EXHIBIT (3) (A): PRINCIPAL UNDERWRITER AGREEMENT
PRINCIPAL UNDERWRITING AGREEMENT
UNITED OF OMAHA SEPARATE ACCOUNT C
PRINCIPAL UNDERWRITING AGREEMENT effective May 1, 1994, by and between UNITED OF
OMAHA LIFE INSURANCE COMPANY ("UNITED") on its own behalf and on behalf of
UNITED OF OMAHA SEPARATE ACCOUNT C ("ACCOUNT") and MUTUAL OF OMAHA INVESTOR
SERVICES, INC. ("UNDERWRITER").
WHEREAS:
o The ACCOUNT was established under authority of a resolution of
UNITED's Board of Directors on December 1, 1993, in order to set aside
and invest assets attributable to certain variable annuity contracts
("Contracts") issued by UNITED;
o UNITED has registered the ACCOUNT as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act") and has registered the
Contracts under the Securities Act of 1933;
o UNDERWRITER is registered as a broker-dealer with the Securities and
the Exchange Commission ("SEC") under the Securities Exchange Act
of 1934, as amended (the "1934 Act"), and is a member in good standing
of the National Association of Securities Dealers, Inc. ("NASD");
o UNITED and the ACCOUNT desire to have the Contract sold and
distributed through UNDERWRITER and UNDERWRITER is willing to sell and
distribute such Contracts under the terms stated herein; and
o UNDERWRITER desires to have UNITED perform certain services in
connection with the sale of the Contracts;
NOW, THEREFORE, the parties agree as follows:
A. UNDERWRITER APPOINTMENT. UNITED appoints UNDERWRITER, and UNDERWRITER
agrees to serve as, distributor and principal underwriter of the
Contracts during the term of this Agreement. UNDERWRITER will be under
no obligation to effectuate any particular amount of sales of
Contracts or to promote or to make sales, except to the extent that
UNITED deems advisable. UNDERWRITER shall be responsible 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.
B. RETAIL BROKER-DEALER AGREEMENTS
B.1. UNITED authorizes UNDERWRITER to enter into separate written
agreements, on terms and conditions UNDERWRITER determines are not
inconsistent with this Agreement, with independent broker-dealers who
are registered as such under the 1934 Act and are members of the NASD,
and who agree to participate in the distribution of the Contracts and
to use their best efforts to solicit applications for the Contracts.
UNDERWRITER and UNITED may also enter into consulting and/or wholesale
agreements with other distributors to obtain assistance in locating
independent broker-dealers who are willing to enter into retail
broker-dealer agreements for the sale of Contracts.
B.2. Each retail broker-dealer agreement shall require that each retail
broker-dealer shall be responsible for carrying out its sales
obligations hereunder in compliance with the NASD Rules of Fair
Practice and federal and state securities laws, and specifically shall
be fully responsible for:
(a) ensuring that no person shall offer or sell the Contracts on the
retail broker-dealer's behalf until such person is duly registered as
a representative of such retail broker-dealer, duly appointed by
UNITED, and appropriately licensed, registered or otherwise qualified
to offer and sell such Contracts under the federal securities laws and
any applicable securities laws of each state or other jurisdiction in
which such Contracts may be lawfully sold, in which UNITED is licensed
to sell the Contracts and in which such person shall offer or sell the
Contracts (such persons hereinafter referred to as "Representatives");
and
(b) training, supervising, and controlling of 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 offering and sale of the Contracts.
In this connection, the retail broker-dealer shall:
(1) conducts its training (including the preparation
and utilization of training materials) as in the
opinion of 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. Without limiting any
of the following, a determination of suitability
shall be based upon information furnished after
reasonable inquiry of the applicant concerning the
applicant's insurance and investment objectives,
financial situation and needs, and the likelihood
of whether the applicant will persist with the
Contact for such a period of time that UNITED's
acquisition costs are amortized over a reasonable
period of time. UNITED and UNDERWRITER will rely on
the signature of a principal of the retail
broker-dealer as evidence that the broker-dealer
has made a reasonable determination of suitability.
B.3. Each retail broker-dealer shall provide that the only information or
representations made concerning the Contracts are those contained in
the Registration Statement and prospectus filed with the SEC or are
contained in sales or promotional material approved by UNITED and
UNDERWRITER.
B.4. Applications for Contracts solicited by retail broker-dealers through
their Representatives shall be forwarded to UNITED. All payment for
Contracts shall be made payable to "United of Omaha Life Insurance
Company" and remitted promptly to UNITED as agent for UNDERWRITER.
B.5. Each broker-dealer who agrees to participate in the distribution of
the Contracts shall act as an independent contractor and nothing
herein shall constitute such broker-dealer or its agents or employees
as employees of UNDERWRITER or UNITED in connection with the sale of
Contracts.
