EXHIBIT 1.(A)(3)(A)
Principal Underwriting Agreement
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EXHIBIT 1.(A)(3)(A)
Principal Underwriting Agreement
PRINCIPAL UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT made this __________ day of __________ , 2000,
by and between Ameritas Investment Corp., (hereinafter the "Underwriter") and
First Ameritas Life Insurance Corp. of New York (hereinafter the "Insurance
Company"), on its own behalf and on behalf of First Ameritas Variable Life
Separate Account (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 March 21, 2000, in order to set
aside and invest assets attributable to certain variable life insurance
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 Dealer, 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 in the State of New York 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 Contract 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
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shall be drawn to the order of "First 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 Contract 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
advertisement 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 New York 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, no 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
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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 to sell the
Contract 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 the State of New
York or other jurisdiction in which such
Contracts may be lawfully sold, in which the
Insurance Company is licensed to sell the
Contract and in which such persons shall offer
or sell the Contracts; and
(b) training, supervision, 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 Contract. 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 barker-dealers for the
sale of the Contract. 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 Rule 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 State of New York or jurisdiction in which such
Contracts may be lawfully sold.
11. The Insurance Company shall apply for the proper insurance
licenses in the State of New York for the designated
persons associated with the
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Underwriter or with other independent broker-dealer 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 maintains 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 record
keeping requirements under the insurance laws of the State
of New York and any other applicable states or
jurisdictions.
13. The Insurance Company shall have the responsibility for
paying (i) all commissions or other fees to associate
persons of the Underwriter which are due for the sale of
the Contract 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 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 Contract shall be payable in accordance
with Schedule A, which may be revised from time to time by
written agreement of the parties.
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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.
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 ______________, 2000 and on the first day
of each and every month thereafter for twelve (12)
consecutive months, unless sooner terminated by mutual
agreement of the parties, Insurance Company agrees to pay
to Underwriter the amount of _____________ 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 proceeding are
instituted against the Underwriter by the NASD,
SEC, New York State Insurance Commissioner or
any other regulatory body regarding
Underwriter's duties under this Agreement or
related to the sale of Contracts, 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
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obligations under this Agreement.
(d) This Agreement may be terminate 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 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
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 the Agreement, all
authorizations, right and obligations shall
cease except the obligations to settle accounts
hereunder, including payments of premiums or
contributions subsequently received for
Contract 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.
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The Underwriter shall submit to all regulatory and
administrative entities having jurisdiction over the
operation 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:
---------------------------------- BY:------------------------------
William R. Giovanni,
President & Chief Executive Officer
FIRST AMERITAS LIFE INSURANCE CORP.
OF NEW YORK
Attest:
----------------------------------- By:--------------------------------
Mitch Politzer
President
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SCHEDULE A
Fee Schedule on Variable Products
FIRST AMERITAS LIFE INSURANCE CORP. PRODUCTS
SCHEDULE B
Commission and Expense Reimbursement Schedule
