EXHIBIT (3)
COPY OF UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT made this 1st day of December 1996,
by
and between BenefitsCorp Equities, Inc. (the Underwriter ) and
Great-West
Life & Annuity Insurance Company (the Insurance Company ), on its
own
behalf and on behalf of the FutureFunds Series Account of Great-West
Life &
Annuity Insurance Company (the Series Account ), as follows:
WHEREAS, the Insurance Company has registered the Series Account
as a
unit investment trust under the Investment Company Act of 1940, as
amended
(the 1940 Act ) and has registered the Contracts under the Securities
Act
of 1933;
WHEREAS, the Underwriter is registered as a broker dealer with
the
Securities and Exchange Commission (the SEC ) under the
Securities
Exchange Act of 1934, as amended (the 1934 Act ), and is a member of
the
National Association of Securities Dealers, Inc. (the NASD ); and
WHEREAS, the Insurance Company and the Series Account desire to
have
the Contracts sold and distributed through the Underwriter, and
the
Underwriter is willing to sell and distribute such Contracts under
the
terms stated herein;
NOW THEREFORE, the parties hereto agree as follows:
1. Representations, Responsibilities and Warranties of Insurance
Company
1.01 The Insurance Company represents that it has the authority,
and
hereby agrees to, grant the Underwriter the right to serve as
the
distributor and principal underwriter of the Contracts during the term
of
this Agreement.
1.02 The Insurance Company represents and warrants that it is
duly
licensed as an insurance company under the laws of the State of
Colorado
and that it has taken all appropriate actions to establish the
Series
Account in accordance with state and federal laws.
1.03 The Insurance Company agrees to update and maintain a
current
prospectus for the Contracts as required by law.
1.04 The Insurance Company represents that it reserves the right
to
appoint or refuse to appoint, any proposed associated person of
the
Underwriter as an agent or broker of the Insurance Company. The
Insurance
Company also retains the right to terminate such agents or brokers
once
appointed.
1.05 On behalf of the Series Account, the Insurance Company
shall
furnish the Underwriter with copies of all financial statements and
other
documents which the Underwriter reasonably requests for use in
connection
with the distribution of the contracts.
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2. Representations, Responsibilities and Warranties of Underwriter
2.01 Underwriter represents that it has the authority and
hereby
agrees to serve as distributor and principal underwriter of the
Contracts
during the term of this Agreement.
2.02 The Underwriter represents that it is duly registered
as a
broker-dealer under the 1934 Act and is a member in good standing of
the
NASD and to the extent necessary to offer the Contracts, shall be
duly
registered or otherwise qualified under the securities laws of any state
or
other jurisdiction.
2.03 The Underwriter agrees to use its best efforts to
solicit
applications for the Contracts, and to undertake, at its own expense,
to
provide all sales services relative to the Contracts and otherwise
to
perform all duties and functions which are necessary and proper for
the
distribution of the Contracts.
2.04 The Underwriter agrees to offer the Contracts for sale
in
accordance with the prospectus therefor, then in effect. The
Underwriter
represents and agrees that it is not authorized to give any information
or
make any representations concerning the Contracts other than
those
contained in the current prospectus as filed with the SEC or in such
sales
literature as may be authorized by the Insurance Company.
