Exhibit (3)(a)
DISTRIBUTION AGREEMENT
BETWEEN
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
AND
AMERICAN GENERAL SECURITIES INCORPORATED
THIS DISTRIBUTION AGREEMENT (this "Agreement") is made by and between THE UNITED
STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, a New York corporation
(the "Company") and AMERICAN GENERAL SECURITIES INCORPORATED, a Texas
corporation ("AGSI" or "Distributor").
WITNESSETH:
In consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt whereof is hereby acknowledged, the parties
hereto agree as follows:
FIRST: The Company hereby grants AGSI a non-exclusive right to promote the sale
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of the Company's variable life insurance policies and certificates and variable
annuity contracts and certificates, as the case may be, listed on Schedule A
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attached hereto and made a part hereof (the "Contracts") to the public through
investment dealers which are members of the National Association of Securities
Dealers, Inc. (or exempt from such registration) in U. S. states where the
Company is licensed.
SECOND: AGSI hereby accepts the grant made herein for the sale of the Contracts
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and agrees that it will use its best efforts to promote the sale of such
Contracts; provided, however, that:
A. AGSI may, and when requested by the Company, shall suspend its efforts
to promote the sale of the Contracts at any time AGSI or the Company
believes sales should be suspended because of market conditions, other
economic considerations, or other circumstances of any kind; and
B. the Company may withdraw the offering of the Contracts at any time.
THIRD: The Company shall bear:
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A. The expenses of printing and distributing registration statements and
prospectuses of the Separate Account and the Contracts;
B. The expenses of state and federal qualification of such contracts for
sale in connection with such offerings;
C. All legal expenses in connection with the foregoing; and
D. Any other expenses which may be deemed mutually appropriate.
FOURTH: The solicitation of the Contracts shall be made by investment dealers or
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their sales representatives who are also licensed agents of the Company.
AGSI shall bear such costs of obtaining insurance department licenses and fees
for registered representatives as may be mutually agreed upon between the
parties hereto from time to time.
The Company shall reimburse AGSI for its costs in the promotion of the sale of
the Contracts, including its administrative and ministerial costs. AGSI shall
submit to the Company original invoices or other documentation acceptable to the
Company, no less frequently than monthly, for all such reimbursable expenses.
FIFTH: The Company agrees to maintain all books and records in connection with
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the sale of the Contracts on behalf of AGSI in conformity with the requirements
of Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934, to the
extent that such requirements are applicable to the Contracts.
SIXTH: A transaction statement for each purchase payment for a Contract will be
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sent to the Contract owner by the Company as required. The transaction statement
will reflect the facts of the transaction.
SEVENTH: The Company and AGSI shall each comply with all applicable federal and
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state laws, rules, and regulations governing the issuance and sale of the
Contracts.
EIGHTH: The Company agrees to indemnify AGSI against any and all claims,
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liabilities, and expenses which AGSI may incur due to any alleged untrue
statements of a material fact, or any alleged omission to state a material fact
in the registration statement or prospectus of the Company's Separate Account(s)
used in connection with the offering and sale of the Contracts. AGSI agrees to
indemnify the Company against any and all claims, demands, liabilities, and
expenses which the Company may incur arising out of or based upon any act of an
employee of AGSI.
NINTH: All disputes or differences arising out of this Agreement shall be
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submitted to the decision of two arbitrators, one to be chosen by the Company
and the other to be chosen by AGSI, and in the event of the arbitrators failing
to agree, to the decision of a third arbitrator to be chosen by the first two
arbitrators. If the first two arbitrators fail to appoint a third arbitrator
within one month of a request in writing to either of them to do so, the third
arbitrator shall, at the request of either party, be appointed by the American
Arbitration Association. The arbitration proceedings shall take place in New
York City, New York. Unless otherwise agreed, the applicant(s) shall submit its
case within one month after the appointment of the arbitration panel, and the
respondent(s) shall submit its reply within one month after its own receipt of
the claim. The decision of the arbitration panel shall be final and not subject
to appeal, and may be entered into a court having jurisdiction thereof. The
expenses of the arbitration shall be borne equally by the parties involved in
the arbitration. This article shall survive the termination of this Agreement.
TENTH. Nothing contained herein shall require the Company or AGSI to take any
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action contrary to any provision of its charter or any applicable statutes,
regulation, or rule of the National Association of Securities Dealers, Inc.
ELEVENTH: This Agreement shall supersede all prior agreements of the parties,
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whether written or oral, with respect to sale of the Contracts issued on or
after the effective date of this Agreement.
TWELFTH: This Agreement shall become effective as of ____________________, and
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shall continue in force and effect from year to year thereafter.
THIRTEENTH: This Agreement may be terminated at any time by either party,
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without the payment of any penalty, upon thirty (30) days prior notice in
writing to the other party.
FOURTEENTH: This Agreement shall be binding upon the successors and assigns of
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the parties hereto.
FIFTEENTH: Any notice under this Agreement shall be in writing addressed,
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delivered, or mailed, postage paid, to the other party at such address as such
other party may designate for the receipt of such notices.
SIXTEENTH: The following confidentiality and protection of nonpublic information
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provisions shall be binding upon the Company and AGSI under this Agreement:
(a) Confidentiality.
