EXHIBIT C(i)
UNDERWRITING AGREEMENT
----------------------
THIS AGREEMENT, is entered into on this day of __________________________,
200__, by and among ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK ("Allstate Life
of New York" or "Company"), a life insurance company organized under the laws of
the State of New York, and ALFS, INC., ("Principal Underwriter"), a corporation
organized under the laws of the state of Delaware.
RECITALS
WHEREAS, Company proposes to issue to the public certain flexible premium
variable underwritten life contracts identified in the Attachment A
("Contracts"); and
WHEREAS, the Separate Account is registered with the Securities and
Exchange Commission ("Commission") as a unit investment trust under the
Investment Company Act of 1940 (File No. 811-21250); and
WHEREAS, the Contracts to be issued by Company are registered with the
Commission under the Securities Act of 1933 and the Investment Company Act of
1940 (File No. 033-100934, 033-100935) for offer and sale to the public and
otherwise are in compliance with all applicable laws; and
WHEREAS, Principal Underwriter, a broker-dealer registered under the
Securities Exchange Act of 1934 and a member of the National Association of
Securities Dealers, Inc. ("NASD"), proposes to act as principal underwriter on
an agency (best efforts) basis in the marketing and distribution of said
Contracts; and
WHEREAS, Company desires to obtain the services of Principal Underwriter as
an underwriter and distributor of said Contracts issued by Company;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, the Company, the Separate Account, and the Principal Underwriter
hereby agree as follows:
1. AUTHORITY AND DUTIES
--------------------
(a) Principal Underwriter will serve as an underwriter and distributor on
an agency basis for the Contracts which will be issued by the Company.
(b) Principal Underwriter will use its best efforts to provide information
and marketing assistance to licensed insurance agents and broker-
dealers on a continuing basis. However, Principal Underwriter shall be
responsible for compliance with the requirements of state broker-
dealer regulations and the Securities Exchange Act of 1934 as each
applies to Principal Underwriter in connection with its duties as
distributor of said Contracts. Moreover, Principal Underwriter shall
conduct its affairs in accordance with the rules of Fair Practice of
the NASD.
(c) Subject to agreement with the Company, Principal Underwriter may enter
into selling agreements with broker-dealers which are registered under
the Securities Exchange Act of 1934 and authorized by applicable law
or exemptions to sell flexible premium variable underwritten life
contracts issued by Company. Any such contractual arrangement is
expressly made subject to this Agreement, and Principal Underwriter
will at all times be responsible to Company for supervision of
compliance with the federal securities laws regarding distribution of
Contracts.
2. WARRANTIES
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(a) The Company represents and warrants to Principal Underwriter that:
(i) Registration Statements on Form S-1 for each of the Contracts
identified in Attachment A have been filed with the Commission in
the form previously delivered to Principal Underwriter and that
copies of any and all amendments thereto will be forwarded to
Principal Underwriter at the time that they are filed with
Commission;
(ii) The Registration Statement and any further amendments or
supplements thereto will, when they become effective, conform in
all material respects to the requirements of the Securities Act
of 1933, 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 Company by Principal Underwriter expressly for use
therein;
(iii)The Company is validly existing as a stock life insurance company
in good standing under the laws of the State of New York, with
power to own its properties and conduct its business as described
in the Prospectus, 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;
(iv) Those persons who offer and sell the Contracts are to be
appropriately licensed or appointed to comply with the state
insurance laws;
(v) The performance of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in
a violation of any of the provisions of or default under any
statute, indenture, mortgage, deed of trust, note agreement or
other agreement or instrument to which Company is a party or by
which Company is bound (including Company's Charter or By-laws
as a stock life insurance company, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over Company or any of its properties);
(vi) There is no consent, approval, authorization or order of any
court or governmental agency or body required for the
consummation by Company of the transactions contemplated by
this Agreement, except such as may be required under the
Securities Exchange Act of 1934 or state insurance or
securities laws in connection with the distribution of the
Contracts; and
(vii)There are no material legal or governmental proceedings pending
to which Company is a party or of which any property of Company
is the subject (other than as set forth in the Prospectus
relating to the Contracts, or litigation incident to the kind of
business conducted by the Company) which, if determined adversely
to Company, would individually or in the aggregate have a
material adverse effect on the financial position, surplus or
operations of Company.
