<PAGE>
As filed with the Securities and Exchange Commission on February 1, 2000.
File Nos. 333-74411
811-07467
Securities And Exchange Commission
Washington. D.C. 20549
FORM N-4
Registration Statement under the Securities Act of 1933 [X]
Pre-Effective Amendment No. __
Post-effective Amendment No. 1
and/or
Registration Statement under the Investment Company Act of 1940 [X]
Amendment No. 10
Allstate Life of New York Separate Account A
(Exact Name of Registrant)
Allstate Life Insurance Company of New York
(Name of Depositor)
One Allstate Drive
Farmingville, New York 11738-9075
(Address of Depositor's Principal Offices)
847/402-2400
(Depositor's Telephone Number, Including Area Code)
Michael J. Velotta
Vice President, Secretary And General Counsel
Allstate Life Insurance Company of New York
3100 Sanders Road 60062
Northbrook, Illinois 60062
847/402-2400
(Name, Complete Address and Telephone Number of Agent for Service)
Copies to:
Richard T. Choi, Esquire Terry R. Young, Esquire
Freedman, Levy, Kroll & Simonds Allstate Life Financial Services, Inc.
1050 Connecticut Avenue, N.W., 3100 Sanders Road
Suite 825 Northbrook, Il 60062
Washington, D.C. 20036-5366
Approximate date of proposed public offering: Continuous
<PAGE>
It is proposed that this filing will become effective (check appropriate box):
/x / immediately upon filing pursuant to paragraph (b) of Rule 485 / / on (date)
pursuant to paragraph (b) of Rule 485 / / 60 days after filing pursuant to
paragraph (a)(1) of Rule 485 / / on (date) pursuant to paragraph (a)(i) of Rule
485
If appropriate, check the following box:
/ / This post-effective amendment designates a new effective date for a
previously filed post-effective amendment.
Title of Securities Being Registered: Units of interest in the Allstate Life of
New York Separate Account A under deferred variable annuity contracts.
Explanatory Note
Registrant is filing this post-effective amendment ("Amendment") for the purpose
of adding two new variable sub-accounts that will be available under the
deferred variable annuity contract described in the registration statement. The
Amendment is not intended to amend or delete any part of the registration
statement, except as specifically noted herein.
<PAGE>
Allstate Life Insurance Company of New York
Allstate Life of New York Separate Account A
Supplement, dated February 1, 2000, to the
Putnam Allstate Advisor Variable Annuity Prospectus
dated December 10, 1999
This supplement amends the above-referenced prospectus for the Putnam Allstate
Advisor Variable Annuity Contract (the Contract), offered by Allstate Life
Insurance Company of New York, to add two new Variable Sub-Accounts. Please keep
this supplement for future reference together with your prospectus.
Cover page: Replace the second paragraph with the following:
The Contract currently offers 26 investment alternatives (investment
alternatives). The investment alternatives include 2 fixed account options
(Fixed Account Options) and 24 variable sub-accounts (Variable Sub-Accounts) of
the Allstate Life of New York Separate Account A (Variable Account). Each
Variable Sub-Account invests exclusively in the Class IB shares of one of the
following mutual fund portfolios (Funds) of Putnam Variable Trust:
<TABLE>
<CAPTION>
<S> <C> <C>
Putnam VT American Government Income Fund Putnam VT International Growth and Income Fund
Putnam VT Asia Pacific Growth Fund Putnam VT International New Opportunities Fund
Putnam VT Diversified Income Fund Putnam VT Investors Fund
Putnam VT The George Putnam Fund of Boston Putnam VT Money Market Fund
Putnam VT Global Asset Allocation Fund Putnam VT New Opportunities Fund
Putnam VT Global Growth Fund Putnam VT New Value Fund
Putnam VT Growth and Income Fund Putnam VT OTC & Emerging Growth Fund
Putnam VT Growth Opportunities Fund Putnam VT Research Fund
Putnam VT Health Sciences Fund Putnam VT Small Cap Value Fund
Putnam VT High Yield Fund Putnam VT Utilities Growth and Income Fund
Putnam VT Income Fund Putnam VT Vista Fund
Putnam VT International Growth Fund Putnam VT Voyager Fund
</TABLE>
Change all references throughout the prospectus to the availability of 22
Variable Sub-Accounts to 24 Variable Sub-Accounts, and 24 investment
alternatives to 26 investment alternatives.
Page 8: Insert the following to the chart describing Fund Annual Expenses:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Management Other Expenses Total Annual
Fund Fees 12b-1 Fees Fund Expenses
----------------------------------------------------
Putnam VT American Government Income Fund(4) .41% .15% .49% 1.05%
----------------------------------------------------
Putnam VT Growth Opportunities Fund(4) .70% .15% .20% 1.05%
---------------------------------------------------- -------------- ----------------- ---------------- ----------------
</TABLE>
Page 8: Insert, Putnam VT Growth Opportunities Fund and Putnam VT American
Government Income Fund to the parenthetical in the first sentence of footnote
(1) to the chart describing Fund Annual Expenses.
Page 8: Append the following to the end of footnote (1):
See the Fund's prospectus for more information about 12b-1 fees payable
under the Fund's distribution plan.
Page 8: Insert the following after footnote (3) to the chart describing Fund
Annual Expenses:
(4). Putnam VT American Government Income Fund and Putnam VT Growth
Opportunities Fund commenced operations on February 1, 2000; therefore, the
management fees, 12b-1 fees, other expenses and total annual fund expenses are
based on estimates for the funds' first fiscal year. Absent voluntary reductions
and reimbursements, the estimated management fees, 12b-1 fees, other expenses,
and total annual fund expenses for the Putnam VT American Government Income Fund
expressed as a percentage of average net assets of the fund would have been as
follows:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Putnam VT American Government Income Fund .65% .15% .49% 1.29%
-----------------------------------------------------------------------------------------------------
</TABLE>
Page 9: Insert the following to Example 1:
<TABLE>
<CAPTION>
<S> <C> <C>
Variable Sub-Account 1 Year 3 Years
--------------------------------------------------
Putnam VT American Government Income $84 $117
--------------------------------------------------
Putnam VT Growth Opportunities $84 $117
--------------------------------------------------
</TABLE>
Page 10: Insert the following to Example 2:
<TABLE>
<S> <C> <C>
Variable Sub-Account 1 Year 3 Years
--------------------------------------------------
Putnam VT American Government Income $24 $75
--------------------------------------------------
Putnam VT Growth Opportunities $24 $75
--------------------------------------------------
</TABLE>
Page 11: Replace the second paragraph under Financial Information with the
following:
The Contracts were first offered as of the date of this prospectus. Accordingly,
there are no Accumulation Unit Values included for the Contracts. The financial
statements of Allstate New York and the Variable Account, including unaudited
financial statements for the period ended September 30, 1999, appear in the
Statement of Additional Information.
Page 15 : Insert the following to the table describing the investment objective
of each Fund:
<TABLE>
<CAPTION>
-------------------------------------------------- ---------------------------------------------------------
<S> <C> <C>
Fund: Each Fund Seeks:
-------------------------------------------------- ---------------------------------------------------------
Putnam VT American Government Income Fund High current income with preservation of capital as a
secondary objective
-------------------------------------------------- ---------------------------------------------------------
Putnam VT Growth Opportunities Fund Capital appreciation
-------------------------------------------------- ---------------------------------------------------------
</TABLE>
<PAGE>
<PAGE>
Allstate Life Insurance Company of New York
Allstate Life of New York Separate Account A
Supplement, dated February 1, 2000, to
Putnam Allstate Advisor Variable Annuity
Statement of Additional Information
dated December 10, 1999
This supplement amends certain disclosure contained in the above-referenced
Statement of Additional Information ("SAI") for the Putnam Allstate Advisor
Variable Annuity Contract (the "Contract"), offered by Allstate Life Insurance
Company of New York ("Allstate New York"), to add two new Variable Sub-Accounts.
Page 5: Append the following to the fourth paragraph under Standardized Total
Returns:
No standardized total returns are shown for Putnam VT American Government Income
and Putnam VT Growth Opportunities Variable Sub-Accounts, which had not
commenced operations as of February 1, 2000.
Page 5: Append the following to the third paragraph under Non-Standardized Total
Returns:
No non-standardized total returns are shown for Putnam VT American Government
Income and Putnam VT Growth Opportunities Variable Sub-Accounts, which had not
commenced operations as of February 1, 2000.
