EXHIBIT 3(a)
Principal Underwriting Agreement
PRINCIPAL UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT made this 1st day of May, 2007, by and between
Ameritas Investment Corp., (hereinafter the "Underwriter") and Ameritas Life
Insurance Corp. hereinafter the "Insurance Company"), on its own behalf and on
behalf of Ameritas Variable Separate Account VA-2 and Ameritas Variable Separate
Account VA (hereinafter the "Accounts"), separate accounts of the Insurance
Company, as follows:
WHEREAS, the Accounts were established under authority of a consent
resolution of the Insurance Company's Board of Directors on March 1, 2007, in
order to set aside and invest assets attributable to certain variable annuity
contracts (hereinafter "Contracts") issued by the Insurance Company;
WHEREAS, the Insurance Company has registered or will register the
Accounts as unit investment trusts under the Investment Company Act of 1940 (the
"Investment Company Act") and has registered or will register the Contracts
under the Securities Act of 1933 (the "1933 Act").
WHEREAS, the Insurance Company has filed or will file the Contracts for
approval by the state insurance departments in those jurisdictions where it is
authorized to transact business.
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 Accounts desire to have
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. The Insurance Company grants to the Underwriter the right to be, and
the Underwriter agrees to serve as distributor and principal
underwriter of the Contracts during the term of this Agreement. The
Underwriter agrees to use its best efforts to solicit applications for
the Contracts at its own expense, and otherwise to perform all duties
and functions which are necessary and proper for the distribution of
the Policies.
2. All premiums for Contracts shall be remitted promptly in full together
with such application, forms, and any other documents required by the
Insurance Company. Checks or money orders in payment of premiums shall
be drawn to the order of "Ameritas Life Insurance Corp."
3. The Underwriter agrees to offer the Contracts for sale in accordance
with the prospectuses in effect. The Underwriter is not authorized to
give any information or to make any representations concerning the
Contracts other than those contained in the current prospectuses filed
with the SEC or in such sales literature as may be developed and
authorized by the Insurance Company in conjunction with the
Underwriter.
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4. The Underwriter shall be responsible for any filings of advertisements
or sales literature required to be made with the NASD.
5. The Underwriter agrees to join Insurance Company, upon Insurance
Company's request and after independent review of such matters, in any
joint applications required to be filed with the SEC under the 1934
Act, the 1933 Act and the Investment Company Act.
6. The Insurance Company shall be responsible for any filings of
advertising and sales literature required to be made with state
insurance regulators.
7. On behalf of the Accounts, the Insurance Company shall furnish the
Underwriter with copies of all prospectuses, financial statements and
other documents which the Underwriter reasonably requests for use in
connection with the distribution of the Contracts.
8. Insurance Company represents to Underwriter that the prospectus
included in Insurance Company's Registration Statement, post-effective
amendments thereto and any supplements thereto, as filed or to be
filed with the SEC, as of their effective dates, contain or will
contain, all statements and information which are required to be
stated therein by the 1933 Act and in all respects conform or will
conform to the requirements thereof. Neither any prospectus, nor any
supplement thereof, includes or will include, any untrue statement of
a material fact, or omits or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided, however, that the foregoing
representations shall not apply to information contained in or omitted
from any prospectus or supplement in reliance upon, and in conformity
with, written information furnished to Insurance Company by
Underwriter specifically for use in the preparation thereof. The
foregoing representation also shall not apply to information contained
in or omitted from any prospectus or supplement of any underlying
mutual fund.
9. 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 and
insurance laws of any state or other jurisdiction. The Underwriter
shall be responsible itself, or through contracts with others,
including Insurance Company, for carrying out its sales and
underwriting obligations hereunder in continued compliance with the
NASD Rules of Fair Practice and federal and state securities laws and
regulations. Without limiting the generality of the foregoing, the
Underwriter agrees that it shall be fully responsible for:
(a) ensuring that no person shall offer or sell the Contracts on its
behalf until such person is duly registered as a representative
of the Underwriter, duly licensed and appointed by the Insurance
Company, and appropriately licensed, registered or otherwise
qualified to offer and sell such Contracts under the federal
securities laws and any applicable securities laws and insurance
laws of each state or other jurisdiction in which such Contracts
may be lawfully sold, in which the Insurance Company is licensed
to sell the Contracts and in which such persons shall offer or
sell the Contracts; and
(b) training, supervising, and controlling all such persons for
purposes of complying on a continuous basis with the NASD Rules
of Fair Practice and with federal and state securities law
requirements applicable in connection with the offer and sale of
the
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Contracts. Underwriter is responsible for all costs associated
with this undertaking. In connection with this undertaking, the
Underwriter shall:
(1) conduct such training (including the preparation and
utilization of training materials) as in the opinion of the
Underwriter is necessary to accomplish the purposes of this
Agreement;
(2) establish and implement reasonable written procedures for
supervision of sales practices of agents, representatives or
brokers selling the Contracts; and
(3) take reasonable steps to ensure that its associated persons
shall not make recommendations to an applicant to purchase a
Contract and shall not sell a Contract in the absence of
reasonable grounds to believe that the purchase of the
Contract is suitable for such applicant.