(b) Principal Underwriter represents and warrants to Company that:
(i) It is a broker-dealer duly registered with the Commission
pursuant to the Securities Exchange Act of 1934, is a member in
good standing of the NASD, and is in compliance with the
securities laws in those states in which it conducts business as
a broker-dealer;
(ii) As a principal underwriter, it 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 the Company to be authorized insurance
agents;
(iii)The performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms or provisions of or constitute a
default under any statute, indenture, mortgage, deed of trust,
note agreement or other agreement or instrument to which
Principal Underwriter is a party or by which Principal
Underwriter is bound (including the Certificate of Incorporation
or By-laws of Principal Underwriter or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over either Principal Underwriter or its property);
and
(iv) 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 Company by Principal Underwriter expressly for use
therein, such statements will, when they become effective or are
filed with the Commission, as the case may be, conform in all
material respects to the requirements of the Securities Act of
1933 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.
3. BOOKS AND RECORDS
-----------------
(a) Principal Underwriter shall keep, in a manner and form approved by
Company and in accordance with Rules 17a-3 and 17a-4 under the
Securities Exchange Act of 1934, correct 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
Company with respect to its activities under this Agreement. Principal
Underwriter shall make such records and books of account available for
inspection by the Commission, and Company shall have the right to
inspect, make copies of or take possession of such records and books
of account at any time upon demand.
(b) Subject to applicable Commission or NASD restrictions, Company will
send confirmations of Contract transactions to Contract Owners.
Company will make such confirmations and records of transactions
available to Principal Underwriter upon request.
4. SALES MATERIALS
---------------
(a) After authorization to commence the activities contemplated herein,
Principal Underwriter will utilize the currently effective prospectus
relating to the subject Contracts in connection with its underwriting,
marketing and distribution efforts. As to other types of sales
material, Principal Underwriter hereby agrees and will require any
participating or selling broker-dealers to agree that they will use
only sales materials which have been authorized for use by Company,
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.
(b) Principal Underwriter will not distribute any prospectus, sales
literature or any other printed matter or material in the underwriting
and distribution of any Contract if, to the knowledge of Principal
Underwriter, any of the foregoing misstates the duties, obligation or
liabilities of Company or Principal Underwriter.
5. COMPENSATION
------------
Principal Underwriter shall be entitled to such remuneration for its services
and reimbursement for its fees, charges and expenses as will be contained in
such Schedules as attached hereto as Attachment B. Said Schedules may be amended
from time to time at the mutual consent of the undersigned parties.
6. UNDERWRITING TERMS
------------------
(a) Principal Underwriter makes no representations or warranties regarding
the number of Contracts to be sold by licensed broker-dealers and
registered representatives of broker-dealers or the amount to be paid
thereunder. Principal Underwriter 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 Commission.
(b) Principal Underwriter 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.
(c) It is understood and agreed that Principal Underwriter may render
similar services to other companies in the distribution of other
variable contracts.
(d) The Company will use its best efforts to assure that the Contracts are
continuously registered under the Securities Act of 1933 (and under
any applicable state "blue sky" laws) and to file for approval under
state insurance laws when necessary.
(e) The Company reserves the right at any time to suspend or limit the
public offering of the subject Contracts upon one day's written notice
to Principal Underwriter.
7. LEGAL AND REGULATORY ACTIONS
----------------------------
(a) The Company agrees to advise Principal Underwriter immediately of:
(i) any request by the Commission for amendment of the Registration
Statement or for additional information relating to the
Contracts;
(ii) the issuance by the Commission 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
(iii) 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.
(b) 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.
(c) During any legal action or inquiry, Company will furnish to Principal
Underwriter such information with respect the Contracts in such form
and signed by such of its officers as Principal Underwriter may
reasonably request and will warrant that the statements therein
contained when so signed are true and correct.
9. TERMINATION
-----------
(a) This Agreement will terminate automatically upon its assignment.
(b) This Agreement shall terminate without the payment of any penalty by
either party upon sixty (60) days' advance written notice.
(c) This Agreement shall terminate at the option of the Company upon
institution of formal proceedings against Principal Underwriter by the
NASD or by the Commission, or if Principal Underwriter or any
representative thereof at any time:
(i) employs any device, scheme, artifice, statement or omission to
defraud any person;
(ii) fails to account and pay over promptly to the Company money due
it according to the Company's records; or
(iii) violates the conditions of this Agreement.