Page 6: Append the following to the second paragraph under Adjusted Historical
Returns:
No adjusted historical total returns are shown for Putnam VT American Government
Income and Putnam VT Growth Opportunities Variable Sub-Accounts as the Funds in
which they invest had not commenced operations as of February 1, 2000.
Page 14: Replace the sentence under the heading "Experts" with the following:
The financial statements and related financial statement schedules of Allstate
New York as of December 31, 1998 and for each of the three years in the period
ended December 31, 1998 that appear in this Statement of Additional Information
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their reports appearing herein, and are included in reliance upon the reports of
such firm given upon their authority as experts in accounting and auditing.
The financial statements of the Variable Account as of December 31, 1998 and for
the years ended December 31, 1998 and December 31, 1997 appearing in this
Statement of Additional Information have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report appearing herein, and are
included in reliance upon the report of such firm given upon their authority as
experts in accounting and auditing.
Page 14: Replace the sentence under "Financial Statements" with the following:
The financial statements of the Variable Account and Allstate New York as of
December 31, 1998 and for the periods ended December 31,1998 and 1997 and the
accompanying Independent Auditors' Reports appear on the pages that follow. The
financial statements of the Variable Account and Allstate New York for the
periods ended September 30, 1999 also appear on the pages that follow and are
unaudited. The financial statements of Allstate New York included herein should
be considered only as bearing upon the ability of Allstate New York to meet its
obligations under the Contracts.
Financial Statements: Insert the following unaudited financial statements for
the Variable Account and Allstate New York after the audited financial
statements for the Variable Account and Allstate New York as of and for the
period ended December 31, 1998 that are attached to the Putnam Allstate Advisor
Variable Annuity Statement of Additional Information dated December 10, 1999.
<PAGE>
ALLSTATE LIFE OF NEW YORK SEPARATE ACCOUNT A
FINANCIAL STATEMENTS AS OF SEPTEMBER 30, 1999
(unaudited)
<PAGE>
<TABLE>
<CAPTION>
ALLSTATE LIFE OF NEW YORK SEPARATE ACCOUNT A
STATEMENT OF NET ASSETS
September 30, 1999
- --------------------------------------------------------------------------------------------------------
(unaudited)
<S> <C>
ASSETS
Allocation to Sub-Accounts investing in the AIM Variable Insurance Funds, Inc.:
Capital Appreciation, 234,394 shares (cost $5,524,240) $ 6,291,130
Diversified Income, 233,413 shares (cost $2,586,488) 2,497,524
Global Utilities, 48,852 shares (cost $844,756) 899,856
Government Securities, 172,071 shares (cost $1,921,416) 1,897,943
Growth, 260,910 shares (cost $6,117,965) 7,141,106
Growth and Income, 434,796 shares (cost $9,569,076) 11,243,829
International Equity, 148,528 shares (cost $2,813,370) 3,184,447
Money Market, 1,518,289 shares (cost $1,518,289) 1,518,289
Value, 567,592 shares (cost $14,677,368) 16,437,465
------------------
Total Assets 51,111,589
LIABILITIES
Payable to Allstate Life Insurance Company of New York:
Accrued contract maintenance charges 14,729
------------------
Net Assets $ 51,096,860
==================
</TABLE>
See notes to financial statements
2
<PAGE>
<TABLE>
<CAPTION>
ALLSTATE LIFE OF NEW YORK SEPARATE ACCOUNT A
STATEMENTS OF OPERATIONS
- -----------------------------------------------------------------------------------------------------------------
(unaudited)
AIM Variable Insurance Funds, Inc. Sub-Accounts
--------------------------------------------------------------------
For the Nine Months Ended September 30, 1999
--------------------------------------------------------------------
Capital Diversified Global Government
Appreciation Income Utilities Securities Growth
----------- ------------ ------------ ----------- -----------
<S> <C> <C> <C> <C> <C>
INVESTMENT INCOME
Dividends $ - $ - $ - $ - $ -
Charges from Allstate Life Insurance Company:
of New York
Mortality and expense risk (50,929) (19,586) (5,942) (27,184) (54,944)
Administrative expense (3,772) (1,451) (440) (2,014) (4,070)
----------- ------------ ------------ ----------- -----------
Net investment income (loss) (54,701) (21,037) (6,382) (29,198) (59,014)
REALIZED AND UNREALIZED GAINS
(LOSSES) ON INVESTMENTS
Realized gains (losses) from sales of investments:
Proceeds from sales 135,739 328,134 78,167 2,002,538 219,395
Cost of investments sold 128,686 338,962 70,930 2,132,604 198,369
----------- ------------ ------------ ----------- -----------
Net realized gains (losses) 7,053 (10,828) 7,237 (130,066) 21,026
----------- ------------ ------------ ----------- -----------
Change in unrealized gains (losses) 291,759 (30,396) 23,953 (19,311) 451,102
----------- ------------ ------------ ----------- -----------
Net gains (losses) on investments 298,812 (41,224) 31,190 (149,377) 472,128
----------- ------------ ------------ ----------- -----------
CHANGE IN NET ASSETS
RESULTING FROM OPERATIONS $ 244,111 $ (62,261) $ 24,808 $ (178,575) $ 413,114
=========== ============ ============ =========== ===========
</TABLE>
See notes to financial statements.
3
<PAGE>
<TABLE>
<CAPTION>
ALLSTATE LIFE OF NEW YORK SEPARATE ACCOUNT A
STATEMENTS OF OPERATIONS
- ----------------------------------------------------------------------------------------------------
(unaudited)
AIM Variable Insurance Funds, Inc. Sub-Accounts
------------------------------------------------------
For the Nine Months Ended September 30, 1999
------------------------------------------------------
Growth and International Money
Income Equity Market Value
----------- ------------ ------------ -----------
<S> <C> <C> <C> <C>
INVESTMENT INCOME
Dividends $ - $ - $ 40,384 $ -
Charges from Allstate Life Insurance Company:
of New York
Mortality and expense risk (87,617) (24,167) (12,311) (108,944)
Administrative expense (6,490) (1,790) (912) (8,070)
----------- ------------ ------------ -----------
Net investment income (loss) (94,107) (25,957) 27,161 (117,014)
REALIZED AND UNREALIZED GAINS
(LOSSES) ON INVESTMENTS
Realized gains (losses) from sales of investments:
Proceeds from sales 328,635 130,636 243,291 242,116
Cost of investments sold 263,594 120,919 243,291 214,182
----------- ------------ ------------ -----------
Net realized gains (losses) 65,041 9,717 - 27,934
----------- ------------ ------------ -----------
Change in unrealized gains (losses) 490,792 225,562 - 667,107
----------- ------------ ------------ -----------
Net gains (losses) on investments 555,833 235,279 - 695,041
----------- ------------ ------------ -----------
CHANGE IN NET ASSETS
RESULTING FROM OPERATIONS $ 461,726 $ 209,322 $ 27,161 $ 578,027
=========== ============ ============ ===========
</TABLE>
See notes to financial statements.
4
<PAGE>
<TABLE>
<CAPTION>
ALLSTATE LIFE OF NEW YORK SEPARATE ACCOUNT A
STATEMENTS OF CHANGES IN NET ASSETS
For the Nine Months Ended September 30, 1999
- -----------------------------------------------------------------------------------------------------------------------------------
(unaudited)
AIM Variable Insurance Funds, Inc. Sub-Accounts
-----------------------------------------------------------------------------
Capital Diversified Global Government
Appreciation Income Utilities Securities Growth
-------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
FROM OPERATIONS
Net investment income (loss) $ (54,701) $ (21,037) $ (6,382) $ (29,198) $ (59,014)
Net realized gains (losses) 7,053 (10,828) 7,237 (130,066) 21,026
Change in unrealized gains (losses) 291,759 (30,396) 23,953 (19,311) 451,102
-------------- -------------- -------------- -------------- --------------
Change in net assets resulting from operations 244,111 (62,261) 24,808 (178,575) 413,114
-------------- -------------- -------------- -------------- --------------
FROM CAPITAL TRANSACTIONS
Deposits 1,470,908 975,385 540,379 558,978 2,356,996
Benefit payments (7,042) - - - -
Payments on termination (155,912) (124,328) (12,782) (394,522) (246,175)
Contract maintenance charges (1,967) (646) (271) 145 (2,202)
Transfers among the sub-accounts
and with the Fixed Account - net 435,084 (56,168) (47,041) (1,660,806) 431,788
-------------- -------------- -------------- -------------- --------------
Change in net assets resulting
from capital transactions 1,741,071 794,243 480,285 (1,496,205) 2,540,407
-------------- -------------- -------------- -------------- --------------
INCREASE (DECREASE) IN NET ASSETS 1,985,182 731,982 505,093 (1,674,780) 2,953,521
NET ASSETS AT BEGINNING OF PERIOD 4,304,136 1,764,822 394,504 3,572,174 4,185,527
-------------- -------------- -------------- -------------- --------------
NET ASSETS AT END OF PERIOD $ 6,289,318 $ 2,496,804 $ 899,597 $ 1,897,394 $ 7,139,048
============== ============== ============== ============== ==============
</TABLE>
See notes to financial statements.
