under the Securities Exchange Act
of 1934 (the "1934 Act") and a member of the National Association of Securities
Dealers, Inc. ("NASD"), will serve as principal underwriter and distributor for
the variable insurance contracts (contracts listed in Attachment A , herein, the
"Contracts") which will be issued by ALICNY.
1.02 Distributors shall be duly registered or licensed or otherwise qualified
under the insurance and securities laws of the states in which the Contracts are
authorized for sale.
1.03 Distributors proposes to act as principal underwriter on an agency best
efforts basis in the marketing and distribution of the Contracts. Distributors
will use its best efforts to provide information and marketing assistance to
licensed insurance agents and broker-dealers ("Selling Broker-Dealers") on a
continuing basis.
1.04 Distributors shall be responsible for compliance with the requirements of
state broker-dealer regulations and the 1934 Act as each applies to Distributors
in connection with its duties as distributor of the Contracts. Moreover,
Distributors shall conduct its affairs in accordance with the Rules of Fair
Practice of the NASD.
1.05 As a principal underwriter, Distributors shall permit the offer and sale of
Contracts to the public only by and through persons who are appropriately
licensed under the securities laws and who are appointed in writing by ALICNY to
be authorized insurance agents (unless such persons are exempt from such
licensing and appointment requirements);
1.06 To the extent that any statements made in the Registration Statement, or
any amendment or supplement thereto, are made in reliance upon and in conformity
with written information furnished to ALICNY by Distributors expressly for use
therein, such statements will, when they become effective or are filed with the
SEC, as the case may be, conform in all material respects to the requirements of
the 1933 Act and the rules and regulations of the Commission thereunder, and
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
1.07 Subject to agreement with ALICNY, Distributors may enter into selling
agreements with broker-dealers which are registered under the 1934 Act and/or
authorized by applicable law or exemptions to sell the Contracts. Any such
contractual arrangement is expressly made subject to this Agreement, and
Distributors will at all times be responsible to ALICNY for supervision of
compliance with federal securities laws regarding distribution of the Contracts.
ARTICLE II
ALICNY'S DUTIES AND OBLIGATIONS
2.01 ALICNY is validly existing as a stock life insurance company in good
standing under the laws of the State of Illinois, and has been duly qualified
for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business.
2.02 ALICNY represents that:
a) Registration Statements for each of the Contracts identified in
Attachment A shall have been filed with the Securities and Exchange
Commission ("SEC") in the form previously delivered to Distributors and
that copies of any and all amendments thereto will be forwarded to
Distributors at the time that they are filed with the SEC;
b) Each Account is a duly organized, validly existing separate account,
established by resolution of the Board of Directors of ALICNY, on the
date shown for such Account on Attachment A, for the purpose of issuing
the Contracts; and
c) ALICNY has registered or will register the Account as a unit investment
trust under the Investment Company Act of 1940 (the "1940 Act").
2.03 The Registration Statement and any further amendments or supplements
thereto will, when they became effective, conform in all material respects to
the requirements of the Securities Act of 1933 (the "1933 Act") and the 1940
Act, and the rules and regulations of the Commission under such Acts and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statement or omission made in reliance upon and in conformity
with information furnished in writing to ALICNY by Distributors expressly for
use therein.
2.04 ALICNY shall be responsible for the licensing and appointing of registered
representatives of Selling Broker-Dealers as required by state insurance laws.
ARTICLE III
RECORDS
3.01 Distributors shall keep, in a manner and form approved by ALICNY and in
accordance with Rules 17a-3 and 17a-4 under the 1934 Act, accurate records and
books of account as required to be maintained by a registered broker-dealer,
acting as principal underwriter, of all transactions entered into on behalf of
ALICNY with respect its activities under this Agreement. Distributors shall make
such records of account available for inspection by the SEC and ALICNY shall
have the right to inspect, make copies of or take possession of such records and
books of account at any time upon demand.
3.02 Subject to applicable SEC or NASD restrictions, ALICNY will send
confirmations of Contract transactions to Contract owners. ALICNY will make such
confirmations and records of transactions available to Distributors upon
request. ALICNY will also maintain Contract Owner records on behalf of
Distributors to the extent permitted by applicable securities law.