10. The Underwriter is hereby authorized to enter into sales agreements with
other independent broker-dealers for the sale of the Contracts. All such
sales agreements entered into by the Underwriter shall provide that each
independent broker-dealer will assume full responsibility for continued
compliance by itself and its associated persons with the NASD Rules of Fair
Practice 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 or appointed for the
sale of the Contracts under the Federal and state securities laws and the
insurance laws of the applicable states or jurisdictions in which such
Contracts may be lawfully sold.
11. 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 other independent broker-dealers which have
entered into agreements with the Underwriter for the sale of the Contracts,
provided that the Insurance Company reserves the right to refuse to appoint
any proposed registered representative as an agent or broker, and to
terminate an agent or broker once appointed. The cost of licensing for a
designated person will be paid by the party designating such person for
licensing. The Insurance Company will pay the cost of appointing all
designated persons.
12. The Insurance Company and the Underwriter shall cause to be maintained and
preserved for the periods prescribed such accounts, books, and other
documents as are required of them by the Investment Company Act of 1940,
the 1934 Act, and any other applicable laws and regulations. The books,
accounts and records of the Insurance Company, the Accounts, and the
Underwriter as to all transactions hereunder shall be maintained so as to
disclose clearly and accurately the nature and details of the transactions.
The Insurance Company shall maintain such books and records of the
Underwriter pertaining to the sale of the Contracts and required by the
1934 Act as may be mutually agreed upon from time to time by the Insurance
Company and the Underwriter; provided that such books and records shall be
the property of the Underwriter, and shall at all times be subject to such
reasonable periodic, special or other examination by the SEC and all other
regulatory bodies having jurisdiction. The Insurance Company shall be
responsible for sending all required confirmations on customer transactions
in compliance with applicable regulations, as modified by any exemption or
other relief obtained by the Insurance Company. The Underwriter shall cause
the Insurance Company to be furnished with such
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reports 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 Nebraska and any other applicable states or
jurisdictions.
13. The Insurance Company shall have the responsibility for paying (i) all
commissions or other fees to associated persons of the Underwriter which
are due for the sale of the Contracts and (ii) any compensation to other
independent broker-dealers and their associated persons due under the terms
of any sales agreements between the Underwriter, Insurance Company, and
such broker-dealers. Notwithstanding the preceding sentence, no associated
person or broker-dealer shall have an interest in any deductions or other
fees payable to the Underwriter pursuant to the terms of this Agreement.
14. If Insurance Company is required to refund premiums or return accumulation
values and waive surrender charges on any Policy for any reason; then no
commission will be payable on such payments, and previously paid
commissions, to the extent they are refunded by the Insurance Company, must
be refunded by the Underwriter.
15. Fees payable to the Underwriter in connection with underwriting the
policies shall be payable in accordance with Schedule A, which may be
revised from time to time by written agreement of the parties.
Fees payable to the Underwriter in connection with the sale of the policies
by its registered representatives shall be payable in accordance with
Schedule B, which may be revised from time to time by written agreement of
the parties.
16. The Insurance Company and the Underwriter hereby agree to comply with all
applicable laws and regulations intended to prevent, detect, and report
money laundering and suspicious transactions and will take all necessary
and appropriate steps, consistent with applicable regulations and generally
accepted industry practices, to (1) obtain, verify, and retain information
with regard to policyowner identification and source of funds, and (2) to
maintain records of all account transactions.
Each party to this Agreement also agrees (to the extent consistent with
applicable law) to take all steps necessary and appropriate to provide
requested information about policyowners to any other party to this
Agreement that shall request such information due to an inquiry or
investigation by any law enforcement, regulatory or administrative
authority. To the extent permitted by applicable law and/or regulation,
each party to this Agreement 'shall notify all other parties to this
Agreement of any concerns that shall arise in connection with any
policyowner in the context of relevant anti-money laundering
legislation/regulations. Each party to this Agreement shall hold harmless
all other parties to this Agreement for any actions that may arise for good
faith attempts to comply with all applicable laws, rules and/or regulations
of governmental agencies, law enforcement organizations and/or Self
Regulatory Organizations.
