Ex (8)(p)
FORM OF AGREEMENT
BISYS FUND SERVICES LIMITED PARTNERSHIP
_________ ____, ________ [Date]
NYLIFE Securities Inc. [Name]
_______________________ [Address]
_______________________ [Address]
Re: The Victory Variable Insurance Funds -- Distribution and
Service Agreement
Ladies and Gentlemen:
This letter sets forth the agreement between BISYS Fund Services
Limited Partnership. (the "Distributor"), the distributor of the Class A shares
of beneficial interest ("Shares") of each series portfolio (each a "Fund") of
The Victory Variable Insurance Funds (the "Trust") listed on Schedule A, as
amended from time to time, and NYLIFE Securities Inc. ("you"), concerning
payment in connection with the distribution of the Shares and certain
administrative services to be provided by you that will benefit the Funds.
1. Introduction. The Trust is an open-end management investment company
organized as a statutory trust under the laws of the State of Delaware.
The Trust may offer its Shares to life insurance companies to be held
by certain of their separate accounts ("Accounts") established for the
purpose of funding variable annuity contracts and variable life
insurance policies (collectively, "Contracts"). In this Agreement, the
beneficial owners of the Contracts are referred to as the "Contract
Owners."
Pursuant to a Distribution and Service Plan with respect to the Shares,
dated as of January 1, 2003 (the "Plan"), adopted by the Board of
Trustees of the Trust (the "Board") and approved by each Fund's
shareholders in accordance with Rule 12b-1 under the Investment Company
Act of 1940, as amended (the "1940 Act"), each Fund may pay to the
Distributor a distribution and service fee at the annual rate of up to
0.25% of the average daily net assets of its Shares (the "Fee").
2. Payments under the Plan.
From time to time during the term of this Agreement, the Distributor
may make payments to you pursuant to the Plan in consideration of your
furnishing Services (as defined in Section 3 of this Agreement), as set
forth in this Agreement. We have no obligation to make any such
payments and you agree to waive any such payments unless and until we
receive payment of the Fee from the Trust, nor shall we make any such
payments in excess of the amount of the Fee we receive from the Trust.
Any such Rule 12b-1 payments shall be as described in each Fund's
current prospectus and Statement of Additional Information. Payments
will be based on the dollar amount of Shares that are owned by those
Accounts to whose Contract Owners you provide services, an calculated
in accordance with Section 3 hereof.
Distribution and Administrative Services. Pursuant to the Plan, the
Distributor may pay you for activities primarily intended to result in
the sale of Shares for the purpose of funding Contracts, and the
Distributor also may pay you to provide administrative services to
Contract Owners whose Contracts are funded with Shares, which services
are not otherwise provided by you and paid for with fees charged by
you. These distribution and administrative services include, but are
not limited to:
1. providing personal services to Contract Owners;
2. providing administrative support services to the Fund
in connection with the distribution of Shares for use
in funding Contracts;
3. paying costs incurred in conjunction with advertising
and marketing Shares, such as the expense incurred of
preparing, printing and distributing promotional or
sales literature in connection with the funding of
Contracts with Shares;
4. printing and distributing prospectuses, statements of
additional information and reports of the Fund to
prospective Contract Owners;
5. holding seminars and sales meetings designed to
promote the distribution of Contracts funded with
Shares, to the extent permitted by applicable laws,
rules or regulations;
6. training your sales personnel regarding the Funds;
and
7. financing any other activity that the Board
determines is primarily intended to result in the
sale of Shares and support of related services.
3. Distribution and Administrative Services Payments. In consideration of
the anticipated distribution and administrative services set forth in
this Agreement (the "Services"), the Distributor agrees to pay you on a
monthly basis the amount set forth in Schedule A to this Agreement.
For purposes of computing the payment to you under this Section 3 for
each month, the total of the average daily net assets of the Shares in
which the Accounts invest shall be multiplied by the rate shown in
Schedule A multiplied by the actual number of days in the period
divided by 365.
The Distributor will calculate the payment contemplated by this Section
3 at the end of each month and will pay you within 30 days of that date
on a pro-rata basis. Payment will be accompanied by a statement showing
the calculation of the monthly amount payable by the Distributor and
such other supporting data as you may reasonably request.
