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EXHIBIT 3A
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this 28th day of January, 1994, by
and between FIRST SUNAMERICA LIFE INSURANCE COMPANY ("First Sun") , a life
insurance company organized under the laws of the State of New York, on behalf
of itself and VARIABLE ANNUITY ACCOUNT ONE ("Separate Account"), a Separate
Account established by First Sun pursuant to the insurance laws of the State of
New York, and SUNAMERICA CAPITAL SERVICES, INC., ("Distributor"), a corporation
organized under the laws of the state of Delaware.
WITNESSETH:
WHEREAS, First Sun issues to the public certain variable annuity
contracts identified on the contract specification sheet attached hereto as
Attachment A ("Contracts") , which Contracts are currently distributed by Royal
Alliance Associates, Inc.; and
WHEREAS, First Sun, by resolution adopted on May 30, 1990 established
the Separate Account on its books of account, for the purpose of issuing
variable annuity 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. 811-6313) ; and
WHEREAS, the Contracts to be issued by First Sun are registered with the
Commission under the Securities Act of 1933 (the "Act") (File No. 33-39888) 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 said Contracts; and
WHEREAS, First Sun desires to obtain the services of the Distributor as
distributor of said Contracts issued by First Sun through the Separate Account
to replace Royal Alliance Associates, Inc.;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, First Sun, 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 First Sun through the Separate
Account.
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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 the agreement of First Sun, 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 First Sun 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
First Sun for purposes of the federal securities laws for the
distribution of Contracts issued through the Separate Account. The
Distributor expressly assumes any dealer agreements entered into by
Royal Alliance Associates, Inc. with respect to the Contracts.
4. Warranties
(a) First Sun represents and warrants to the Distributor that:
(i) Registration Statements on Form N-4 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 First
Sun by the Distributor expressly for use therein;
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(iii) First Sun is validly existing as a stock life
insurance company in good standing under the laws of the
State of New York, with power (corporate or other) 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 First Sun 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;
(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 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
First Sun is a party or by which First Sun is bound, First
Sun'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 First
Sun 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 First Sun 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 First Sun or the Separate
Account is a party or of which any property of First Sun
or the Separate Account is the subject, other than as set
forth in the Prospectus relating to the Contracts, and
other
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than litigation incident to the kind of business conducted
by First Sun, if determined adversely to First Sun, would
individually or in the aggregate have a material adverse
effect on the financial position, surplus or operations of
First Sun.
(b) The Distributor represents and warrants to First Sun 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) 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 Bylaws 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
(iii) To the extent that any statements or omissions made
in the Registration Statement, or any amendment or
supplement thereto are made in reliance upon and in
conformity with written information furnished to First Sun
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 shall cause
to be kept, in a manner and form prescribed or approved by First Sun and
in accordance with Rules 17a-3 and
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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 First Sun and with respect to its activities under this
Agreement for First Sun. The party maintaining the books and records
required hereunder shall make such records and books of account
available for inspection by the Commission, and First Sun 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 First Sun 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 First Sun or the Distributor.
8. Expenses of providing sales presentations, mailings, advertising and
any other marketing efforts conducted in connection with the
distribution or sale of the Contracts shall be borne by First Sun.
9. The Distributor, as distributor of the Contracts, shall not be
entitled to remuneration for its services.
10. All premium payments collected on the sale of the Contracts by the
Distributor, if any, shall be transmitted to First Sun for immediate
allocation to the Separate Account in accordance with the directions
furnished by the purchasers of such Contracts at the time of purchase.
11. 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
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it will actively engage in its duties under this Agreement on a
continuous basis while there is an effective registration statement with
the Commission.
12. 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.
13. First Sun 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 an@ to file for approval
under state insurance laws when necessary.
14. First Sun reserves the right at any time to suspend or limit the
public offering of the subject Contracts.
15. First Sun 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.
16. First Sun 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.
17. 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 offer or sale of the subject
Contracts.
18. This Agreement will terminate automatically upon its assignment to
any person other than a person which is a wholly owned subsidiary of
SunAmerica Inc. This Agreement shall terminate, without the payment of
any penalty by either party:
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(a) at the option of First Sun, upon sixty days' advance written
notice to the Distributor; or
(b) at the option of the Distributor upon 90 days' written notice
to First Sun; or
(c) at the option of First Sun 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 either party, if the other party 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) violates
the conditions of this Agreement.
19. Each notice required by this Agreement may be given by telephone or
telefax and confirmed in writing.
20. (a) First Sun will indemnify and hold harmless the Distributor and
each person, if any, who controls the Distributor within the meaning of
the Act against any losses, claims, damages or liabilities to which the
Distributor or such controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, Prospectus or Statement of Additional
Information or any other written sales material prepared by First Sun
which is utilized by the Distributor in connection with the sale of
Contracts or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or (in the case of the Registration Statement, Prospectus and Statement
of Additional Information) necessary to make the statement therein not
misleading or (in the case of such other sales material) necessary to
make the statement therein not misleading or (in the case of such other
sales material) necessary to make the statements therein not misleading
in the light of the circumstances under which they were made and will
reimburse the Distributor and each such controlling person for any legal
or other expenses reasonably incurred by the Distributor or such
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action, provided,
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however, that First Sun will not be liable in any such case to the
extent that any such loss, claim, or omission or alleged omission made
in such Registration Statement, Prospectus or Statement of Additional
Information in conformity with information furnished to First Sun
specifically for use therein; and provided, further, that nothing herein
shall be so construed as to protect the Distributor against any
liability to First Sun or the Contract Owners to which the Distributor
would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence, in the performance of its duties, or by reason of
the reckless disregard by the Distributor of its obligations and duties
under this Agreement.
(b) The Distributor will likewise indemnify and hold harmless
First Sun, each of its directors and officers and each person, if any,
who controls the Trust within the meaning of the Act to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in conformity with
written information furnished to the Trust by the Distributor
specifically for use therein.
21. 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 First Sun.
22. This Agreement covers and includes all agreements, verbal and
written, between First Sun 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 First Sun and the Distributor unrelated to the sale of the
Contracts.
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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 amendment
shall not affect the rights of existing Contract Owners, and that such amendment
be in writing and duly executed.
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.
FIRST SUNAMERICA LIFE
INSURANCE COMPANY
/s/ XXX X. XXXXXXX
By:----------------------------------
Xxx X. Xxxxxxx
Executive Vice President
VARIABLE ANNUITY ACCOUNT ONE
By: FIRST SUNAMERICA LIFE
INSURANCE COMPANY
/s/ XXX X. XXXXXXX
By:-------------------------
Executive Vice President
SUNAMERICA CAPITAL SERVICES, INC.
/s/ XXXXX XXXXXXX
By:----------------------------------
Xxxxx Xxxxxxx
Executive Vice 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 First SunAmerica Life Insurance Company and SunAmerica Capital
Services, Inc. dated January 28, 1994 regarding the sale of the following
contracts funded in Variable Annuity Account One:
1. ICAP II
