EXHIBIT 3(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this 30th day of December, 1998, is
between ANCHOR NATIONAL LIFE INSURANCE COMPANY ("Anchor"), a life insurance
company organized under the laws of the State of Arizona, on behalf of itself
and VARIABLE ANNUITY ACCOUNT FIVE ("Separate Account"), a Separate Account
established by Anchor pursuant to the insurance laws of the State of Arizona,
and SUNAMERICA CAPITAL SERVICES, INC. ("Distributor"), a corporation
organized under the laws of the State of Delaware.
WITNESSETH:
WHEREAS, Anchor issues to the public certain variable annuity contracts
identified on the contract specification sheet attached hereto as Attachment
A ("Contracts"); and
WHEREAS, Anchor, by resolution adopted on July 3, 1996, established the
Separate Account on its books of account, for the purpose of issuing
Contracts; and
WHEREAS, the Separate Account is registered with the Securities and
Exchange Commission ("Commission") as a unit investment trust under the
Investment Company Act of 1940 (File No. 811-07727); and
WHEREAS, the Contracts to be issued by Anchor are registered with the
Commission under the Securities Act of 1933 (the "Act") (File Nos. 333-67685
and 333-67689) for offer and sale to the public, and otherwise are in
compliance with all applicable laws; and
WHEREAS, the Distributor, a broker-dealer registered under the
Securities Exchange Act of 1934 and a member of the National Association of
Securities Dealers, Inc., proposes to act as distributor on an agency basis
in the marketing and distribution of the Contracts; and
WHEREAS, Anchor desires to obtain the services of the Distributor as
distributor of said Contracts issued by Anchor through the Separate Account;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, Anchor, the Separate Account, and Distributor hereby agree as
follows:
1. The Distributor will serve as distributor on an agency basis for the
Contracts which will be issued by Anchor through the Separate
Account.
2. The Distributor will, either directly or through an affiliate,
provide information and marketing assistance to licensed insurance
agents and broker-dealers on a continuing basis. The Distributor
shall be responsible for compliance with the requirements of state
broker-dealer regulations and the Securities Exchange Act of 1934 as
each applies to Distributor in connection with its duties as
distributor of said Contracts. Moreover, the Distributor shall
conduct its affairs in accordance with the Rules of Fair Practice of
the National Association of Securities Dealers, Inc.
3. Subject to agreement of Anchor, the Distributor may enter into
dealer agreements with broker-dealers registered under the
Securities Exchange Act of 1934 and authorized by applicable law to
sell variable annuity contracts issued by Anchor through the
Separate Account. Any such contractual arrangement is expressly
made subject to this Agreement, and the Distributor will at all
times be responsible to Anchor for purposes of the federal
securities laws for the distribution of Contracts issued through the
Separate Account. The Distributor will use its respective best
efforts to provide information and marketing assistance to such
broker-dealers on a continuing basis.
4. WARRANTIES
(a) Anchor represents and warrants to Distributor that:
(i) Registration Statements on Form N-4 and Form S-1 for
each of the Contracts identified on Attachment A have
been filed with the Commission in the form previously
delivered to the Distributor and that copies of any and
all amendments thereto will be forwarded to the
Distributor at the time that they are filed with the
Commission;
(ii) The Registration Statement and any further amendments
or supplements thereto will, when they become
effective, conform in all material respects to the
requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, and the rules and
regulations of the Commission under such Acts, and will
not contain an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation
and warranty shall not apply to any statement or
omission made in reliance upon and in conformity with
information furnished in writing to Anchor by the
Distributor expressly for use therein;
(iii) Anchor is validly existing as a stock life insurance
company in good standing under the laws of the state of
Arizona, with power (corporate or otherwise) to own its
properties and conduct its business as described in the
Prospectus, and has been duly qualified for the
transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to
require such qualification;
(iv) The Contracts to be issued through the Separate Account
and offered for sale by the Distributor on behalf of
Anchor hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and
will conform to the description of such Contracts
contained in the Prospectuses relating thereto;
(v) Those persons who offer and sell the Contracts are to
be appropriately licensed in a manner as to comply with
the state insurance laws;
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(vi) The performance of this Agreement and the consummation
of the transactions contemplated by this Agreement will
not result in a breach or violation of any of the terms
and provisions of, or constitute a default under any
statute, any indenture, mortgage, deed of trust, note
agreement or other agreement or instrument to which
Anchor is a party or by which Anchor is bound, Anchor's
Charter as a stock life insurance company or By-laws,
or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over
Anchor or any of its properties; and no consent,
approval, authorization or order of any court or
governmental agency or body is required for the
consummation by Anchor of the transactions contemplated
by this Agreement, except such as may be required under
the Securities Exchange Act of 1934 or state insurance
or securities laws in connection with the distribution
of the Contracts by the Distributor; and
(vii) There are no material legal or governmental proceedings
pending to which Anchor or the Separate Account is a
party or of which any property of Anchor or the
Separate Account is the subject, other than as set
forth in the Prospectus relating to the Contracts, and
other than litigation incident to the kind of business
conducted by Anchor, if determined adversely to Anchor,
would individually or in the aggregate have a material
adverse effect on the financial position, surplus or
operations of Anchor.
