EXHIBIT 99.3A
PRINCIPAL UNDERWRITING AND DISTRIBUTOR AGREEMENT
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THIS PRINCIPAL UNDERWRITING AND DISTRIBUTOR AGREEMENT is made as of this
25th day of April 2001, effective as of May 1, 2001 ("Effective Date"), by and
between United Investors Life Insurance Company ("United Investors"), a Missouri
corporation, on its own behalf and on behalf of United Investors Life Variable
Account, United Investors Advantage Gold Variable Account, United Investors
Annuity Variable Account and United Investors Universal Life Account,
collectively referred to herein as the Variable Accounts ("Variable Accounts"),
and XXX Financial Services, Inc. ("XXX Financial"), a Maryland corporation.
WITNESSETH:
WHEREAS, the Variable Accounts are segregated asset accounts established
and maintained by United Investors pursuant to the laws of the State of Missouri
for deferred variable annuity policies and flexible premium variable life
insurance policies issued by United Investors (herein collectively referred to
as "Variable Contracts"), under which income, gains, and losses, whether or not
realized, from assets allocated to such account, will be, in accordance with the
terms of each Variable Contract, credited to or charged against such account
without regard to other income, gains, or losses of United Investors; and
WHEREAS, United Investors has registered each Variable Account as a unit
investment trust under the Investment Company Act of 1940 (the "Investment
Company Act"); and
WHEREAS, XXX Financial has registered as a broker-dealer under the
Securities Exchange Act of 1934 (the "Exchange Act") and is a member of the
National Association of Securities Dealers, Inc. ("NASD"); and
WHEREAS, United Investors has registered the Variable Contracts under the
Securities Act of 1933 (the "Securities Act") and proposes to issue and sell the
Variable Contracts through XXX Financial acting as its principal underwriter:
NOW, THEREFORE, United Investors and XXX Financial hereby mutually agree as
follows:
1. Underwriting Services.
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(a) United Investors authorizes XXX Financial, during the term of this
Agreement, subject to the registration requirements of the Securities Act and
the Investment Company Act and the provisions of the Exchange Act, to be the
distributor and principal underwriter of the Variable Contracts. XXX Financial
agrees to use its reasonable efforts to distribute the Variable Contracts and to
undertake to provide sales support services with respect to the Variable
Contracts and otherwise to perform all duties and functions necessary and proper
for the distribution of the Variable Contracts.
(b) (i) To the extent necessary to fulfill its obligations as Principal
Underwriter and Distributor under this agreement, XXX shall be duly registered
or otherwise qualified under the federal securities laws.
(ii) XXX Financial shall be duly registered or otherwise qualified
under the
insurance laws of any state or other jurisdiction in which it offers for sale
the Variable Contracts. Any sales representatives of XXX Financial distributing
the Variable Contracts shall be duly and appropriately licensed, registered or
otherwise qualified for the sale of variable contracts under the federal
securities laws, any applicable insurance laws and securities laws of each state
or other jurisdiction in which such Variable Contracts may lawfully be sold and
in which United Investors is licensed to sell the Variable Contracts. XXX
Financial shall be responsible for the training, supervision, and control of its
own representatives for the purposes of the National Association of Securities
Dealers, Inc. ("NASD") Conduct Rules and federal and state securities law
requirements applicable in connection with the distribution of the Variable
Contracts. XXX Financial shall retain written supervisory procedures in
accordance with NASD Conduct Rule 3010.
(c) XXX Financial agrees to distribute the Variable Contracts for sale
in accordance with the prospectuses therefor filed with the Securities and
Exchange Commission ("Commission") then in effect. XXX Financial is not
authorized to give any information or to make any representations concerning the
Variable Contracts other than those contained in such current prospectuses or in
such sales literature as may be authorized by United Investors.
(d) All purchase payments made or other monies payable under the
Variable Contracts shall be paid or remitted by or on behalf of Variable
Contract owners directly to United Investors or its designated servicing agent
and shall become the exclusive property of United Investors. United Investors
will retain all such payments and monies except to the extent such payments and
monies are allocated to the Variable Accounts. United Investors shall pay to XXX
Financial or to the designated servicing agent if approved by XXX Financial all
such monies required to be paid as commissions with respect to the Variable
Contracts.