4. Nature of Payments. Each of the parties recognizes and agrees that
payments made by the Distributor to you relate to Services only and do
not constitute payment in any manner for administrative services
provided by you to the Accounts or to the Contracts or for investment
advisory services, and that these payments are not otherwise related to
the
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Funds' investment advisory services or expenses. The amount of payments
that the Distributor makes to you pursuant to Section 3 of this
Agreement shall not be deemed to be conclusive with respect to actual
Services-related expenses or savings of the Trust.
5. Term. This agreement shall become effective as of the date first above
written and shall continue in effect until terminated in accordance
with Section 7 of this Agreement; provided that this Agreement is
approved at least annually by a vote of a majority of the Board,
including a majority of the Trustees who are not "interested persons"
(as defined in the 0000 Xxx) of the Trust and who have no direct or
indirect financial interest in the operation of the Plan or in this
Agreement (the "Qualified Trustees"), cast in person at a meeting
called for the purpose of voting on this Agreement.
6. Reports. At the end of each month, you shall furnish to the Distributor
a written report or invoice detailing all amounts payable to you
pursuant to this Agreement and the purpose for which such amounts were
expended. In addition, you shall furnish the Distributor with such
other information as shall reasonably be requested by the Board with
respect to the fees paid to you pursuant to this Agreement.
7. Termination. This Agreement may be terminated with respect to a Fund by
either party, without penalty, upon ten days' written notice to the
other party, and it also may be terminated by the vote of a majority of
either (a) the Fund's shareholders, or (b) the Qualified Trustees, on
60 days' written notice, without payment of any penalty. This Agreement
also will terminate upon written notice following termination or
assignment of the Participation Agreement by and among you, the Trust
and the Distributor. In addition, this Agreement will be terminated by
any act that terminates the Plan and shall terminate automatically in
the event of its assignment or if the Distributor's Distribution
Agreement with the Trust terminates.
Notwithstanding the termination of this Agreement, the Distributor will
continue to remit to you the payments required under Section 3 of this
Agreement as long as net assets of the Funds remain invested within the
Accounts, the Distributor continues to serve in that capacity for the
Funds and you continue to perform Services. This Agreement may
terminate immediately upon either party's determination (with the
advice of counsel) that payments described in this Agreement are in
conflict with applicable law.
8. Representations. You represent that you are duly registered as a
broker-dealer with the Securities and Exchange Commission (the "SEC")
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and you agree to maintain this registration for the duration of
this Agreement. You further represent that you are a member of NASD and
you agree to maintain this membership for the duration of this
Agreement and abide by all of the rules and regulations of NASD,
including, without limitation, its Rules of Fair Practice. You agree to
notify us immediately in the event of: (a) the termination or
suspension of your SEC broker-dealer registration; (b) your expulsion
or suspension from NASD; or (c) your violation of any applicable
federal or state law, rule or regulation arising out of or in
connection with this Agreement or that may otherwise affect in any
material way your ability to act in accordance with this Agreement. The
termination of your SEC broker-dealer registration or your expulsion
from NASD will automatically
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terminate this Agreement immediately without notice. The suspension of
your SEC broker-dealer registration or your NASD membership for
violation of any applicable federal or state law, rule or regulation
will terminate this Agreement effective immediately upon our written
notice to you of termination.
You also represent that you will maintain and preserve all records as
required by law to be maintained and preserved in connection with
providing the Services, and will otherwise comply with all laws, rules
and regulations applicable to the Services.
You also represent, warrant and agree that the fact that you receive
compensation in connection with the Services provided with respect to
the Accounts' assets in the Funds will be disclosed to the Contract
Owners.
You also represent, warrant and agree that all activities conducted
under this Agreement will be conducted in accordance with the Plan, as
well as all applicable state and federal laws, including the 1940 Act,
the Exchange Act, the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable NASD rules.
9. Subcontractors. You may, with the consent of the Distributor, contract
with or establish relationships with other parties to provide the
Services or other activities required of you by this Agreement,
provided that you shall be fully responsible for the acts and omissions
of such other parties.
