EXHIBIT 3(a)
PRINCIPAL UNDERWRITING AGREEMENT
THIS AGREEMENT, is entered into on this 25th day of November, 1998, by
and among LINCOLN BENEFIT LIFE COMPANY, ("LBL" or "Company") a life insurance
company organized under the laws of the State of Nebraska, on its own and on
behalf of the VARIABLE ANNUITY ACCOUNT (A) ("Separate Account"), a separate
account established pursuant to the insurance laws of the State of Nebraska, and
ALLSTATE LIFE FINANCIAL SERVICES, INC., ("Principal Underwriter"), a corporation
organized under the laws of the state of Delaware.
WITNESSETH:
WHEREAS, Company proposes to issue to the public certain flexible
premium deferred variable annuity contracts identified in the Attachment A
("Contracts"); and
WHEREAS, Company, by resolution adopted on August 3, 1992, established
the Separate Account for the purpose of issuing the Contracts; and
WHEREAS, the Separate Account is registered with the Securities and
Exchange Commission ("Commission") as a unit investment trust under the
Investment Company Act of 1940, as amended, ("Investment Company Act") (File No.
811-7924); and
WHEREAS, the Contracts to be issued by Company are registered with the
Commission under the Securities Act of 1933, as amended, ("Securities Act")
(File No. 33-66786, 333-50545, 333-59765, 333-50736, 333-59765) for offer and
sale to the public and otherwise are in compliance with all applicable laws; and
WHEREAS, Principal Underwriter, a broker-dealer registered under the
Securities Exchange Act of 1934, as amended, ("Exchange Act") and a member of
the National Association of Securities Dealers, Inc. ("NASD"), proposes to act
as principal underwriter on an agency (best efforts) basis in the marketing and
distribution of said Contracts; and
WHEREAS, Company desires to obtain the services of Principal
Underwriter as an underwriter and distributor of said Contracts issued by
Company through the Separate Account;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, the Company, the Separate Account, and the Principal Underwriter
hereby agree as follows:
1. AUTHORITY AND DUTIES
(a) Principal Underwriter will serve as an underwriter and distributor
on an agency basis for the Contracts which will be issued by the Company through
the Separate Account.
(b) Principal Underwriter will use its best efforts to provide
information and marketing assistance to licensed insurance agents and
broker-dealers on a continuing basis. However, Principal Underwriter shall be
responsible for compliance with the requirements of state broker-dealer
regulations and the Exchange Act as each applies to Principal Underwriter in
connection with its duties as distributor of said Contracts. Moreover, Principal
Underwriter shall conduct its affairs in accordance and compliance with the NASD
Conduct Rules.
(c) Subject to agreement with the Company, Principal Underwriter may
enter into selling agreements with broker-dealers which are registered under the
Exchange Act and/or authorized by applicable law or exemptions to sell variable
annuity contracts issued by Company through the Separate Account. Any such
contractual arrangement is expressly made subject to this Agreement, and
Principal Underwriter will at all times be responsible to Company for
supervision of compliance with the federal securities laws regarding
distribution of Contracts.
2. WARRANTIES
(a) The Company represents and warrants to Principal Underwriter that:
(i) Registration Statements on Form N-4 and S-1 of the
Contracts identified in Attachment A have been filed with the Commission in the
form previously delivered to Principal Underwriter and that copies of any and
all amendments thereto will be forwarded to Principal Underwriter at the time
that they are filed with Commission;
(ii) The Registration Statement and any further amendments or
supplements thereto will, when they become effective, conform in all material
respects to the requirements of the Securities Act and the Investment Company
Act, and the rules and regulations of the Commission under such Acts, and will
not contain any untrue statement of a material fact 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 statement or omission made in reliance upon and in conformity
with information furnished in writing to Company by Principal Underwriter
expressly for use therein;
(iii) The Company is validly existing as a stock life
insurance company in good standing under the laws of the State of Nebraska, with
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 it owns or
leases properties, or conducts any business;
(iv) The Contracts to be issued by the Company through the
Separate Account and offered for sale by Principal Underwriter on behalf of the
Company hereunder have been duly and validly authorized and, when issued and
delivered with payment therefore 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 to be
appropriately licensed and/or appointed to comply with the state insurance laws;
(vi) The performance of this Agreement and the consummation of
the transactions contemplated by this Agreement will not result in a violation
of any of the provisions of or default under any statute, indenture, mortgage,
deed of trust, note agreement or other agreement or instrument to which Company
is a party or by which Company is bound (including Company's Charter or By-laws
as a stock life insurance company, or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over Company or any of its
properties);
(vii) There is no consent, approval, authorization or order of
any court or governmental agency or body required for the consummation by
Company of the transactions contemplated by this Agreement, except such as may
be required under the Exchange Act or state insurance or securities laws in
connection with the distribution of the Contracts; and
(viii) There are no material legal or governmental proceedings
pending to which Company or the Separate Account is a party or of which any
property of Company or the Separate Account is the subject (other than as set
forth in the Prospectus relating to the Contracts, or litigation incidental to
the kind of business conducted by the Company) which, if determined adversely to
Company, would individually or in the aggregate have a material adverse effect
on the financial position, surplus or operations of Company.
