UNDERWRITING AGREEMENT
THIS AGREEMENT, is entered into on this 3rd day of January, 1994, by and
among LINCOLN BENEFIT LIFE COMPANY, ("LBL" or "COMPANY") a life insurance
company organized under the laws of the State of Nebraska on its own and on
behalf of the LINCOLN BENEFIT LIFE VARIABLE ANNUITY ACCOUNT, ("Separate
Account") a separate account established pursuant to the insurance laws of the
State of Nebraska, and LINCOLN BENEFIT FINANCIAL SERVICES, INC., ("Principal
Underwriter"), a corporation organized under the laws of the State of Delaware.
RECITALS
WHEREAS, the Company proposes to issue to the public certain variable
annuity contracts identified in the Attachment A ("Contracts"); and
WHEREAS, Company, by resolution adopted on August 3, 1992, established
the Separate Account for the purpose of issuing the Contracts; and
WHEREAS, the Separate Account is registered with the Securities and
Exchange Commission ("Commission") as a unit investment trust under the
Investment Company Act of 1940 (File No. 811-7924); and
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WHEREAS, the Contracts to be issued by Company are registered with the
Commission under the Securities Act of 1933 (File No. 33-66786) for offer and
sale to the public and otherwise are in compliance with all applicable laws; and
WHEREAS, Principal Underwriter, a broker/dealer registered under the
Securities Exchange Act of 1934 and a member of the National Association of
Securities Dealers, Inc. ("NASD"), proposes to act as principal underwriter on
an agency (best efforts) basis in the marketing and distribution of said
Contracts; and
WHEREAS, Company desires to obtain the services of Principal Underwriter
as an underwriter and distributor of said Contracts issued by Company through
the Separate Account;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other goods and valuable
considerations the Company, the Separate Account, and the Principal Underwriter
hereby agree as follows:
1. AUTHORITY AND DUTIES
(a) Principal Underwriter will serve as an underwriter and distributor
on an agency basis for the Contracts which will be issued by the
Company through the Separate Account.
(b) Principal Underwriter will use its best efforts to provide
information and marketing assistance to licensed insurance agents
and broker/dealers on a continuing basis. However, Principal
Underwriter shall be responsible
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for compliance with the requirements of state broker/dealer
regulations and the Securities Exchange Act of 1934 as each
applies to Principal Underwriter in connection with its duties as
distributor of said Contracts. Moreover, Principal Underwriter
shall conduct its affairs in accordance with the Rules of Fair
Practice of the NASD.
(c) Subject to agreement with the Company, Principal Underwriter may
enter into selling agreements with broker/dealers which are
registered under the Securities Exchange Act of 1934 and
authorized by applicable law to sell variable annuity contracts
issued by Company through the Separate Account. Any such
contractual arrangement is expressly made subject to this
Agreement, and Principal Underwriter will at all times be
responsible to Company for supervision of compliance with the
federal securities laws regarding distribution of Contracts.
2. WARRANTIES
(a) The Company represents and warrants to Principal Underwriter that:
(i) Registration Statements on Form N-4 for each of the
Contracts identified in Attachment A have been filed with
the Commission in the form previously delivered to
Principal Underwriter and that copies of any and all
amendments thereto will be forwarded to Principal
Underwriter at the time that they are filed with
Commission;
(ii) The Registration Statement and any further amendments or
supplements thereto will, when they become effective,
conform in all material respects to the requirements of the
Securities Act of
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1933 and the Investment Company Act of 1940, and the rules
and regulations of the Commission under such Acts, and will
not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty
shall not apply to any statement or omission made in
reliance upon and in conformity with information furnished
in writing to Company by Principal Underwriter expressly
for use therein;
(iii) The Company is validly existing as a stock life insurance
company in good standing under the laws of the State of
Nebraska, with power to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified for the transaction of business and is in good
standing under the laws of each other's jurisdiction in
which it owns or leases properties, or conducts any
business;
(iv) The Contracts to be issued through the Separate Account and
offered for sale by Principal Underwriter on behalf of the
Company hereunder have been duly and validly authorized
and, when issued and delivered with payment therefore as
provided herein, will be duly and validly issued and will
conform to the description of such Contracts contained in
the Prospectuses relating thereto;
(v) Those persons who offer and sell the Contracts are to be
appropriately licensed or appointed to comply with the
state insurance laws;
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(vi) The performance of this Agreement and the consummation of
the transactions contemplated by this Agreement will not
result in a violation of any of the provisions of or
default under any statute, indenture, mortgage, deed of
trust, note agreement or other agreement or instrument to
which Company is a party or by Company is bound (including
Company's Charter of By-laws as a stock life insurance
company, or any order, rule or regulation of any court of
governmental agency or body having jurisdiction over
Company or any of its properties);
(vii) There are no material legal or governmental proceedings
pending to which Company or the Separate Account is a party
or of which any property of Company or the Separate Account
is the subject (other than as set forth in the Prospectus
relating to the Contracts, or litigation incident of the
kind of business conducted by the Company) which, if
determined adversely to Company, would individually or in
the aggregate have a material adverse effect on the
financial position, surplus or operations of Company.