10. Authority. This Agreement shall in no way limit the authority of the
Distributor to take any action it may deem appropriate or advisable in
connection with all matters relating to its services to the Trust
and/or sale of its Shares.
11. Indemnification.
(a) The Distributor agrees to indemnify, defend and hold you,
your several officers and directors, and any person who controls you
within the meaning of Section 15 of the Securities Act ("Your
Indemnified Persons"), free and harmless for and against any and all
claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) that Your Indemnified
Persons may incur under the Securities Act, or under common law or
otherwise, arising out of or based upon any failure by the Distributor
to perform its obligations as set forth in this Agreement.
The Distributor's agreement to Your Indemnified Persons is
expressly conditioned upon the Distributor's being notified of any
action brought against such Persons, such notification to be given by
letter or by telex, telegram or similar means of same day delivery
received by the Distributor at its address as specified in Section 13
of this Agreement within seven (7) days after the summons or other
first legal process shall have been served. The failure to so notify
the Distributor of any such action shall not relieve it from any
liability that it may have to the person against whom such action is
brought, other than on account of the Distributor's indemnity agreement
contained in this Section 11(a).
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The Distributor will be entitled to assume the defense of any
suit brought to enforce any such claim, demand, liability or expense.
In the event that the Distributor elects to assume the defense of any
such suit and retain counsel, all of Your Indemnified Persons named in
such suit shall bear the fees and expenses of any additional counsel
retained by any of them; but in case the Distributor does not elect to
assume the defense of any such suit, the Distributor will reimburse
such Persons for the fees and expenses of any counsel retained by you
or them.
The Distributor indemnification agreement contained in this
Section 11(a) shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of Your
Indemnified Persons, and shall survive the delivery of any Shares and
termination of this Agreement. This agreement of indemnity will inure
exclusively to the benefit of Your Indemnified Persons and their
respective estates, successors or assigns.
(b) You agree to indemnify, defend and hold the Distributor
and its several officers and directors, and the Trust and its several
officers and Trustees, and any person who controls the Distributor
and/or the Trust or a Fund within the meaning of Section 15 of the
Securities Act (the "Distributor Indemnified Persons"), free and
harmless from and against any and all claims, demands, liabilities and
expenses (including the cost of investigating or defending such claims,
demands or liabilities and any counsel fees incurred in connection
therewith) that the Distributor Indemnified Persons may incur under the
Securities Act, or under common law or otherwise, arising out of or
based upon (i) any breach of any representation, warranty or covenant
made by you in this Agreement: or (ii) any failure by you to perform
your obligations as set forth in this Agreement.
Your agreement to indemnify the Distributor Indemnified
Persons is expressly conditioned upon your being notified of any action
brought against any person or entity entitled to indemnification under
this Agreement, such notification to be given by letter or by telex,
telegram or similar means of same day delivery received by you at your
address as specified in Section 11 of this Agreement within seven (7)
days after the summons or other first legal process shall have been
served. The failure to so notify you of any such action shall not
relieve you from any liability that you may have to the Distributor
Indemnified Persons, other than on account of our indemnity agreement
contained in this Section 11(b).
You shall have the right to control the defense of such
action, with counsel of your own choosing satisfactory to the
Distributor and the Trust, if such action is based solely upon such
alleged misstatement or omission on your part and in any other event
each person or entity entitled to indemnification under this Agreement
shall have the right to participate in the defense or preparation of
the defense of any such action.
Your indemnification agreements contained in this Section
11(b) shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any Distributor Indemnified
Persons, and shall survive the delivery of any Shares and termination
of this Agreement. Such agreements of indemnity will inure exclusively
to
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the benefit of the Distributor Indemnified Persons and their
respective estates, successors or assigns.
12. Miscellaneous. The parties may amend this Agreement only upon their
written mutual agreement. This Agreement, including Schedule A,
constitutes the entire agreement between the parties with respect to
the matters dealt with in this Agreement, and supersedes any previous
agreements and documents with respect to such matters. This Agreement
may be executed in counterparts, each of which shall be deemed an
original but all of which shall together constitute one and the same
instrument. You agree to notify the Distributor promptly if for any
reason you are unable to perform fully and promptly any of your
obligations under this Agreement.