10. INDEMNIFICATION
---------------
The Company agrees to indemnify Principal Underwriter for any liability that it
may incur to a Contract owner or party-in-interest under a Contract:
(a) arising out of any act or omission in the course of or in connection
with rendering services under this Agreement; or
(b) arising out of the purchase, retention or surrender of a contract;
provided, however, that the Company will not indemnify Principal
Underwriter for any such liability that results from the willful
misfeasance, bad faith or gross negligence of Principal Underwriter or
from the reckless disregard by such Principal Underwriter of its
duties and obligations arising under this Agreement.
11. GENERAL PROVISIONS
------------------
(a) This Agreement shall be subject to the laws of the State of ILLINOIS.
(b) This Agreement, along with any Schedules attached hereto and
incorporated herein by reference, may be amended from time to time by
the mutual agreement and consent of the undersigned parties.
(c) In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in 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 ____________________________, 200_.
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
BY:
---------------------------- ------------------------------
President Date
ALFS, INC.
BY:
---------------------------- ------------------------------
President & COO Date
Attachment A
UNDERWRITING AGREEMENT
----------------------
"CONTRACTS" FORM #
------------ ------
Flexible Premium Deferred Variable Annuity Group Certificate NYLU349
Attachment B
UNDERWRITING AGREEMENT
----------------------
COMPENSATION
- --------------------------------------------------------------------
Exhibit C(ii)
SELLING AGREEMENT
Agreement, made this [ ] day of [ ],[ ], by and between Allstate Life of New
York ("ALNY"), a New York Corporation; Allstate Life Financial Services, Inc.
("ALFS"), a Delaware Corporation, and ("BD"), a Corporation. This Agreement will
be construed in accordance with the laws of the State of New York.
Allstate Life of New York ALLSTATE LIFE FINANCIAL SERVICES, INC.
By: By:
-------------------------------- ---------------------------------
BROKER/DEALER ASSOCIATED INSURANCE AGENCY (If BD is
utilizing such agency pursuant to
Section 12)
- ------------------------------- -----------------------------------
(Name) (Name)
- ------------------------------- -----------------------------------
(Street Address) (Street Address)
- ------------------------------- -----------------------------------
(City, State, Zip) (City, State, Zip)
By: By:
- ------------------------------- -----------------------------------
Title: Title:
- ------------------------------- -----------------------------------
For States:
-------------------------------------
Whereas, ALNY issues certain variable insurance contracts/policies ("Contracts")
described in this Agreement, which are deemed securities under the Securities
Act of 1933 ("1933 Act"); and
Whereas, ALFS is duly licensed as a Broker/Dealer with the National Association
of Securities Dealers, Inc. ("NASD") and the Securities and Exchange Commission
("SEC"); and
Whereas, BD is duly licensed as a Broker/Dealer with the NASD and the SEC, and
Whereas, each Associated Insurance Agency is an insurance agent in the states
noted above; and
Whereas, ALNY has appointed ALFS as the Underwriter of the Contracts, and
Whereas, ALNY and ALFS propose to have BD's representatives ("Representatives")
who are also duly licensed insurance agents solicit sales of the Contracts, and
Whereas, ALFS delegates to BD, to the extent legally permitted, training and
certain administrative responsibilities and duties in connection with sales of
the Contracts.
NOW THEREFORE, in consideration of the premises and mutual promises contained
herein, the parties hereto agree as follows:
1. APPOINTMENT
ALFS hereby authorizes BD to supervise solicitations of the Contracts, and to
facilitate solicitations of sales of the Contracts which are described in the
Schedule(s) of Commissions attached hereto. ALNY hereby appoints Associated
Insurance Agency to solicit sales of the contracts.
2. REPRESENTATIONS
a. ALNY, ALFS and BD and Associated Insurance Agency each represents to
the other that it and the above signed officers have full power and
authority to enter into this Agreement.
x. XXXX represents to BD that it is registered as a Broker/Dealer under
the Securities Exchange Act of 1934 ("1934 Act") and under the Blue
Sky Laws of each jurisdiction in which such registration is required
for the sale of the Contracts and that ALFS is a member of the NASD.
c. BD represents to ALFS that it is registered as a Broker/Dealer under
the 1934 Act and under the Blue Sky Laws of each jurisdiction in which
such registration is required for the sale of the Contracts, and that
the BD is a member of the NASD.