(b) The Distributor represents and warrants to Anchor that:
(i) It is a broker-dealer duly registered with the
Commission pursuant to the Securities Exchange Act of
1934 and a member in good standing of the National
Association of Securities Dealers, Inc., and is in
compliance with the securities laws in those states in
which it conducts business as a broker-dealer;
(ii) It shall permit the offer and sale of Contracts to the
public only by and through persons who are
appropriately licensed under both the securities laws
and state insurance laws and who are appointed in
writing by Anchor to be authorized insurance agents;
(iii) The performance of this Agreement and the consummation
of the transactions herein contemplated will not result
in a breach or violation of any of the terms or
provisions of or constitute a default under any
statute, any indenture, mortgage, deed of trust, note
agreement or other agreement or instrument to which the
Distributor is a party or by which the Distributor is
bound, the Certificate of Incorporation or By-laws of
the Distributor, or any order, rule or regulation of
any court or governmental agency or body having
jurisdiction over the Distributor or its property; and
(iv) To the extent that any statements or omissions made in the
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Registration Statement, or any amendment or supplement
thereto are made in reliance upon and in conformity
with written information furnished to Anchor by the
Distributor expressly for use therein, such
Registration Statement and any amendments or
supplements thereto will, when they become effective or
are filed with the Commission, as the case may be,
conform in all material respects to the requirements of
the Securities Act of 1933 and the rules and
regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit
to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading.
5. The Distributor, or an affiliate thereof, shall keep, or cause to be
kept, in a manner and form prescribed or approved by Anchor and in
accordance with Rules 17a-3 and 17a-4 under the Securities Exchange Act
of 1934, correct records and books of account as required to be
maintained by a registered broker-dealer, acting as distributor, of all
transactions entered into on behalf of Anchor and with respect to its
activities under this Agreement for Anchor. The Distributor shall make
such records and books of account available for inspection by the
Commission, and Anchor shall have the right to inspect, make copies of
or take possession of such records and books of account at any time on
demand.
6. Subsequent to having been authorized to commence the activities
contemplated herein, the Distributor, or an affiliate thereof, will
cause the currently effective Prospectus relating to the subject
Contracts in connection with its marketing and distribution efforts to
be utilized. As to the other types of sales material, the Distributor,
or an affiliate thereof, agrees that it will cause to be used only
sales materials as have been authorized for use by Anchor and which
conform to the requirements of federal and state laws and regulations,
and which have been filed where necessary with the appropriate
regulatory authorities, including the National Association of
Securities Dealers, Inc.
7. The Distributor, or such other person as referred to in paragraph 6
above, will not distribute any Prospectus, sales literature, or any
other printed matter or material in the marketing and distribution of
any Contract if, to the knowledge of the Distributor, or such other
person, any of the foregoing misstates the duties, obligation or
liabilities of Anchor or the Distributor.
8. The Distributor shall bear all expenses of providing services pursuant
to this Agreement, including the cost of sales presentations,
mailings, advertising and any other marketing efforts they conduct in
connection with the distribution or sale of the Contracts.
9. The Distributor, as distributor of the Contracts, shall not be entitled
to remuneration for its services.
10. This Distributor shall ensure that all premium payments collected on
the sale of the Contracts, if any, shall be transmitted to Anchor for
immediate allocation to the Separate Account in accordance with the
directions furnished by the purchasers of such Contracts at the time of
purchase.
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11. If any purchase payment premiums shall be required to be returned by
Anchor or should Anchor become liable for the return thereof for any
cause other than surrenders or withdrawals by Contract Owners pursuant
to the terms of the Contracts either before or after termination of
this Agreement, Distributor agrees to pay Anchor the amount of
remuneration previously paid over to it by Anchor with respect to such
premiums.
12. The Distributor makes no representations or warranties regarding the
number of Contracts to be sold by licensed broker-dealers and insurance
agents or the amount to be paid thereunder. The Distributor does,
however, represent that it will actively engage in its duties under
this Agreement on a continuous basis while there is an effective
registration statement with the Commission.
