AMENDED AND RESTATED PRINCIPAL UNDERWRITING AGREEMENT
Exhibit 3
AMENDED AND RESTATED
PRINCIPAL UNDERWRITING AGREEMENT
PRINCIPAL UNDERWRITING AGREEMENT
THIS AMENDED AND RESTATED PRINCIPAL UNDERWRITING AGREEMENT made and effective as of the 1st
day of July, 2010 (the “Effective Date), by and between TRANSAMERICA CAPITAL, INC. (“TCI”), a
California corporation, and Transamerica Financial Life Insurance Company (“TFLIC”), a New York
Corporation.
WITNESSETH:
WHEREAS, the Board of Directors of TFLIC has made, and will make in the future, provisions for
the establishment of one or more separate investment accounts (“Accounts”) within TFLIC in
accordance with the laws of the State of New York;
WHEREAS, the Account(s) were established or acquired by TFLIC under the laws of the State of
New York, pursuant to a resolution of TFLIC’s Board of Directors in order to set aside the
investment assets attributable to certain variable life insurance and annuity contracts
(“Contracts”) issued by TFLIC;
WHEREAS, TFLIC has registered or will register the Account(s) with the Securities and Exchange
Commission (“SEC”) as unit investment trusts under the Investment Company Act of 1940 (the “1940
Act”);
WHEREAS, TFLIC has registered or will register the Contracts under the Securities Act of 1933
(the “1933 Act”);
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WHEREAS, TFLIC shall have the Plan of Operations for the separate accounts approved by the New
York Superintendent of Insurance;
WHEREAS, TCI may not assign or delegate its responsibilities without prior written consent of
the TFLIC Board and approval by the New York Superintendent of Insurance;
WHEREAS, TCI is and will continue to be registered as a broker-dealer with the SEC under the
Securities Exchange Act of 1934 (the “1934 Act”), and a member of the Financial Industry Regulatory
Authority (the “FINRA”) prior to the offer and sale of the Contracts; and
WHEREAS, TFLIC proposes to have the Contracts sold and distributed through TCI, and TCI is
willing to sell and distribute such Contracts under the terms stated herein;
NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as follows:
1. Appointment as Distributor/Principal Underwriter. TFLIC grants to TCI the
exclusive right to be, and TCI agrees to serve as, distributor and principal underwriter of the
Contracts during the term of this Agreement. TCI agrees to use its best efforts to solicit
applications for the Contracts and otherwise perform all duties and functions which are necessary
and proper for the distribution of the Contracts.
2. Prospectus. TCI agrees to offer the Contracts for sale in accordance with the
registration statements and prospectus therefore then in
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effect. TCI is not authorized to give any information or to make any representations
concerning the Contracts other than those contained in the current prospectus therefore filed with
the SEC or in such sales literature as may be authorized by TFLIC.
3. Considerations. All premiums, purchase payments or other moneys payable under the
Contracts shall be remitted promptly in full together with such application, forms and any other
required documentation to TFLIC or its designated servicing agent and shall become the exclusive
property of TFLIC. Checks or money orders in payment under the Contracts shall be drawn to the
order of “Transamerica Financial Life Insurance Company” and funds may be remitted by wire if prior
written approval is obtained from TFLIC. TFLIC shall collect premiums or establish a lock-box bank
arrangement in its name for the deposit of amounts collected from policyholders (including payments
of principal or interest on contract loans) from any collection facility, including intermediaries
and other persons or institutions that receive remittances with respect to TFLIC’s business. If a
lock-box arrangement is used, TFLIC’s employees will direct the disbursement of funds.
4. Copies of Information. On behalf of the Account(s), TFLIC shall furnish TCI with
copies of all prospectuses, financial statements and other documents which TCI reasonably requests
for use in connection with the distribution of the Contracts.
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5. Representations. TCI represents that it is (a) duly registered as a broker-dealer
under the 1934 Act, (b) a member in good standing of the FINRA and (c) to the extent necessary to
offer the Contracts, duly registered or otherwise qualified under the securities laws of any state
or other jurisdiction. TCI shall be responsible for carrying out its sales and underwriting
obligations hereunder in continued compliance with the FINRA Rules and federal and state securities
and insurance laws and regulations. Further, TCI represents and warrants that it will adopt, abide
by and enforce the principles set forth in the Principles and Code of Ethical Market Conduct of the
Insurance Marketplace Standards Association as adopted by TFLIC.
