UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT made this 1st day of January 1997,
by and between One Orchard Equities, Inc. (the "Underwriter") and
Great-West Life & Annuity Insurance Company (the "Insurance
Company"), on its own behalf and on behalf of the Retirement Plan
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.
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 the foregoing, the Underwriter
agrees that it shall have full responsibility 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, 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:
(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 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 reasonably 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.
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
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 Preyer__________________ By: _/s/ Xxxxxxx X.
XxXxxxxx __________
Witness: Xxxxxxx X. XxXxxxxx
President and Chief
Executive Officer
One Orchard Equities, Inc.
/s/ Xxxxx X. Xxxx _____________ By: _/s/ Xxxxxx X.
Xxxxxxxx ____________
Witness: Xxxxxx X. Xxxxxxxx
President