17. Insurance Company shall indemnify Underwriter for any losses to which
Underwriter may become subject, insofar as such losses result from
negligent, fraudulent or unauthorized acts or omissions by Insurance
Company or its employees.
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18. That beginning May 1, 2007, and on the first day of each and every month
thereafter, Insurance Company agrees to pay to Underwriter the sum of
$10,000.00 (Ten Thousand Dollars) in addition to any other sums required to
be paid under the Principal Underwriting Agreement heretofore executed;
which said payment shall be as additional compensation to Underwriter for
performing duties under the Principal Underwriting Agreement.
19. Underwriter agrees to indemnify the Insurance Company for any losses to
which Insurance Company may be subject if the losses arise out of or result
from negligent, improper, fraudulent or unauthorized acts or omissions by
Underwriter, its employees, sales personnel, agents or principals,
including but not limited to improper solicitations of applications for
Policies, unauthorized use of sales materials or advertisements, or any
oral or written misrepresentations or unlawful sales practices.
20. (a) Except as provided by paragraph 20(b) through (e), this Agreement may
be terminated by either party hereto upon 180 days' written notice to the
other party.
(b) This Agreement may be terminated immediately upon written notice of
one party to the other party hereto in the event of bankruptcy or
insolvency of the party to which notice is given.
(c) This Agreement may be terminated immediately, at the option of
Insurance Company, in the event that formal administrative proceedings
are instituted against the Underwriter by the NASD, SEC, any state
Insurance Commissioner or any other regulatory body regarding
Underwriter's duties under this Agreement or related to the sale of
Policies, and Insurance Company determines in its sole judgment
exercised in good faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the Underwriter to
perform its obligations under this Agreement.
(d) This Agreement may be terminated immediately, at the option of
Underwriter, in the event that any of the underlying funds are not
registered, issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such shares as the
underlying investment media of the Policies issued or to be issued by
Insurance Company.
(e) This Agreement may be terminated immediately, at the option of
Underwriter, if the underlying fund(s) ceases to qualify as a
Regulated Investment Company under Subchapter M of the Internal
Revenue Code of 1954, as amended.
(f) This Agreement may be terminated, at the option of Insurance Company,
if (a) Insurance Company shall determine in its sole judgment
exercised in good faith that Underwriter has suffered a material
adverse change in its business or financial condition or is subject to
material adverse publicity and such material adverse change or
material adverse publicity will have a material adverse impact upon
the business and operations of Insurance Company, (b) Insurance
Company shall notify Underwriter in writing of such determination and
its intent to terminate this Agreement and (c) after considering the
actions taken by Underwriter and any other changes in circumstances
since the giving of such notice, such determination of Insurance
Company shall continue to apply on the sixtieth (60th) day following
the giving of such notice, which
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sixtieth day shall be the effective day of termination.
(g) This Agreement may be terminated at any time upon the mutual written
consent of the parties hereto.
(h) The Underwriter shall not assign or delegate its responsibilities
under this Agreement without the written consent of the Insurance
Company.
(i) Upon termination of this Agreement, all authorizations, right and
obligations shall cease except the obligations to settle accounts
hereunder, including payments of 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.
21. This Agreement is subject to and its terms are to be interpreted and
construed in accordance with the provisions of the Investment Company Act
and the 1934 Act, and the rules, regulations, and rulings thereunder and is
subject to the provisions of the NASD Rules of Fair Practice. Without
limiting the generality of the foregoing, the term "assigned" shall not
include any transaction exempted from section 15(b)(2) of the Investment
Company Act.
The Underwriter shall submit to all regulatory and administrative entities
having jurisdiction over the operations of the Accounts, present or future;
and will provide any information, reports or other material which any such
entity by reason of this Agreement may request or require pursuant to
applicable laws or regulations.
22. 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.
23. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Nebraska.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed, and seals to be affixed, as of the day and year first above written.
AMERITAS INVESTMENT CORP.
Attest
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxxxx-Gear
Xxxxxx Xxxxxxxxx-Gear
President & Chief Executive Officer
AMERITAS LIFE INSURANCE CORP.
Attest
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Senior Vice President
Individual Distribution