3.03 Distributors and ALICNY shall keep confidential the records, books of
account and other information concerning the Contract owners, annuitants,
insureds, beneficiaries or any persons who have rights arising out of the
Contracts. Distributors or ALICNY may disclose the Records and such information
only if the other has authorized disclosure and if the disclosure is required by
applicable law. In the event Distributors or ALICNY is served with a subpoena,
court order or demand from a regulatory organization which mandates disclosure
of the Records or such information, such party must notify the other and allow
such other party sufficient time to authorize disclosure or to intervene in the
judicial proceeding or matter so as to protect its interest.
3.04 Unless otherwise agreed to, no party to this Agreement shall voluntarily
disclose to any third party other than Xxxxxx Investments, Inc. and its
affiliates, any books, reference manuals, instructions, information or data
which concern the other party's business and which are exchanged during the
negotiation and performance of this Agreement. When this Agreement terminates or
expires, the parties shall return all such books, reference manuals,
instructions, information or data in their possession.
3.05 For the purpose of determining the other party's compliance with this
Agreement, each party to this Agreement shall have reasonable access during
normal business hours to any records and books of account which concern the
Contracts and which are maintained by the other party.
3.06 Both ALICNY and Distributors agree to keep all information required by
applicable laws, to maintain the books, accounts and records as to clearly and
accurately disclose the precise nature and details of the transaction and to
assist one another in the timely perpetration of any reports required by law.
3.07 Distributors and ALICNY shall furnish to the other any reports and
information which the other may request for the purpose of meeting reporting and
recordkeeping requirements under the laws of Illinois or any other state or
jurisdiction.
ARTICLE IV
SALES MATERIALS
4.01 Distributors will utilize the currently effective prospectus relating to
the Contracts in connections with its underwriting, marketing and distribution
efforts. As to other types of sales material, Distributors hereby agrees and
will require Selling Broker-Dealers to agree to use only sales materials which
have been authorized for use by ALICNY, which conform to the requirements of
federal and state laws and regulations, and which have been filed where
necessary with the appropriate regulatory authorities including the NASD.
4.02 Distributors will not distribute any prospectus, sales literature or any
other printed matter or material in the underwriting and distribution or any
Contract if, to the knowledge of Distributors, any of the foregoing misstates
the duties, obligation or liabilities of ALICNY or Distributors.
ARTICLE V
COMPENSATION
5.01 ALICNY shall pay to Distributors commissions described in Attachment B ,
attached hereto and made a part hereof. Distributors shall not be obligated to
pay another broker/dealer for sales of Contracts pursuant to its selling
agreement with such broker/dealer until Distributors has received its
commissions for the sale of such Contracts from ALICNY.
5.02 In compensating Distributors, ALICNY reserves the right to withhold
commissions from Distributors if it determines Distributors is not paying
commissions to its Selling Broker-Dealers in accordance with applicable laws.
5.03 Distributors shall direct how commissions are paid, provided such direction
is in accordance with applicable law.
5.04 ALICNY agrees to pay Distributors for direct expenses incurred on behalf of
ALICNY. Such direct expenses shall include, but not be limited to, the costs of
goods and services purchased from outside vendors, travel expenses and state and
federal regulatory fees incurred on behalf of ALICNY.
5.05 Distributors shall present a statement after the end of the quarter showing
the apportionment of services rendered and the direct expenses incurred.
Settlements are due and payable within thirty days.
ARTICLE VI
UNDERWRITING TERMS
6.01 Distributors makes no representations or warranties regarding the number of
contracts to be sold by Selling Broker-Dealer and the registered representatives
of Selling Broker-Dealer or the amount to be paid thereunder. Distributors does,
however, represent that it will actively engage in its duties under this
Agreement on a continuous basis while there is an effective Registration
Statement with the SEC.
6.02 Distributors will use its best efforts to ensure that the Contracts shall
be offered for sale by registered broker-dealers and registered representatives
(who are duly licensed as insurance agents) on the terms described in the
currently effective prospectus describing such Contracts.
6.03 ALICNY will use its best efforts to assure that the Contracts are
continuously registered under the 1933 Act (and under any applicable state "blue
sky" laws) and to file for approval under state insurance laws when necessary.
ARTICLE VII
LEGAL AND REGULATORY ACTIONS
7.01 ALICNY agrees to advise Distributors immediately of:
a) any request by the SEC for amendment of the Registration Statement or
for additional information relating to the Contracts;
b) the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement relating to the Contracts or the
initiation of any proceedings for that purpose; and
c) the happening of any known material event which makes untrue any
statement made in the Registration Statement relating to the Contracts
or which requires the making of a change therein in order to make any
statement made therein not misleading.