5
<PAGE>
<TABLE>
<CAPTION>
ALLSTATE LIFE OF NEW YORK SEPARATE ACCOUNT A
STATEMENTS OF CHANGES IN NET ASSETS
For the Nine Months Ended September 30, 1999
- --------------------------------------------------------------------------------------------------------------------------
(unaudited)
AIM Variable Insurance Funds, Inc. Sub-Accounts
-------------------------------------------------------------------
Growth and International Money
Income Equity Market Value
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
FROM OPERATIONS
Net investment income (loss) $ (94,107) $ (25,957) $ 27,161 $ (117,014)
Net realized gains (losses) 65,041 9,717 - 27,934
Change in unrealized gains (losses) 490,792 225,562 - 667,107
-------------- -------------- -------------- --------------
Change in net assets resulting from operations 461,726 209,322 27,161 578,027
-------------- -------------- -------------- --------------
FROM CAPITAL TRANSACTIONS
Deposits 4,071,293 731,642 578,144 8,582,680
Benefit payments (18,572) (8,963) - (16,566)
Payments on termination (225,697) (66,211) (44,175) (417,261)
Contract maintenance charges (3,391) (738) (414) (4,928)
Transfers among the sub-accounts
and with the Fixed Account - net 353,186 355,353 (10,917) 560,699
-------------- -------------- -------------- --------------
Change in net assets resulting
from capital transactions 4,176,819 1,011,083 522,638 8,704,624
-------------- -------------- -------------- --------------
INCREASE (DECREASE) IN NET ASSETS 4,638,545 1,220,405 549,799 9,282,651
NET ASSETS AT BEGINNING OF PERIOD 6,602,044 1,963,126 968,052 7,150,077
-------------- -------------- -------------- --------------
NET ASSETS AT END OF PERIOD $ 11,240,589 $ 3,183,531 $ 1,517,851 $ 16,432,728
============== ============== ============== ==============
</TABLE>
<PAGE>
ALLSTATE LIFE OF NEW YORK SEPARATE ACCOUNT A
Notes to Financial Statements
(unaudited)
1. Organization
Allstate Life of New York Separate Account A (the "Account"), a unit
investment trust registered with the Securities and Exchange Commission
under the Investment Company Act of 1940, is a Separate Account of
Allstate Life Insurance Company of New York ("Allstate New York"). The
assets of the Account are legally segregated from those of Allstate New
York. Allstate New York is wholly owned by Allstate Life Insurance
Company, a wholly owned subsidiary of Allstate Insurance Company, which is
wholly owned by The Allstate Corporation.
These financial statements and notes as of September 30, 1999 and for the
nine-month period ended September 30, 1999 are unaudited. The financial
statements reflect all adjustments (consisting only of normal recurring
accruals) which are, in the opinion of management, necessary for the fair
presentation of the financial position, results of operations and changes
in net assets for the interim period. These financial statements and notes
should be read in conjunction with the Allstate Life of New York Separate
Account A financial statements and notes for the period ended December 31,
1998 included in the Registration Statement on Form N-4 for the Account.
The results of operations for the interim periods should not be considered
indicative of results to be expected for the full year.
<TABLE>
<CAPTION>
2. UNITS OUTSTANDING AND ACCUMULATION UNIT VALUE
(Units in whole amounts)
Accumulation
Units Outstanding Unit Value
September 30, 1999 September 30, 1999
------------------- ------------------
<S> <C> <C>
Investments in the AIM Variable Insurance Funds, Inc.
Capital Appreciation 398,502 15.78
Diversified Income 214,435 11.64
Global Utilities 55,220 16.29
Government Securities 169,001 11.23
Growth 345,008 20.69
Growth and Income 572,044 19.65
International Equity 205,370 15.50
Money Market 133,426 11.38
Value 853,397 19.26
</TABLE>
See notes to financial statements.
6
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
FINANCIAL STATEMENTS AS OF SEPTEMBER 30, 1999
(UNAUDITED)
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
STATEMENTS OF FINANCIAL POSITION
SEPTEMBER 30, DECEMBER 31,
1999 1998
------------- ------------
($ in thousands, except par value data) (UNAUDITED)
ASSETS
Investments
Fixed income securities, at fair value
(amortized cost $1,787,423 and $1,648,972) .... $1,899,766 $1,966,067
Mortgage loans ................................... 163,144 145,095
Short-term ....................................... 27,766 76,127
Policy loans ..................................... 30,561 29,620
---------- ----------
Total investments .......................... 2,121,237 2,216,909
Deferred acquisition costs .......................... 99,180 87,830
Accrued investment income ........................... 22,655 22,685
Reinsurance recoverables ............................ 2,093 2,210
Receivable from affiliates, net ..................... 5,530 --
Cash ................................................ 1,140 3,117
Other assets ........................................ 7,152 9,887
Separate Accounts ................................... 389,675 366,247
---------- ----------
TOTAL ASSETS ............................... $2,648,662 $2,708,885
========== ==========
LIABILITIES
Reserve for life-contingent contract benefits ....... $1,129,003 $1,208,104
Contractholder funds ................................ 769,248 703,264
Current income taxes payable ........................ 20,158 14,029
Deferred income taxes ............................... 5,150 25,449
Other liabilities and accrued expenses .............. 30,720 23,463
Payable to affiliates, net .......................... -- 38,835
Separate Accounts ................................... 389,675 366,247
---------- ----------
TOTAL LIABILITIES .......................... 2,343,954 2,379,391
---------- ----------
COMMITMENTS AND CONTINGENT LIABILITIES (NOTE 3)
SHAREHOLDER'S EQUITY
Common stock, $25 par value, 80,000 shares
authorized, issued and outstanding ............ 2,000 2,000
Additional capital paid-in .......................... 45,787 45,787
Retained income ..................................... 216,914 198,801
Accumulated other comprehensive income:
Unrealized net capital gains .................... 40,007 82,906
---------- ----------
TOTAL ACCUMULATED OTHER COMPREHENSIVE INCOME 40,007 82,906
---------- ----------
TOTAL SHAREHOLDER'S EQUITY ................. 304,708 329,494
---------- ----------
TOTAL LIABILITIES AND SHAREHOLDER'S EQUITY . $2,648,662 $2,708,885
========== ==========
See notes to financial statements.
3
<PAGE>
<TABLE>
<CAPTION>
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
STATEMENTS OF OPERATIONS
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------------- ----------------------
($ in thousands) 1999 1998 1999 1998
----------- --------- --------- ---------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
REVENUES
Premiums and contract charges (net of reinsurance
ceded of $909 and $903; $3,076 and $2,660) .. $ 26,442 $ 28,166 $ 77,027 $ 87,838
Net investment income ........................... 37,771 33,758 109,778 100,018
Realized capital gains and losses ............... (812) 53 (1,560) 4,157
--------- --------- --------- ---------
63,401 61,977 185,245 192,013
--------- --------- --------- ---------
COSTS AND EXPENSES
Contract benefits (net of reinsurance recoveries
of $309 and $1,245; $1,091 and $1,748) ....... 47,347 46,744 133,560 135,565
Amortization of deferred acquisition costs ...... 2,352 1,562 7,178 5,767
Operating costs and expenses .................... 5,068 5,261 16,410 17,426
--------- --------- --------- ---------
54,767 53,567 157,148 158,758
--------- --------- --------- ---------
INCOME FROM OPERATIONS BEFORE
INCOME TAX EXPENSE ........................... 8,634 8,410 28,097 33,255
Income tax expense .............................. 3,071 2,883 9,984 11,746
--------- --------- --------- ---------
NET INCOME ...................................... $ 5,563 $ 5,527 $ 18,113 $ 21,509
========= ========= ========= =========
</TABLE>
See notes to financial statements.
