Exhibit 99.3a
DISTRIBUTION AND ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT, made and entered into on this _____ day of _____________,
by and between AMERICAN NATIONAL INSURANCE COMPANY ("American National"), a life
insurance company organized under the laws of the State of Texas, American
National Variable Life Separate Account ("Separate Account"), a separate account
established by American National pursuant to the Texas Insurance Code and
SECURITIES MANAGEMENT AND RESEARCH, INC. ("SM&R"), a corporation organized under
the laws of the State of Florida.
W I T N E S S E T H:
WHEREAS, American National proposes to issue to the public certain variable
contracts ("Contracts") and has authorized the creation of one or more separate
investment accounts in connection therewith; and
WHEREAS, American National has established the Separate Account for the
purpose of issuing the Contracts and is registering the Separate Account with
the Securities and Exchange Commission ("Commission") as a unit investment trust
under the Investment Company Act of 1940; and
WHEREAS, the Contracts to be issued by the Separate Account are to be
registered with the Commission under the Securities Act of 1933 for offer and
sale to the public, and otherwise in compliance with all applicable laws; and
WHEREAS, SM&R, a broker-dealer registered under the Securities Exchange Act
of 1934 and a member of the National Association of Securities Dealers, Inc.,
proposes to act as the distributor in the offering and sale of said Contracts;
WHEREAS, SM&R also proposes to perform certain administrative, processing
and clerical services for American National in connection with the offering and
sale of said Contracts; and
WHEREAS, American National desires to obtain such distribution and other
services from SM&R;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, American National, the Separate Account and SM&R hereby agree as
follows:
1. SM&R will serve as distributor for the Contracts which will be issued
by American National through the Separate Account and will be
registered with the Commission for offer and sale to the public. As
Distributor, SM&R will use its best efforts to
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effect offers and sales of the Contracts to the public on a continuing
basis. SM&R shall be responsible for compliance with the requirements
of any applicable state broker-dealer regulations and the Securities
Exchange Act of 1934 as each applies to SM&R in connection with its
duties as Distributor of said Contracts. Moreover, SM&R shall conduct
its affairs in accordance with the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. (NASD).
2. SM&R will assist American National in identifying, training and
qualifying (under appropriate NASD and/or state requirements)
insurance agents desiring to sell the Contracts. SM&R will register
such agents as its registered representatives before they engage in
the sale of the Contracts and will supervise and control such agents
in the sale of the Contracts in the manner and to the extent required
by the applicable rules of the NASD and the Commission. If any such
agent of American National should fail or refuse to submit to the
supervision of SM&R in accordance with the terms of this Agreement or
otherwise fail to meet the rules and standards imposed by SM&R on its
registered representatives, SM&R shall take whatever steps may be
necessary to terminate the sales activities of such agent relating to
the Contracts.
3. As distributor, SM&R will be responsible for the preparation of
marketing materials (and where appropriate obtaining regulatory
approval), for actively recruiting additional sales agents and sales
organizations and for providing sales training (including continuing
education required for license maintenance).
4. SM&R may contract with other broker-dealers registered under the
Securities Exchange Act of 1934 and authorized by applicable law to
sell variable contracts issued by the Separate Account. Any such
contractual arrangement is expressly made subject to this Agreement,
and SM&R will at all times be responsible to American National for the
distribution of all Contracts issued by the Separate Account.
5. The amount of any commissions payable in connection with the sale of
Contracts will be made by American National to the sales personnel of
SM&R and this function is being performed as a purely ministerial
service and the Records in respect thereof are properly reflected on
the Books and Records maintained by or for SM&R. The gross amounts
paid or advances made by American National on behalf of SM&R will be
transmitted to SM&R for proper reporting.