(b) Principal Underwriter represents and warrants to Company that:
(i) It is a broker-dealer duly registered with the Commission
pursuant to the Exchange Act, is a member in good standing of the NASD, and is
in compliance with the securities laws in those states in which it conducts
business as a broker-dealer;
(ii) As a principal underwriter, it shall permit the offer and
sale of Contracts to the public only by and through persons who are
appropriately licensed under the securities laws and who are appointed in
writing by the Company to be authorized insurance agents, unless such persons
are exempt from licensing and appointment requirements;
(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,
indenture, mortgage, deed of trust, note agreement or other agreement or
instrument to which Principal Underwriter is a party or by which Principal
Underwriter is bound (including the Certificate of Incorporation or By-laws of
Principal Underwriter or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over either Principal
Underwriter or its property); and
(iv) To the extent that any statements made in the
Registration Statement, or any amendments or supplements thereto, are made in
reliance upon and in conformity with written information furnished to Company by
Principal Underwriter expressly for use therein, such statements 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 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.
3. BOOKS AND RECORDS
(a) Principal Underwriter shall keep, in a manner and form approved by
Company and in accordance with Rules 17a-3 and 17a-4 under the Exchange Act,
correct records and books of account as required to be maintained by a
registered broker-dealer, acting as principal underwriter, of all transactions
entered into on behalf of Company with respect to its activities under this
Agreement. Principal Underwriter shall make such records and books of account
available for inspection by the Commission, the NASD, and all other regulatory
bodies having jurisdiction, and Company shall have the right to inspect, make
copies of or take possession of such records and books of account at any time
upon demand.
(b) Subject to applicable Commission or NASD restrictions, Company will
send confirmations of Contract transactions to Contract Owners. Company will
make such confirmations and records of transactions available to Principal
Underwriter upon request. Company will also maintain Contract Owner records on
behalf of Principal Underwriter to the extent permitted by applicable securities
laws.
4. SALES MATERIALS
(a) After authorization to commence the activities contemplated herein,
Principal Underwriter will utilize the currently effective prospectus relating
to the subject Contracts in connection with its underwriting, marketing and
distribution efforts. As to other types of sales material, Principal Underwriter
hereby agrees and will require any participating or selling broker-dealers to
agree that they will use only sales materials which have been authorized for use
by Company, which conform to the requirements of federal and state securities
laws and regulations and state insurance laws and regulations, and which have
been filed where necessary with the appropriate regulatory authorities,
including the NASD.
(b) Principal Underwriter will not distribute any prospectus, sales
literature or any other printed matter or material in the underwriting and
distribution of any Contract if, to the knowledge of Principal Underwriter, any
of the foregoing misstates the duties, obligation or liabilities of Company or
Principal Underwriter.
5. COMPENSATION
(a) Company agrees to pay Principal Underwriter for direct expenses
incurred on behalf of Company. Such direct expenses shall include, but not be
limited to, the costs of goods and services purchased from outside vendors,
travel expenses and state and federal regulatory fees incurred on behalf of
Company.
(b) Principal Underwriter shall present to Company a statement after
the end of the quarter showing the apportionment of services rendered and the
direct expenses incurred. Settlements are due and payable within thirty days.
