EXHIBIT (3)(a) Principal Underwriting Agreement (TLIC and TCI)
AMENDED AND REINSTATED
PRINCIPAL UNDERWRITING AGREEMENT
PRINCIPAL UNDERWRITING AGREEMENT
THIS AMENDED AND REINSTATED PRINCIPAL UNDERWRITING AGREEMENT made and effective as of the
day of , 2010 (the “Effective Date”), by and between TRANSAMERICA CAPITAL, INC. (“TCI”),
a California corporation, and TRANSAMERICA LIFE INSURANCE COMPANY (“TLIC”), an Iowa corporation.
WITNESSETH:
WHEREAS, the Board of Directors of TLIC has made, and will make in the future, provisions for
the establishment of one or more separate investment accounts (“Accounts”) within TLIC in
accordance with the laws of the State of Iowa;
WHEREAS, the Accounts were established or acquired by TLIC under the laws of the State of
Iowa, pursuant to a resolution of TLIC’s Board of Directors in order to set aside the investment
assets attributable to certain variable life insurance and annuity contracts (“Contracts”) issued
by TLIC;
WHEREAS, TLIC has registered or will register the Accounts with the Securities and Exchange
Commission (“SEC”) as unit investment trusts under the Investment Company Act of 1940 (the “1940
Act”);
WHEREAS, TLIC has registered or will register the Contracts under the Securities Act of 1933
(the “1933 Act”);
WHEREAS, TCI is and will continue to be registered as a broker-dealer with the SEC under the
Securities Exchange Act of 1934 (the “1934 Act”), and a member of the
1
Financial Industry Regulatory Authority (“FINRA”) prior to the offer and sale of the
Contracts; and
WHEREAS, TLIC proposes to have the Contracts sold and distributed through TCI, and TCI is
willing to sell and distribute such Contracts under the terms stated herein;
NOW, THEREFORE, the parties, intending to be legally bound, hereby agree as follows:
1. Appointment as Distributor/Principal Underwriter. TLIC grants to TCI the exclusive
right to be, and TCI agrees to serve as, distributor and principal underwriter of the Contracts
during the term of this Agreement. TCI agrees to use its best efforts to solicit applications for
the Contracts and otherwise perform all duties and functions which are necessary and proper for the
distribution of the Contracts.
2. Prospectus. TCI agrees to offer the Contracts for sale in accordance with the
registration statements and prospectus therefor then in effect. TCI is not authorized to give any
information or to make any representations concerning the Contracts other than those contained in
the current prospectus therefor filed with the SEC or in such sales literature as may be authorized
by TLIC.
3. Considerations. All premiums, purchase payments or other moneys payable under the
Contracts shall be remitted promptly in full together with such application, forms and any other
required documentation to TLIC or its designated servicing agent and shall become the exclusive
property of TLIC. Checks or money orders in payment under the Contracts shall be drawn to the
order of “Transamerica Life
2
Insurance Company” and funds may be remitted by wire if prior written approval is
obtained from TLIC.
4. Copies of Information. On behalf of the Accounts, TLIC shall furnish TCI with
copies of all prospectuses, financial statements and other documents which TCI reasonably requests
for use in connection with the distribution of the Contracts.
5. Representations. TCI represents that it is (a) duly registered as a broker-dealer
under the 1934 Act, (b) a member in good standing of the FINRA and (c) to the extent necessary to
offer the Contracts, duly registered or otherwise qualified under the securities laws of any state
or other jurisdiction. TCI shall be responsible for carrying out its sales and underwriting
obligations hereunder in continued compliance with the FINRA Rules and federal and state securities
and insurance laws and regulations. Further, TCI represents and warrants that it will adopt, abide
by and enforce the principles set forth in the Principles and Code of Ethical Market Conduct of the
Insurance Marketplace Standards Association as adopted by the Company.
6. Other Broker-Dealer Agreements. TCI is hereby authorized to enter into written
sales agreements with other independent broker-dealers for the sale of the Contracts. All such
sales agreements entered into by TCI shall provide that each independent broker-dealer will assume
full responsibility for continued compliance by itself and by its associated persons with the FINRA
Rules and applicable federal and state securities and insurance laws, shall provide that each
independent broker-dealer will adopt, abide by and enforce the principles set forth in the
Principles and Code of Ethical Market Conduct of the Insurance Marketplace Standards Association as
adopted by the Company, and shall be in such form and contain such other provisions as TLIC
3
may from time to time require. All associated persons of such independent
broker-dealers soliciting applications for the Contracts shall be duly and appropriately registered
by the FINRA and licensed and appointed by TLIC for the sale of Contracts under the insurance laws
of the applicable states or jurisdictions in which such Contracts may be lawfully sold. All
applications for Contracts solicited by such broker-dealers through their representatives, together
with any other required documentation and premiums, purchase payments and other moneys, shall be
handled as set forth in paragraph 3 above.
7. Insurance Licensing and Appointments. TLIC shall apply for the proper insurance
licenses and appointments in appropriate states or jurisdictions for the designated persons
associated with TCI or with other independent broker-dealers that have entered into sales
agreements with TCI for the sale of Contracts, provided that TLIC 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.