B.6. UNITED shall apply for the proper insurance licenses in the
appropriate states or jurisdictions for the Representatives associated
with UNDERWRITER or with other independent retail broker-dealers which
have entered into agreements with UNDERWRITER for the sale of
Contracts, provided that UNITED reserves the right to refuse to
appoint any proposed Representative as an agent or broker, or to
terminate a Representative once appointed.
C. PROSPECTUSES AND PROMOTIONAL MATERIAL.
C.1. UNITED shall furnish UNDERWRITER with copies of all prospectuses,
financial statements and other documents and materials which
UNDERWRITER reasonably requests for use in connection with the
distribution of Contracts. UNITED shall have responsibility for the
preparation, filing and printing of all required prospectuses and/or
registration statements in connection with the marketing or sales of
the Contracts, and the payment of all related expenses. UNDERWRITER
will, at UNITED's sole expense, execute such papers and do such acts
and things that shall from time to time be reasonably requested by
UNITED for the purpose of maintaining the registration of the
Contracts under the 1933 Act and the Account under the 1940 Act, and
qualifying and maintaining qualification of the Contracts for sale
under the applicable laws of any state.
C.2. UNDERWRITER and UNITED shall cooperate fully in designing, drafting
and reviewing of sales promotion materials. UNDERWRITER shall only use
such materials that have been provided or approved by UNITED.
UNDERWRITER will make timely filings with the SEC, NASD and any other
securities regulatory authorities of any sales literature or materials
relating to the Account as required by law to be filed.
C.3. UNITED, on behalf of UNDERWRITER, will make timely filings with those
state securities regulatory authorities of any information related to
the Contracts as required by such state's Blue Sky laws in order to
qualify and maintain qualification of the Contracts for sale in such
state.
D. REPRESENTATIVES RECORDS. UNITED, on behalf of UNDERWRITER, shall have
the responsibility for maintaining the records of Representatives
licensed, registered or otherwise qualified to sell the Contracts.
E. OTHER RECORDS. UNITED agrees to maintain all required books of account
and related financial records on behalf of UNDERWRITER. All such books
of account and records shall be maintained and preserved pursuant to
1934 Act Rules 17a-3 and 17a-4 (or the corresponding provisions of any
future federal securities laws or regulations). All such books and
records shall be maintained by UNITED on behalf of and as agent for
UNDERWRITER whose property they are and shall remain for all purposes
and shall at all times be subject to reasonable periodic, special or
other examination by the SEC and all other regulatory bodies having
jurisdiction. UNITED also agrees to send to UNDERWRITER's customers
all required confirmations of customer transactions.
F. COMPENSATION.
F.1. As compensation for UNDERWRITER's assuming its distribution expenses
and performing the services to be assumed and performed by it pursuant
to this Agreement, UNDERWRITER shall receive from UNITED such amounts
and at such times as may from time to time be agreed upon in writing
by UNDERWRITER and UNITED.
F.2. UNITED will, on behalf of UNDERWRITER and on its account, in
connection with the sale of the Contracts, pay all amounts (including
the sales commissions described in the Prospectus for the Contracts)
due to Representatives or to those broker-dealers who have entered
into a standard form Retail Broker-Dealer Agreement with UNDERWRITER
and UNITED, and UNDERWRITER shall have no interest whatsoever in, nor
any obligation, to pay such accounts.
F.3. As compensation for its services performed and expenses incurred under
this Agreement, UNITED will receive all amounts charged as sales
charges under the Contracts. It is understood that UNITED assumes the
risk that the above compensation for its services may not prove
sufficient to cover its actual expenses in connection therewith.
G. INVESTIGATION AND PROCEEDINGS. UNDERWRITER and UNITED agree to
cooperate fully in any customer complaint, insurance regulatory
investigation or proceeding or judicial proceeding arising in
connection with the Contracts distributed under this Agreement.
UNDERWRITER and UNITED further agree to cooperate fully in any
securities regulatory inspection, inquiry, investigation or proceeding
or any judicial proceeding with respect to UNDERWRITER, UNITED, their
affiliates and their Representatives to the extent that such
inspection, inquiry, investigation or proceeding is in connection with
Contracts distributed under this Agreement. Such cooperation shall
include prompt notification to the other party of any customer
complaint or notice of any regulatory inspection, inquiry,
investigation or proceeding received in connection with any activity
in connection with any such Contract.
