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EXHIBIT 3.(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT entered into on this 18th day of January, 1990, by and
between PRESIDENTIAL LIFE INSURANCE COMPANY ("Presidential Life"), a life
insurance company organized under the laws of the State of New York, on behalf
of itself and PRESIDENTIAL VARIABLE ACCOUNT ONE ("Separate Account"), a Separate
Account established by Presidential Life pursuant to the New York insurance law
in 1987, and SUNAMERICA SECURITIES, INC. ("Distributor"), a corporation
organized under the laws of the State of Delaware.
WITNESSETH:
WHEREAS, Presidential Life proposes to issue to the public certain
variable annuity contracts identified on the contract specification sheet
attached hereto as Attachment A ("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. 811-5474); and
WHEREAS, the Contracts issued by Presidential Life will be registered
with the Commission for offer and sale to the public, and otherwise will be in
compliance with all applicable laws; and
WHEREAS, 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 a co-distributor on an agency basis in the
marketing and distribution of said Contracts; and
WHEREAS, Presidential Life desires to obtain the services of Distributor
as a distributor of said Contracts issued by Presidential Life 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, Presidential Life, the Separate Account, and Distributor hereby
agree as follows:
1. Distributor will serve as co-distributor on an agency basis for
the Contracts which will be issued by Presidential Life through the
Separate Account and will be registered with the Commission for offer
and sale to the public.
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2. Distributor, as co-distributor of the Contracts, will use its
best efforts to provide information and marketing assistance to licensed
insurance agents and broker-dealers on a continuing basis. However,
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
co-distributor of said Contracts. Moreover, 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 Presidential Life, 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 Presidential Life through the
Separate Account. Any such contractual arrangement is expressly made
subject to this Agreement, and Distributor will at all times be
responsible to Presidential Life for purposes of the federal securities
laws for the distribution of Contracts issued through the Separate
Account. Distributor will use its best efforts to provide information
and marketing assistance to such broker-dealers on a continuing basis.
4. Warranties
(a) Presidential Life represents and warrants to Distributor
that:
(i) A Registration Statement on Form N-4 under the
Securities Act of 1933 for each of the contracts
indicated on Attachment A and an amendment to the
Separate Account's registration under the Investment
Company Act of 1940 (File No. 811-5474) have been filed
with the Commission in the form previously delivered to
Distributor and that copies of any and all amendments
thereto will be forwarded to 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 thereunder, 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
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not apply to any statements or omissions made in
reliance upon and in conformity with information
furnished in writing to Presidential Life by Distributor
expressly for-use therein;
(iii) Presidential Life 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 Distributor on behalf
of Presidential Life 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) 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
Presidential Life is a party or by which Presidential
Life is bound. Presidential Life'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 Presidential Life 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 Presidential Life 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
Distributor; and
(vi) There are no material legal or governmental
proceedings pending to which Presidential Life or the
Separate Account is a party or of which any property of
Presidential Life 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
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conducted by Presidential Life which, if determined
adversely to Presidential Life, would individually or in
the aggregate have a material adverse effect on the
financial position, surplus or operations of
Presidential Life.
(b) Distributor represents and warrants to Presidential Life
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 Presidential Life to be authorized insurance
agents. Presidential Life shall not be required to bear
the costs of licensing or maintaining the securities
licenses of those persons who offer and sell the
Contracts to the public;
(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
Distributor is a party or by which Distributor is bound,
the Certificate of Incorporation or By-laws of
Distributor, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction
over Distributor or its property;
(iv) No offering, sale or other disposition of any
Contracts will be made until Distributor is notified by
Presidential Life that the Contracts are fully
registered with the Commission for issuance and sale;
and such offering, sale or other disposition shall be
limited to those jurisdictions that have approved or
otherwise permit the offer and sale of the Contracts by
Presidential Life; and
(v) 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
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in conformity with written information furnished to
Presidential Life by 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. Distributor shall keep, in a manner and form prescribed or
approved by Presidential Life 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 Presidential Life and with respect to its activities under
this agreement for Presidential Life. Distributor shall make such
records and books of account available for inspection by the Commission,
and Presidential Life 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, Distributor will utilize the currently effective
Prospectus relating to the subject Contracts in connection with its
marketing and distribution efforts. As to the other types of sales
material, Distributor agrees that it will use only sales materials as
have been authorized for use by Presidential Life 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. Distributor 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 Distributor, any of
the foregoing misstates the duties, obligation or liabilities of
Presidential Life or Distributor.