d. ALNY represents to BD and Associated Insurance Agency that the
Contracts, including related separate accounts, shall comply with the
registration and all other applicable requirements of the 1933 Act and
the Investment Company Act of 1940, and the rules and regulations
thereunder, including the terms of any order of the SEC with respect
thereto.
e. ALNY represents to BD and Associated Insurance Agency that the
Contracts it issues have been duly filed and approved by the state
insurance departments in such jurisdictions where it is authorized to
transact business.
f. ALNY represents to BD that the Contract prospectuses included in
ALNY's Registration Statement and in post-effective amendments
thereto, and any supplements thereto, as filed or to be filed with the
SEC, as of their respective effective dates, contain or will contain,
all statements and information which are required to be stated therein
by the 1933 Act and in all respects conform or will conform, to the
requirements thereof.
g. If BD utilizes an Associated Insurance Agency, BD represents that the
Associated Insurance Agency is licensed in all states in which it
conducts business. BD and the Associated Insurance Agency represent
that they are in compliance with the terms and conditions of no-action
letters issued by the staff of the SEC with respect to
non-registration as a broker/dealer of an insurance agency associated
with a registered broker/dealer. BD and Associated Insurance Agency
shall notify ALFS immediately in writing if BD and/or such agency fail
to comply with any such terms and conditions and shall take such
measures as may be necessary to comply with any such terms and
conditions. If Associated Insurance Agency is the same person as BD,
this Paragraph does not apply, and BD shall undertake all the duties,
responsibilities and privileges under this Agreement.
3. COMPLIANCE WITH NASD RULES OF FAIR PRACTICE AND FEDERAL AND STATE
SECURITIES AND STATE INSURANCE LAWS
BD agrees to abide by all rules and regulations of the NASD, including its
Conduct and Membership and Registration Rules, and BD and Associated Insurance
Agency agree to comply with all applicable state and federal laws and the rules
and regulations of authorized regulatory agencies affecting the sale of the
Contracts.
4. LICENSING AND/OR APPOINTMENT OF REPRESENTATIVES
a. BD and Associated Insurance Agency are hereby specifically authorized
to designate those registered representatives of BD, or individuals
associated with the Associated Insurance Agency ("Agents"), proposed
to be engaged in solicitation of sales of the Contracts for
appointment by ALNY as individual insurance agents. BD and Associated
Insurance Agency shall not propose a registered representative, or
Agent, for appointment unless such representative, or Agent, is duly
licensed as an insurance agent in the state(s) in which it is proposed
that such representative, or Agent, engage in solicitations of sales
of the Contracts. BD and Associated Insurance Agency together shall be
responsible for registered representatives', and Agents', compliance
with applicable insurance agent licensing standards.
b. BD and Associated Insurance Agency shall assist ALNY and ALFS in the
appointment of BD's registered representatives, and Agents, under
applicable insurance laws to sell the Contracts. BD and Associated
Insurance Agency shall comply with ALNY requirements for, including
the General Letter of Recommendation (attached as Exhibit A), in
submitting licensing or appointment documentation for proposed
registered representatives and Agents. All such documentation shall be
submitted by BD or Associated Insurance Agency to ALNY or its
designated agent licensing administrator.
c. ALNY reserves the right to refuse to appoint any such designated
individual or, once appointed, to terminated or refuse to renew the
appointment of any such designated individual. Only those registered
representatives who are duly licensed as insurance agents and
appointed by ALNY (herein, "Representatives") shall have authority to
solicit sales of the Contracts. Only those Agents who are registered
representatives of BD shall have authority to solicit sales of the
Contracts. Agents who are not registered representatives of BD are not
authorized to sell Contracts. BD and Associated Insurance Agency shall
notify ALFS immediately in writing if any Representative appointed by
ALNY ceases to be a registered representative of BD or if any
Representative or Agent ceases to be properly licensed in any state.
