Exhibit 99.B3
DISTRIBUTION AND ADMINISTRATIVE SERVICES AGREEMENT
This Agreement, made and entered into on this ___ day of __________,
19___, by and between American National Insurance Company ("American National"),
a life insurance company organized under the laws of the State of Texas,
American National Variable Annuity Separate Account ("Separate Account"), a
separate account established by American National pursuant to the Texas
Insurance Code and Securities Management and Research, Inc. ("SM&R"), a
corporation organized under the laws of the State of Florida.
W I T N E S S E T H:
WHEREAS, American National proposes to issue to the public certain
variable contracts ("Contracts") and has authorized the creation of one or more
separate investment accounts in connection therewith; and
WHEREAS, American National has established the Separate Account for the
purpose of issuing the Contracts and is registering the Separate Account with
the Securities and Exchange Commission ("Commission") as a unit investment trust
under the Investment Company Act of 1940; and
WHEREAS, the Contracts to be issued by the Separate Account are to be
registered with the Commission under the Securities Act of 1933 for offer and
sale to the public, and otherwise in compliance with all applicable laws; and
WHEREAS, SM&R, a broker-dealer registered under the Securities Exchange
Act of 1934 and a member of the National Association of Securities Dealers,
Inc., proposes to act as the distributor in the offering and sale of said
Contracts;
WHEREAS, SM&R also proposes to perform certain administrative, processing
and clerical services for American National in connection with the offering and
sale of said Contracts; and
WHEREAS, American National desires to obtain such distribution and other
services from SM&R;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, American National, the Separate Account and SM&R hereby agree as
follows:
1. SM&R will serve as distributor for the Contracts which will be issued by
American National through the Separate Account and will be registered with
the Commission for offer and sale to the public. As Distributor, SM&R will
use its best efforts to effect offers and sales of the Contracts to the
public on a continuing basis. SM&R shall be responsible for compliance with
the requirements of any applicable state broker-dealer regulations and the
Securities Exchange Act of 1934 as each applies to SM&R in connection with
its duties as Distributor of said Contracts. Moreover, SM&R shall conduct
its affairs in accordance with the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. (NASD).
2. SM&R will assist American National in identifying, training and qualifying
(under appropriate NASD and/or state requirements) insurance agents
desiring to sell the Contracts. SM&R will register such agents as its
registered representatives before they engage in the sale of the Contracts
and will supervise
and control such agents in the sale of the Contracts in the manner and to
the extent required by the applicable rules of the NASD and the Commission.
If any such agent of American National should fail or refuse to submit to
the supervision of SM&R in accordance with the terms of this Agreement or
otherwise fail to meet the rules and standards imposed by SM&R on its
registered representatives, SM&R shall take whatever steps may be necessary
to terminate the sales activities of such agent relating to the Contracts.
3. As distributor, SM&R will be responsible for the preparation of marketing
materials (and where appropriate obtaining regulatory approval), for
actively recruiting additional sales agents and sales organizations and for
providing sales training (including continuing education required for
license maintenance).
4. SM&R may contract with other broker-dealers registered under the Securities
Exchange Act of 1934 and authorized by applicable law to sell variable
contracts issued by the Separate Account. Any such contractual arrangement
is expressly made subject to this Agreement, and SM&R will at all times be
responsible to American National for the distribution of all Contracts
issued by the Separate Account.
5. The amount of any commissions payable in connection with the sale of
Contracts will be made by American National to the sales personnel of SM&R
and this function is being performed as a purely ministerial service and
the Records in respect thereof are properly reflected on the Books and
Records maintained by or for SM&R. The gross amounts paid or advances made
by American National on behalf of SM&R will be transmitted to SM&R for
proper reporting.
6. Warranties.
(a) American National represents and warrants to SM&R that:
(i) Any and all Registration Statements required for the Contracts
or the Separate Account have been filed with the Commission in
the form previously delivered to SM&R and that copies of any
and all amendments thereto will be forwarded to SM&R at the
time that they were filed with the Commission;
(ii) The Registration Statements and any further amendments or
supplements thereto will, when they become effective, conform
in all material respects to the requirements of the Securities
Act of 1933, the Investment Company Act of 1940 and the rules
and regulations of the Commission thereunder, and will not
contain untrue statements of material facts or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to American National by
SM&R expressly for use herein;
(iii) American National is validly existing as a stock life insurance
company in good standing under the laws of the State of Texas
with corporate power to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified for the transaction of business and is in good
standing under the laws of each other jurisdiction in which its
owns or leases properties, or conducts any business, so as to
require such qualification;
(iv) The Contracts to be issued by the Separate Account through SM&R
hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided
herein, will be duly and validly issued and will conform to the
description of such Contracts contained in the Prospectuses
relating thereto;
(v) Those persons who offer and sell the Contracts are
appropriately licensed in a manner as to comply with the state
insurance laws;
(vi) The performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any statutes, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument to which
American National is a party or by which American National is
bound, American National's Charter as a stock life insurance
company or By-Laws, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over
American National or any of its properties; and no consent,
approval, authorization or order of any court or governmental
agency or body is required for the consummation by American
National of the transactions contemplated by this Agreement,
except such as may be required under the Securities Exchange
Act of 1934 or state insurance or securities laws in connection
with the purchase and distribution of the Contracts by SM&R;
and
(vii) There are no material legal or governmental proceedings pending
to which American National or the Separate Account is a party
or of which any property of American National or the Separate
Account is the subject, other than as set forth in the
Prospectus relating to the Contracts, and other than litigation
incident to the kind of business conducted by American National
which, if determined adversely to American National, would
individually or in the aggregate have a material adverse effect
on the financial position, surplus or operations of American
National.