2.05. The Underwriter shall be fully responsible for carrying out
its
sales, underwriting and compliance supervisory obligations hereunder
in
compliance with the NASD Conduct Rules and all other relevant federal
and
state securities laws and regulations. Without limiting the generality
of
t h e f oregoing, the Underwriter agrees that it shall have
full
responsibility for:
(a) ensuring that no person shall offer or sell the
Contracts
o n i ts behalf until such person is duly registered as
a
representative of the Underwriter, and duly licensed and appointed
by
the Insurance Company;
(b) ensuring that no person shall offer or sell the
Contracts
on its behalf until the Underwriter has confirmed that the
Insurance
Company is appropriately licensed, or otherwise qualified to
offer
and sell such Contracts under the federal securities laws and
any
applicable state or jurisdictional securities and/or insurance
laws
in each state or jurisdiction in which such Contracts may be
lawfully
sold;
(c) continually training, supervising, and controlling
all
registered representatives and other agents of the Underwriter
for
purposes of complying with the NASD Conduct Rules and with
federal
and state securities laws which may be applicable to the offering
and
sale of the Contracts. In this respect, the Underwriter shall:
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(1) conduct training programs (including the
preparation
and utilization of training materials) as is necessary, in
the
Underwriter s opinion, to comply with applicable laws
and
regulations;
( 2 ) establish and implement reasonable
written
procedures for the supervision of the sales practices
of
agents, representatives or brokers who sell the Contracts;
and
(3) take reasonable steps to ensure that its
associated
persons shall not make recommendations to an applicant
to
purchase a Contract in the absence of reasonable grounds
to
believe that the purchase of the Contract is suitable for
such
applicants; and
(d) supervising and ensuring compliance with NASD rules of
all
administrative functions performed by the Underwriter with respect
to
the offering and sale of the Contracts and representations
with
respect to the Series Account.
2.06 The Underwriter, or its affiliates, on behalf of the
Insurance
Company, shall apply for the proper insurance licenses in the
appropriate
states or jurisdictions for the designated persons associated with
the
Underwriter or with independent broker-dealers which have entered
into
agreements with the Underwriter for the sale of the Contracts.
The
Underwriter agrees to pay all licensing or other fees necessary to
properly
authorize such persons for the sale of the Contracts.
2.07 The Underwriter shall have the responsibility for paying
(i)
all commissions or other fees to its associated persons which are due
for
the sale of the Contracts and (ii) any compensation to independent
broker-
dealers and their associated persons due under the terms of any
sales
agreements between the Underwriter and such broker-dealers.
Provided,
however, the Insurance Company retains the ultimate right to reject
any
commission rate allowed by the Underwriter. Furthermore, no
associated
person or independent broker-dealer shall have an interest in the
surrender
charges, deductions or other fees payable to Underwriter as set
forth
herein. The Underwriter shall have the responsibility for calculating
and
furnishing periodic reports to the Insurance Company as to the sale of
the
Contracts, and as to the commissions and service fees payable to
persons
selling the Contracts.
3. Records and Confidentiality
3.01 The Insurance Company and the Underwriter shall cause to
be
maintained and preserved for the periods prescribed, such accounts,
books,
records, files and other documents and materials ( Records ) as
are
required of it by the 1940 Act and any other applicable laws
and
regulations. The Records of the Insurance Company, the Series Account
and
the Underwriter as to all transactions hereunder shall be maintained so
as
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to disclose clearly and accurately the nature and details of
the
transactions.
3.02 The Underwriter shall cause the Insurance Company to
be
furnished with such Records, or copies thereof, as the Insurance
Company
may reasonably request for the purpose of meeting its reporting
and
recordkeeping requirements under the insurance laws of the State
of
Colorado and any other applicable states or jurisdictions.
3.03 The Insurance Company shall cause the Underwriter to
be
furnished with any Records, or copies thereof, as the Underwriter
may
r e a sonably request for the purpose of meeting its reporting
and
recordkeeping requirements under the federal securities laws or
the
securities laws of any inquiring jurisdiction.
3.04 The Underwriter agrees and understands that all Records
shall
be the sole property of the Insurance Company and that such property
shall
be held by the Underwriter, or its agents during the term of
this
agreement. Upon termination, all Records shall be returned to
the
Insurance Company.
3.05 Insurance Company agrees and understands that the
Underwriter
may maintain copies of the Records as is required by any
relevant
securities law, the SEC, the NASD or any other self regulatory agency.
3.06 Underwriter shall establish and maintain facilities
and
procedures for the safekeeping of all Records relative to this
Agreement.