6. Other Broker-Dealer Agreements. TCI is hereby authorized to enter into written
sales agreements with other independent broker-dealers for the sale of the Contracts. All such
sales agreements entered into by TCI shall provide that each independent broker-dealer will assume
full responsibility for continued compliance by itself and by its associated persons with the FINRA
Rules and applicable federal and state securities and insurance laws, shall provide that each
independent broker-dealer will adopt, abide by and enforce the principles set forth in the
Principles and Code of Ethical Market Conduct of the Insurance Marketplace Standards Association as
adopted by the Company, and shall be in such form and contain such other provisions as TFLIC may
from time to time require. All associated persons of such independent broker-dealers soliciting
applications for the Contracts shall be duly and appropriately registered
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by the FINRA and licensed and appointed by TFLIC for the sale of Contracts under the insurance
laws of the applicable states or jurisdictions in which such Contracts may be lawfully sold. All
applications for Contracts solicited by such broker-dealers through their representatives, together
with any other required documentation and premiums, purchase payments and other moneys, shall be
handled as set forth in paragraph 3 above.
7. Insurance Licensing and Appointments. TFLIC shall apply for the proper insurance
licenses and appointments in appropriate states or jurisdictions for the designated persons
associated with TCI or with other independent broker-dealers that have entered into sales
agreements with TCI for the sale of Contracts, provided that TFLIC 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.
8. Recordkeeping. TFLIC and TCI shall cause to be maintained and preserved for the
periods prescribed such accounts, books, and other documents as are required of them by the 1940
Act, and 1934 Act, and any other applicable laws and regulations. The books, accounts and records
of TFLIC, of the Account(s), and of TCI as to all transactions hereunder shall be maintained so as
to disclose clearly and accurately the nature and details of the transactions. TFLIC (or such
other entity engaged by TFLIC for this purpose), on behalf of and as agent for TCI, shall maintain
TCI’s books and records pertaining to the sale of Contracts to the extent as mutually agreed upon
from time to time by TFLIC and
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TCI; provided that such books and records shall be the property of TCI, and shall at all times
be subject to reasonable periodic, special or other audit or examination by the SEC, FINRA, any
state insurance commissioner and/or all other regulatory bodies having jurisdiction. TFLIC shall
be responsible for sending on behalf of and as agent for TCI all required confirmations on customer
transactions in compliance with applicable regulations, as modified by an exemption or other relief
obtained by TFLIC. TCI shall cause TFLIC to be furnished with such reports as TFLIC may reasonably
request for the purpose of meeting its reporting and recordkeeping requirements under the insurance
laws of the State of New York and any other applicable states or jurisdictions. TFLIC agrees that
its records relating to the sale of Contracts shall be subject to such reasonable periodic, special
or other audit or examination by the SEC, FINRA, and any state insurance commissioner and/or all
other regulatory bodies having jurisdiction.
9. Commissions. TFLIC shall have the responsibility for paying on behalf of TCI (a)
any compensation to other independent broker-dealers and their associated persons due under the
terms of any sales agreements entered into pursuant to paragraph 6 above, between TCI and such
broker-dealers as agreed to by TFLIC and (b) all commissions or other fees to associated persons of
TCI which are due for the sale of the Contracts in the amounts and on such terms and conditions as
TFLIC and TCI determine. Notwithstanding the preceding sentence, no broker-dealer, associated
person or other individual or
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entity shall have an interest in any deductions or other fees payable to TCI as set forth
herein.
10. Expense Reimbursement. TFLIC shall reimburse TCI for all costs and expenses
incurred by TCI in furnishing the services, materials, and supplies required by the terms of this
Agreement. The expense to be paid by TFLIC for the services under this agreement must be actual
cost incurred by TCI to provide such services so that neither party shall receive a profit nor
suffer a loss. Expenses will be classified and allocated in accordance with New York State
Insurance Department Regulation No. 33. TCI shall submit within 30 days prior to the end of each
quarter a statement of the estimated amount of the apportioned expenses, if any, for such quarter
and TFLIC shall remit payment within 15 days following receipt of such statement. Within 60 days
after the end of each fiscal year, TCI shall submit a statement of actual apportioned expenses, if
any, for such fiscal year. The difference between the amount of estimated and actual expenses, if
any, shall be paid to either party, as the case may be, within 15 days of the receipt of the
statement of actual apportioned expenses. Records of such expenses shall be subject to audit at
all times by TFLIC and its Regulators.