7.02 Each of the undersigned parties agrees to notify the other in writing upon
being apprised of the institution of any proceeding, investigation or hearing
involving the offer or sale of the subject Contracts.
7.03 During any legal action or inquiry, ALICNY will furnish to Distributors
such information with respect to the Contracts in such form and signed by such
of its officers as Distributors may reasonably request and will warrant that the
statements therein contained when so signed are true and correct.
7.04 If changes in insurance laws or regulations could reasonably be expected to
affect the sales and administration of Contracts under this Agreement, ALICNY
shall notify Distributors within a reasonable time after ALICNY receives notice
of those changes. Such notice shall be in writing except, if circumstances so
require, the notice may be communicated by telephone or facsimile and confirmed
in writing.
ARTICLE VIII
TERMINATION
8.01 This Agreement shall terminate at either Party's option, without penalty:
(a) without case, on not less than 180 days' prior written notice to the
other Party;
(b) upon the mutual written consent of the Parties;
(c) upon written notice of one Party to the other in the event of
bankruptcy or insolvency of the Party to which notice is given;
(d) upon the suspension or revocation of any material license or permit
held by a Party by the appropriate governmental agency or authority;
however, such termination shall extend only to the jurisdiction(s)
where the Party is prohibited from doing business; or
(e) upon the finding by any regulatory body in a formal proceeding of
material wrongdoing by a Party regarding its duties under this
Agreement.
8.02 If either Party breaches this Agreement or is in default in the performance
of any of its duties and obligations hereunder (the "defaulting Party"), the
non-defaulting Party may give written notice thereof to the defaulting Party,
and if such breach or default is not remedied within 60 days after such written
notice is given, then the non-defaulting Party may terminate this Agreement by
giving 30 days' prior written notice of such termination to the defaulting
Party.
8.03 The Parties agree to cooperate and give reasonable assistance to one
another in effecting an orderly transition following termination.
ARTICLE IX
INDEMNIFICATION
9.01 Scope of Indemnification
(a) Each Party (the "Indemnifying Party") agrees to indemnify and hold
harmless the other (the "Indemnified Party") against any loss, liability, claim,
damage or expense (including the reasonable cost of investigating or defending
any alleged loss, liability, claim, damage or expense, and reasonable counsel
fees incurred in connection therewith) arising by reason of any person's
acquiring any Contract, which may be based upon any law:
(i) on the ground that the Indemnifying Party, its directors,
officers, employees, agents, or subcontractors failed to comply with any
applicable laws and regulations in connection with its rendering of
duties or services under this Agreement; or
(ii) on the ground of negligence or misconduct by the
Indemnifying Party or its directors, officers, employees, agents, or
subcontractors, in the performance of its duties hereunder, or breach by
the Indemnifying Party of any representation or warranty hereunder.
The foregoing indemnities shall, upon the same terms and conditions,
extend to and inure to the benefit of each director, officer and employee of the
Indemnified Party and any person controlling or controlled by the Indemnified
Party within the meaning of Section 15 of the Securities Act of 1933 or Section
20 of the 1934 Act.
(b) In no case shall the indemnity in favor of the Indemnified Party,
including such controlling or controlled persons, be deemed to protect the
Indemnified Party against any liability to the Indemnifying Party to which it
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties or by reason of reckless disregard
of its obligations and duties under this Agreement. In addition, in no case
shall the Indemnifying Party be liable under its indemnity agreement contained
in Section 4.1(a) hereof with respect to any claim made against an Indemnified
Party, unless the Indemnified Party shall have notified the Indemnifying Party
in writing by fax or overnight mail giving information of the nature of the
claim within two (2) business days after the summons or other first legal
process shall have been served upon the Indemnified Party (or after the
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Indemnifying Party of any such claim shall not
relieve it from any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of its indemnity agreement
contained in Section 4.1(a) hereof. The Indemnifying Party shall be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce such liability. If the Indemnifying
Party elects to assume the defense, such defense shall be conducted by counsel
chosen by it and satisfactory to the Indemnified Party. In the event the
Indemnifying Party elects to assume the defense of any such suit and retains
such counsel, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, but, in case the Indemnifying Party does not
elect to assume the defense of any such suit, it shall reimburse the Indemnified
Party for the reasonable fees and expense of any counsel retained by the
Indemnified Party. The Indemnifying Party shall promptly notify the Indemnified
Party of the commencement of any litigation or proceedings against the
Indemnifying Party or any of its officers, directors, employees or
subcontractors in connection with the issuance or sale of the Contracts.
