Exhibit 99.5
DISTRIBUTION AGREEMENT
AGREEMENT, dated September 21, 1994, as amended August 8, 2002, between
MUTUAL OF AMERICA INVESTMENT CORPORATION, a corporation organized under the laws
of Maryland (the "Investment Company"), and MUTUAL OF AMERICA LIFE INSURANCE
COMPANY, a New York mutual life insurance company (the "Distributor"):
W I T N E S S E T H :
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WHEREAS, the Investment Company is registered under the Investment Company
Act of 1940, as amended (the "Investment Company Act"), as a diversified
open-end investment company and it is affirmatively in the interest of the
Investment Company to offer its shares for sale continuously to certain separate
accounts registered under the Securities Act of 1933 (the "Securities Act") of
both the Distributor and its former wholly-owned subsidiary, The American Life
Insurance Company of New York (together the "Accounts"), pursuant to an
effective prospectus of the Investment Company (the "Prospectus") under the
Securities Act; and
WHEREAS, the Distributor may be regarded as a principal underwriter for
the Investment Company; and
WHEREAS, the Investment Company currently is comprised of nine separate
Funds, each of which pursues its investment objective through separate
investment policies; and
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934; and
WHEREAS, the Investment Company and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering to the
Accounts of shares of the common Stock, par value $.01 per share, of the
Investment Company's Funds (the "shares"), in order to promote the growth of the
Investment Company and facilitate the distribution of its shares;
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Investment Company hereby
appoints the Distributor as the principal underwriter and distributor of the
Investment
Company to sell its shares to the Accounts, and the Distributor hereby accepts
such appointment. The Investment Company during the term of this Agreement shall
sell its shares to the Distributor upon the terms and conditions set forth
below.
Section 2. Exclusive Nature of Duties. The Distributor shall be the
exclusive representative of the Investment Company to act as principal
underwriter and distributor.
Section 3. Purchase of Shares from the Investment Company.
(a) The Investment Company will offer its shares and the Distributor shall
have the right to buy from the Investment Company the shares needed, but not
more than the shares needed (except for clerical errors in transmission) to fill
unconditional orders for shares of the Investment Company placed with the
Distributor by the Accounts. The price which the Distributor shall pay for the
shares of each Fund so purchased from the Investment Company shall be the net
asset value per share of such Fund, determined as set forth in Section 3(c)
hereof.
(b) The shares of each Fund are to be resold by the Distributor to the
Accounts at the net asset value per share of such Fund.
(c) The net asset value of shares of each Fund of the Investment Company
shall be determined by the Investment Company or any agent of the Investment
Company, at the close of trading on the New York Stock Exchange on each business
day on which the New York Stock Exchange is open for trading, in accordance with
the method set forth in the Prospectus of the Investment Company and guidelines
established by the Board of Directors of the Investment Company. The Investment
Company may also cause the net asset value of shares of each Fund of the
Investment Company to be determined in substantially the same manner or
estimated in such manner and as of such other hour or hours as may from time to
time be agreed upon in writing by the Investment Company and the Distributor.
All payments to the Investment Company hereunder shall be made in the manner set
forth in Section 3(e).
(d) The Investment Company shall have the right to suspend the sale of
shares of any of its Funds at times when redemption of any such shares is
suspended pursuant to the conditions set forth in Section 4(b) hereof. The
Investment Company shall also have the right to suspend the sale of shares of
any or all of its Funds if trading on the New York Stock Exchange shall have
been suspended, if a banking moratorium shall have been declared by Federal or
New York authorities, or if there shall have been some other extraordinary
event,
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which, in the judgment of the Investment Company, makes it impracticable to sell
any such shares.
(e) The Investment Company, or any agent of the Investment Company
designated in writing by the Investment Company, shall be promptly advised of
all purchase orders for shares of each Fund received by the Distributor. The
Investment Company (or its agent) will confirm orders upon their receipt, will
make appropriate book entries and upon receipt by the Investment Company (or its
agent) of payment therefor, will deliver deposit receipts or certificates for
such shares pursuant to the instructions of the Distributor. Payment shall be
made to the Investment Company in New York Clearing House funds. The Distributor
agrees to cause such payment and such instructions to be delivered promptly to
the Investment Company (or its agent).
Section 4. Repurchase or Redemption of Shares by the Investment Company.