8. Recordkeeping. TLIC and TCI shall cause to be maintained and preserved for the
periods prescribed such accounts, books, and other documents as are required of them by the 1940
Act, and 1934 Act, and any other applicable laws and regulations. The books, accounts and records
of TLIC, of the Accounts, and of TCI as to all transactions hereunder shall be maintained so as to
disclose clearly and accurately the nature and details of the transactions. TLIC (or such other
entity engaged by TLIC for this purpose), on behalf of and as agent for TCI, shall maintain TCI’s
books and records pertaining to the sale of Contracts to the extent as mutually agreed upon from
time to time by TLIC and TCI; provided that such books and records
4
shall be the property of TCI, and shall at all times be subject to such reasonable periodic,
special or other audit or examination by the SEC, FINRA, any state insurance commissioner and/or
all other regulatory bodies having jurisdiction. TLIC shall be responsible for sending on behalf
of and as agent for TCI all required confirmations on customer transactions in compliance with
applicable regulations, as modified by an exemption or other relief obtained by TLIC. TCI shall
cause TLIC to be furnished with such reports as TLIC may reasonably request for the purpose of
meeting its reporting and recordkeeping requirements under the insurance laws of the State of Iowa
and any other applicable states or jurisdictions. TLIC agrees that its records relating to the
sale of Contracts shall be subject to such reasonable periodic, special or other audit or
examination by the SEC, FINRA, and any state insurance commissioner and/or all other regulatory
bodies having jurisdiction.
9. Commissions. TLIC shall have the responsibility for paying on behalf of TCI (a)
any compensation to other independent broker-dealers and their associated persons due under the
terms of any sales agreements entered into pursuant to paragraph 6 above, between TCI and such
broker-dealers as agreed to by TLIC and (b) all commissions or other fees to associated persons of
TCI which are due for the sale of the Contracts in the amounts and on such terms and conditions as
TLIC and TCI determine. Notwithstanding the preceding sentence, no broker-dealer, associated
person or other individual or entity shall have an interest in any deductions or other fees payable
to TCI as set forth herein.
5
10. Expense Reimbursement. TLIC shall reimburse TCI for all costs and expenses
incurred by TCI in furnishing the services, materials, and supplies required by the terms of this
Agreement.
11. Indemnification. TLIC agrees to indemnify TCI for any losses incurred as a result
of any action taken or omitted by TCI, or any of its officers, agents or employees, in performing
their responsibilities under this Agreement in good faith and without willful misfeasance, bad
faith, or gross negligence, or reckless disregard of such obligations.
12. Regulatory Investigations. TCI and TLIC agree to cooperate fully in any insurance
or judicial regulatory investigation or proceeding arising in connection with Contracts distributed
under this Agreement. TCI and TLIC further agree to cooperate fully in any securities regulatory
inspection, inquiry, investigation or proceeding or any judicial proceeding with respect to TLIC,
TCI, their affiliates and their representatives to the extent that such inspection, inquiry,
investigation or proceeding or judicial proceeding is in connection with Contracts distributed
under this Agreement. Without limiting the foregoing:
(a) TCI will be notified promptly of any customer complaint or notice of any regulatory
inspection, inquiry investigation or proceeding or judicial proceeding received by TLIC with
respect to TCI or any representative or which may affect TLIC’s issuance of any Contracts marketed
under this Agreement; and
(b) TCI will promptly notify TLIC of any customer complaint or notice of any regulatory
inspection, inquiry, investigation or judicial proceeding received by TCI or any
6
representative with respect to TLIC or its affiliates in connection with any Contracts
distributed under this Agreement.
In the case of a customer complaint, TCI and TLIC will cooperate in investigating such
complaint and shall arrive at a mutually satisfactory response.
13. Term and Termination.
(a) This Agreement is effective as of the Effective Date and shall continue to remain in
effect from year to year unless terminated in accordance with this Section 13, provided that its
continuance is specifically approved at least annually by a majority of the members of the Board of
Directors of TLIC.
(b) This Agreement may be terminated by either party hereto upon 60 days’ prior written notice
to the other party.
(c) This Agreement may be terminated upon written notice of one party to the other party
hereto in the event of bankruptcy or insolvency of such party to which notice is given.
(d) This Agreement may be terminated at any time upon the mutual written consent of the
parties hereto.
(e) TCI shall not assign or delegate its responsibilities under this Agreement without the
written consent of TLIC.
(f) Upon termination of this Agreement, all authorizations, 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 TLIC prior to termination.
7
14. Regulatory Impact. This Agreement shall be subject to, among other laws, the
provisions of the 1940 Act and the 1934 Act and the rules, regulations, and rulings thereunder and
of the FINRA, from time to time in effect, including such exemptions from the 1940 Act as the SEC
may grant, and the terms hereof shall be interpreted and construed in accordance therewith.
TCI shall submit to all regulatory and administrative bodies having jurisdiction over the
operations of the Accounts, present or future; and will provide any information, reports or other
material which any such body by reason of this Agreement may request or require pursuant to
applicable laws or regulations.
15. Severability. 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.
16. Choice of Law. This Agreement shall be construed, enforced and governed by the
laws of the State of Iowa.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their
respective duly authorized officials as of the day and year first above written.
| TRANSAMERICA CAPITAL, INC. | TRANSAMERICA LIFE INSURANCE COMPANY |
|||||||||
By:
|
By: | |||||||||
| Chief Executive Officer | Senior Vice President | |||||||||
8