9.02 Limitation on Liability
In no event shall either Party be liable for lost profits or for
exemplary, special, punitive or consequential damages alleged to have been
sustained by the other Party, as opposed to a third party.
9.03 Injunctive Relief
The Parties each agree that monetary damages may be an inadequate remedy
in the event of a breach by either Party of any of the covenants in this
Agreement, and that any such breach by a Party may cause the other Party great
and irreparable injury and damage. Accordingly, nothing in this Agreement shall
limit a Party's right to obtain equitable relief when appropriate.
ARTICLE X
GENERAL PROVISIONS
10.01 This Agreement shall be subject to the laws of the state of Illinois.
10.02 This Agreement, along with any schedules attached hereto and incorporated
herein by reference, may be amended from time to time by mutual agreement and
consent of the under signed parties.
10.03 In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to be
duly executed, to be effective as of _____________, 1999
Allstate Life Insurance Company of New York
(and the Account(s) set forth on Attachment A)
By: ___________________________ ______________________
Title Date
Allstate Distributors, L. L. C.
By: ___________________________ _______________________
Title Date
ATTACHMENT A
Separate Account Effective Date Contract Form #
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ATTACHMENT B
Distributors shall be entitled to remuneration for its services as shown below
for all variable annuity purchase payments received on policies issued by
ALICNY. Such remuneration shall be reduced by the amount of commissions payable
to broker/dealers receiving compensation pursuant to selling agreements with
ALICNY and Distributors.
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Schedule A
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Issue Age: 0-80 7.30%
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81-85 5.80%
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86-90 4.30%
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Schedule B Up-Front Trail
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Issue Age: 0-80 6.30% 25 bps
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-------------------- ------------------ ----------------- -----------------
81-85 5.05% 25 bps
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86-90 3.80% 25 bps
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Charge Back Schedule
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Full or partial Withdrawal 100% Charge Back due to "Right to Cancel" provision.
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Early Annuitization Year 1 Only, Charge Back to Annuitization
Level Commission (TBD)
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An additional 1% override is available up-front to Distributors on sales for the
first $1 billion or through 5/1/2000, if earlier.
Exhibit 3(c)
ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement ("Agreement") is made on this
____day of ___________, 199_, by and between Allstate Distributors, L.L.C.
("Distributors") and Allstate Life Insurance Company of New York, ("ALICNY").
RECITALS
WHEREAS, ALICNY is duly licensed as required by applicable law to issue,
in certain states and other jurisdictions, the variable insurance contracts,
life insurance and annuity contracts identified on Schedule A attached hereto
and incorporated herein by reference (each a "Contract," collectively, the
"Contracts"), which schedule the Parties may amend from time to time by mutual
written agreement ("Schedule A"); and
WHEREAS, ALICNY and Distributors have entered or will enter into an
agreement pursuant to which Distributors will serve as the principal
underwriter, for the sale of the Contracts; and
WHEREAS, ALICNY and Distributors desire to allocate between themselves
certain functions relating to the marketing and administration of the Contracts.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and of the mutual expectations of benefit occurring from the
activities herein contemplated, the Parties hereto agree as follows:
SECTION 1. ADMINISTRATIVE SERVICES
1.1 Duties
(a) ALICNY will provide to Distributors administrative, legal and
financial management services as described in Schedule B, attached hereto and
incorporated herein by reference. ALICNY will also provide to Distributors
technical support and sales tools, analysis of various products in the market,
sales ideas, and other sales support technical experts and personnel located at
ALICNY's offices located in Northbrook, Illinois. All ALICNY sales support
activities shall be performed under the same service standards as similar
services are provided for other variable products marketed by ALICNY and its
subsidiaries. ALICNY shall use its best efforts to meet such standards. To the
extent that higher service standards for these services are stated in the in the
Joint Venture Agreement between Xxxxxx Investments, Inc. and The Allstate
Corporation dated as of , 1999, those higher standards will govern.