4
<PAGE>
<TABLE>
<CAPTION>
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED
SEPTEMBER 30,
----------------------
($ in thousands) 1999 1998
--------- ---------
(UNAUDITED)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income ............................................. $ 18,113 $ 21,509
Adjustments to reconcile net income to net cash
provided by operating activities:
Amortization and other non-cash items ........... (28,229) (26,588)
Realized capital gains and losses ............... 1,560 (4,157)
Interest credited to contractholder funds ....... 22,805 27,537
Changes in:
Reserve for life-contingent contract benefits
and contractholder funds ................ 34,045 41,875
Deferred acquisition costs .................. (9,169) (8,605)
Accrued investment income ................... 30 1,167
Income taxes payable ........................ 8,929 6,858
Other operating assets and liabilities ...... (10,859) (15,245)
--------- ---------
Net cash provided by operating activities 37,225 44,351
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Proceeds from sales of fixed income securities ......... 141,505 65,274
Investment collections
Fixed income securities ......................... 14,685 92,221
Mortgage loans .................................. 6,264 4,888
Investments purchases
Fixed income securities ......................... (291,312) (248,209)
Mortgage loans .................................. (26,730) (14,312)
Change in short-term investments, net .................. 50,722 (977)
Change in policy loans, net ............................ (941) (1,159)
--------- ---------
Net cash used in investing activities ... (105,807) (102,274)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Contractholder fund deposits ........................... 115,288 100,721
Contractholder fund withdrawals ........................ (48,683) (43,191)
--------- ---------
Net cash provided by financing activities 66,605 57,530
--------- ---------
NET INCREASE (DECREASE) IN CASH ........................ (1,977) (393)
CASH AT THE BEGINNING OF PERIOD ........................ 3,117 393
--------- ---------
CASH AT END OF PERIOD .................................. $ 1,140 $ --
========= =========
</TABLE>
See notes to financial statements.
5
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying financial statements include the accounts of Allstate
Life Insurance Company of New York (the "Company"), a wholly owned
subsidiary of Allstate Life Insurance Company ("ALIC"), which is wholly
owned by Allstate Insurance Company ("AIC"), a wholly owned subsidiary of
The Allstate Corporation (the "Corporation"). These financial statements
have been prepared in conformity with generally accepted accounting
principles.
The financial statements and notes as of September 30, 1999 and for the
three month and nine month periods ended September 30, 1999 and 1998 are
unaudited. The financial statements reflect all adjustments (consisting
only of normal recurring accruals) which are, in the opinion of
management, necessary for the fair presentation of the financial position,
results of operations and cash flows for the interim periods. These
financial statements and notes should be read in conjunction with the
financial statements and notes thereto included in the Allstate Life
Insurance Company of New York Annual Report on Form 10-K for 1998. The
results of operations for the interim periods should not be considered
indicative of results to be expected for the full year.
Effective January 1, 1999, the Company adopted Statement of Position
("SOP") 97-3, "Accounting by Insurance and Other Enterprises for
Insurance-Related Assessments." The SOP provides guidance concerning when
to recognize a liability for insurance-related assessments and how those
liabilities should be measured. Specifically, insurance-related
assessments should be recognized as liabilities when all of the following
criteria have been met: 1) an assessment has been imposed or it is
probable that an assessment will be imposed, 2) the event obligating an
entity to pay an assessment has occurred and 3) the amount of the
assessment can be reasonably estimated. The adoption of this statement had
an immaterial impact to the Company's results of operations and financial
position.
In July 1999, the Financial Accounting Standards Board ("FASB") delayed
the effective date of Statement of Financial Accounting Standard ("SFAS")
No. 133, "Accounting for Derivative Instruments and Hedging Activities",
which replaces existing pronouncements and practices with a single,
integrated accounting framework for derivatives and hedging activities.
The delay was effected through the issuance of SFAS No. 137, which extends
the effective date of the SFAS No. 133 requirements to fiscal years
beginning after June 15, 2000. As such, the Company plans to adopt the
provisions of SFAS No. 133 as of January 1, 2001. Based on existing
interpretations of the requirements of SFAS No. 133, the impact of
adoption is not expected to be material to the results of operations or
financial position of the Company.
To conform with the 1999 presentation, certain amounts in the prior years'
financial statements and notes have been reclassified.
6
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
2. COMPREHENSIVE INCOME
The components of other comprehensive income on a pretax and after-tax
basis are as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER 30,
--------------------------------------------------------------------------------
($ in thousands) 1999 1998
---------------------------------------- ------------------------------------
AFTER- AFTER-
PRETAX TAX TAX PRETAX TAX TAX
------ --- --- ------ --- ---
<S> <C> <C> <C> <C> <C> <C>
Unrealized capital gains and losses:
Unrealized holding (losses)gains
arising during the period $ (44,903) $ 15,716 $ (29,187) $ 86,267 $(30,193) $ 56,074
Adjustments to unrealized
capital gains and losses
arising during the period:
Deferred acquisition costs 185 (65) 120 (2,956) 1,034 (1,922)
Reserves for life insurance
policy benefits 28,992 (10,147) 18,845 (48,180) 16,863 (31,317)
--------- --------- --------- -------- -------- --------
Net unrealized holding
(losses) gains arising
during the period (15,726) 5,504 (10,222) 35,131 (12,296) 22,835
Less: reclassification
adjustment for realized
net capital (losses) gains
included in net income (837) 293 (544) 47 (16) 31
--------- --------- -------- --------- -------- --------
Other comprehensive
(loss) income $ (14,889) $ 5,211 (9,678) $ 35,084 $(12,280) 22,804
========= ========= ========= ========
Net income 5,563 5,527
-------- -------
Comprehensive
(loss) income $ (4,115) $ 28,331
======== ========
</TABLE>
7
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
2. COMPREHENSIVE INCOME (CONTINUED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
--------------------------------------------------------------------------------
($ in thousands) 1999 1998
---------------------------------------- ------------------------------------
AFTER- AFTER-
PRETAX TAX TAX PRETAX TAX TAX
------ --- --- ------ --- ---
<S> <C> <C> <C> <C> <C> <C>
Unrealized capital gains and losses:
Unrealized holding (losses)gains
arising during the period $(206,351) $ 72,223 $(134,128) $ 130,276 $(45,596) $ 84,680
Adjustments to unrealized
capital gains and losses
arising during the period:
Deferred acquisition costs 2,182 (764) 1,418 (3,066) 1,072 (1,994)
Reserves for life insurance
policy benefits 136,572 (47,800) 88,772 (73,283) 25,649 (47,634)
--------- --------- --------- -------- -------- --------
Net unrealized holding
(losses) gains arising
during the period (67,597) 23,659 (43,938) 53,927 (18,875) 35,052
Less: reclassification
adjustment for realized
net capital (losses) gains
included in net income (1,599) 560 (1,039) 4,215 (1,475) 2,740
--------- --------- -------- --------- -------- --------
Other comprehensive
(loss) income $ (65,998) $ 23,099 (42,899) $ 49,712 $(17,400) 32,312
========= ========= ========= ========
Net income 18,113 21,509
-------- --------
Comprehensive
(loss) income $(24,786) $ 53,821
======== ========
</TABLE>
8
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
3. COMMITMENTS AND CONTINGENT LIABILITIES
REGULATION AND LEGAL PROCEEDINGS
The Company is subject to the effects of a changing social, economic and
regulatory environment. Public and regulatory initiatives have varied and
have included employee benefit regulations, removal of barriers preventing
banks from engaging in the securities and insurance business, tax law
changes affecting the taxation of insurance companies, the tax treatment
of insurance products and its impact on the relative desirability of
various personal investment vehicles, and proposed legislation to prohibit
the use of gender in determining insurance rates and benefits. The
ultimate changes and eventual effects, if any, of these initiatives are
uncertain.
Various other legal and regulatory actions are currently pending that
involve the Company and specific aspects of its conduct of business. In
the opinion of management, the ultimate liability, if any, in one or more
of these actions in excess of amounts currently reserved is not expected
to have a material effect on the results of operations, liquidity or
financial position of the Company.
9
<PAGE>
<PAGE>
PART C
OTHER INFORMATION
Part C is hereby amended to include the following exhibits:
Item 24(b) Exhibits:
(8) Participation Agreement
(9) Opinion of Michael J. Velotta, Vice President, Secretary and General
Counsel of Allstate Life Insurance Company of New York
(10)(a) Independent Auditors' Consent
(10)(b) Consent of Freedman, Levy, Kroll & Simonds
<PAGE>
SIGNATURES
As required by the Securities Act of 1933 and the Investment Company Act of
1940, Registrant, Allstate Life of New York Separate Account A, certifies that
it meets the requirements of Securities Act Rule 485(b) for effectiveness of
this amended Registration Statement and has caused this amended Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, and its seal to be hereunto affixed and attested, all in the
Township of Northfield, State of Illinois, on the 1st day of February, 2000.