13. It is understood and agreed that the Distributor may render similar
services or act as a distributor or dealer in the distribution of other
variable contracts.
14. The Distributor shall use its best efforts to ensure that the Contracts
will be offered for sale by licensed broker-dealers and insurance
agents on the terms described in the currently effective Prospectus
describing such Contracts.
15. Anchor will use its best efforts to assure that the Contracts are
continuously registered under the Securities Act of 1933 and, should it
ever be required, under state Blue Sky Laws and to file for approval
under state insurance laws when necessary.
16. Anchor reserves the right at any time to suspend or limit the public
offering of the subject Contracts upon one day's written notice to the
Distributor.
17. Anchor agrees to advise the Distributor immediately of:
(a) any request by the Commission (i) for amendment of the
Registration Statement relating to the Contracts, or (ii) for
additional information;
(b) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement relating to the
Contracts or the initiation of any proceedings for that purpose;
and
(c) the happening of any material event, if known, which makes untrue
any statement made in the Registration Statement relating to the
Contracts or which requires the making of a change therein in
order to make any statement made therein not misleading.
18. Anchor will furnish to the Distributor such information with respect to
the Separate Account and the Contracts in such form and signed by such
of its officers as the Distributor may reasonably request; and will
warrant that the statements therein contained when so signed will be
true and correct.
19. Each of the undersigned parties agrees to notify the other in writing
upon being apprised of the institution of any proceeding, investigation
or hearing involving the
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offer or sale of the subject Contracts.
20. This Agreement will terminate automatically upon its assignment.
This Agreement shall terminate, without the payment of any penalty
by either party:
(a) at the option of Anchor, upon sixty days' advance written notice
to the Distributor; or
(b) at the option of the Distributor upon 90 days' written notice to
Anchor; or
(c) at the option of Anchor upon institution of formal proceedings
against the Distributors by the National Association of
Securities Dealers, Inc. or by the Commission; or
(d) at the option of Anchor, if the Distributor or any
representative thereof at any time (i) employs any device,
scheme, or artifice to defraud; makes any untrue statement of
a material fact or omits to state a material fact necessary
in order to make the statements made, in light of the
circumstances under which they were made, not misleading; or
engages in any act, practice, or course of business which
operates or would operate as a fraud or deceit upon any
person; or (ii) fails to account and pay over promptly to
Anchor money due it according to its records; or violates the
conditions of this Agreement.
21. Each notice required by this Agreement may be given by telephone
or telefax and confirmed in writing.
22. Anchor agrees to indemnify Distributor for any liability that it
may incur to a Contract Owner or party-in-interest under a
Contract (i) arising out of any act or omission in the course of,
or in connection with, rendering services under this Agreement, or
(ii) arising out of the purchase, retention or surrender of a
contract; provided however that Anchor will not indemnify
Distributor for any such liability that results from the willful
misfeasance, bad faith or gross negligence of such Distributor or
from the reckless disregard, by such Distributor, of its duties
and obligations arising under this Agreement.
23. This Agreement shall be subject to the laws of the State of
California and construed so as to interpret the Contracts and
insurance contracts written within the business operation of
Anchor.
24. This Agreement covers and includes all agreements, verbal and
written, between Anchor and the Distributor with regard to the
marketing and distribution of the Contracts, and supersedes and
annuls any and all agreements between the parties with regard to
the distribution of the Contracts; except that this Agreement
shall not affect the operation of previous or future agreements
entered into between Anchor and the Distributor unrelated to the
sale of the Contracts.
THIS AGREEMENT, along with any Attachment attached hereto and
incorporated herein by reference, may be amended from time to time by the
mutual agreement and consent of the undersigned parties; provided that such
amended shall not affect the rights of existing Contract Owners, and that
such amended be in writing and duly executed.
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IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be duly executed and their respective corporate seals to be hereunto
affixed and attested on the date first stated above.
ANCHOR NATIONAL LIFE INSURANCE COMPANY
By:
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Xxxxx X. Xxxxxx
Senior Vice President
VARIABLE ANNUITY ACCOUNT FIVE
By: ANCHOR NATIONAL LIFE
INSURANCE COMPANY
By:
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Xxxxx X. Xxxxxx
Senior Vice President
SUNAMERICA CAPITAL SERVICES, INC.
By:
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J. Xxxxxx Xxxxxx
President
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ATTACHMENT A
CONTRACT SPECIFICATION SHEET
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The following variable annuity contracts are the subject of the Distribution
Agreement between Anchor National Life Insurance Company and SunAmerica
Capital Services, Inc. dated December 30, 1998 regarding the sale of the
following contracts funded in Variable Annuity Account Five:
1. Seasons Select Variable Annuity
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