EXHIBIT (c)(1)
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
BETWEEN
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
AND
AMERICAN GENERAL EQUITY SERVICES CORPORATION
THIS AMENDED AND RESTATED 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 EQUITY SERVICES
CORPORATION, a Delaware corporation ("AGESC" 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 to amend and restate as follows:
FIRST: The Company hereby grants AGESC 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 Financial Industry Regulatory
Authority ("FINRA") (or exempt from such registration) in U. S. states where the
Company is licensed.
SECOND: AGESC 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. AGESC may, and when requested by the Company, shall suspend its
efforts to promote the sale of the Contracts at any time AGESC 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
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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.
AGESC 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 AGESC for its costs in the promotion of the sale of
the Contracts, including its administrative and ministerial costs. AGESC 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 AGESC 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 AGESC 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 AGESC against any and all claims,
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liabilities, and expenses which AGESC 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. AGESC 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 AGESC.
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 AGESC, 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.
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TENTH. Nothing contained herein shall require the Company or AGESC to take any
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action contrary to any provision of its charter or any applicable statutes,
regulation, or rule of the Financial Industry Regulatory Authority.
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: The original of this Agreement became effective as of January 1, 2003.
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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 AGESC 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-
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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.
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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 Xxxxx-Xxxxx-Xxxxxx 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.
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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:
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AMERICAN GENERAL EQUITY SERVICES CORPORATION
By Date:
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