Exhibit 3(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this _____ day of ________,2001 is
among (" "), a life insurance company organized under the laws of the State of ,
on behalf of itself and ________________ SEPARATE ACCOUNT ("Separate Account"),
a Separate Account established by ________ pursuant to the insurance laws of the
State of _______, and _____________________. ("Distributor"), a corporation
organized under the laws of the State of _______.
WITNESSETH:
WHEREAS, ________ issues to the public certain variable annuity
contracts identified on the contract specification sheet attached hereto as
Attachment A ("Contracts"); and
WHEREAS, ________, by resolution adopted on __________, 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-_____); and
WHEREAS, the Contracts to be issued by ______ are registered with the
Commission under the Securities Act of 1933 (the "Act") (File No. 33-_____ and
33-_____) 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;
WHEREAS, _______ desires to obtain the services of the Distributor as
distributor of said Contracts issued by ________ 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, ______, 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 ______ 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 ______, 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 ______ 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 ______ for purposes of the federal
securities laws for the distribution of Contracts issued through
the Separate Account.
4. Warranties
(a) ______ represents and warrants to Distributor that:
(i) Registration Statements on Form N-4 (and, if
applicable, 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 ______ by the
Distributor expressly for use therein;
(iii) ______ 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 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, 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 ______ 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 ______ is a party or by which ______ is
bound, ______'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 _____ 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 ______ 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 ______ or the
Separate Account is a party or of which any
property of ______ 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 ______, if determined adversely to
______, would individually or in the aggregate
have a material adverse effect on the financial
position, surplus or operations of ______.
(b) The Distributor represents and warrants to ______ 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 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
(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 ______ 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
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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
______ 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 ______ and with respect to its
activities under this Agreement for ______. The party
maintaining the books and records required hereunder shall make
such records and books of account available for inspection by
the Commission, and ______ 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 connections 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 ______ 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 ______ 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 ______.
9. The Distributor, as distributor of the Contracts, shall not be
entitled to renumeration for its services.
10. All premium payments collected on the sale of the Contracts by
the Distributor, if any, shall be transmitted to ______ 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 it will actively
engage in its duties under this Agreement on a continuous basis
while there is an effective registration statement with the
Commission.
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12. It is understood and agree that the Distributor may render
similar services or act as a distributor or dealer in the
distribution of other variable contracts.
13. ______ 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.
14. ______ reserves the right at any time to suspend or limit the
public offering of the subject Contracts.
15. ______ 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. ______ 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:
(a) at the option of ______, upon sixty days' advance
written notice to the Distributor; or
(b) at the option of the Distributor upon 90 days' written
notice to ______; or
(c) at the option of ______ upon institution of formal
proceedings against the Distributors by the National
Association of Securities Dealers, Inc. or by the
Commission; or
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(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) ______ shall 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 ______ 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 (in the case of the Registration
Statement, Prospectus and Statement of Additional
Information), 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, however, that ______ will not be
liable in any such case to the extent that any such
loss, claim, omission or alleged omission made in such
Registration Statement, Prospectus or Statement of
Additional Information in conformity with information
furnished to ______ specifically for use therein; and
provided, further, that nothing herein shall be so
construed as to protect the Distributor against any
liability to ______ 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 his or her duties, or by reason of
his or her reckless disregard by the Distributor of its
obligations and duties under this Agreement.
(b) The Distributor will likewise indemnify and hold
harmless ______, 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.
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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
______.
22. This Agreement covers and includes all agreements, verbal and
written, between ______ 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 ______ 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.
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.
_____________ LIFE INSURANCE COMPANY
By:
--------------------------
XXX X. XXXXXXX
President
____________ SEPARATE ACCOUNT
By: ______________ LIFE
INSURANCE COMPANY
By:
--------------------------
XXX X. XXXXXXX
President
SUNAMERICA CAPITAL SERVICES, INC.
By:
--------------------------
XXXXX XXXXXXX
Executive Vice President
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Attachment A
CONTRACT SPECIFICATION SHEET
The following variable annuity contracts are the subject of the Distribution
Agreement between ______ Life Insurance Company and SunAmerica Capital Services,
Inc. dated ______, 2001, regarding the sale of the following contracts funded in
_____ Separate Account:
1. _____________ Variable Annuity
2. _____________ Variable Annuity
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