2. Sales Agreements.
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XXX Financial is authorized to enter into separate written sales
agreements, on such terms and conditions as XXX Financial may determine not to
be inconsistent with this Agreement, with broker-dealers registered as such
under the Exchange Act, for distribution of the Variable Contracts. These sales
agreements will be in a form mutually agreeable to the parties to this
Agreement.
3. Compensation.
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(a) For the distribution and sales services rendered by XXX Financial as
the Principal Underwriter and Distributor and the continuing obligations
discussed herein, United Investors shall pay XXX Financial a fee of $25,000 per
month, payable monthly in advance. United Investors also agrees to pay actual
out-of-pocket expenses incurred in connection with providing services pursuant
to this Agreement pursuant to monthly invoices furnished by XXX Financial.
Further, United Investors agrees to pay all other reasonable out-of-pocket
expenses (including attorney's fees) associated with the formation of the
relationship memorialized in this Agreement which shall be due and payable upon
submission of the calculation. Such invoices for payment will be paid by United
Investors within thirty (30) days after receipt.
(b) In addition to the compensation provided for in (a) above, XXX
Financial shall receive such additional compensation as is necessary for it to
fulfill its obligations to selling brokers who execute sales agreements pursuant
to Section 2.
(c) United Investors shall provide to XXX Financial at such times and
with such frequency as XXX Financial may from time to time hereinafter designate
in writing any and all commission records relating to the Variable Contracts
such that XXX Financial may maintain complete and accurate records and
accountings of all commissions and compensation payable through XXX Financial's
books and records pursuant to this Agreement and necessary to support XXX
Financial's FOCUS reports required to be filed with the NASD.
4. Records.
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United Investors and XXX Financial shall each maintain such accounts, books
and other documents as are required to be maintained by each by applicable laws
and regulations and shall preserve such accounts, books and other documents for
the periods prescribed by such laws and regulations. The accounts, books and
records of United Investors, the Variable Accounts, the Variable Contracts and
XXX Financial as to the transactions hereunder shall be maintained to clearly
and accurately disclose the nature and details of the transactions, including
such accounting information as necessary to demonstrate the reasonableness of
the amounts paid by either party hereunder. Each party shall have the right to
inspect and audit such accounts, books and records of the other party during
normal business hours upon reasonable written notice to the other party.
5. Regulations.
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(a) This Agreement shall be subject to the provisions of the Investment
Company Act and the Exchange Act and the rules, regulations, and rulings
thereunder and of the NASD, from time to time in effect, including such
exemptions from the Investment Company Act as the Commission may grant, and the
terms hereof shall be interpreted and construed in accordance therewith.
(b) XXX Financial shall submit to all regulatory and administrative
bodies having jurisdiction over the present and future operations of United
Investors or the Variable Accounts any information, reports or other material
which any such body by reason of this Agreement may request or require pursuant
to applicable laws or regulations.
6. Registration Statements, Prospectuses and Promotional Material.
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United Investors shall xxxxxxx XXX Financial with such number of copies of
all registration statements, prospectuses, financial statements, and all other
documents and materials that XXX Financial may reasonably request for use in
connection with the distribution of the Variable Contracts or otherwise. United
Investors shall not file or use any registration statement, any prospectus or
sales promotion materials of any kind whatsoever that bear or purport to bear
XXX Financial's name without XXX Financial's prior written consent. XXX
Financial and United Investors agree to cooperate fully in designing, drafting,
and reviewing sales promotion materials, and with respect to the preparation of
individual sales proposals related to the sale of the Variable Contracts;
provided, however, that, notwithstanding anything herein to the contrary, XXX
Financial and United Investors agree that (i) XXX Financial shall not use any
such sale promotion materials not provided or approved by United Investors and
the NASD and (ii) United Investors shall not itself use or authorize any other
person to use any such sales promotion materials unless such sales promotion
materials have been approved by XXX Financial and the NASD.