(a) Any of the outstanding shares of each Fund may be tendered for
redemption at any time, and the Investment Company agrees to repurchase or
redeem any such shares so tendered in accordance with its obligations as set
forth in Article V of its Articles of Incorporation, as amended from time to
time, and in accordance with the applicable provisions set forth in the
Prospectus of the Investment Company. The price to be paid to redeem or
repurchase shares of any Fund shall be equal to the net asset value per share of
such Fund calculated in accordance with the provisions of Section 3(c) hereof.
All payments by the Investment Company hereunder shall be made in the manner set
forth below.
The Investment Company shall pay the total amount of the redemption price
as defined in the above paragraph pursuant to the instructions of the
Distributor in New York Clearing House funds on or before the second business
day subsequent to its having received the notice of redemption in proper form.
(b) Redemption of shares of any Fund or payment may be suspended at times
when the New York Stock Exchange is closed, when trading on said Exchange is
closed, when trading on said Exchange is restricted, when an emergency exists as
a result of which disposal by the Investment Company of securities owned by it
for such Fund is not reasonably practicable or it is not reasonably practicable
for the Investment Company fairly to determine the value of the net assets of
such Fund, or during any other period when the Securities and Exchange
Commission, by order, so permits.
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Section 5. Duties of the Investment Company.
(a) The Investment Company shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of shares of the
Investment Company, and this shall include one certified copy, upon request by
the Distributor, of all financial statements prepared for the Investment Company
by independent public accountants. the Investment Company shall make available
to the Distributor such number of copies of its Prospectus as the Distributor
shall reasonably request.
(b) The Investment Company shall take, from time to time, but subject to
any necessary approval of its shareholders, all necessary action to fix the
number of its authorized shares and to register shares under the Securities Act,
to the end that there will be available for sale such number of shares as
investors may reasonably be expected to purchase.
(c) The Investment Company shall use its best efforts to qualify and
maintain the qualification of an appropriate number of shares of each of its
Funds for sale under the securities laws of such states as the Distributor and
the Investment Company may approve, if such qualification is required by such
securities laws. Any such qualification may be withheld, terminated or withdrawn
by the Investment Company at any time in its discretion. As provided in Section
8(c) hereof, the expense of qualification and maintenance of qualification of
shares of a Fund shall be borne by such Fund. The Distributor shall furnish such
information and other material relating to its affairs and activities as may be
required by the Investment Company in connection with such qualification.
(d) The Investment Company will furnish, in reasonable quantities upon
request by the Distributor, copies of annual and interim reports of the
Investment Company.
Section 6. Duties of the Distributor.
(a) The Distributor shall devote reasonable time and effort to effect
sales of shares of the Investment Company, but shall not be obligated to sell
any specific number of shares. The services of the Distributor hereunder are not
to be deemed exclusive and nothing herein contained shall prevent the
Distributor from entering into distribution arrangements with other investment
companies so long as the performance of its obligations hereunder is not
impaired thereby.
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(b) In selling the shares of the Investment Company, the Distributor shall
use its best efforts in all respects duly to conform with the requirements of
all federal and state laws and regulations and the regulations of the National
Association of Securities Dealers, Inc. (the "NASD"), relating to the sale of
such securities. Neither the Distributor nor any selected dealer nor any other
person is authorized by the Investment Company to give any information or to
make any representations, other than those contained in the registration
statement or related Prospectus and any sales literature specifically approved
by the Investment Company.
Section 7. Payment of Expenses.
(a) The Investment Company shall bear all costs and expenses of the
Investment Company, including fees and disbursements of its counsel and
auditors, in connection with the preparation and filing of any required
registration statements and prospectuses under the Investment Company Act, the
Securities Act, and all amendments and supplements thereto, and the expense of
preparing, printing, mailing and otherwise distributing prospectuses, annual or
interim reports to shareholders and proxy materials.
(b) Each Fund shall bear the costs and expenses of qualification of shares
of such Fund for sale, and, if necessary or advisable in connection therewith,
the Investment Company shall bear the cost and expense of qualifying the
Investment Company as a broker or dealer, in such states of the United States or
other jurisdictions as shall be selected by the Investment Company and the
Distributor pursuant to Section 5(c) hereof and the costs and expenses payable
to each such state for continuing qualification therein until the Investment
Company decides to discontinue such qualification pursuant to Section 5(c)
hereof.
Section 8. Indemnification.