H. INDEMNIFICATION.
H.1. UNITED and UNDERWRITER each, as the indemnifying party, agree to
indemnify and hold harmless, as the indemnified party, the other and
the other's directors and officers against any and all losses, claims,
damages, liabilities (including amounts paid in settlement by the
indemnified party with the written consent of the indemnifying party)
or litigation (including reasonable legal expenses and expenses of
counsel chosen by the indemnified party and consented to by the
indemnifying party which consent shall not be unreasonably withheld
and other reasonable expenses), to which the indemnified party may
become subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related
directly or indirectly to the sale or distribution of the Contracts
and:
(a) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the Registration
Statement, Prospectus, Contracts or sales literature for the Contracts
(or any amendment or supplement to any of the foregoing), for which
the indemnifying party is responsible or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact required to be stated therein, or necessary to make the
statements therein not misleading, provided that this agreement to
indemnify shall not apply if such statement or omission or such
alleged statement or omission was made in reliance upon and in
conformity with information furnished to the indemnifying party by the
indemnified party for use in the Registration Statement, Prospectus,
Contracts or sales literature for the Contracts (or any amendment or
supplement) or otherwise for use in connection with the sale of the
Contracts; or
(b) arise as the result of any failure by the indemnifying party to
provide the services and furnish the materials under the terms of this
Agreement; or
(c) arise out of or result from any material breach or representation
and/or warranty made by the indemnifying party in this Agreement or
arise out of or result from any other material breach of this
Agreement by the indemnifying party, as limited by and in accordance
with the provisions of Sections H.1(a) and H.1(b) hereof; or
(d) arise out of wrongful conduct of the indemnifying party or persons
under its control with respect to the Registration Statement,
Prospectus, materials furnished, or this Agreement.
H.2. The indemnifying party shall not be liable under this Indemnification
Provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against the indemnified party as such
may arise from the indemnified party's wilful misfeasance, bad faith,
or gross negligence in the performance of its duties or by reasons of
its reckless disregard, obligations or duties under this Agreement.
H.3. The indemnifying party shall not be liable under this Indemnification
Provision with respect to any claim made against the indemnified party
unless the indemnified party shall have notified the indemnifying
party in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim
shall have been served upon the indemnified party (or after the
indemnified party shall have received notice of such service on any
designated agent), but failure to notify the indemnifying party of any
such claim shall not relieve the indemnifying party from any liability
which it may have to the indemnified party otherwise than on account
of this Indemnification Provision. In case any such action is brought
against the indemnified party, the indemnifying party shall be
entitled to participate at the indemnifying party's own expense, in
the defense of such action. The indemnifying party shall be entitled
to assume the defense thereof, at the indemnifying party's own cost
and expense, with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of the
election by the indemnifying party to assume the defense thereof, the
indemnified party shall bear the fees and expenses of any additional
counsel retained by it, and the indemnifying party will not be liable
to the indemnified party under this Agreement for any legal or other
expenses subsequently incurred by the indemnified party independently
in connection with the defense thereof other than reasonable costs of
investigation.
H.4. The indemnified party will promptly notify the indemnifying party of
the commencement of any litigation or proceedings against it in
connection with the issuance for sale of the Contracts.
I. TERMINATION. This Agreement may be terminated at any time by either
party upon 60 days written notice to the other party, without the
payment of any penalty. This Agreement shall terminate automatically
if it shall be assigned. Upon termination of this Agreement, all
authorizations, rights and obligations shall cease except the
obligation to settle accounts hereunder, including commissions on
premiums subsequently received for Contracts in effect at the time of
termination or issued pursuant to obligations received by UNITED prior
to termination, and the agreements contained in Section G, above.
J. REGULATION. This Agreement shall be subject to the provisions to the
1940 Act and the 1934 Act and the rules, regulations and rulings
thereunder and of the NASD, 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.
Without limiting the generality of the foregoing, the term "assigned"
shall not include any transaction exempted from Section 15(b)(2) of
the 1940 Act.
UNDERWRITER shall submit to all regulatory and administrative bodies having
jurisdiction over the operations of the Accounts, present or future, any
information, reports or other material which such body by reason of this
Agreement may request or require pursuant to applicable laws or
regulations.
K. SEVERABILITY. If any provisions 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.
L. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Nebraska.
Signed by the parties.
UNITED OF OMAHA LIFE INSURANCE COMPANY MUTUAL OF OMAHA INVESTOR SERVICES, INC.
--------------------------------------- ----------------------------------------
By: By:
--------------------------------------- ----------------------------------------
Print Name: Print Name:
--------------------------------------- ----------------------------------------
Title: Title:
--------------------------------------- ----------------------------------------
Date: Date:
COMPENSATION SCHEDULE to the
PRINCIPLE UNDERWRITING AGREEMENT between
UNITED OF OMAHA LIFE INSURANCE COMPANY
("UNITED")
and
MUTUAL OF OMAHA INVESTOR SERVICES, INC.
("UNDERWRITER")
Compensation Schedule Effective Date: MAY 1, 1994
For Services Rendered by UNDERWRITER to UNITED on UNITED'S own behalf and on
behalf of UNITED OF OMAHA SEPARATE ACCOUNT C, UNITED shall pay to UNDERWRITER:
1.
2.
This compensation schedule shall remain in effect for at least one year from the
effective date stated above. Either party may initiate subsequent compensation
schedule terms upon 45 days advance notice to the other party.