ALLSTATE LIFE OF NEW YORK SEPARATE ACCOUNT A
(REGISTRANT)
BY: ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
(DEPOSITOR)
(SEAL) By: /s/MICHAEL J. VELOTTA
------------------------------
Michael J. Velotta
Vice President, Secretary and
General Counsel
As required by the Securities Act of 1933, this amended Registration
Statement has been duly signed below by the following Directors and Officers of
Allstate Life Insurance Company of New York on the 1st day of February, 2000.
*/LOUIS G. LOWER, II Chairman of the Board and Director
- -------------------- (Principal Executive Officer)
Louis G. Lower, II
*/THOMAS J. WILSON, II President and Director
- ---------------------- (Principal Operating Officer)
Thomas J. Wilson, II
*/JOSEPH J. RICHARDSON, JR. Director and Chief Operations
Officer
Joseph J. Richardson, Jr.
/s/ Michael J. Velotta Vice President, Secretary, General
- ----------------------- Counsel and Director
Michael J. Velotta
*/KEVIN R. SLAWIN Vice President and Director
- ------------------ (Principal Financial Officer)
Kevin R. Slawin
*/SAMUEL J. PILCH Controller
- ---------------------- (Principal Accounting Officer)
Samuel H. Pilch
*/TIMOTHY H. PLOHG Vice President and Director
Timothy H. Plohg
*/MARCIA D. ALAZRAKI Director
Marcia D. Alazraki
*/CLEVELAND JOHNSON, JR. Director
Cleveland Johnson, Jr.
*/GERARD F. MCDERMOTT Director
Gerard F. McDermott
*/JOHN R. RABEN, JR. Director
John R. Raben, Jr.
*/SALLY A. SLACKE Director
Sally A. Slacke
*/ By Michael J. Velotta, pursuant to Powers of Attorney previously filed.
<PAGE>
EXHIBIT INDEX
Exhibit Description
(8) Participation Agreement
9(b) Opinion and Consent of General Counsel
10(a) Independent Auditor's Consent
10(b) Consent of Freedman, Levy, Kroll & Simonds
PARTICIPATION AGREEMENT
Among
PUTNAM VARIABLE TRUST
PUTNAM MUTUAL FUNDS CORP.
and
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
THIS AGREEMENT, made and entered into as of this day of , 1999, among
Allstate Life Insurance Company of New York (the "Company"), a New York
corporation, on its own behalf and on behalf of each separate account of the
Company set forth on Schedule A hereto, as such Schedule may be amended from
time to time (each such account hereinafter referred to as the "Account"),
PUTNAM VARIABLE TRUST (the "Trust"), a Massachusetts business trust, and PUTNAM
MUTUAL FUNDS CORP. (the "Underwriter"), a Massachusetts corporation.
WHEREAS, the Trust is an open-end diversified management investment company
and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
(collectively, the "Variable Insurance Products") to be offered by insurance
companies which have entered into Participation Agreements with the Trust and
the Underwriter (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into several
series of shares, each designated a "Fund" and representing the interest in a
particular managed portfolio of securities and other assets; and
WHEREAS, the Trust has obtained an order from the Securities and Exchange
Commission ("SEC"), dated December 29, 1993 (File No. 812-8612), granting the
variable annuity and variable life insurance separate accounts participating in
the Trust exemptions from the provisions of sections 9(a), 13(a), 15(a) and
15(b) of the Investment Company Act of 1940, as amended (the "1940 Act"), and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Trust to be sold to and held by variable annuity and
variable life insurance separate accounts of the Participating Insurance
Companies (the "Shared Funding Exemptive Order"); and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and the sale of its shares is registered under the
Securities Act of 1933, as amended (the " 1933 Act"); and
WHEREAS, the Company has registered or will register certain variable life
and/or variable annuity contracts under the 1933 Act and any applicable state
securities and insurance law; and
WHEREAS, each Account is a duly organized, validly existing separate
account, established by resolution of the Board of Directors of the Company, on
the date shown for such Account on Schedule A hereto, to set aside and invest
assets attributable to one or more variable insurance contracts (the
"Contracts"); and
WHEREAS, the Company has registered or will register the Account as a unit
investment trust under the 1940 Act; and
WHEREAS, the Underwriter is registered as a broker dealer with the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended (the " 1934 Act"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in certain Funds
("Authorized Funds") on behalf of each Account to fund certain of the Contracts
and the Underwriter is authorized to sell such shares to unit investment trusts
such as each Account at net asset value;
NOW, THEREFORE, in consideration of the promises herein, the Company, the
Trust and the Underwriter agree as follows:
ARTICLE 1. Sale of Trust Shares
1.1 The Underwriter agrees, subject to the Trust's rights under Section 1.2
and otherwise under this Agreement, to sell to the Company those Trust shares
representing interests in Authorized Funds which each Account orders, executing
such orders on a daily basis at the net asset value next computed after receipt
by the Trust or its designee of the order for the shares of the Trust. For
purposes of this Section 1. 1, the Company shall be the designee of the Trust
for receipt of such orders from each Account and receipt by such designee shall
constitute receipt by the Trust; provided that the Trust receives notice of such
order by 8:30 a.m. Eastern time on the next following Business Day. "Business
Day" shall mean any day on which the New York Stock Exchange is open for trading
and on which the Trust calculates its net asset value pursuant to the rules of
the SEC. The initial Authorized Funds are set forth in Schedule B, as such
schedule is amended from time to time.
1.2 The Trust agrees to make its shares available indefinitely for purchase
at the applicable net asset value per share by the Company and its Accounts on
those days on which the Trust calculates its net asset value pursuant to rules
of the SEC and the Trust shall use reasonable efforts to calculate such net
asset value on each day on which the New York Stock Exchange is open for
trading. Notwithstanding the foregoing, the Trustees of the Trust (the
"Trustees") may refuse to sell shares of any Fund to the Company or any other
person, or suspend or terminate the offering of shares of any Fund if such
action is required by law or by regulatory authorities having jurisdiction over
the Trust or if the Trustees determine, in the exercise of their fiduciary
responsibilities, that to do so would be in the best interests of shareholders.
1.3 The Trust and the Underwriter agree that shares of the Trust will be
sold only to Participating Insurance Companies and their separate accounts. No
shares of any Fund will be sold to the general public.
1.4 The Trust shall redeem its shares in accordance with the terms of its
then current prospectus. For purposes of this Section 1.4, the Company shall be
the designee of the Trust for receipt of requests for redemption from each
Account and receipt by such designee shall constitute receipt by the Trust;
provided that the Trust receives notice of such request for redemption by 8:30
a.m., Eastern time, on the next following Business Day.
1.5 The Company shall purchase and redeem the shares of Authorized Funds
offered by the then current prospectus of the Trust in accordance with the
provisions of such prospectus.
1.6 The Company shall pay for Trust shares on the next Business Day after
an order to purchase Trust shares is made in accordance with the provisions of
Section 1.1 hereof. Payment shall be in federal funds transmitted by wire.
1.7 Issuance and transfer of the Trust's shares will be by book entry only.
Share certificates will not be issued to the Company or any Account. Shares
ordered from the Trust will be recorded as instructed by the Company to the
Underwriter in an appropriate title for each Account or the appropriate
sub-account of each Account.
1.8 The Underwriter shall furnish prompt notice (by wire or telephone,
followed by written confirmation) to the Company of the declaration of any
income, dividends or capital gain distributions payable on the Trust's shares.
The Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Fund shares in additional shares of that
Fund. The Company reserves the right to revoke this election and therefore to
receive all such income dividends and capital gain distributions in cash. The
Underwriter shall notify the Company of the number of shares so issued as
payment of such dividends and distributions.