(b) ALICNY agrees to assume on behalf of Distributors responsibility for
the processing and payment of sales commissions in connection with the marketing
of variable insurance contracts. Such commissions will be processed and paid as
directed by, and on behalf of, Distributors. In this regard, ALICNY will not
exercise any discretion over the amount of the commissions, and such commissions
paid by ALICNY will be a purely clerical and ministerial function and will be
properly reflected on the books and records maintained by ALICNY on behalf of
Distributors. Service standards are described in Schedule B.
(c) ALICNY will send on behalf of Distributors confirmations of
transactions in connection with the marketing of variable insurance contracts to
contract owners in accordance with the provisions of Rule 10b-10 under the
Securities Exchange Act of 1934 (the "Exchange Act"), and such confirmations
will indicate that they were sent on behalf of Distributors. Service standards
are described in Schedule B.
(d) ALICNY will maintain and preserve books and records on behalf of and
as agent for Distributors in connection with the offer and sale of variable
insurance contracts, and all books and records relating to confirmation of
transactions in compliance with Rules 17a-3 and 17a-4 under the Exchange Act.
ALICNY agrees that all such books and records will remain the property of
Distributors and will be subject to inspection by the Securities Exchange
Commission and the National Association of Securities Dealers, Inc. ("NASD") in
accordance with Sections 17 and 15A of the Exchange Act.
(e) Records supporting inter-company costs and expense charges and
maintained by ALICNY on behalf of Distributors shall be considered Distributors'
records and shall be available to Distributors upon request. All original
documents and records relating to the operations of Distributors are the
property of Distributors.
(f) Each party shall own, have custody of and keep its own general
corporate records. Upon request, each party shall receive from the other party
any of its records which are currently in the other party's possession.
(g) The parties agree to keep all records required by federal and state
securities laws and state insurance laws, to maintain the books, accounts and
records so as to clearly and accurately disclose the precise nature and details
of the transactions and to assist one another in the timely preparation of
records.
1.2 Parties are Independent Contractors
Each party shall be deemed an independent contractor and its personnel shall not
be deemed to be the employees of the other solely by reason of this Agreement.
ALICNY employees performing duties hereunder at all times during the term of
this Agreement shall be in the employment, under the respective supervision and
responsibility of ALICNY.
SECTION 2. LEGAL COMPLIANCE
2.1 General
Each Party agrees to perform under this Agreement in a manner consistent
with all applicable laws and regulations. Each Party represents and warrants to
the other that it is a corporation duly organized, validly existing, and in good
standing under the laws of the state of Delaware (in the case of Distributors)
and Illinois (in the case of ALICNY) and that it has full corporate power,
authority, and legal right to execute, deliver, and perform its duties
hereunder.
2.2 Notice of Certain Proceedings and Other Circumstances
(a) Each Party agrees to notify the other of the issuance by any court
or regulatory body of any order having a material effect on its ability to
perform its obligations hereunder. Each Party also agrees to notify the other
within three (3) business days of receipt of any oral or written consumer or
regulatory agency complaint relating to the business of this Agreement, and to
coordinate and fully cooperate in responding to such complaints. Distributors
and ALICNY shall develop procedures to coordinate, investigate and respond to
such complaints.
(b) Each Party agrees to cooperate fully with the other in any
regulatory examination, investigation, or proceeding or any judicial proceeding
(collectively, "proceeding") involving ALICNY, Distributors, and their
respective affiliates, agents and representatives to the extent that such
proceeding relates to the business of this Agreement. Distributors and ALICNY
shall furnish applicable federal and state regulatory authorities with any
information or reports in connection with their respective obligations under
this Agreement as such authorities may lawfully request. The Parties shall, at
least ten (10) business days prior to provision of such information, notify the
other to enable that Party, if it so desires, to interpose any legal objections
to provision of the reports or information.
SECTION 3. COMPENSATION
3.1 Compensation
(a) Distributors agree to pay ALICNY 10 basis points of net sales of
Contracts for the services performed pursuant to this Agreement.
SECTION 4. TERM AND TERMINATION
4.1 Term
(a) This Agreement shall be effective as of the date first
written above and shall remain in full force and effect thereafter, until
terminated in accordance with Sections 4.2 or 4.3, below.