7. Investigations and Proceedings.
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(a) XXX Financial and United Investors agree to cooperate fully in any
insurance company regulatory investigation or proceeding or judicial proceedings
arising in connection with the Variable Contracts distributed under this
Agreement. XXX Financial and United Investors further agree to cooperate fully
in any securities regulatory inspection, inquiry, investigation or proceedings
or any judicial proceeding with respect to United Investors, XXX Financial,
their affiliates and their representatives to the extent that such inspection,
inquiry, investigation or proceeding is in connection with Variable Contracts
distributed under this Agreement. Without limiting the foregoing:
(i) United Investors will notify promptly XXX Financial promptly of
any customer complaint or notice of any regulatory inspection, inquiry,
investigation or proceeding or judicial proceeding received by United Investors
with respect to XXX Financial or any representative or which may affect United
Investors' issuance of any Policies marketed and/or serviced under this
Agreement; and
(ii) XXX Financial will promptly notify United Investors of any
customer complaint or notice of any regulatory inspection, inquiry,
investigation or judicial proceeding received by XXX Financial or any
representative with respect to United Investors or its affiliates in connection
with any Variable Contracts distributed under this Agreement or any activity in
connection with any Policies.
(b) In the case of a customer complaint, XXX Financial and United
Investors will cooperate in investigating such complaint and shall arrive at a
mutually satisfactory response.
8. Inspection.
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XXX Financial shall have the right to inspect any and all books and records
of United Investors and the Variable Accounts that XXX Financial deems necessary
to effect its duties hereunder at any such times during normal business hours as
XXX Financial may request.
9. Exclusivity.
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The services of XXX Financial and United Investors under this Agreement are
not deemed to be exclusive and XXX Financial and United Investors shall be free
to render similar services to others, including, without implied limitation,
such other separate investment accounts as are now or hereafter established by
United Investors, XXX Financial or any affiliate of XXX Financial so long as the
services of XXX Financial and United Investors hereunder are not impaired or
interfered with thereby.
10. Assignment.
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Neither party may assign this Agreement without the written consent of the
other party. This Agreement shall inure to the benefit of and be binding upon
the successor of the parties hereto.
11. Notices.
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All notices and other communications provided for hereunder shall be in
writing and shall be delivered by hand or mailed first class, postage prepaid,
addressed as follows:
If to United Investors:
United Investors Life Insurance Company
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
If to XXX Financial:
XXX Financial Services, Inc.
000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx, Xx.
With copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxxx Young & Xxxxxxx, L.L.C.
1200 AmSouth/Xxxxxxx Building
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Or to such other address as United Investors or XXX Financial shall
designate by written notice to the other.
12. Amendment.
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This Agreement may be amended from time to time by written agreement of the
parties.
13. Severability.
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If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
14. Term.
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This Agreement shall be effective for a term of twenty-four (24) months
from the Effective Date ("Initial Term"). Thereafter, this Agreement shall
automatically renew for a period of one (1) year unless either party shall have
provided written notice of its intent not to renew at least sixty (60) days
prior to the end of the Initial Term.
15. Termination.
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This Agreement may be terminated by either party for cause in the event of
(i) a breach of a material term of the Agreement by the other party, or (ii) the
willful misfeasance, bad faith or gross negligence of the other party. In the
event of a termination for cause, the terminating party shall deliver to the
breaching party a notice specifying the nature of the breach, and the breaching
party shall have thirty (30) days to cure such breach. Following the Initial
Term, either party may terminate this Agreement without penalty upon sixty (60)
days written notice to the other party. During the Initial Term, XXX Financial
may terminate this Agreement upon sixty (60) days prior notice; provided that,
United Investors has received written notice from the NASD approving the
membership of its broker-dealer subsidiary. Upon termination of this Agreement,
all authorizations, rights and obligations shall cease except (i) the obligation
to settle accounts hereunder, issued pursuant to applications received by United
Investors prior to termination and (ii) the agreements contained in paragraph 9
hereof.
16. Applicable Law.
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This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Missouri.
17. Counterparts.
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This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall be deemed an instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to the
duly executed as of the day and year first above written.
(seal)
UNITED INVESTORS LIFE
INSURANCE COMPANY
/s/ Xxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. XxXxxxxxx
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Title: Secretary and Counsel Title: President
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(seal) XXX FINANCIAL SERVICES, INC.
Attest:
By: /s/ X. Xxxxxxx
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Title: Title President/CEO
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