(b) Principal Underwriter represents and warrants to Company that:
(i) It is a broker/dealer duly registered with the Commission
pursuant to the Securities Exchange Act of 1934, is a
member in good standing of the NASD, and is in compliance
with the securities laws in those states in which it
conducts business as a broker/dealer.
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(ii) As a principal underwriter, it shall permit the offer and
sale of Contracts to the public only by and through persons
who are appropriately licensed under the securities laws
and who are appointed in writing by the Company to be
authorized insurance agents;
(iii) The performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a
breach or violation of any of the terms or provisions of or
constitute a default under any stature, indenture,
mortgage, deed of trust, note agreement or other agreement
or instrument to which Principal Underwriter is a party or
by which Principal Underwriter is bound (including the
Certificate of Incorporation or Bylaws of Principal
Underwriter or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over
either Principal Underwriter or its property); and
(iv) To the extent that any statements made in the Registration
Statement or any amendment or supplement thereto, are made
in reliance upon and in conformity with written information
furnished to Company by Principal Underwriter expressly for
use therein, such statements will, when they become
effective or are filed with the Commission, as the case may
be, conform in all material respects to the requirements of
the Securities Act of 1933 and the rules and regulations of
the Commission thereunder, and will not contain any untrue
statement of a material fact or omit to state any
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material fact required to be stated therein or necessary to
make the statements therein not misleading.
3. BOOKS AND RECORDS
(a) Principal Underwriter shall keep, in a manner and form approved by
Company and in accordance with Rules 17a-3 and 17a-4 under the
Securities Exchange Act of 1934, correct records and books or
account as required to be maintained by a registered
broker/dealer, acting as principal underwriter, of all
transactions entered into on behalf of Company with respect to its
activities under this Agreement. Principal Underwriter shall make
such records and books of account available for inspection by the
Commission, and Company shall have the right to inspect, make
copies of or take possession of such records and books of account
at any time upon demand.
(b) Subject to applicable Commission or NASD restrictions, Company
will send confirmation of Contract transactions to Contract
Owners. Company will make such confirmations and records of
transactions available to Principal Underwriter upon request.
4. SALES MATERIALS
(a) After authorization to commence the activities contemplated
herein, Principal Underwriter will utilize the currently effective
prospectus relating to the subject Contracts in connection with
its underwriting, marketing and distribution efforts. As to other
types of sales material, Principal Underwriter hereby agrees and
will require any participating or selling
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broker/dealers to agree that they will use only sales material
which have been authorized for use by Company, which conform to
the requirements of federal and state laws and regulations, and
which have been filed where necessary with the appropriate
regulatory authorities, including the NASD.
(b) Principal Underwriter will not distribute any prospectus, sales
literature or any other printed matter or material in the
underwriting and distribution of any Contract if, to the knowledge
of Principal Underwriter, any of the foregoing misstates the
duties, obligation or liabilities of Company or Principal
Underwriter.
5. COMPENSATION
Principal Underwriter shall be entitled to such remuneration for its services
and reimbursement for its fees, charges and expenses as will be determined
between the parties.
6. PURCHASE PAYMENTS
Principal Underwriter shall arrange that all purchase payments collected on the
sale of the Contracts are promptly and properly transmitted to Company for
immediate allocation to the Separate Account in accordance with the procedures
of Company and the directions furnished by the purchasers of such Contracts at
the time of purchase.
