UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT ("Agreement") is hereby entered into on this
21st day of September, 1998, between PROTECTIVE LIFE INSURANCE COMPANY
("PROTECTIVE"), a life insurance company organized and existing under the laws
of the State of Tennessee, for itself or on behalf of Protective Variable
Annuity Account, a separate account established by Protective in accordance with
the laws of the State of Tennessee, and INVESTMENT DISTRIBUTORS, INC. ("IDI"), a
broker-dealer organized and existing under the laws of the State of Tennessee.
WITNESSETH:
WHEREAS, the Board of Directors of PROTECTIVE has registered interests in
certain variable annuity contracts as set forth in Schedule A, ("Contracts")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, and the Investment
Company Act of 1940, as amended;
WHEREAS, IDI is a broker-dealer registered as such under the Securities
Exchange Act of 1934 and is a member of the National Association of Securities
Dealers, Inc. ("NASD");
WHEREAS, IDI has agreed to act as principal underwriter in connection with
offers and sales of the Contracts under the terms and conditions set forth in
this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions set forth herein, PROTECTIVE and IDI agree as follows:
I.
IDI DUTIES
1. PROTECTIVE hereby appoints IDI as its principal underwriter of the
Contracts. PROTECTIVE reserves the right to appoint additional underwriters.
2. IDI hereby accepts such appointment as principal underwriter. IDI shall
offer the Contracts only on the terms set forth in PROTECTIVE'S currently
effective registration statements.
3. IDI as principal underwriter for the Contracts will use its best
efforts to effect offers and sales of the Contracts through broker-dealers that
are members of the National Association of Securities Dealers, Inc. and whose
registered representatives are duly licensed as insurance agents of PROTECTIVE.
IDI is responsible for compliance with all applicable requirements of the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder, and all other applicable laws, rules and regulations
relating to the sales and distribution of the Contracts, the need for which
arises out of its duties as principal underwriter of said Contracts.
4. IDI agrees that it will not use any prospectus, sales literature, or
any other printed matter or material or offer for sale or sell the Contracts if
any of the foregoing in any way represent the duties, obligations, or
liabilities of PROTECTIVE as being greater than, or different from, such duties,
obligations and liabilities as are set forth in this Agreement, and in the
Contracts, as it or they may be amended from time to time.
5. IDI agrees that it will only utilize the then currently effective
prospectus relating to the Contracts in connection with its selling efforts.
As to the other types of sales materials, IDI agrees that it will use only
sales materials which conform to the requirements of federal and state
securities and insurance laws and regulations and which have been filed, where
necessary, with the appropriate regulatory authorities.
6. IDI agrees that it or its duly designated agent shall maintain records
as required by the Securities Exchange Act of 1934, as amended, the Securities
Act of 1933, as amended, and the Investment Company Act of 1940, as amended.
7. IDI's services pursuant to this Agreement shall not be deemed to be
exclusive, and it is understood by the parties hereto that IDI may also render
similar services and act as underwriter, distributor, or dealer for other
companies in the offering of their securities.
8. In the absence of willful misfeasance, bad faith, gross negligence, or
reckless disregard of its obligations and duties under the terms of this
Agreement, IDI shall not be subject to liability to any contract owner or party
in interest under the Contracts for any acts or omissions to act in the course
of, or connected with, rendering services hereunder.
9. IDI shall remain fully responsible for its own conduct and that of its
agents, representatives and employees under applicable law.
10. IDI shall at all times, conform with the requirements of any federal
and state laws and regulations and the rules of the NASD, relating to the sales
of the Contracts.
II.
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PROTECTIVE'S DUTIES
1. PROTECTIVE reserves the right at any time to suspend or limit the
offering of the Contracts upon thirty days written notice to IDI, except where
the notice period may be shortened because of legal action taken by any
regulatory agent.
2. PROTECTIVE agrees to advise IDI immediately:
(a) Of any request by the Securities and Exchange Commission for amendment
of its registration statements for additional information;
(b) Of the issuance by the Securities and Exchange Commission of any stop
order suspending the effectiveness of the registration statements relating to
the Contracts or of the initiation of any proceedings for that purpose;
(c) Of the happening of any material event, if known, which makes untrue
any statement in said registration statements or which requires change therein
in order to make any statement therein not misleading.
3. PROTECTIVE will furnish to IDI such information with respect to the
Contracts in such form and signed by such of its officers and directors as IDI
may reasonably request and will warrant that the statements therein contained
when so signed will be true and correct. PROTECTIVE will also furnish, from time
to time, such additional information regarding PROTECTIVE'S financial condition
as IDI may reasonably request.
III.
COMPENSATION
For providing the principal underwriting functions on behalf of
PROTECTIVE, IDI shall be entitled to receive compensation as agreed upon from
time to time in writing by PROTECTIVE and IDI.
IV.
RESIGNATION AND REMOVAL OF
PRINCIPAL UNDERWRITER
IDI may resign as Principal Underwriter upon 120 days prior written notice
to PROTECTIVE. However, such resignation shall not become effective until a
successor Principal Underwriter has been designated and has accepted its duties.
PROTECTIVE may remove IDI as Principal Underwriter at any time by written
notice.
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V.
MISCELLANEOUS
1. This Agreement may not be assigned by either of the parties hereto
without the written consent of the other party.
2. 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:
(a) If to PROTECTIVE - Protective Life Insurance Company
P. O. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxx
Senior Vice President,
Investments
(b) If to IDI - Investment Distributors, Inc.
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Counsel
or to such other address as IDI or PROTECTIVE shall designate by written notice
to the other.
3. 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 one
instrument, and an executed copy of this Agreement and all amendments hereto
shall be kept on file by PROTECTIVE and shall be open to inspection at any time
during the business hours of PROTECTIVE.
4. This Agreement shall inure to the benefit of and be binding upon the
successor of the parties hereto.
5. This Agreement shall be construed and governed by and according to the
laws of the State of Alabama.
6. This Agreement may be amended from time to time by the mutual agreement
and consent of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed this 21st day of September, 1998.
PROTECTIVE LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxx
---------------------------------------
Title: Senior Vice President, Investments
-----------------------------------------
ATTEST:
/s/ Xxxxx X. Xxxxxxxx
---------------------------
INVESTMENT DISTRIBUTORS, INC.
By: /s/ R. Xxxxxxx Xxxxxx
--------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
ATTEST:
/s/ Xxxxx X. Xxxxxxxx
----------------------------
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As of February 24, 1999
SCHEDULE A
Account and Date Established
by Board of Directors Contracts Funded by Separate Account
--------------------- ------------------------------------
Protective Variable Annuity The Protective Variable Annuity, an
Separate Account (12/23/93) individual flexible premium deferred
variable annuity contract
The Elements(sm) Variable Annuity, a flexible
premium deferred variable and fixed
annuity contract
The Elements(sm) Access Variable Annuity,
a flexible premium deferred variable and
fixed annuity contract
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