(b) SM&R represents and warrants to American National that:
(i) It is a broker-dealer duly registered with the Commission
pursuant to the Securities Exchange Act of 1934 and a member in
good standing of the National Association of Securities Dealers
and is in compliance with the securities laws in those states
in which it conducts business as a broker-dealer;
(ii) It shall permit the offer and sale of Contracts only by and
through persons who are appropriately licensed under both the
securities laws and state insurance laws;
(iii) The performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms or provisions of or constitute a
default under, any statute, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument to which
SM&R is a party or by which SM&R is bound, the Certificate of
Incorporation and By-Laws of SM&R, or any other rule or
regulation of any court or governmental agency or body having
jurisdiction over SM&R or its property;
(iv) No offering, sale or other disposition of any Contracts will be
made until SM&R is notified by American National that the
subject Registration Statement has been declared effective and
that the Contracts have been released for sale by American
National; and such offering, sale or other disposition shall be
limited to those jurisdictions that have approved or otherwise
permit the offer and sale of the Contracts by American
National.
(v) To the extent that any statements or omissions made in the
Registration Statements with respect to the Contracts, or any
amendment or supplement thereto are made in reliance upon and
in conformity with written information furnished to American
National by SM&R expressly for use therein, such Registration
Statements and any amendments or supplements thereto will, when
they become effective or are filed with the Commission, as the
case may be, conform in all material respects to the
requirements of the Securities Act of 1933 and the rules and
regulations of the Commission thereunder and will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading.
7. SM&R shall keep, in manner and form prescribed or approved by American
National and in accordance with Rules 17a-3 and 17a-4 under the Securities
Exchange Act of 1934 correct records and books of account as required to be
maintained by a registered broker-dealer acting as distributor of all
transactions entered into on behalf of American National and with respect
to variable contract business it conducts of American National. SM&R shall
make such records and books of account available for inspection by the
Commission, and American National shall have the right to inspect, make
copies of or take possession of such records and books of accounts at any
time on demand.
SM&R, however, may request that some or all of the books and records
relating to the sales of the Contracts which are required to be maintained
by it as a registered broker-dealer pursuant to Rule 17a-3 and 17a-4 under
the 1934 Act be prepared and maintained in accordance with such rules by
American National on behalf of and as agent for SM&R. American National
agrees that for the purposes of this Agreement, such books and records
shall be deemed to be the property of SM&R and shall be subject at all
times to examination by the Securities and Exchange Commission in
accordance with Section 17(a) of the 1934 Act and SM&R shall have the right
to inspect and make copies of such books and records of accounts at any
time on demand.
8. Upon the request of SM&R, American National agrees to prepare and send all
confirmations required to be sent by SM&R in connection with crediting
purchase payments under the Contracts. Any such confirmation shall be sent
upon or before the completion of each "transaction", as that term is used
in Rule 15c1-4 of the 1934 Act, and shall reflect the facts of the
transaction and indicate that the confirmation is forwarded on behalf of
SM&R in its capacity of Distributor of Contracts.
9. Subsequent to having been authorized to commence with the offering
contemplated herein, SM&R will utilize the currently effective Prospectus
relating to the subject Contracts in connection with its selling efforts.
As to the other types of sales material, SM&R agrees that it will use only
sales materials which conform to the requirements of federal and state laws
and regulations, and which have been filed where necessary with the
appropriate regulatory authorities, including the National Association of
Securities Dealers.
10. SM&R will not use any Prospectus, sales literature, or any other printed
matter or material in the offer or sale of any Contract if, to the
knowledge of SM&R, any of the foregoing misstates the duties, obligations
or liabilities of American National, the Separate Account or SM&R.