4.2 Events of Termination
(a) This Agreement shall terminate at either Party's option, without
penalty:
(i) without cause, on not less than 180 days' prior written
notice to the other Party;
(ii) upon the mutual written consent of the Parties;
(iii)upon written notice of one Party to the other in the event
of bankruptcy or insolvency of the Party to which notice is
given;
(iv) upon the suspension or revocation of any material license or
permit held by a Party by the appropriate governmental
agency or authority; however, such termination shall extend
only to the jurisdiction(s) where the Party is prohibited
from doing business; or
(v) upon the finding by any regulatory body in a formal
proceeding of material wrongdoing by a Party regarding its
duties under this Agreement.
4.3 Event of Default
If either Party breaches this Agreement or is in default in the
performance of any of its duties and obligations hereunder (the "defaulting
Party"), the non-defaulting Party may give written notice thereof to the
defaulting Party, and if such breach or default is not remedied within 60 days
after such written notice is given, then the non-defaulting Party may terminate
this Agreement by giving 30 days' prior written notice of such termination to
the defaulting Party.
4.4 Parties to Cooperate Respecting Termination
The Parties agree to cooperate and give reasonable assistance to one
another in effecting an orderly transition following termination.
SECTION 5. CONFIDENTIALITY
Subject to the requirements of legal process and regulatory authority,
each Party shall treat as confidential (a) the identity of existing or
prospective Contract owners, (b) any financial or other information provided by
existing or prospective Contract owners or persons acting on their behalf, and
(c) any other information reasonably identified as confidential in writing by
the other Party hereto (collectively "confidential information"). Except as
permitted by this Agreement, no Party shall disclose, disseminate or utilize
any confidential information without the express written consent of the
affected Party until such time as such information may come into the public
domain, except as permitted by this Agreement or as otherwise necessary to
service the Contracts and/or respond to appropriate regulatory authorities.
Each Party shall take all reasonable precautions to prevent the unauthorized
disclosure of any confidential information. Nothing in this Section 6 shall
prevent Distributors from using the confidential information pertaining to
existing or prospective Contract owners for marketing purposes, provided such
usage is consistent with all applicable state or federal laws regarding
privacy. In no event shall confidential information pertaining to existing or
prospective Contract owners be furnished by ALICNY to any other company or
person (except as required by law or regulation) or be used to solicit sales of
any kind, including but not limited to any other products, securities or
services for a period of two years following termination of this Agreement.
Without limiting the foregoing, no Party shall disclose any information that
another Party reasonably considers to be proprietary. For purposes of this
Agreement, proprietary information includes, but is not limited to, computer
system and client information. The intent of this Section 6 is that no Party or
any affiliate thereof shall utilize, or permit to be utilized, its knowledge of
the other Party that is derived as a result of the relationship created by this
Agreement and any related agreements, except to the extent necessary by the
terms of this Agreement or the related agreements.
SECTION 6. BONDING AND INSURANCE
Each Party shall maintain sufficient fidelity bond coverage (including
coverage for larceny and embezzlement) and errors and omissions insurance
coverage as may be required by applicable law or as such Party deems necessary
in light of its obligations under this Agreement.
SECTION 7. NOTICES
Any notice required or permitted to be sent under this Agreement shall
be given to the following persons at the following addresses and facsimile
numbers, or such other persons, addresses or facsimile numbers as the Party
receiving such notices or communications may subsequently direct in writing:
Allstate Life Insurance Company of New York
Attention:
Allstate Distributors, L.L.C.
Attention:
SECTION 8. MISCELLANEOUS
8.1 Amendment
This Agreement may be amended at any time by a writing executed by the
Parties.
8.2 Non-Assignment
This Agreement shall not be assigned by either Party without the prior
written consent of the other Party, provided, however, that ALICNY or
Distributors may subcontract its responsibilities relating to the administration
of the Contracts pursuant to Section 1.1 hereof, provided that any such
subcontracting does not relieve ALICNY or Distributors of any responsibility
with regard to its obligations under this Agreement.
8.3 Governing Law
This Agreement shall be interpreted in accordance with any governed by
the laws of the State of Illinois.
8.4 Survival of Provisions
Sections 1.1(d) and (e), 2.2, 3, 5, 8.3, 8.4 and 8.7 shall survive
termination of this Agreement.
8.5 Severability
Should any provision of this Agreement be held or made invalid by a
court decision, statute, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby.