13. Notices. Unless otherwise notified in writing, all notices to the
Distributor shall be given or sent to the Distributor at its offices,
located at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attention:
____________ ____________; and all notices to you shall be given or
sent to you at the following address:__________________________________
_____________________________________________, Attention:_____________.
14. Choice of Law. This Agreement will be construed in accordance with the
laws of the State of Ohio.
15. Board Approval. This Agreement has been approved by a vote of a
majority of the Board, including a majority of the Qualified Trustees,
cast in person at a meeting called for the purpose of voting on this
Agreement.
16. Non-Exclusivity. The Distributor may enter into other similar
distribution and servicing agreements with any other person or persons.
If this agreement reflects your understanding, please sign below and
return a signed copy to the Distributor.
Very truly yours, Acknowledged and Agreed:
BISYS FUND SERVICES LIMITED PARTNERSHIP [BROKER-DEALER]
By: _______________________________ By: ______________________________
Name: _________________________ Name: ________________________
Title: ________________________ Title: _______________________
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SCHEDULE A
BISYS FUND SERVICES LIMITED PARTNERSHIP
COMPENSATION UNDER THE
VICTORY VARIABLE INSURANCE FUNDS
DISTRIBUTION AND SERVICE AGREEMENT
The Distributor agrees to pay the following amounts on a monthly basis,
calculated as an annual percentage of the average daily net assets of the
relevant Fund and Class thereof held in the Accounts:
FUND CLASS A
---- -------
Diversified Stock Fund 0.25%
[NEWYORKLIFE LOGO]
The Company You Keep(R)
xxxxxxxx@xxxxxxxxxxx.xxx
NEW YORK LIFE INSURANCE COMPANY
00 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000
000-000-0000
Fax 000-000-0000
XXXXXX X. ENGLISH
Senior Vice President &
Deputy General Counsel
April 1, 2004
Securities and Exchange Commission
000 Xxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
RE: NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
VARIABLE ANNUITY SEPARATE ACCOUNT-I
INVESTMENT COMPANY ACT FILE NUMBER 811-07280
SECURITIES ACT FILE NUMBER: 033-53342
Ladies and Gentlemen:
This opinion is furnished in connection with the filing by New York Life
Insurance and Annuity Corporation ("NYLIAC") of Post-Effective Amendment No. 16
to the registration statement on Form N-4 ("Registration Statement") under the
Securities Act of 1933, as amended, of NYLIAC Variable Annuity Separate
Account-I ("Separate Account-I"). Separate Account-I receives and invests
premiums allocated to it under a flexible premium, multi-funded variable
retirement annuity policy ("Annuity Contract"). The Annuity Contract is offered
in the manner described in the Registration Statement.
NYLIAC is a wholly-owned subsidiary of New York Life Insurance Company
("NYL"). My professional responsibilities at NYL include the provision of
legal advice to NYLIAC. Also, I am Senior Vice President and Deputy General
Counsel of NYLIAC.
In connection with this opinion, I have made such examination of the law
and have examined such corporate records and such other documents as I consider
appropriate as a basis for this opinion hereinafter expressed. On the basis of
such examination, it is my opinion that:
1. NYLIAC is a corporation duly organized and validly existing
under the laws of the State of Delaware.
2. Separate Account-I is a separate account established and
maintained by NYLIAC pursuant to Section 2932 of the Delaware
Insurance Code, under which the income, gains and losses,
realized or unrealized, from assets allocated to Separate
Account-I shall be credited to or charged against Separate
Account-I, without regard to other income, gains or losses of
NYLIAC.
3. The Annuity Contract has been duly authorized by NYLIAC and,
when sold in jurisdictions authorizing such sales, in accordance
with the Registration Statement, will constitute validly issued
and binding obligations of NYLIAC in accordance with its terms.
NYLIFE for Financial Products & Services
Securities and Exchange Commission
April 1, 2004
Page 2
4. Each owner of an Annuity Contract will not be subject
to any deductions, charges, or assessments imposed by
NYLIAC, other than those provided in the Annuity
Contract.
I consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ XXXXXX X. ENGLISH
Xxxxxx X. English
Senior Vice President and
Deputy General Counsel