5. SUPERVISION OF REPRESENTATIVES
a. BD shall have full responsibility for training and supervision of all
Representatives associated with BD who are engaged directly or
indirectly in the offer or sale of the Contracts and all such persons
shall be subject to the control of BD with respect to such persons'
activities in connection with the sale of the Contracts. BD shall
comply with the administrative procedures of ALNY and ALFS involving
federal securities law and state insurance law. There should be a
comparable Representative for the Associated Insurance Agency.
b. Before Representatives and Associated Insurance Agency engage in the
solicitation of applications for the Contracts, BD and Associated
Insurance Agency will cause (1) the Representatives to be registered
representatives of BD; (2) the Representatives to qualify under
applicable federal and state laws to engage in the sale of the
Contracts; (3) the Representatives to be trained in the sale of the
Contracts; and (4) such Representatives to limit solicitation of
applications for the Contracts to jurisdictions where ALNY has
authorized such solicitation.
c. BD is specifically charged with the responsibility of supervising and
reviewing its Representatives' use of sales literature and advertising
and all other communications with the public in connection with the
Contracts. No sales solicitation, including the delivery of
supplemental sales literature or other such materials, shall occur, be
delivered to , or used with a prospective purchaser unless accompanied
or preceded by the appropriate then current prospectus(es).
d. In the event a Representative or Agent fails to meet the BD's or
Associated Insurance Agency's rules and standards, BD or Associated
Insurance Agency shall notify ALNY and shall act to terminate the
sales activity of such Representative or Agent relating to the
Contracts.
e. Upon request by ALNY, BD and Associated Insurance Agency shall furnish
appropriate records or other documentation to evidence BD's and
Associated Insurance Agency's diligent supervision.
6. SALES PROMOTION MATERIAL AND ADVERTISING
a. BD, Associated Insurance Agency, Agents and Representatives, in
connection with the offer or sale of the Contracts of Solicitation of
a payment or other transaction under a Contract, shall not give any
information or make any representations or statements, written or
oral, concerning the Contracts inconsistent with information or
representations contained in the prospectus, statement of additional
information and registration statement for the Contracts or in reports
or proxy statements thereof, or in promotional, sales of advertising
material or other information supplied and approved in writing by ALFS
for such use, the contracts of materials furnished by ALNY, BD,
Associated Insurance Agency, agents and Representatives may not modify
or represent that they may modify any such prospectus, statement of
additional information, registration statement, promotional, sales of
advertising materials.
b. No item of sales promotion materials or advertising relating to the
Contracts, including any illustrations or software programs therefore,
shall be used by BD, Associated Insurance Agency, Agents of
Representatives unless the specific item has been provided by ALNY and
ALFS or has first been approved in writing by ALNY and ALFS for use.
ALNY and ALFS reserve the right to recall any material provided by
them at any time for any reason, and BD and Associated Insurance
Agency shall promptly comply with any such request for the return of
material and shall not use such material thereafter.
7. ETHICAL MARKET CONDUCT COMPLIANCE
In addition to the requirement that you comply with the rules and regulations
pertaining to supervision, underwriting practices, acceptance of risks, delivery
of policies and all other areas of ALNY's business, the BD and BD's
representatives are required to:
(a) Comply with ALNY's and ALFS's policies and procedures concerning the
replacement of life insurance policies and annuity policies. A replacement
occurs whenever an existing life insurance policy or annuity is terminated,
converted, or otherwise changed in value. For any transaction involving a
replacement, ALNY and ALFS requires you to:
(1) recommend the replacement of an existing policy only when replacement
is in the best interest of the customer;
(2) fully disclose all relevant information to the customer, which
information includes: 1) comparison of old and new premiums, expenses
and surrender charges, cash values, and death benefits; 2) any loss of
cash value or policy value by surrendering the existing policy; 3) all
guaranteed and maximum values of both policies; 4) the fact that a new
contestability and suicide period starts under the new policy; and 5)
the requirement that the customer must be re-underwritten for the new
policy;
(3) provide state-required replacement notices to customers on the same
day the application is taken and indicate on the application that the
transaction involves the full or partial replacement of an existing
policy; (4) never recommend that a customer cancel an existing policy
until a new policy is in force and the customer has determined that
the new policy is acceptable.
(b) Adhere to ALNY's rules and regulations concerning ethical market conduct,
which require that you:
(1) carefully evaluate the insurance needs and financial objectives of
your clients, and use sales tools (e.g. policy illustrations and sales
brochures) to determine that the insurance or annuity you are
proposing meets these needs;
(2) maintain a current license and valid appointment in all states in
which you promote the sale of ALNY products to customers and keep
current of changes in insurance laws and regulations by reviewing the
bulletins and newsletters that ALNY publishes;
(3) comply with ALNY policies concerning replacements, and refrain from
providing false or misleading information about a competitor or
competing product or otherwise making disparaging remarks about a
competitor;
(4) submit all advertising materials intended to promote the sale of an
ALNY product to the home office for approval prior to use;
(5) immediately report to ALNY any customer complaints, whether written or
oral, and assist ALNY in resolving the complaint to the satisfaction
of all parties;
(6) communicate these standards to any producers or office personnel that
you directly supervise and request their agreement to be bound by
these conditions as well.