11. SM&R shall not be entitled to any remuneration for its services as
distributor. However, in payment for the administrative, processing and
clerical services provided by SM&R, American National shall pay SM&R a
processing fee of $50 for each Contract application submitted by SM&R and
accepted by American National. In addition, upon presentation of proper
evidence of expenditures, American National will reimburse SM&R for all of
SM&R's reasonable charges and expenses directly incurred in connection with
the performance of its duties and obligations contained in this Agreement.
12. SM&R makes no representation or warranties regarding the number of
Contracts to be sold or the amount to be paid thereunder. SM&R does,
however, represent that it will actively market such Contracts on a
continuous basis while there is an effective registration thereof with the
Commission.
13. SM&R may render similar services or act as a distributor or dealer for
issuers other than the Separate Account or sponsors other than American
National in the offering of their Contracts.
14. The Contracts shall be offered for sale on the terms described in the
currently effective Prospectus describing such Contracts.
15. American National will use its best efforts to register for sale, from time
to time if necessary, additional dollar amounts of the Contracts under the
Securities Act of 1933 and should it ever be required, under state Blue Sky
Laws and to file for approval under state insurance laws when necessary.
American National may require SM&R to assist it in obtaining any necessary
clearance or approval of prospectuses, sales literature and proxy materials
in accordance with the requirements of the Commission, the NASD or other
regulatory bodies.
16. American National reserves the right at any time to suspend or limit the
public offering of the subject Contracts upon one day's written notice to
SM&R.
17. American National agrees to advise SM&R immediately:
(a) of any request by the Commission (i) for amendment of the Securities
Act Registration Statement relating to the Contracts, or (ii) for
additional information;
(b) of issuance by the Commission of any stop order suspending the
effectiveness of its Registration Statement or the initiation of any
proceedings for that purpose; and
(c) of the happening of any material event, if known, which makes untrue
any statement made in its Registration Statement or which requires the
making of a change therein in order to make any statement made therein
not misleading.
18. American National will furnish to SM&R such information with respect to the
Separate Account and the Contracts in such form and signed by such of its
officers as SM&R may reasonably request; and will warrant that the
statements therein contained when so signed will be true and correct.
19. Each of the undersigned parties agrees to notify the other in writing upon
being apprised of the institution of any proceeding investigation or
hearing involving the offer or sale of the subject Contracts.
20. Absent the prior written consent of American National, this Agreement will
terminate automatically upon its assignment.
21. This Agreement shall terminate without payment of any penalty by either
party:
(a) at the option of American National or of SM&R upon sixty (60) days'
advance written notice to the other; or
(b) at the option of American National upon institution of formal
proceedings against SM&R by the National Association of Securities
Dealers or by the Commission; or
(c) at the option of American National, if SM&R or any representative
thereof at any time (i) employs any device, scheme, or artifice to
defraud; makes any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not
misleading; or engages in any act, practice, or course of business
which operates or would operate as a fraud or deceit upon any person;
(ii) fails to promptly account and pay over the American National
money due it according to its records; or (iii) violates the
conditions of this Agreement.
22. Each notice required by this Agreement may be given by wire or facsimile
transmission and confirmed in writing to :
Securities Management and Research, Inc.
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Attn: President
[Name of Separate Account]
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American National Insurance Company
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Attn: President
23. American National agrees to indemnify SM&R for any liability that SM&R may
incur to a Contract Owner or party-in-interest under a Contract (i) arising
out of any act or omission in the course of, or in connection with,
rendering services under this Agreement, or (ii) arising out of the
purchase, retention or surrender of a Contract; provided, however, that
American National will not indemnify SM&R for any such liability that
results from the willful misfeasance, bad faith or gross negligence of
SM&R, or from the reckless disregard, by SM&R, of its duties and
obligations arising under this Agreement.
24. This Agreement shall be subject to the laws of the State of Texas and
construed so as to interpret the Contracts as insurance products written
within the business operation of American National.
25. This Agreement covers and includes all agreements, verbal and written,
between SM&R and American National with regard to the offer and sale of the
Contracts, and supersedes and annuls any and all
agreements between the parties with regards to the distribution of the
Contracts; except that this Agreement shall not effect the operation of
previous agreements entered into between SM&R and American National
unrelated to the sale of the Contracts. This Agreement may be amended from
time to time by the mutual fund agreement and consent of the undersigned
parties; provided, that such amendment shall not affect the rights of
existing Contract Owners, and that such amendment be in writing and duly
executed.
In witness whereof, the undersigned parties have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested on the date first stated above.
AMERICAN NATIONAL INSURANCE COMPANY
____________________________________________
By: ________________________________________
Its: _______________________________________
AMERICAN NATIONAL VARIABLE ANNUITY SEPARATE
ACCOUNT
____________________________________________
By: ________________________________________
Its: _______________________________________
SECURITIES MANAGEMENT AND RESEARCH, INC.
____________________________________________
By: ________________________________________
Its: _______________________________________