8.6 Waiver
Any failure or delay by either Party to enforce at any time any of the
provisions of this Agreement, or to exercise any right or option which is herein
provided, or to require at any time the performance of any of the provisions
hereof, shall in no way be construed to be a waiver of such provision of this
Agreement.
8.7 Right to Audit
Each Party, its employees or authorized representatives ("Examining
Party") may audit, inspect and examine at reasonable times, during regular
business hours and with at least twenty-four (24) hours' prior notice, all books
and records of the other Party and its agents with respect to matters pertaining
to this Agreement. The Examining Party agrees to limit its review of the books
and records to the extent necessary and as often as necessary to fulfill all
contractual obligations to the holders of Contracts, to comply with all legal
and regulatory requirements, to meet the requirements of the other Party's
auditors, and to ensure compliance with this Agreement.
8.8 Force Majeure
Neither Party shall be liable for damages due to delay or failure to
perform any obligation under this Agreement where such delay or failure results
directly or indirectly from circumstances beyond the control and without the
fault or negligence of such Party.
8.9 Entire Agreement
This Agreement shall be the sole agreement between ALICNY and
Distributors regarding the administration of the Contracts, and it supersedes
all prior and contemporaneous agreements between the Parties governing the
administration of the Contracts. This Agreement may not be amended,
supplemented, or modified, except as expressly permitted herein, without the
written agreement of the Parties.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first written above.
Allstate Distributors, L.L.C. Allstate Life Insurance Company
of New York
BY:__________________________ BY:____________________________
Schedule A
CONTRACTS
The administrative duties of the parties, shall apply only to with
respect to the following Contracts:
[Identify Contracts by form number and brief description]
Schedule B
Services provided by Allstate Life Insurance Company of New York to Allstate
Distributors, L.L.C.
Accounting B-1
Treasury B-2
Technical Shared Services-Systems Support B-3
Internal Audit B-4
Human Resources B-5
Legal/Compliance Services B-6
Commission Processing B-7
Confirmation Processing B-8
Schedule B-1
Accounting
Specific Tasks
Provide services to Distributor relating to auditing, tax preparation,
bank account management and fees, and strategic plans.
Performance Standards
- All functions will be performed in accordance with GAAP reporting
rules
- All functions will be completed on or before due dates
- Information reported will be reliable so the customer does not have to
independently validate
- Customers will be surveyed regularly for feedback and improvement
opportunities
Schedule B-2
Treasury
Specific Tasks
Provide services to Distributor related to cash management
Performance Standards
- all analysis will be completed on or before due dates
- customers will be surveyed regularly for feedback and improvement
opportunities
Schedule B-3
Technical Shared Services - Systems Support
Specific Tasks
Build and maintain any systems that are necessary to process Distributor
business. Support and maintain existing systems relating to Distributor
business.
Performance Standards
- Daily computer runs 5 days a week
- System balancing on a daily basis
- On-line visual Network support 24 hours a day with 99% availability
- Scheduled billing for all appropriate activities
Schedule B-4
Internal Audit
Specific Tasks
Provide services to Distributor relating to the audit of the general
ledger and accounts payable system in addition to other control systems
and processes.
Performance Standards
- In accordance with industry standards.
Schedule B-5
Human Resources
Specific Tasks
Perform payroll processing and benefits development and administration
for employees of Distributor business.
Performance Standards
- In accordance with industry standards
Schedule B-6
Legal/Compliance Services
Specific Tasks
The Law and Regulation Department and Compliance Department will provide
legal advice, assist in the completion of business transactions,
implement compliance programs, assist with dispute resolution, and
provide public advocacy for Distributor.
Performance Standards
- All legal and compliance services will be performed in a manner
that is in compliance with all applicable laws, regulations, and
Codes of Professional Responsibility
Schedule B-7
Commission Processing
Specific Tasks
Determine process and pay commissions.
Generate management and sales reports reflecting production and
commission payments.
Performance Standards
- Payable dates: Weekly
- Processing: 100% processed and mailed by payable date
- Management reports will be generated on a monthly basis or as
determined by the Distributor
Schedule B-8
Confirmation Processing
Specific Tasks
Process and mail confirmations to contractholders, with duplicates to
the broker/dealer and/or registered rep upon request.
Performance Standards
- 100% mailed or sent for presorting within 2 business days of
transaction posting