8. SECURING APPLICATIONS
All applications for Contracts shall be made on application forms supplied by
ALNY. BD will review all sales for suitability and all applications for
completeness and correctness as to form. BD will promptly, but in no case later
than the end of the next business day following receipt by BD or a
Representative, forward to ALNY all complete and correct applications for
suitable transactions, together with any payments received with the
applications, without deduction for compensation. ALNY reserves the right to
reject any Contract application and return any payment made in connection with
an application which is rejected. Contracts issued on accepted applications will
be forwarded to BD or its Representatives for delivery to the Contract Owner.
9. PAYMENTS RECEIVED BY BD
All premium payments (hereinafter collectively referred to as "Payments") are
the property of ALNY and shall be transmitted to ALNY by BD immediately upon
receipt by BD or Associated Insurance Agency or any Agent or Representative in
accordance with the administrative procedures of ALNY, without any deduction or
offset for any reason, including by example but not limitation, any deduction or
offset for compensation claimed by BD. CUSTOMER CHECKS SHALL BE MADE PAYABLE TO
THE ORDER OF " Allstate Life of New York."
10. COMMISSIONS PAYABLE
Commissions payable in connection with the contracts shall be paid to BD or
Associated Insurance Agency according to the Commission Schedule(s) relating to
this Agreement as they may be amended from time to time and in effect at the
time the Contract Payments are received by ALNY. ALNY reserves the right to
revise the Commission Schedules at any time upon at least thirty (30) days prior
written notice to BD. Compensation to the BD's Representatives for Contracts
solicited by the Representatives and issued by ALNY will be governed by
agreement between BD and its Representatives and its payment will be the BD's
responsibility.
11. CANCELLATION OF POLICY
If ALNY is required to refund premiums or return contract values and waive
surrender charges on any Contract for any reason, then no commission will be
payable with respect to said premiums and any commission previously paid for
said premiums must be refunded to ALFS. ALFS agrees to notify BD within thirty
(30) days after it receives notice from ALNY of any premium refund or a
commission chargeback.
12. ADDITIONAL PARTY TO THIS AGREEMENT
In the event that BD is not licensed as an insurance agency in any state where
it wishes to solicit contracts, but utilizes an Associated Insurance Agency to
satisfy state insurance laws, such Associated Insurance Agency shall sign this
Agreement and BD shall countersign this Agreement, and BD and its Associated
Insurance Agency shall be duly bound thereby.
13. HOLD HARMLESS AND INDEMNIFICATION PROVISIONS
No party to this Agreement will be liable for any obligation, act or omission of
the other. Each party to this Agreement will hold harmless and indemnify ALNY,
ALFS, and BD, as appropriate, for any loss or expense suffered as a result of
the violation or noncompliance by that party or the Associated Persons of that
party by any applicable law or regulation. The term "Associated Person" as used
herein shall be defined consistently with the definition of such term as
contained in Article I of the NASD By-Laws.
Without limiting the above paragraph, in situations when "as of" pricing is
necessary in connection with the Contracts (and a loss is incurred to compensate
the Contract owner for reduced Contract values) the party whose actions resulted
in the loss will bear the costs according to pricing procedures established by
ALNY.
14. NON-ASSIGNABILITY PROVISION
This Agreement may not be assigned by any party except by mutual consent.
15. NON-WAIVER PROVISION
Failure of any party to terminate the Agreement for any of the causes set forth
in this Agreement will not constitute a waiver of the right to terminate this
Agreement at a later time for any of these causes.
16. AMENDMENTS
Except as stated in Paragraph 9, no amendment to this Agreement will be
effective unless it is in writing and signed by all the parties hereto.
17. INDEPENDENT CONTRACTORS
BD and its Representatives are independent contractors with respect to ALNY and
ALFS.