6. PURCHASE PAYMENTS
Principal Underwriter shall arrange that all purchase payments collected on the
sale of the Contracts are promptly and properly transmitted to Company for
immediate allocation to the Separate Account in accordance with the Investment
Company Act and rules and regulations thereunder, the procedures of Company and
the directions furnished by the purchasers of such Contracts at the time of
purchase.
7. UNDERWRITING TERMS
(a) Principal Underwriter makes no representations or warranties
regarding the number of Contracts to be sold by licensed broker-dealers and
registered representatives of broker-dealers or the amount to be paid
thereunder. Principal Underwriter does, however, represent that it will actively
engage in its duties under this Agreement on a continuous basis while there is
an effective registration statement with the Commission.
(b) Principal Underwriter will use its best efforts to ensure that the
Contracts shall be offered for sale by registered broker-dealers and registered
representatives (who also are duly licensed as insurance agents) on the terms
described in the currently effective prospectus describing such Contracts.
(c) It is understood and agreed that Principal Underwriter may render
similar services to other companies in the distribution of other variable
contracts.
(d) The Company will use its best efforts to assure that the Contracts
are continuously registered under the Securities Act (and under any applicable
state "blue sky" laws) and to file for approval under state insurance laws when
necessary.
(e) The Company reserves the right at any time to suspend or limit the
public offering of the subject Contracts upon one day's written notice to
Principal Underwriter.
8. LEGAL AND REGULATORY ACTIONS
(a) The Company agrees to advise Principal Underwriter immediately of:
(i) any request by the Commission for amendment of the
Registration Statement or for additional information relating to the Contracts;
(ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement relating to the
Contracts or the initiation of any proceedings for that purpose; and
(iii) the happening of any known material event which makes
untrue any statement made in the Registration Statement relating to the
Contracts or which requires the making of a change therein in order to make any
statement made therein not misleading.
(b) 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.
(c) During any legal action or inquiry, Company will furnish to
Principal Underwriter such information with respect to the Separate Account and
Contracts in such form and signed by such of its officers as Principal
Underwriter may reasonably request and will warrant that the statements therein
contained when so signed are true and correct.
9. TERMINATION
(a) This Agreement will terminate automatically upon its assignment.
(b) This Agreement shall terminate without the payment of any penalty
by either party upon sixty (60) days' advance written notice.
(c) This Agreement shall terminate at the option of the Company upon
institution of formal proceedings against Principal Underwriter by the NASD or
by the Commission, or if Principal Underwriter or any representative thereof at
any time:
(i) employs any device, scheme, artifice, statement or
omission to defraud any person;
(ii) fails to account and pay over promptly to the Company
money due it according to the Company's records; or
(iii)violates the conditions of this Agreement.
10. INDEMNIFICATION
The Company agrees to indemnify Principal Underwriter for any liability that it
may incur to a Contract owner or party-in-interest under a Contract:
(a) arising out of any act or omission in the course of or in
connection with rendering services under this Agreement; or
(b) arising out of the purchase, retention or surrender of a contract;
provided, however, that the Company will not indemnify Principal Underwriter for
any such liability that results from the willful misfeasance, bad faith or gross
negligence of Principal Underwriter or from the reckless disregard by such
Principal Underwriter of its duties and obligations arising under this
Agreement.
11. GENERAL PROVISIONS
(a) This Agreement shall be subject to the laws of the State of
Nebraska.
(b) This Agreement, along with any Schedules attached hereto and
incorporated herein by reference, may be amended from time to time by the mutual
agreement and consent of the undersigned parties.
(c) In case any provision in this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in way be affected or impaired thereby.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be duly executed, to be effective as of November 25, 1998.
LINCOLN BENEFIT LIFE COMPANY
(and LINCOLN BENEFIT LIFE COMPANY VARIABLE ANNUITY ACCOUNT)
BY: ______________________________
President & Chief Operating Officer
ALLSTATE LIFE FINANCIAL SERVICES, INC.
BY: ______________________________
President
UNDERWRITING AGREEMENT
Attachment A
"Contracts" Form #
Investor's Select VAP 9330
Consultant I VAP 9830
Consultant II VAP 9840
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