7. UNDERWRITING TERMS
(a) Principal Underwriter makes no representations or warranties
regarding the number of Contracts to be sold by licensed
broker/dealers and
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registered representatives of broker/dealers or the amount to be
paid thereunder. Principal Underwriter does, however, represent
that it will actively engage in its duties under this Agreement on
a continuous basis while there is an effective registration
statement with the Commission.
(b) Principal Underwriter will use its best efforts to ensure that the
Contracts shall be offered for sale by registered broker/dealers
and registered representatives (who are duly licensed as insurance
agents) on the terms described in the currently effective
prospectus describing such Contracts.
(c) It is understood and agreed that Principal Underwriter may render
similar services to other companies in the distribution of other
variable contracts.
(d) The Company will use its best efforts to assure that the Contracts
are continuously registered under the Securities Act of 1933 (and
under any applicable state "blue sky" laws) and to file for
approval under state insurance laws when necessary.
(e) The Company reserves the right at any time to suspend or limit the
public offering of the subject Contracts upon one day's written
notice to Principal Underwriter.
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8. LEGAL AND REGULATORY ACTIONS
(a) The Company agrees to advise Principal Underwriter immediately of:
(i) any request by the Commission for amendment of the
Registration Statement or for additional information
relating to the Contracts;
(ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement relating to
the Contracts or the initiation of any proceedings for that
purpose; and
(iii) the happening of any known material even which makes untrue
any statement made in the Registration Statement relating
to the Contracts or which requires the making of a change
therein in order to make any statement made therein not
misleading.
(b) Each of the undersigned parties agrees to notify the other in
writing upon being apprised of the institution of any proceeding,
investigation or hearing involving the offer or sale of the
subject Contracts.
(c) During any legal action or inquiry, Company will furnish to
Principal Underwriter such information with respect to the
Separate Account and Contracts in such form and signed by such of
its officers as Principal Underwriter may reasonably request and
will warrant that the statements therein contained when so signed
are true and correct.
9. TERMINATION
(a) This Agreement will terminate automatically upon its assignment;
(b) This Agreement shall terminate without the payment of any penalty
by either party upon sixty (60) days' advance written notice.
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(c) This Agreement shall terminate at the option of the Company upon
institution of formal proceedings against Principal Underwriter by
the NASD or by the Commission, or if Principal Underwriter or any
representative thereof at any time:
(i) employs any device, scheme, artifice, statement or omission
to defraud any person;
(ii) fails to account and pay over promptly to the Company money
due it according to the Company's records; or
(iii) violates the conditions of this Agreement.
10. INDEMNIFICATION
The company agrees to indemnify Principal Underwriter for any liability that it
may incur to a Contract owner or party-in-interest under a Contract:
(a) arising out of any act or omission in the course of or in
connection with rendering services under this Agreement; or
(b) arising out of the purchase, retention or surrender of a contract;
provided, however, that the Company will not indemnify Principal
Underwriter for any such liability that results from the willful
misfeasance, bad faith or gross negligence of Principal
Underwriter or from the reckless disregard by such Principal
Underwriter of its duties and obligations arising under this
Agreement.
11. GENERAL PROVISION
(a) This Agreement shall be subject to the laws of the State of
Nebraska.
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(b) This Agreement, along with any Schedules attached hereto and
incorporated herein by reference, may be amended from time to time
by the mutual agreement and consent of the undersigned parties.
(c) In case any provision in this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provision shall not in any way be affected or impaired
thereby.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to
be duly executed, to be effective as of January 3, 1994.
LINCOLN BENEFIT LIFE COMPANY
(and LINCOLN BENEFIT LIFE VARIABLE ANNUITY ACCOUNT II)
BY: /s/ Xxxx X. Xxxxxx 1/3/94
----------------------------------- -------------------------------
President Date
LINCOLN BENEFIT FINANCIAL SERVICES, INC.
BY: /s/ B.E. Wraith 1/3/94
----------------------------------- -------------------------------
President Date
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ATTACHMENT A
UNDERWRITING AGREEMENT
"CONTRACTS" FORM #
----------- ------
Investors Select Variable Annuity VAP 9330
13
AMENDMENT #1 TO THE
UNDERWRITING AGREEMENT
(HEREINAFTER "AGREEMENT")
BETWEEN
LINCOLN BENEFIT LIFE COMPANY
(HEREINAFTER "LBL")
ON BEHALF OF THE
LINCOLN BENEFIT LIFE VARIABLE ANNUITY ACCOUNT
(HEREINAFTER "SEPARATE ACCOUNT")
AND
LINCOLN BENEFIT FINANCIAL SERVICES
(HEREINAFTER "LBFS")
IT IS HEREBY AGREED, that the Underwriting Agreement effective January 3, 1994
between LBL and LBFS, is amended as provided below.