11. Indemnification. TFLIC agrees to indemnify TCI for any losses incurred as a
result of any action taken or omitted by TCI, or any of its officers, agents or employees, in
performing their responsibilities under this Agreement in
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good faith and without willful misfeasance, bad faith or gross negligence, or reckless
disregard of such obligations.
12. Regulatory Investigations. TCI and TFLIC agree to cooperate fully in any
insurance or judicial regulatory investigation or proceeding arising in connection with Contracts
distributed under this Agreement. TCI and TFLIC further agree to cooperate fully in any securities
regulatory inspection, inquiry, investigation or proceeding or any judicial proceeding with respect
to TFLIC, TCI, their affiliates and their representatives to the extent that such inspection,
inquiry, investigation or proceeding or judicial proceeding is in connection with Contracts
distributed under this Agreement. Without limiting the foregoing:
(a) TCI will be notified promptly of any customer complaint or notice of any regulatory
inspection, inquiry investigation or proceeding or judicial proceeding received by TFLIC with
respect to TCI or any representative or which may affect TFLIC’s issuance of any Contracts marketed
under this Agreement; and
(b) TCI will promptly notify TFLIC of any customer complaint or notice of any regulatory
inspection, inquiry, investigation or judicial proceeding received by TCI or any representative
with respect to TFLIC or its affiliates in connection with any Contracts distributed under this
Agreement.
In the case of a customer complaint, TCI and TFLIC will cooperate in investigating such
complaint and shall arrive at a mutually satisfactory response.
13. Term and Termination.
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(a) This Agreement is effective as of the Effective Date and shall continue to remain in
effect from year to year unless terminated in accordance with this Section 13, provided that its
continuance is specifically approved at least annually by a majority of the members of the Board of
Directors of TFLIC.
(b) This Agreement may be terminated by either party hereto upon 60 days’ prior written notice
to the other party.
(c) This Agreement may be terminated upon written notice of one party to the other party
hereto in the event of bankruptcy or insolvency of such party to which notice is given.
(d) This Agreement may be terminated at any time upon the mutual written consent of the
parties hereto.
(e) TCI shall not assign or delegate its responsibilities under this Agreement without the
written consent of TFLIC.
(f) Upon termination of this Agreement, all authorizations, 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 TFLIC prior to termination.
(g) If any software that is used in the performance of the services under this agreement is
not readily available from a third party vendor, TFLIC shall be granted perpetual right to use such
software.
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14. Regulatory Impact. This Agreement shall be subject to, among other laws, the
provisions of the 1940 Act and the 1934 Act and the rules, regulations, and rulings thereunder and
of the FINRA, from time to time in effect, including such exemptions from the 1940 Act as the SEC
may grant, and the terms hereof shall be interpreted and construed in accordance therewith.
TCI shall submit to all regulatory and administrative bodies having jurisdiction over the
operations of the Account(s), present or future; and will provide 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.
15. Severability. 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.
16. Choice of Law. This Agreement shall be construed, enforced and governed by the
laws of the State of New York.
17. No Assignment. Neither party may assign its interest in this Agreement without
the prior written consent of the other party, which consent shall not be unreasonably withheld or
delayed. The New York State Insurance Department shall also be required to approve any assignment.
18. Disputes. Any dispute between TCI and TFLIC shall be submitted to a board of
arbitration comprised of no less than three unaffiliated arbitrators having experience and
familiarity with variable insurance products and such
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arbitration shall be administered by the American Arbitration Association in accordance with
its Commercial Arbitration Rules. Arbitration is the sole remedy for disputes arising under this
agreement. Arbitration should be held New York. Expenses of such arbitration shall be borne by
TCI and TFLIC equally.
19. All advertising, sales and marketing material utilized on behalf of TFLIC by TCI shall be
subject to the prior approval of TFLIC. TFLIC shall maintain files of all such material in
accordance with the New York State Insurance Department Regulation No. 34A.
20. TCI shall provide underwriting services to TFLIC under this agreement in accordance with
the underwriting guidelines and procedures provided to TCI by TFLIC, and TFLIC shall retain all
final underwriting authority.
21. This Agreement constitutes the entire agreement between the parties; and no other
agreement, statement or promise not contained in this Agreement shall be valid or binding.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their
respective duly authorized officials as of the day and year first above written.
TRANSAMERICA CAPITAL, INC.
By: |
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| Xxxxxxxx X.X. Xxxx | ||||
| Vice President and | ||||
| Chief Compliance Officer |
TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY
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By: |
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| Xxxxx X. Xxxx | ||||
| Senior Vice President |
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