6. Warranties.
(a) American National represents and warrants to SM&R that:
(i) Any and all Registration Statements required for the
Contracts or the Separate Account have been filed with the
Commission in the form previously delivered to SM&R and
that copies of any and all
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amendments thereto will be forwarded to SM&R at the time
that they were filed with the Commission;
(ii) The Registration Statements 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, the Investment Company Act of 1940
and the rules and regulations of the Commission thereunder,
and will not contain untrue statements of material facts 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 statements or omissions made in
reliance upon and in conformity with information furnished
in writing to American National by SM&R expressly for use
herein;
(iii) American National is validly existing as a stock life
insurance company in good standing under the laws of the
State of Texas with corporate 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 its owns or leases properties, or
conducts any business, so as to require such qualification;
(iv) The Contracts to be issued by the Separate Account through
SM&R hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and will
conform to the description of such Contracts contained in
the Prospectuses relating thereto;
(v) Those persons who offer and sell the Contracts are
appropriately licensed in a manner as to comply with the
state insurance laws;
(vi) 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 statutes, any indenture,
mortgage, deed of trust, note agreement or other agreement
or instrument to which American National is a party or by
which American National is bound, American National's
Charter as a stock life insurance company or By-Laws, or any
order, rule or regulation of any court or governmental
agency or body having jurisdiction over American National or
any of its properties; and no consent, approval,
authorization or order of any court or governmental agency
or body is required for the
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consummation by American National 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 purchase
and distribution of the Contracts by SM&R; and
(vii) There are no material legal or governmental proceedings
pending to which American National or the Separate Account
is a party or of which any property of American National or
the Separate Account is the subject, other than as set forth
in the Prospectus relating to the Contracts, and other than
litigation incident to the kind of business conducted by
American National which, if determined adversely to American
National, would individually or in the aggregate have a
material adverse effect on the financial position, surplus
or operations of American National.
(b) SM&R represents and warrants to American National that:
(i) It is a broker-dealer duly registered with the Commission
pursuant to the Securities Exchange Act of 1934 and a member
in good standing of the National Association of Securities
Dealers and is in compliance with the securities laws in
those states in which it conducts business as a broker-
dealer;
(ii) It shall permit the offer and sale of Contracts only by and
through persons who are appropriately licensed under both
the securities laws and state insurance laws;
(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, any indenture,
mortgage, deed of trust, note agreement or other agreement
or instrument to which SM&R is a party or by which SM&R is
bound, the Certificate of Incorporation and By-Laws of SM&R,
or any other rule or regulation of any court or governmental
agency or body having jurisdiction over SM&R or its
property;
(iv) No offering, sale or other disposition of any Contracts will
be made until SM&R is notified by American National that the
subject Registration Statement has been declared effective
and that the Contracts have been released for sale by
American National; and such offering, sale or other
disposition shall be limited to those
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jurisdictions that have approved or otherwise permit the
offer and sale of the Contracts by American National.
(v) To the extent that any statements or omissions made in the
Registration Statements with respect to the Contracts, or
any amendment or supplement thereto are made in reliance
upon and in conformity with written information furnished to
American National by SM&R expressly for use therein, such
Registration Statements and any amendments or supplements
thereto 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.
7. SM&R shall keep, in manner and form prescribed or approved by American
National 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
distributor of all transactions entered into on behalf of American
National and with respect to variable contract business it conducts of
American National. SM&R shall make such records and books of account
available for inspection by the Commission, and American National
shall have the right to inspect, make copies of or take possession of
such records and books of accounts at any time on demand.
SM&R, however, may request that some or all of the books and records
relating to the sales of the Contracts which are required to be
maintained by it as a registered broker-dealer pursuant to Rule 17a-3
and 17a-4 under the 1934 Act be prepared and maintained in accordance
with such rules by American National on behalf of and as agent for
SM&R. American National agrees that for the purposes of this
Agreement, such books and records shall be deemed to be the property
of SM&R and shall be subject at all times to examination by the
Securities and Exchange Commission in accordance with Section 17(a) of
the 1934 Act and SM&R shall have the right to inspect and make copies
of such books and records of accounts at any time on demand.
8. Upon the request of SM&R, American National agrees to prepare and send
all confirmations required to be sent by SM&R in connection with
crediting purchase payments under the Contracts. Any such
confirmation shall be sent upon or before the completion of each
"transaction", as that term is used in Rule 15c1-4 of the 1934 Act,
and shall reflect the facts of the transaction and indicate that the
confirmation is forwarded on behalf of SM&R in its capacity of
Distributor of Contracts.
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9. Subsequent to having been authorized to commence with the offering
contemplated herein, SM&R will utilize the currently effective
Prospectus relating to the subject Contracts in connection with its
selling efforts. As to the other types of sales material, SM&R agrees
that it will use only sales materials 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 National Association of Securities Dealers.
10. SM&R will not use any Prospectus, sales literature, or any other
printed matter or material in the offer or sale of any Contract if, to
the knowledge of SM&R, any of the foregoing misstates the duties,
obligations or liabilities of American National, the Separate Account
or SM&R.
