EXHIBIT 3 A
Principal Underwriting Agreement
AMENDED AND RESTATED
PRINCIPAL UNDERWRITING AGREEMENT
This PRINCIPAL UNDERWRITING AGREEMENT ("Agreement"), effective September 1,
2009, is made by and between Ameritas Investment Corp., ("Underwriter") and The
Union Central Life Insurance Company ("Insurance Company") (hereinafter the
Underwriter and the Insurance Company shall be referred to individually as a
"Party" and collectively as the "Parties"), on the Insurance Company's own
behalf and on behalf of the following separate accounts of the Insurance
Company:
Carillon Account, resolution dated July 9, 1984, and
Carillon Life Account, resolution dated July 10, 1995
(hereinafter the separate accounts shall collectively be referred to as
the "Accounts").
WHEREAS, the Accounts were established under authority of resolutions of
the Insurance Company's Board of Directors on the respective dates listed above,
in order to set aside and invest assets attributable to certain variable annuity
contracts and variable life insurance policies (hereinafter the policies and
contracts shall be referred to as the "Contracts") issued by the Insurance
Company;
WHEREAS, the Insurance Company has registered the Accounts as unit
investment trusts 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 Contracts 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 Financial Industry
Regulatory Authority ("FINRA");
WHEREAS, pursuant to Principal Underwriting Agreements, dated July 1, 2006,
between the Insurance Company and the Underwriter for each of the Accounts, the
Underwriter has served as distributor and principal underwriter for Contracts
funded by the Accounts; and
WHEREAS, the Insurance Company and the Accounts 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 that all previous underwriting
agreements between the Parties, including those specifically identified above,
are collectively replaced and superseded by this Agreement as of the effective
date of this Agreement, and further 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 Contracts.
2. All premiums for Contracts shall be remitted promptly in full together
with such application, forms, and any other documents required by the
respective Insurance Company. Checks or money orders in payment of
premiums shall be drawn to the order of "The Union Central 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 FINRA.
5. The Underwriter agrees to join the Insurance Company, upon the
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 Accounts, 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. The Insurance Company represents to the Underwriter that the
prospectus included in an Account's Registration Statement for each
Contract, 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 statements 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 FINRA 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 FINRA Rules 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 FINRA Rules
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.
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 FINRA 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 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 Party designating such person for licensing
will pay the cost of licensing for the designated person. The
Insurance Company will pay the cost of appointing all designated
persons it appoints.
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,
the 1933 Act, the 1934 Act, and any other applicable laws and
regulations. The books, accounts and records of the Insurance Company,
the Accounts, 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 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 an Insurance Company is required to refund premiums or return
accumulation values and waive surrender charges on any Contract 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
Contracts 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
Contracts 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.
In addition to the compensation for underwriting and sales as set
forth above, the Underwriter shall be compensated in an amount not to
exceed $275,000 per calendar year, as negotiated between the Insurance
Company and Underwriter one time per year, to make up any shortfall
that arises if sales-based compensation as described above does not
meet Underwriter's expenses associated with serving as Underwriter for
the Contracts. Such compensation shall be prorated for any partial
calendar year that this Agreement is in effect.
Any compensation paid to the Underwriter in connection with a Contract
must be returned to the Insurance Company if the Contract is tendered
for redemption during the "free look period" of the Contract.
16. The Insurance Company and the Underwriter hereby agree to comply with
all applicable laws and regulations intended to prevent, detect, and
report money laundering and suspicious transactions and will take all
necessary and appropriate steps, consistent with applicable
regulations and generally accepted industry practices, to (1) obtain,
verify, and retain information with regard to customer identification
and source of funds, and (2) to maintain records of all Account
transactions.
Each Party to this Agreement also agrees (to the extent consistent
with applicable law) to take all steps necessary and appropriate to
provide requested information about customers to any other Party to
this Agreement that shall request such information due to an inquiry
or investigation by any law enforcement, regulatory or administrative
authority. To the extent permitted by applicable law and/or
regulation, each Party to this Agreement shall notify the other Party
of any concerns that shall arise in connection with any customer in
the context of relevant anti-money laundering legislation/regulations.
Each Party to this Agreement shall hold harmless the other Party for
any actions that may arise for good faith attempts to comply with all
applicable laws, rules and/or regulations of governmental agencies,
law enforcement organizations and/or Self Regulatory Organizations.
17. Each Party agrees that all Nonpublic Personal Information obtained in
the performance of duties and obligations under the Agreement shall be
held in the strictest confidence and will not be used for any other
purpose except to perform duties under the Agreement. Such information
shall not be disclosed to any third party without the express written
consent of the affected individual or as may be required by law. Each
Party will establish procedures to protect the security and
confidentiality of such information. Nonpublic Personal Information
shall mean any information about an individual, including financial
and health information, that is not publicly available.
18. The 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 the
Insurance Company or its employees.
19. Underwriter agrees to indemnify the Insurance Company for any losses
to which the 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 Contracts, unauthorized use
of sales materials or advertisements, or any oral or written
misrepresentations or unlawful sales practices.
20. (a) Except as provided by paragraph 20(b) through (e), this Agreement
may be terminated by either Party hereto upon 180 days' written
notice to the other Party.
(b) This Agreement maybe 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
the Insurance Company, in the event that formal administrative
proceedings are instituted against the Underwriter by the FINRA,
SEC, any state Insurance Commissioner or any other regulatory
body regarding Underwriter's duties under this Agreement or
related to the sale of Contracts, and the 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
the 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 Contracts 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 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 hereto.
(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.
21. This Agreement is subject to and its terms are to be interpreted and
construed in accordance with the provisions of the Investment Company
Act, the 1933 Act, the 1934 Act, and the rules, regulations, and
rulings thereunder and is subject to the provisions of the FINRA
Rules. 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.
22. 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.
23. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Nebraska.
{Signature page to follow}
IN WITNESS WHEREOF, the parties hereto have caused this Principal
Underwriting Agreement to be executed by the following authorized individuals
for the purposes expressed herein and as of the date first set forth above.
AMERITAS INVESTMENT CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-Gear
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-Gear, President
& Chief Executive Officer
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President
& Chief Marketing Officer,
Individual & Retirement Plans
SCHEDULE A
UNDERWRITING FEES
SCHEDULE B
FEES for CONTRACT SALES