Paragraph 5, "COMPENSATION" is hereby amended by deleting said Paragraph in its
entirety, and replacing it with the following new Paragraph 5:
5. COMPENSATION
Principal Underwriter shall be entitled to remuneration of its services
in the amount of 6.25% for all variable annuity premiums received on
policies issued by Company. Such remuneration shall be reduced by the
amount of commissions payable to broker/dealers receiving compensation
pursuant to selling agreements with Company and Principal Underwriter, or
registered representatives affiliated with Principal Underwriter.
Page 1 of 2
This Amendment shall be effective as of January 3, 1994. Except as amended
hereby, the Agreement shall remain unchanged.
IN WITNESS HEREOF, the parties to the Agreement have caused this Amendment to be
duly executed in duplicate by their duly authorized officers on the dates shown
below.
LINCOLN BENEFIT LIFE COMPANY
By: /s/Xxxx X. Xxxxxx Attested
----------------------------
Title: President By: /s/Xxxxx X. Xxxxxx
---------------------------- -------------------------------
Date: February 19, 1996 Date: February 19, 1996
---------------------------- -------------------------------
LINCOLN BENEFIT FINANCIAL SERVICES, INC.
By: /s/B. E. Wraith Attested
---------------------------- -------------------------------
Title: President By: /s/Xxxxx X. Xxxxxx
---------------------------- -------------------------------
Date: February 19, 1996 Date: February 19, 1996
---------------------------- -------------------------------
Page 2 of 2
AMENDMENT #2 TO THE
UNDERWRITING AGREEMENT
(HEREINAFTER "AGREEMENT"
BETWEEN
LINCOLN BENEFIT LIFE COMPANY
(HEREINAFTER "LBL")
ON BEHALF OF THE
LINCOLN BENEFIT LIFE VARIABLE ANNUITY ACCOUNT
(HEREINAFTER "SEPARATE ACCOUNT")
AND
LINCOLN BENEFIT FINANCIAL SERVICES, INC.
(HEREINAFTER "LBFS")
IT IS HEREBY AGREED, that the Underwriting Agreement effective January 3, 1994
between LBL and LBFS is hereby amended as provided below:
Effective March 1, 1998, in addition to those contracts identified in Attachment
A, the contracts listed in the attached Attachment A are hereby incorporated and
subject to the terms of the Agreement.
Paragraph 5, "COMPENSATION" is hereby amended by adding the following:
Principal Underwriter shall be entitled to remuneration of its services
in the amount of 7.5% for all variable annuity premiums received on Form VAP
9830 and Form VAP 9840 contracts issued by Company. Such remuneration shall be
reduced by the amount of commissions payable to brokers/dealers receiving
compensation pursuant to selling agreements with Company and Principal
Underwriter, or registered representatives affiliated with Principal
Underwriter.
Except as amended hereby, the Agreement shall remain unchanged.
IT WITNESS HEREOF, the parties to the Agreement have caused this Amendment to be
duly executed in duplicate by their respective officers on the dates shown
below.
LINCOLN BENEFIT LIFE COMPANY
By: /s/B. E. Wraith Attested
----------------------------
Title: President By: /s/Xxxx X. Xxxxxx
---------------------------- -------------------------------
Date: March 1, 1998 Date: March 1, 1998
---------------------------- -------------------------------
LINCOLN BENEFIT FINANCIAL SERVICES, INC.
By: /s/Xxxxx X. Xxxxxx Attested
----------------------------
Title: President By: /s/Xxxx X. Xxxxxx
---------------------------- -------------------------------
Date: March 1, 1998 Date: March 1, 1998
---------------------------- -------------------------------
ATTACHMENT A
UNDERWRITING AGREEMENT
"CONTRACTS" FORM #
-------------------------- --------
(To be Determined) VAP 9830
(To be Determined) VAP 9840
