EX-99.B3a
Principal Underwriting Agreement.
PRINCIPAL UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT made this 27th day of September, 1996, 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 Life Insurance Corp. Separate Account LLVA (hereinafter
the "Account"), separate account of the Insurance Company, as follows:
WHEREAS, the Account was established under authority of resolution of
the Insurance Company's Board of Directors on October 26, 1995, 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
Account as a unit investment trust 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 Contract 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 Account 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.
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.
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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 Account, 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 statement 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 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
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(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 Account, 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 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
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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. The Insurance Company shall reimburse the Underwriter for all
reasonable and necessary costs and expenses incurred by the
Underwriter in furnishing the services, materials, and
supplies required by the terms of this Agreement and may pay
Underwriter a concession for sales of the policies as may be
agreed by the parties in writing from time to time. The
Underwriter agrees to obtain the prior written approval by
Insurance Company of any agreements it may pursue with third
party providers of such services, materials and supplies.
16. 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.
17. 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.
18. (a) Except as provided by paragraph 18(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 that 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
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notice, such determination of Insurance Company shall
continue to apply on the sixtieth (60th) day following
the giving of such notice, which 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 thereto.
(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.
19. 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.
20. 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.
21. 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/ Xxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxx X. Xxxxx Xxxxxxx X. Xxxxxxxx,
President & Chief Executive Officer
AMERITAS LIFE INSURANCE CORP.
Attest:
/s/ Xxxxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Louis
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Xxxxxxxxx Xxxxxxxxxx Xxxxxxx X. Louis,
President & Chief Operating Officer
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