18. NOTIFICATION OF DISCIPLINARY PROCEEDINGS
a. BD and Associated Insurance Agency agree to notify ALFS in a timely
fashion of any disciplinary proceedings against any of BD's
Representatives soliciting sales of the Contracts or any threatened or
filed arbitration action or civil litigation arising out of BD's
solicitation of the Contracts.
b. BD and Associated Insurance Agency shall cooperate with ALNY in
investigating and responding to any customer complaint, attorney
demand, or inquiry received from state insurance departments or other
regulatory agencies or legislative bodies, and in any settlement or
trial of any actions arising out of the conduct of business under this
Agreement.
c. Any response by BD or Associated Insurance Agency to an individual
customer complaint will be sent to ALNY and ALFS for approval not less
than five (5) business days prior to it being sent to the customer,
except that if a more prompt response is required, the proposed
response may be communicated by telephone, facsimile or in person.
19. BOOK AND RECORDS
a. ALNY, ALFS and BD and Associated Insurance Agency agree to maintain
the books, accounts and records so as to clearly and accurately
disclose the nature and details of transactions and to assist each
other in the timely preparation of records. ALFS and BD shall each
submit such records to the regulatory and administrative bodies which
have jurisdiction over ALNY or the underlying mutual fund shares.
b. Each party to this Agreement shall promptly furnish to the other party
any reports and information which the other party may request for the
purpose of meeting its reporting and record keeping requirements under
the insurance laws of any state, and under the federal and state
securities laws or the rules of the NASD.
20. CONFIDENTIALITY
Each party to this Agreement shall maintain the confidentiality of any material
designated as proprietary by another party, and shall not use or disclose such
information without the prior written consent of the party designated such
material as proprietary.
21. LIMITATIONS
No party other than ALNY shall have the authority on behalf of ALNY to make,
alter, or discharge any Contract issued by ALNY, to waive any forfeiture or to
grant, permit, or to extend the time of making any Payments, or to alter the
forms which ALNY may prescribe or substitute other forms in place of prescribed
by ALNY; or to enter into any proceeding in a court of law or before a
regulatory agency in the name of or on behalf of ALNY.
22. TERMINATION
This Agreement may be terminated at the option of any party upon ten (10) days
written notice to the other parties, or at the option of any party hereto upon
the breach by any party of the covenants and terms of this Agreement.
23. NOTICE
All notices to ALNY and ALFS relating to this Agreement should be sent to
Allstate Life of Xxx Xxxx, Xxxxxxx, Xxxxxxxx 00000-0000. All notices to BD will
be duly given if mailed to the address shown above.
24. SEVERABILITY
Should any provision of this Agreement be held unenforceable, those provisions
not affected by the determination of unenforceability shall remain in full force
and effect.
EXHIBIT A
GENERAL LETTER OF RECOMMENDATION
BD hereby certifies to Allstate Life of New York ("ALNY") that all the following
requirements will be fulfilled in conjunction with the submission of appointment
papers for all applicants as agents of ALNY submitted by BD. BD will, upon
request, forward proof of compliance with same to ALNY in a timely manner.
1. We have made a thorough and diligent inquiry and investigation relative to
each applicant's identity, residence, business reputation, and experience
and declare that each applicant is personally known to us, has been
examined by us, is known to be of good moral character, has a good business
reputation, is reliable, is financially responsible and is worthy of
appointment as a variable contract agent of ALNY. This inquiry and
background investigation has included a credit and criminal check on each
applicant. Based upon our investigation, we vouch for each applicant and
certify that each individual is trustworthy, competent and qualified to act
as an agent for ALNY to hold himself out in good faith to the general
public.
2. We have on file the appropriate state insurance department licensing forms
or U-4 form which was completed by each applicant. We have fulfilled all
the necessary investigative requirements for the registration of each
applicant as a registered representative through our NASD member firm, and
each applicant is presently registered as an NASD registered
representative.
The above information in our files indicates no fact or condition which
would disqualify the applicant from receiving a license or appointment and
all the findings of all investigative information is favorable.
3. We certify that all educational requirements have been met for the specific
state each applicant is licensed in, and that, all such persons have
fulfilled the appropriate examination, education and training requirements.
4. We certify that each applicant will receive close and adequate supervision,
and that we will make inspection when needed of any or all risks written by
these applicants, to the end that the insurance interest of the public will
be properly protected.