1.9 The Underwriter shall make the net asset value per share for each Fund
available to the Company on a daily basis as soon as reasonably practical after
the Trust calculates its net asset value per share and each of the Trust and the
Underwriter shall use its best efforts to make such net asset value per share
available by 7:00 p.m. Eastern time.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that
(a) at all times during the term of this Agreement the Contracts are
or will be registered under the 1933 Act; the Contracts will be issued and
sold in compliance in all material respects with all applicable laws and
the sale of the Contracts shall comply in all material respects with state
insurance suitability laws and regulations. The Company further represents
and warrants that it is an insurance company duly organized and in good
standing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a
separate account under applicable law and has registered or, prior to any
issuance or sale of the Contracts, will register each Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve
as a segregated investment account for the Contracts; and
(b) the Contracts are currently treated as endowment, annuity or life
insurance contracts, under applicable provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), and that it will make every effort
to maintain such treatment and that it will notify the Trust and the
Underwriter immediately upon having a reasonable basis for believing that
the Contracts have ceased to be so treated or that they might not be so
treated in the future.
2.2 The Trust represents and warrants that
(a) it is lawfully organized and validly existing under the laws of
the Commonwealth of Massachusetts and that it does and will comply in all
material respects with the 1940 Act.
(b) it is currently qualified as a Regulated Investment Company under
Subchapter M of the Code, and that it will use its best efforts to maintain
such qualification (under Subchapter M or any successor provision) and that
it will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify
in the future; and
(c) at all times during the term of this Agreement Trust shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold by the Trust to the Company in compliance
with all applicable laws, subject to the terms of Section 2.4 below, and
the Trust is and shall remain registered under the 1940 Act. The Trust
shall amend the Registration Statement for its shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Trust shall register and qualify the
shares for sale in accordance with the laws of the various states only if
and to the extent deemed advisable by the Trust or the Underwriter in
connection with their sale by the Trust to the Company and only as required
by Section 2.4;
2.3 The Underwriter represents and warrants that
(a) it is a member in good standing of the NASD;
(b) is registered as a broker-dealer with the SEC;
(c) it will sell and distribute the Trust shares in accordance with
all applicable securities laws, including without limitation, the 1933 Act,
the 1934 Act and the 1940 Act.
2.4 Notwithstanding any other provision of this Agreement, the Trust shall
be responsible for the registration and qualification of its shares and of the
Trust itself under the laws of any jurisdiction only in connection with the
sales of shares directly to the Company through the Underwriter. The Trust shall
not be responsible, and the Company shall take full responsibility, for
determining any jurisdiction in which any qualification or registration of Trust
shares or the Trust by the Trust may be required in connection with the sale of
the Contracts or the indirect interest of any Contract in any shares of the
Trust and advising the Trust thereof at such time and in such manner as is
necessary to permit the Trust to comply.
2.5 The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1 The Trust shall provide such documentation (including a camera-ready
copy of its prospectus) and other assistance as is reasonably necessary in order
for the Company once each year (or more frequently if the prospectus for the
Trust is amended) to have the prospectus for the Contracts and the Trust's
prospectus printed together in one or more documents. The cost of printing
prospectuses for the Contracts and the Trust for delivery in connection with the
offering and sale of new Contracts will be at the Underwriter's expense.
Printing of prospectuses for other purposes will be at the Company's expense.
The Company will bear the expense of mailing prospectuses to new purchasers of
Contracts.
3.2 The Trust's Prospectus shall state that the Statement of Additional
Information for the Trust is available from the Underwriter or its designee (or
in the Trust's discretion, the Prospectus shall state that such Statement is
available from the Trust), and the Underwriter (or the Trust), at its expense,
shall print and provide such Statement free of charge to the Company and free of
charge to any owner of a Contract or prospective owner who requests such
Statement.
3.3 The Trust, at its expense, shall provide the Company with copies of its
reports to shareholders, proxy material and other communications to shareholders
in such quantity as the Company shall reasonably require for distribution to the
Contract owners, such distribution shall be at the expense of the Trust,
provided that the Trust and the Company shall bear their proportional share of
the distribution expenses of any report containing both the Trust's and the
Accounts' financial reports.
3.4 The Company shall vote all Trust shares as required by law and the
Shared Funding Exemptive Order. The Company reserves the right to vote Trust
shares held in any separate account in its own right, to the extent permitted by
law and the Shared Funding Exemptive Order. The Company shall be responsible for
assuring that each of its separate accounts participating in the Trust
calculates voting privileges in a manner consistent with all legal requirements
and the Shared Funding Exemptive Order.
3.5 The Trust will comply with all applicable provisions of the 1940 Act
requiring voting by shareholders, and in particular the Trust will either
provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Trust is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, 16(b). Further,
the Trust will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of trustees and
with whatever rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1 Without limiting the scope or effect of Section 4.2 hereof, the Company
shall furnish, or shall cause to be furnished, to the Underwriter each piece of
sales literature or other promotional material (as defined hereafter) in which
the Trust, its investment adviser or the Underwriter is named at least 10 days
prior to its use. No such material shall be used if the Underwriter objects to
such use within five Business Days after receipt of such material.
4.2 The Company shall not give any information or make any representations
or statements on behalf of the Trust or concerning the Trust in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus for the Trust shares, as
such registration statement and prospectus may be amended or supplemented from
time to time, or in annual or semi-annual reports or proxy statements for the
Trust, or in sales literature or other promotional material approved by the
Trust or its designee or by the Underwriter, except with the written permission
of the Trust or the Underwriter or the designee of either or as is required by
law.
4.3 The Underwriter or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material prepared by the Underwriter in which the Company
and/or its separate account(s) is named at least 10 days prior to its use. No
such material shall be used if the Company or its designee objects to such use
within five Business Days after receipt of such material.
4.4 Neither the Trust nor the Underwriter shall give any information or
make any representations on behalf of the Company concerning the Company, each
Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may be amended or supplemented from time
to time, or in published reports for each Account which are in the public domain
or approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the written permission of the Company or as is required by
law.
4.5 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media), sales literature
(i.e. any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all registered representatives.
ARTICLE V. Fees and Expenses
5.1 Except as provided in Article VI, the Trust and Underwriter shall pay
no fee or other compensation to the Company under this agreement.
5.2 All expenses incident to performance by the Trust under this Agreement
shall be paid by the Trust. The Trust shall bear the expenses for the cost of
registration and qualification of the Trust's shares, preparation and filing of
the Trust's prospectus and registration statement, proxy materials and reports,
setting the prospectus and shareholder reports in type, setting in type and
printing the proxy materials, distributing reports and proxy statements to
contractholders (provided that if the reports are combined with the Company's
reports the Trust and the Company shall bear such share of the expense as its
proportion of the joint report bears the the whole combined report) and the
preparation of all statements and notices required by any federal or state law,
in each case as may reasonably be necessary for the performance by it of its
obligations under this Agreement.
5.3 The Company shall bear the expenses of printing the Trust's prospectus
(other than those used in connection with the offering and sales of the
Contracts) and of distributing the Trust's prospectuses to new purchasers of
Contracts.
Article VI. Service Fees
6.1 The Underwriter shall pay the Company a service fee (the "Service Fee")
on shares of the Funds held in the Accounts at the annual rates specified in
Schedule B (excluding any accounts for the Company's own corporate retirement
plans), subject to Section 6.2 hereof.
6.2 The Company understands and agrees that all Service Fee payments are
subject to the limitations contained in each Fund's Distribution Plan, which may
be varied or discontinued at any time, and understands and agrees that it will
cease to receive such Service Fee payments with respect to a Fund if the Fund
ceases to pay fees to the Underwriter pursuant to its Distribution Plan.
6.3 (a) The Company's failure to provide the services described in Section
6.4 will render it ineligible to receive Service Fees; and
(b) the Underwriter may, without the consent of the Company, amend
this Article VI to change the amount of Service Fees or the terms on which
Service Fees are paid or to terminate further payments of Service Fees upon
written notice to the Company.
6.4 The Company will provide the following services to the Contract Owners
purchasing Fund shares:
(i) Maintaining regular contact with Contract owners and assisting in
answering inquiries concerning the Funds;
(ii) Assisting in the process of printing and distributing shareholder
reports, prospectuses and other sale and service literature provided by the
Underwriter;
(iii) Assisting the Underwriter and its affiliates in the
establishment and maintenance of Contract owner and shareholder accounts
and records;
(iv) Assisting Contract owners in effecting administrative changes,
such as exchanging shares in or out of the Funds;
(v) Assisting in processing purchase and redemption transactions; and
(vi) Providing any other information or services as the Contract
owners or the Underwriter may reasonably request.
The Company will support the Underwriter's marketing and servicing efforts
by granting reasonable requests for visits to the Company's offices by
representatives of the Underwriter.
6.5 The Company's performance under the service requirement set forth in
this Agreement will be evaluated from time to time by the Underwriter's
monitoring of redemption levels of Fund shares held in any Account and by such
other methods as the Underwriter deems appropriate.