3.07 The parties hereto agree that all Records pertaining to
the
business of the other party which are exchanged or received pursuant
to
this Agreement, shall remain confidential and shall not be
voluntarily
disclosed to any other person, except to the extent disclosure thereof
may
be required by law. All such confidential information in the possession
of
each of the parties hereto shall be returned to the party from whom it
was
obtained upon the termination or expiration of this Agreement.
4. Relationship of the Parties
4.01 Notwithstanding anything in this Agreement to the contrary,
the
Underwriter or the Insurance Company may enter into sales agreements
with
independent broker-dealers for the sale of the Contracts.
4.02 All such sales agreements as described in 4.01, above,
which
are entered into by the Insurance Company or the Underwriter shall
provide
that each independent broker-dealer will assume full responsibility
for
continued compliance by itself and its associated persons with NASD
Conduct
Rules and applicable federal and state securities laws. All
associated
persons of such independent broker-dealers soliciting applications for
the
Contracts shall be duly and appropriately licensed and/or appointed for
the
sale of the Contracts under the insurance laws of the applicable state
or
jurisdiction in which the Contracts may be lawfully sold.
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4.03 The services of the Underwriter to the Series Account
hereunder
are not to be deemed exclusive and the Underwriter shall be free to
render
similar services to others so long as the services rendered hereunder
are
not interfered with or impaired.
5. Term and Termination
5.01 Subject to termination, the Agreement shall remain in
full
force and effect for one year, and shall continue in full force and
effect
from year to year until terminated as provided below. Each additional
year
shall be an additional term of this Agreement.
5.02 This Agreement may be terminated:
(a) by either party upon sixty (60) days written notice to
the
other party;
(b) immediately, upon written notice in the event
of
bankruptcy or insolvency of one party;
(c) at any time upon mutual written consent of the parties;
(d) immediately in the event of its assignment;
provided
however, assigned shall not include any transaction
exempted
from section 15(b)(2) of the 1940 Act;
(e) immediately in the event that the Underwriter no
longer
qualifies as a broker-dealer under applicable federal law;
and
(f) immediately in the event of fraud,
misrepresentation,
conversion or unlawful withholding of funds by a party.
5.03 Upon termination of this Agreement, all authorization,
rights,
and obligations shall cease except the obligations to settle
accounts
hereunder, including payments or premiums or contributions
subsequently
received for Contracts in effect at the time of termination or
issued
pursuant to applications received by the Insurance Company prior
to
termination.
5.04 After notice of termination, the parties agree to cooperate
to
effectuate an orderly transition of all accounts, payments and Records.
6. Miscellaneous
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6.01 This Agreement shall be subject to the provisions of the
1940
Act, the 1934 Act and the rules, regulations and rulings thereunder.
In
addition it shall be subject to the rulings of the NASD, as issued
from
time to time, and any exemptions from the 1940 Act the SEC may grant.
All
terms of this Agreement will be interpreted and construed in
accordance
with compliance of this section 6.01.
6.02 Except as otherwise provided, Underwriter acknowledges
that
Insurance Company retains the overall right and responsibility to
direct
and control the activities of the Underwriter.
6.03 If any provisions of this Agreement shall be held or
made
invalid by a court decision, statute, rule or otherwise, the remainder
of
this Agreement shall remain in full force and effect.
6.04 This Agreement constitutes the entire Agreement between
the
parties hereto and may not be modified except in a written
instrument
executed by all the parties hereto.
6.05 This Agreement shall be governed by the internal laws of
the
State of Colorado.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be
signed by their respective duly authorized officers and have caused
their
respective seals to be affixed hereto, as of the day and year first
written
above.
Great-West Life & Annuity Insurance
Company
/s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
Witness: Xxxxxxx X. XxXxxxxx
President and Chief Executive
Officer
BenefitsCorp Equities, Inc.
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Witness: Xxxxxxx X. Xxxxxx
President
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