8. Distributor will bear all of its expenses of providing services
pursuant to this Agreement including the cost of sales presentations,
mailings, advertising and any other marketing efforts it conducts in
connection with the distribution or sale of the Contracts.
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9. Distributor, as co-distributor of the Contracts, shall be
entitled to such remuneration for its services and for the services of
its salaried employees and such reimbursement for its charges and
expenses as will be contained in such Schedules of Remuneration as
attached hereto as Attachment B. Said Schedules of Remuneration may be
amended from time to time at the mutual consent of the undersigned
parties.
10. Distributor shall ensure that all premium payments Collected on
the sale of the Contracts are properly transmitted to the Annuity
Service Office of Presidential Life 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. If any purchase payment premiums shall be required to be
returned by Presidential Life or should Presidential Life 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 Presidential Life the amount of remuneration previously paid over
to it by Presidential Life with respect to such premiums.
12. Distributor makes no representation or warranties regarding the
number of Contracts to be sold by licensed broker-dealers and insurance
agents or the amount to be paid thereunder. 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
with the Commission.
13. It is understood and agreed that Distributor may render similar
services or act as a distributor or dealer in the distribution of other
variable contracts.
14. Distributor will use its best efforts to ensure that the
Contracts shall be offered for sale by licensed broker-dealers and
insurance agents on the terms described in the currently effective
Prospectus describing such Contracts.
15. Presidential Life 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. Presidential Life reserves the right at any time to suspend or
limit the public offering of the subject Contracts upon one day's
written notice to Distributor.
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17. Presidential Life agrees to advise Distributor immediately of:
(a) any request by the Commission (i) for amendment of the
Securities Act 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. Presidential Life will furnish to Distributor such information
with respect to the Separate Account and the Contracts in such form and
signed by such of its officers as 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 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 Presidential Life upon sixty days,
advance written notice to Distributor; or
(b) at the option of Distributor upon sixty days' written
notice to Presidential Life; or
(c) at the option of Presidential Life upon institution of
formal proceedings against Distributor by the National
Association of Securities Dealers, Inc. or by the commission; or
(d) at the option of Presidential Life, if 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; (ii) fails to
account
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and pay over promptly to Presidential Life money due it
according to its records; or (iii) violates the conditions of
this Agreement.
21. Each notice required by this Agreement may be given by wire and
confirmed in writing.
22. This Agreement shall be subject to the laws of the State of New
York and construed so as to interpret the Contracts as insurance
contracts written within the business operation of Presidential Life.
23. This Agreement covers and includes all agreements, verbal and
written, between Presidential Life and Distributor with regard to the
marketing and distribution of the Contracts, and supercedes 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 Presidential Life and Distributor unrelated to the sale of the
Contracts.
24. This agreement is not exclusive in regard to the distribution of
the Contracts. It is understood and agreed that Presidential Life may
enter into a similar agreement or agreements for the distribution of the
Contracts on the basis that such other distributors shall also act in
the capacity of co-distributor.
This Agreement, along with any Schedules of Remuneration 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.
This Agreement shall become effective upon the execution hereof by both
parties.
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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 and this Agreement to be effective on the date first stated
above.
Presidential Life Insurance Company
Attest:
___________________ By: [SIG]
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Variable Annuity Account One
By: Presidential Life Insurance Company
Attest:
___________________ By: [SIG]
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SunAmerica Securities, Inc.
Attest: By: [SIG]
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[SIG]
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Attachment A
CONTRACT SPECIFICATION SHEET
The following variable annuity contracts are the subject of the Distribution
Agreement between Presidential Life Insurance Company and SunAmerica Securities,
Inc. dated January 18, 1990 regarding the sale of contracts funded in Variable
Annuity Account One:
ICAP - Contract A01088NY
Individual Flexible Purchase Payment Deferred Variable Annuity
Contract (together with all Riders and Endorsements relating
thereto).
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Attachment B
Schedule of Remuneration
Pursuant to the Distribution Agreement between Presidential Life Insurance
Company and SunAmerica Securities, Inc. dated January 18, 1990 regarding the
sale of contracts funded in Variable Annuity Account One, the following
remuneration will be paid for the services rendered by the Distributor of the
indicated contracts:
Contract Remuneration
ICAP - Contract A01088NY 5% of premium payments
received under the
Contract