ARTICLE VII. Diversification
7.1 The Trust shall cause each Authorized Fund to maintain a diversified
pool of investments that would, if such Fund were a segregated asset account,
satisfy the diversification provisions of Treas. Reg. ss. 1.817-5(b)(1) or (2).
7.2 The Trust shall annually send the Company a certificate, in the form
mutually agreed, certifying as to its compliance with Section 7.1.
ARTICLE VIII. Potential Conflicts
8.1 The Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Trust. A material irreconcilable conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities law or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Fund are being managed; (e) a difference in voting instructions given by
variable annuity contract and variable life insurance contract owners; or (f) a
decision by an insurer to disregard the voting instructions of contract owners.
The Trust shall promptly inform the Company if the Trustees determine that a
material irreconcilable conflict exists and the implications thereof.
8.2 The Company will report any potential or existing conflicts of which it
is aware to the Trustees. The Company will assist the Trustees in carrying out
their responsibilities under the Shared Funding Exemptive Order, by providing
the Trustees with all information reasonably necessary for the Trustees to
consider any issues raised. This includes, but is not limited to, an obligation
by the Company to inform the Trustees whenever Contract owner voting
instructions are disregarded.
8.3 If it is determined by a majority of the Trustees, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall to the extent reasonably practicable (as determined by a majority
of the disinterested Trustees), take, at the Company's expense, whatever steps
are necessary to remedy or eliminate the material irreconcilable conflict, up to
and including: (1) withdrawing the assets allocable to some or all of the
separate accounts from the Trust or any Fund and reinvesting such assets in a
different investment medium, including (but not limited to) another Fund of the
Trust, or submitting the question whether such segregation should be implemented
to a vote of all affected contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity contract owners, life insurance
contract owners, or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering to the
affected contract owners the option of making such a change; and (2)
establishing a new registered management investment company or managed separate
account.
8.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the affected Account's
investment in one or more Authorized Funds of the Trust and terminate this
Agreement with respect to such Account; provided, however, that such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested Trustees. No charge or penalty shall be imposed as a result of
such withdrawal. Any such withdrawal and termination must take place within six
(6) months after the Trust gives written notice that this provision is being
implemented, and until the end of that six month period the Underwriter and
Trust shall, to the extent permitted by law and any exemptive relief previously
granted to the Trust, continue to accept and implement orders by the Company for
the purchase (or redemption) of shares of the Trust.
8.5 If a material irreconcilable conflict arises because of a particular
state insurance regulator's decision applicable to the Company to disregard
Contract owner voting instructions and that decision represents a minority
position that would preclude a majority vote, then the Company may be required,
at the Trust's direction, to withdraw the affected Account's investment in one
or more Authorized Funds of the Trust; provided, however, that such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Any such withdrawal and termination must take place
within six (6) months after the Trust gives written notice that this provision
is being implemented, unless a shorter period is required by law, and until the
end of the foregoing six month period (or such shorter period if required by
law), the Underwriter and Trust shall, to the extent permitted by law and any
exemptive relief previously granted to the Trust, continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Trust. No charge or penalty will be imposed as a result of such withdrawal.
8.6 For purposes of Sections 8.3 through 8.6 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any material irreconcilable conflict. Neither the Trust nor
the Underwriter shall be required to establish a new funding medium for the
Contracts, nor shall the Company be required to do so, if an offer to do so has
been declined by vote of a majority of Contract owners materially adversely
affected by the material irreconcilable conflict. In the event that the Trustees
determine that any proposed action does not adequately remedy any material
irreconcilable conflict, then the Company will withdraw the Account's investment
in one or more Authorized Funds of the Trust and terminate this Agreement within
six (6) months (or such shorter period as may be required by law or any
exemptive relief previously granted to the Trust) after the Trustees inform the
Company in writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested Trustees. No charge or penalty will be imposed as a result of such
withdrawal.
8.7 The responsibility to take remedial action in the event of the
Trustees' determination of a material irreconcilable conflict and to bear the
cost of such remedial action shall be the obligation of the Company, and the
obligation of the Company set forth in this Article VIII shall be carried out
with a view only to the interests of Contract owners.
8.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940
Act or the rules promulgated thereunder with respect to mixed or shared funding
(as defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Trust and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable;
and (b) Sections 3.4, 3.5, 8.1, 8.2, 8.3, 8.4 and 8.5 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or
adopted.
8.9 The Company has reviewed the Shared Funding Exemption Order and hereby
assumes all obligations referred to therein which are required, including,
without limitation, the obligation to provide reports, material or data as the
Trustees may request as conditions to such Order, to be assumed or undertaken by
the Company.
ARTICLE IX. Indemnification
9.1. Indemnification by the Company
9.1 (a). The Company shall indemnify and hold harmless the Trust and the
Underwriter and each of the Trustees, directors of the Underwriter, officers,
employees or agents of the Trust or the Underwriter and each person, if any, who
controls the Trust or the Underwriter within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
9.1) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company which consent may not
be unreasonably withheld) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject under any
statute, regulation or at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Trust's shares or the
Contracts or the performance by the parties of their obligations hereunder and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a Registration
Statement, Prospectus or Statement of Additional Information for the
Contracts or contained in the Contracts or sales literature for the
Contracts (or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Company by or on behalf
of the Trust for use in the Registration Statement, Prospectus or Statement
of Additional Information for the Contracts or in the Contracts or sales
literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Trust shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations contained in the
Trust's Registration Statement or Prospectus, or in sales literature for
Trust shares not supplied by the Company, or persons under its control) or
wrongful conduct of the Company or persons under its control, with respect
to the sale or distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a Registration Statement, Prospectus, or sales
literature of the Trust or any amendment thereof or supplement thereto or
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance upon
information furnished to the Trust or the Underwriter by or on behalf of
the Company; or
(iv) arise out of or result from any breach of any representation
and/or warranty made by the Company in this Agreement or arise out of or
result from any other breach of this Agreement by the Company, as limited
by and in accordance with the provisions of Sections 9.1(b) and 9.1(c)
hereof.
9.1 (b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party to the extent such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations or duties under this
Agreement or to the Trust, whichever is applicable.
9.1 (c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), on the basis of which the Indemnified
Party should reasonably know of the availability of indemnity hereunder in
respect of such claim but failure to notify the Company of any such claim shall
not relieve the Company from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Company to such Indemnified Party of
the Company's election to assume the defense thereof the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such Indemnified Party under this Agreement for
any legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other than reasonable costs
of investigation.
9.1 (d) The Underwriter shall promptly notify the Company of the
commencement of any litigation or proceedings against the Trust or the
Underwriter in connection with the issuance or sale of the Trust Shares or the
Contracts or the operation of the Trust.
9. 1 (e) The provisions of this Section 9.1 shall survive any termination
of this Agreement.
9.2 Indemnification by the Underwriter
9.2 (a) The Underwriter shall indemnify and hold harmless the Company and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act and any director, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this Section 9.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Underwriter which consent may not
be unreasonably withheld) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
regulation or at common law, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the Trust's shares or the Contracts or the
performance by the parties of their obligations hereunder and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the sales literature of
the Trust prepared by or approved by the Trust or Underwriter (or any
amendment or supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in conformity
with information furnished to the Underwriter or Trust by or on behalf of
the Company for use in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or Trust
shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations contained in the
Registration Statement, Prospectus, Statement of Additional Information or
sales literature for the Contracts not supplied by the Underwriter or
persons under its control) of the Underwriter or persons under its control,
with respect to the sale or distribution of the Contracts or Trust shares;
or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a Registration Statement, Prospectus,
Statement of Additional Information or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of the Underwriter; or
(iv) arise out of or result from any breach of any representation
and/or warranty made by the Underwriter in this Agreement or arise out of
or result from any other breach of this Agreement by the Underwriter or
result from a breach of Article VII; as limited by and in accordance with
the provisions of Sections 9.2(b) and 9.2(c) hereof.
9.2 (b) The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party for willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to each Company or the Account, whichever is
applicable.
9.2 (c) The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent) on the basis of which the Indemnified
Party should reasonably know of the availability of indemnity hereunder in
respect of such claim, but failure to notify the Underwriter of any such claim
shall not relieve the Underwriter from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought against
the Indemnified Parties, the Underwriter will be entitled to participate, at its
own expense, in the defense thereof. The Underwriter also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Underwriter to such Indemnified Party
of the Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Underwriter will not be liable to such Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such
Indemnified Party independently in connection with the defense thereof other
than reasonable costs of investigation.