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"Confidential Information" of a party shall mean all confidential or
proprietary information, including trade secrets, expressions, ideas
and business practices of such party in any medium, as well as the
terms of this Agreement. For purposes of this Agreement and unless
otherwise indicated, reference to each party shall include their
affiliates, agents and contractors. All Confidential Information
relating to a party shall be held in confidence by the other party to
the same extent and in at least the same manner as such party protects
its own confidential or proprietary information, but in no case to a
lesser extent than reasonable care under the circumstances requires.
No party shall disclose, publish, release, transfer or otherwise make
available Confidential Information of any other party in any form to,
or for the use or benefit of, any person or entity without the other
parties' consent. Each party shall, however, be permitted to disclose
relevant aspects of the other parties' Confidential Information to its
officers, agents, subcontractors and employees to the extent that such
disclosure is reasonably necessary for the performance of its duties
and obligations under this Agreement; provided, however, that such
party shall take all reasonable measures to ensure that Confidential
Information of the other party or parties is not disclosed or
duplicated in contravention of the provisions of this Agreement by
such officers, agents, subcontractors and employees.
The obligations herein shall not restrict any disclosure by any party
pursuant to any applicable state or federal laws, or by order of any
court or government agency (provided that the disclosing party shall
give prompt notice to the non-disclosing party or parties of such
order) and shall not apply with respect to Confidential
Information which (1) is developed by the other party independently of
the Confidential Information of the disclosing party without violating
the disclosing party's proprietary rights, (2) is or becomes publicly
known (other than through unauthorized disclosure), (3) is disclosed
by the owner of such information to a third party free of any
obligation of confidentiality, (4) is already known by such party
without an obligation of confidentiality other than pursuant to this
Agreement or any confidentiality agreements entered into before the
effective date of this Agreement, or (5) is rightfully received by a
party free of any obligation of confidentiality.
(b) Protection of Nonpublic Personal Information.
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(1) Definition of Nonpublic Personal Information.
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Nonpublic personal information of customers or consumers ("NPI")
includes, but is not limited to, names, addresses, account
balances, account numbers, account activity, social security
numbers, taxpayer identification numbers, and sensitive,
financial and health information. NPI includes information on
each party's forms or in a database of any kind, information
created by each party, information collected by or on behalf of a
party, and personally identifiable information derived from NPI.
There may be instances where each party will have the same NPI
that may be subject to different privacy policies and procedures
according to the notices provided to the customer or consumer by
the respective parties to the Agreement.
(2) Disclosure and Use of NPI.
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All NPI that any party obtains as a result of this relationship
shall not be used, disclosed, reused or redisclosed to any third
party, except to carry out the purposes for which the information
was disclosed. All NPI of the other parties shall be held in
confidence to the same extent and in at least the same manner as
the holding party protects its own NPI, but in no case in a
lesser manner than a reasonable degree of care under the
circumstances.
Each party shall be permitted to disclose relevant aspects of the
other parties' NPI to its officers, agents, subcontractors and
employees only to the extent that such disclosure is reasonably
necessary for the performance of its duties and obligations under
the Agreement; provided that such party shall take all reasonable
measures to ensure that the NPI of the other party or parties is
not disclosed or reproduced in contravention of the provisions of
this Agreement by such party's officers, agents, subcontractors
and employees.
The obligations of this Agreement shall not restrict any
disclosure by any party pursuant to any applicable state or
federal laws, or by request or order of any court or government
agency (provided that the disclosing party shall seek appropriate
protections and provide prompt notice to the non-disclosing party
or parties in order that any other party will have a reasonable
opportunity to oppose the disclosure, request or order).
The obligations of this Agreement shall not apply to information
which, without breach of obligation of confidentiality: (1) is
independently developed by a party; (2) is or becomes publicly
known; (3) is already known by such party as evidenced by the
written records of such party; or (4) is obtained from an
independent source.
(3) Security of NPI.
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The parties further agree to establish and maintain policies and
procedures designed to ensure the confidentiality and security of
NPI. This shall include procedures to protect against any
anticipated threats or hazards to the security or integrity of
the information and unauthorized access to or use of the
information. For reasonable cause, each party may audit the use
or disclosure of NPI upon reasonable written notice to the other
party. Each party will promptly advise the other parties of any
breach of obligations of this Agreement with respect to NPI of
which the breaching party is aware.
(4) Other Provisions.
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The parties agree that they shall abide by the provisions of the
Gramm-Leach-Bliley Act and other applicable privacy laws and
regulations and that the obligations described herein shall
continue after termination of this Agreement and/or the
Agreement. Any provision in the Agreement or any agreement that
is inconsistent with the obligations herein shall be void.
If Selling Group Member utilizes more than one insurance agency
in the conduct of its insurance sales, Selling Group Member
represents that Associated Agency identified herein is acting on
behalf of all such insurance agencies.
This Agreement comprises the entire agreement among the parties
concerning NPI. There are no oral or implied promises or other
obligations concerning said subject matter that have not been set
forth herein. This Agreement may not be modified without a
written agreement executed by all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate.
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
By: ___________________________________ Date: ___________________
AMERICAN GENERAL SECURITIES INCORPORATED
By ___________________________________ Date: ___________________
SCHEDULE A
Platinum Investor Flexible Payment Variable Life Insurance Policies, Form No.
97600N.
Generations Flexible Payment Variable and Fixed Individual Deferred Annuity,
Form 980335N.
Platinum Investor Survivor Last Survivor Flexible Premium Variable Life
Insurance Policies, Form No. 99206N.