5. We will not permit any applicant to transact insurance as an agent until
duly licensed and appointed by ALNY. No applicants have been given a
contract of furnished supplies, nor have any applicants been permitted to
write, solicit business, or act as an agent in any capacity on behalf of
ALNY, and they will not be so permitted until the certificate of authority
applied for is received.
Exhibit (c)(iii)
ALNY43-MWA, Rev. 08/03 1
SCHEDULE OF COMMISSIONS
Subject to the terms and conditions of the Master Wholesaling Agreement, the
Master Wholesaler shall be compensated according to the following schedule of
the policy forms shown for all policies. The commissions provided in this
schedule shall be reduced by the amount of commissions paid at the Executive
Wholesaler and/or broker/dealer level as shown below. The payment of commissions
is subject to the rules and practices of ALNY and ALFS.
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Master Executive Retailing Retailing
Wholesaler Wholesaler Broker/Dealer 1 Broker/Dealer
Plan Name Plan # % Of Premium % Of % Of Premium 2
Premium % Of Premium
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Consultant Accumulator NYLU599
Variable Universal Life
Option A-First Year Target Premium 99.00 86.00 80.00 75.00
First and Second Year Excess and
Renewals Years 3-5 5.00 4.00 3.00 2.75
Issue Ages: 0-59 4.00 3.00 2.00 1.75
60+ 27.00 22.00 20.00 18.00
Second Year Target Premium .35 .25 .25 .25
Trail Commission (Years 6+)
99.00 86.00 80.00 75.00
Option B-First Year Target Premium
First and Second Year Excess and 3.00 2.50 2.00 1.90
Renewals Years 3-5 2.00 1.50 1.00 .75
Issue Ages: 0-59 12.00 11.00 10.00 9.00
60+ .70 .60 .60 .60
Second Year Target Premium .35 .25 .25 .25
Trail Commission (Years 2-10)
(Years 11+)
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Consultant Protector NYLU598
Variable Universal Life
Option A-First Year Target Premium 99.00 86.00 80.00 75.00
First and Second Year Excess and
Renewals Years 3-5 5.00 4.00 3.00 2.75
Issue Ages: 0-59 4.00 3.00 2.00 1.75
60+ 27.00 22.00 20.00 18.00
Second Year Target Premium .21 .15 .15 .15
Trail Commission (Years 6+)
99.00 86.00 80.00 75.00
Option B-First Year Target Premium
First and Second Year Excess and 3.00 2.50 2.00 1.90
Renewals Years 3+ 2.00 1.50 1.00 .75
Issue Ages: 0-59 11.00 10.00 9.00 8.00
60+ .66 .60 .60 .60
Second Year Target Premium .21 .15 .15 .15
Trail Commission (Years 2-14)
(Years 15+)
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VARIABLE UNIVERSAL LIFE
(a) All premium paid into the policy during the first 12 months will be
credited to the first year target premium until the full first year target
premium has been paid. Any excess first year premium and all renewal
premium will be commissioned as stated in the table.
(b) If a term plan is exchanged for a variable universal life policy, full
first year commissions will be paid on the premium actually paid by the
policy owner. No commission will be payable on premiums which are paid by
applying a premium exchange allowance.
(c) No first year commission will be paid on any additional target premium
resulting from a temporary substandard extra premium.
(d) Renewal commissions will not be paid on premiums paid under a continuation
of premium rider.
(e) If the withdrawal charges are waived by the COMPANY when an existing policy
value is rolled over to a new policy, commissions on the new policy will be
reduced in accordance with the COMPANY'S published rules.
(f) For Consultant Accumulator VUL:
1. Under Option A and B, the trail commission will be paid quarterly at a
rate of .0875% for Option A, and .175% (Years 2-10) and .0875% (Years
11+) for Option B, respectively, of the net policy value for all
Policies at least 15 months old. If neither Option A nor B is elected
by the registered representative, compensation at all levels will be
paid under Option A.
2. An increase in face amount after issue will result in an increase in
target premium based on insured's attained age at time of increase.
(g) For Consultant Protector VUL:
1. Under Option A and B, the trail commission will be paid quarterly at a
rate of .0525% for Option A, and .165% (Years 2-14) and .0525% (Years
15+) for Option B, respectively, of the net policy value for all
Policies at least 15 months old. If neither Option A nor B is elected
by the registered representative, compensation at all levels will be
paid under Option A.
2. An increase in face amount after issue will result in an increase in
target premium based on insured's attained age at time of increase.
