PRINCIPAL UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT made this 30th day of April, 1997, by and
between Ameritas Investment Corp., (hereinafter the "Underwriter") and Ameritas
Variable Life Insurance Company hereinafter the "Insurance Company"), on its own
behalf and on behalf of Ameritas Variable Life Insurance Company Separate
Account VA-2 (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 May 28, 1987, 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
Variable Life Insurance Company".
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.
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
(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.
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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 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.
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In addition, 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. 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. That beginning January 1, 1997, and on the first day of each
and every month thereafter, during the entire year of 1997,
unless sooner terminated by mutual agreement of the parties,
Insurance Company agrees to pay to Underwriter the sum of
$10,000.00 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.
18. 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.
19. (a) Except as provided by paragraph 19(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
4
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 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.
20. 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.
21. 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.
22. 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/ ▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________ By: _________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President & Chief Executive Officer
AMERITAS VARIABLE LIFE INSURANCE COMPANY
Attest:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________ By: __________________________________________
▇▇▇▇▇▇▇ ▇. Louis,
Executive Vice President
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SCHEDULE A
----------
Fee Schedule on Variable Products
Overture Life (Form 4001) 0.850% 1st Year
0.000% Renewal
Overture Applause! (Form 4010) 4.000% Target
0.300% Excess
0.000% Renewal
0.000% Penn Mutual Agents
Overture APPLAUSE! II (Form 4016) 4.000% Target
0.300% Excess
0.000% Renewal
Overture ENCORE! (Form 4018) 2.000% Target
0.200% Excess
0.000% Renewal
Variable Annuities (Forms 4780, 4782, 4784, 0.100% All Years
4786)
AMERITAS VARIABLE LIFE INSURANCE COMPANY PRODUCTS
SCHEDULE B
COMMISSION AND EXPENSE REIMBURSEMENT SCHEDULE
OVERTURE LIFE (Registration No. 33-1576)
Broker/Dealer, for its efforts in soliciting sales of the Policy described as
Policy Form #4001 (Variable Life), shall receive commission as stated below.
Only those premium payments received by AVLIC in the first 12 months of any
Policy are commissionable. The Commission Schedule is as follows:
ALL SALES 5.0%
OVERTURE ANNUITY (Registration No. 33-14774) (CLOSED TO NEW ISSUES)
Broker/Dealer, for its efforts in soliciting sales of the Policy described as
Policy Form #4780 (Variable Annuity), shall receive commission as stated below.
Only those premium payments received by AVLIC in the first 12 months of any
Policy are commissionable.
ATTAINED AGE PERCENT OF PREMIUM PAID
------------ -----------------------
0-70 5.0%
71+ 4.2%
For Policy Form #4780, a service fee of .2% of the total Policy accumulation
value will be paid after the end of each policy year to reimburse the
broker/dealer for administrative costs incurred in servicing the Policy.
OVERTURE ANNUITY II (Registration No. 33-33844) (CLOSED TO NEW ISSUES)
Broker/Dealer, for its efforts in soliciting sales of the Policy described as
Policy Form #4782 (Variable Annuity II), shall receive commission as stated
below:
ATTAINED AGE FIRST YEAR RENEWAL
------------ ---------- -------
0-70 5.0% 5.0%
71+ 4.2% 4.2%
For Policy Form #4782, a service fee of .2% of the total Policy accumulation
value will be paid after the end of each policy year to reimburse the
broker/dealer for administrative costs incurred in servicing the Policy. There
may be a 100% chargeback of commission on policies where the annuitant dies
from non-accidental causes during the first policy year.
OVERTURE ANNUITY III (NON TAX QUALIFIED) (Registration No. 33-58642)
Broker/Dealer, for its efforts in soliciting sales of the Policy described as
Policy Form #4784 (Variable Annuity III), shall receive commission as stated
below:
ATTAINED AGE FIRST YEAR RENEWAL
------------ ---------- -------
0-65 5.25% 5.25%
66-70 5.00% 5.00%
71-80 4.25% 4.25%
81-85 2.45% 2.45%
For Policy Form #4784, an annual service fee of .25% of the total Policy
accumulation value will be paid at the end of each policy quarter after the
first policy year, to reimburse the broker/dealer for administrative costs
incurred in servicing the Policy. There may be a 100% chargeback of commission
on policies where the annuitant dies from non-accidental causes during the first
policy year.
OVERTURE ANNUITY III (TAX QUALIFIED) (Registration No. 33-58642)
Broker/Dealer, for its efforts in soliciting sales of the Policy described as
Policy Form #4784 (Variable Annuity III), shall receive commission as stated
below:
ATTAINED AGE POLICY YEAR BELOW $2000 $2000 & ABOVE
------------ ----------- ----------- -------------
0-65 1 4.25% 5.25%
0-65 2-on 4.25% 5.25%
ATTAINED AGE POLICY YEAR BELOW $2000 $2000 & ABOVE
------------ ----------- ----------- -------------
66-70 1 4.00% 5.00%
66-70 2-on 4.00% 5.00%
ATTAINED AGE POLICY YEAR BELOW $2000 $2000 & ABOVE
------------ ----------- ----------- -------------
71-80 1 3.25% 4.25%
71-80 2-on 3.25% 4.25%
ATTAINED AGE POLICY YEAR BELOW $2000 $2000 & ABOVE
------------ ----------- ----------- -------------
81-85 1 1.45% 2.45%
81-85 2-on 1.45% 2.45%
AG 1571-AVLIC Rev. 12-96