(a) The Investment Company shall indemnify and hold harmless the
Distributor and each person, if any, who controls the Distributor 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 acquiring direct or indirect interest in any shares, which may be
based upon the Securities Act, or on any other statute or at common law, on the
ground that the registration statement or related Prospectus, as from time to
time amended and supplemented, or the annual or interim reports to shareholders
of the Investment Company, includes an untrue statement of a material fact or
omits to state a material fact required to be
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stated therein or necessary in order to make the statements therein not
misleading, unless such statement or omission was made in reliance upon, and in
conformity with, information furnished to the Investment Company in connection
therewith by or on behalf of the Distributor; provided, however, that in no case
(i) is the indemnity of the Investment Company in favor of the Distributor and
any such controlling persons to be deemed to protect such Distributor or any
such controlling persons thereof against any liability to the Investment Company
or its security holders to which the Distributor or any such controlling persons
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; or (ii) is the Investment
Company to be liable under its indemnity agreement contained in this paragraph
with respect to any claim made against the Distributor or any such controlling
persons, unless the Distributor or such controlling persons, as the case may be,
shall have notified the Investment Company in writing within a reasonable time
after the summons or other first legal process giving information or the nature
of the claim shall have been served upon the Distributor or such controlling
persons (or after the Distributor or such controlling persons shall have
received notice of such service on any designated agent), but failure to notify
the Investment Company of any such claim shall not relieve it from any liability
which it may have to the person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The
Investment Company will 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 any such liability, but if the Investment Company elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Distributor or such controlling person or persons, defendant
or defendants in the suit. In the event the Investment Company elects to assume
the defense of any such suit and retain such counsel, the Distributor or such
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them but, in case
the Investment Company does not elect to assume the defense of any such suit, it
will reimburse the Distributor or such controlling person or persons, defendant
or defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Investment Company shall promptly notify the Distributor
of the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the shares.
(b) The Distributor shall indemnify and hold harmless the Investment
Company and each of its directors and officers and each person, if any, who
controls the Investment
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Company against any loss, liability, claim, damage, or expense described in the
foregoing indemnity contained in subsection (a) of this Section, but only with
respect to statement or omissions made in reliance upon, and in conformity with,
information furnished to the Investment Company in writing by or on behalf of
the Distributor for use in connection with the registration statement or related
prospectus, as from time to time amended, or the annual or interim reports to
shareholders. In case any action shall be brought against the Investment Company
or any person so indemnified, in respect of which indemnity may be sought
against the Distributor, the Distributor shall have the rights and duties given
to the Investment Company, and the Investment Company and each person so
indemnified shall have the rights and duties given to the Distributor by the
provisions of subsection (a) of this Section 8.
Section 9. Duration and Termination of This Agreement. This Agreement
shall become effective as of the date first above written and shall remain in
force until September 21, 1995 and thereafter, but only so long as such
continuance is specifically approved at least annually by (i) the Board of
Directors of the Investment Company, or by the vote of a majority of the
outstanding voting securities of the Investment Company, cast in person or by
proxy, and (ii) a majority of those directors who are not parties to this
Agreement or interested persons of any such party cast in person at a meeting
called for the purpose of voting upon such approval.
This Agreement may be terminated at any time without the payment of any
penalty, by the Board of Directors of the Investment Company or by vote of a
majority of the outstanding voting securities of the Investment Company, or by
the Distributor, on sixty days' written notice to the other party. This
Agreement shall automatically terminate in the event of its assignment.
The terms "vote of a majority of the outstanding voting securities,"
"assignment," "affiliated person" and "interested person," when used in this
Agreement, shall have the respective meaning specified in the Investment Company
Act.
Section 10. Amendments of this Agreement. This Agreement may be amended by
the parties only if such amendment is specifically approved by (i) the Board of
Directors of the Investment Company, or by the vote of a majority of outstanding
voting securities of the Investment Company, and (ii) a majority of those
directors of the Investment Company who are not parties to this Agreement or
interested persons of any such party cast in person at a meeting called for the
purpose of voting on such approval.
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Section 11. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York and the applicable provisions of the
Investment Company Act. To the extent the applicable law of the State of New
York, or any of the provisions herein, conflict with the applicable provisions
of the Investment Company Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, as amended, as of the day and year first above written in New York,
New York.
MUTUAL OF AMERICA INVESTMENT
CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxxx
Senior Vice President President and CEO
and Secretary
MUTUAL OF AMERICA LIFE
INSURANCE COMPANY
Attest: /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxxx Xxxxxxxx
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Xxxxx X. Xxxxxxx Xxxxxxx Xxxxxxxx
Executive Vice President Senior Executive Vice President
and Corporate Secretary and Chief Financial Officer
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