11. SM&R shall not be entitled to any remuneration for its services as
distributor. However, in payment for the administrative, processing
and clerical services provided by SM&R, American National shall pay
SM&R a processing fee of $50 for each Contract application submitted
by SM&R and accepted by American National. In addition, upon
presentation of proper evidence of expenditures, American National
will reimburse SM&R for all of SM&R's reasonable charges and expenses
directly incurred in connection with the performance of its duties and
obligations contained in this Agreement.
12. SM&R makes no representation or warranties regarding the number of
Contracts to be sold or the amount to be paid thereunder. SM&R does,
however, represent that it will actively market such Contracts on a
continuous basis while there is an effective registration thereof with
the Commission.
13. SM&R may render similar services or act as a distributor or dealer for
issuers other than the Separate Account or sponsors other than
American National in the offering of their Contracts.
14. The Contracts shall be offered for sale on the terms described in the
currently effective Prospectus describing such Contracts.
15. American National will use its best efforts to register for sale, from
time to time if necessary, additional dollar amounts of the Contracts
under the Securities Act of 1933 and should it ever be required, under
state Blue Sky Laws and to file for approval under state insurance
laws when necessary. American National may require SM&R to assist it
in obtaining any necessary clearance or approval of prospectuses,
sales literature and proxy materials in accordance with the
requirements of the Commission, the NASD or other regulatory bodies.
16. American National reserves the right at any time to suspend or limit
the public
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offering of the subject Contracts upon one day's written notice to
SM&R.
17. American National agrees to advise SM&R immediately:
(a) of any request by the Commission (i) for amendment of the
Securities Act Registration Statement relating to the Contracts,
or (ii) for additional information;
(b) of issuance by the Commission of any stop order suspending the
effectiveness of its Registration Statement or the initiation of
any proceedings for that purpose; and
(c) of the happening of any material event, if known, which makes
untrue any statement made in its Registration Statement or which
requires the making of a change therein in order to make any
statement made therein not misleading.
18. American National will furnish to SM&R such information with respect
to the Separate Account and the Contracts in such form and signed by
such of its officers as SM&R may reasonably request; and will warrant
that the statements therein contained when so signed will be true and
correct.
19. 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.
20. Absent the prior written consent of American National, this Agreement
will terminate automatically upon its assignment.
21. This Agreement shall terminate without payment of any penalty by
either party:
(a) at the option of American National or of SM&R upon sixty (60)
days' advance written notice to the other; or
(b) at the option of American National upon institution of formal
proceedings against SM&R by the National Association of
Securities Dealers or by the Commission; or
(c) at the option of American National, if SM&R or any representative
thereof at any time (i) employs any device, scheme, or artifice
to defraud; makes any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
were made, not misleading; or engages in any act, practice, or
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course of business which operates or would operate as a fraud or
deceit upon any person; (ii) fails to promptly account and pay
over the American National money due it according to its records;
or (iii) violates the conditions of this Agreement.
22. Each notice required by this Agreement may be given by wire or
facsimile transmission and confirmed in writing to :
Securities Management and Research, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: President
[Name of Separate Account]
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
American National Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: President
23. American National agrees to indemnify SM&R for any liability that SM&R
may incur to a Contract Owner or party-in-interest under a Contract
(i) arising out of any act or omission in the course of, or in
connection with, rendering services under this Agreement, or (ii)
arising out of the purchase, retention or surrender of a Contract;
PROVIDED, HOWEVER, that American National will not indemnify SM&R for
any such liability that results from the willful misfeasance, bad
faith or gross negligence of SM&R, or from the reckless disregard, by
SM&R, of its duties and obligations arising under this Agreement.
24. This Agreement shall be subject to the laws of the State of Texas and
construed so as to interpret the Contracts as insurance products
written within the business operation of American National.
25. This Agreement covers and includes all agreements, verbal and written,
between SM&R and American National with regard to the offer and sale
of the Contracts, and supersedes and annuls any and all agreements
between the parties with regards to the distribution of the Contracts;
except that this Agreement shall not effect the operation of previous
agreements entered into between SM&R and American National unrelated
to the sale of the Contracts. This Agreement may be amended from time
to time by the mutual fund agreement and consent of the undersigned
parties; PROVIDED, that such amendment shall not affect the rights of
existing
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Contract Owners, and that such amendment be in writing and duly
executed.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested on the date first stated above.
AMERICAN NATIONAL INSURANCE COMPANY
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Executive Vice President
AMERICAN NATIONAL VARIABLE LIFE SEPARATE ACCOUNT
By: AMERICAN NATIONAL INSURANCE COMPANY
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Executive Vice President
SECURITIES MANAGEMENT AND RESEARCH, INC.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
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