9.2 (d) The Company shall promptly notify the Underwriter of the Trust of
the commencement of any litigation or proceedings against it or any of its
officers or directors, in connection with the issuance or sale of the Contracts
or the operation of each Account.
9.2 (e) The provisions of this Section 9.2 shall survive any termination of
this Agreement.
9.3 Indemnification by the Trust
9.3 (a) The Trust shall indemnify and hold harmless the Company, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act and any director, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this Section 9.3)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Trust which consent may not be
unreasonably withheld) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
operations of the Trust and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a Registration
Statement, Prospectus and Statement of Additional Information of the Trust
(or any amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Underwriter or Trust by
or on behalf of the Company for use in the Registration Statement,
Prospectus, or Statement of Additional Information for the Trust (or any
amendment or supplement) or otherwise for use in connection with the sale
of the Contracts or Trust shares; or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Trust (including Section 7.1 hereof), as limited by and in accordance with
the provisions of Sections 9.3(b) and 9.3(c) hereof.
9.3 (b) The Trust shall not be liable under the indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against an Indemnified Party for willful misfeasance, bad faith, or
gross negligence or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to the Company, the Trust, the
Underwriter or each Account, whichever is applicable.
9.3 (c) The Trust shall not be liable under this indemnification provision
with respect to any claim made against any Indemnified Party unless such
Indemnified Party shall have notified the Trust in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent) on the basis of which the Indemnified Party should reasonably
know of the availability of indemnity hereunder in respect of such claim, but
failure to notify the Trust of any such claim shall not relieve the Trust from
any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties, the Trust
will be entitled to participate, at its own expense, in the defense thereof. The
Trust also shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to the Indemnified Party named in the action. After
notice from the Trust to such Indemnified Party of the Trust's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Trust will not be
liable to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof other than reasonable costs of
investigation.
9.3 (d) The Company agrees promptly to notify the Trust of the commencement
of any litigation or proceedings against it or any of its officers or directors,
in connection with this Agreement, the issuance or sale of the Contracts or the
sale or acquisition of shares of the Trust.
9.3 (e) The provisions of this Section 9.3 shall survive any termination of
this Agreement.
ARTICLE X. Applicable Law
10.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
10.2 This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Shared Funding Exemptive Order) and the
terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE XI. Termination
11.1.This Agreement shall terminate:
(a) upon the second anniversary of the termination of the Joint
Venture Agreement, dated March __, 1999, between Putnam Investments, Inc.
and the Allstate Corporation.
(b) at the option of the Trust upon 180 days prior written notice,
upon a decision by the Trustees of the Trust that termination of the
Agreement is in the best interests of shareholders of the Trust; or
(c) with respect to any Account, upon requisite vote of the Contract
owners having an interest in such Account (or any subaccount) to substitute
the shares of another investment company for the corresponding Fund shares
of the Trust in accordance with the terms of the Contracts for which those
Fund shares had been selected to serve as the underlying investment media.
The Company will give 90 days' prior written notice to the Trust of the
date of any proposed vote to replace the Trust's shares; or
(d) with respect to any Authorized Fund, upon 60 days advance written
notice from the Underwriter to the Company, upon a decision by the
Underwriter to cease offering shares of the Fund for sale.
11.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 11.1 (a) may be exercised for any
reason or for no reason.
11.3 No termination of this Agreement shall be effective unless and until
the party terminating this Agreement gives prior written notice to all other
parties to this Agreement of its intent to terminate, which notice shall set
forth the basis for such termination. Such prior written notice shall be given
in advance of the effective date of termination as required by this Article XI.
11.4 Notwithstanding any termination of this Agreement, subject to Section
1.2 of this Agreement, the Trust and the Underwriter shall, at the option of the
Company, continue to make available additional shares of the Trust pursuant to
the terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, subject to Section 1.2
of this Agreement, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Trust, redeem investments in the Trust and/or
invest in the Trust upon the making of additional purchase payments under the
Existing Contracts. The parties agree that this Section 11.4 shall not apply to
any termination under Article VIII and the effect of such Article VIII
termination shall be governed by Article VIII of this Agreement.
11.5 The Company shall not redeem Trust shares attributable to the
Contracts (as opposed to Trust shares attributable to the Company's assets held
in either Account) except (i) as necessary to implement Contract owner initiated
transactions, or (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally required Redemption"). Upon request, the Company will promptly
furnish to the Trust and the Underwriter an opinion of counsel for the Company,
reasonably satisfactory to the Trust, to the effect that any redemption pursuant
to clause (ii) above is a Legally Required Redemption. Furthermore, except in
cases where permitted under the terms of the Contracts, subject to Section 1.2
of this Agreement, the Company shall not prevent Contract owners from allocating
payments to an Authorized Fund that was otherwise available under the Contracts
without first giving the Trust or the Underwriter 90 days notice of its
intention to do.
ARTICLE XII. Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Trust:
One Post Office Square
Boston, MA 02109
Attention: John R. Verani
If to the Underwriter:
One Post Office Square
Boston, MA 02109
Attention: General Counsel
If to the Company:
[Address]
<PAGE>
ARTICLE XIII. Miscellaneous
13.1 A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of State of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of or arising out of this instrument, including without limitation Article VII,
are not binding upon any of the Trustees or shareholders individually but
binding only upon the assets and property of the Trust.
13.2 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
13.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
13.5 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall pertmit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
13.6 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
13.7 Notwithstanding any other provision of this Agreement, the obligations
of the Trust and the Underwriter are several and, without limiting in any way
the generality of the foregoing, neither such party shall have any liability for
any action or failure to act by the other party, or any person acting on such
other party's behalf.
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified below.
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
By its authorized officer,
Name:
Title:
PUTNAM VARIABLE TRUST
By its authorized officer,
Name:
Title:
PUTNAM MUTUAL FUNDS CORP.
By its authorized officer,
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
LAW AND REGULATION DEPARTMENT
3100 Sanders Road, J5B
Northbrook, Illinois 60062
Direct Dial Number 847-402-2400
Facsimile 847-402-4371
Michael J. Velotta
Vice President, Secretary
and General Counsel
February 1, 2000
TO: ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
NORTHBROOK, ILLINOIS 60062
FROM: MICHAEL J. VELOTTA
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
RE: FORM N-4 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933 AND
THE INVESTMENT COMPANY ACT OF 1940
FILE NOS. 333-74411, 811-07467
With reference to the above-mentioned amended Registration Statement on
Form N-4 ("Registration Statement") filed by Allstate Life Insurance Company of
New York (the "Company"), as depositor, and Allstate Life of New York Separate
Account A, as registrant, with the Securities and Exchange Commission covering
the Flexible Premium Deferred Variable Annuity Contracts described therein, I
have examined such documents and such law as I have considered necessary and
appropriate, and on the basis of such examination, it is my opinion that as of
February 1, 2000:
1. The Company is duly organized and existing under the laws of the State
of New York and has been duly authorized to do business by the Director of
Insurance of the State of New York.
2. The securities registered by the Registration Statement when issued will
be valid, legal and binding obligations of the Company.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus constituting a part of the Registration Statement.
Sincerely,
Michael J. Velotta
Vice President, Secretary and
General Counsel
EXHIBIT 10 (a)
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Post-Effective Amendment No. 1 to
Registration Statement No. 333-74411 of Allstate Life of New York Separate
Account A of Allstate Life Insurance Company of New York on Form N-4 of our
report dated February 19, 1999 relating to the financial statements and the
related financial statement schedules of Allstate Life Insurance Company of New
York, and our report dated March 18, 1999 relating to the financial statements
of Allstate Life of New York Separate Account A, appearing in the Statement of
Additional Information (which is incorporated by reference in the Prospectus of
Allstate Life of New York Separate Account A of Allstate Life Insurance Company
of New York), which is part of such Registration Statement, and to the reference
to us under the heading "Experts" in such Statement of Additional Information.
Chicago Illinois
February 1, 2000
<PAGE>
EXHIBIT 10(b)
Freedman, Levy, Kroll & Simonds
CONSENT OF
FREEDMAN, LEVY, KROLL & SIMONDS
We hereby consent to the reference to our firm under the caption "Legal
Matters" in the prospectus contained in Post-Effective Amendment No. 1 to the
Form N-4 Registration Statement of Allstate Life of New York Separate Account A
(File No. 333-74411).
Washington, D.C.
January 27, 2000
