Exhibit 3(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this _______________, 2004 is among
FIRST SUNAMERICA LIFE INSURANCE COMPANY ("First SunAmerica")First SunAmerica, a
life insurance company organized under the laws of the State of New York, on
behalf of itself and FS VARIABLE ANNUITY ACCOUNT NINE ("Separate Account"), a
Separate Account established by First SunAmerica First SunAmerica 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 SunAmerica issues to the public certain variable annuity
contracts identified on the contract specification sheet attached hereto as
Attachment A ("Contracts"); and
WHEREAS, First SunAmerica, by resolution adopted on August 15, 2002,
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. 811-21096); and
WHEREAS, the Contracts to be issued by First SunAmerica are registered
with the Commission under the Securities Act of 1933 (the "Act") 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, First SunAmerica desires to obtain the services of the
Distributor as distributor of said Contracts issued by First SunAmerica 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, First SunAmerica, 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 SunAmerica
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 First SunAmerica, 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 SunAmerica 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 SunAmerica for purposes of the federal
securities laws for the distribution of Contracts issued
through the Separate Account.
4. Warranties
(a) First SunAmerica represents and warrants to
Distributor that:
(i) Registration Statements on Form N-4 (and, if
applicable, Form S-3) 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
SunAmerica by the Distributor expressly for
use therein;
(iii) First SunAmerica 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, 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 SunAmerica
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 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 First
SunAmerica is a party or by which First
SunAmerica
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is bound, First SunAmerica'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 SunAmerica 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 SunAmerica 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
SunAmerica or the Separate Account is a
party or of which any property of First
SunAmerica 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 First SunAmerica,
if determined adversely to First SunAmerica,
would individually or in the aggregate have
a material adverse effect on the financial
position, surplus or operations of First
SunAmerica.
(b) The Distributor represents and warrants to First
SunAmerica 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 First SunAmerica 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
First SunAmerica 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 First SunAmerica and with respect to
its activities under this Agreement for
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First SunAmerica. 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
SunAmerica 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 First
SunAmerica 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 SunAmerica 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 SunAmerica.
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
SunAmerica 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 agreed that the Distributor may render
similar services or act as a distributor or dealer in the
distribution of other variable contracts.
13. First SunAmerica 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. First SunAmerica reserves the right at any time to suspend or
limit the public offering of the subject Contracts.
15. First SunAmerica 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 SunAmerica 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 First SunAmerica, upon sixty days'
advance written notice to the Distributor; or
(b) at the option of the Distributor upon 90 days'
written notice to First SunAmerica; or
(c) at the option of First SunAmerica 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) First SunAmerica 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 First SunAmerica 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 First SunAmerica 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 First SunAmerica
specifically for use therein; and provided, further,
that nothing herein shall be so construed as to
protect the Distributor against any liability to
First SunAmerica 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 First SunAmerica, 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
First SunAmerica.
22. This Agreement covers and includes all agreements, verbal and
written, between First SunAmerica 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
SunAmerica 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.
FIRST SUNAMERICA LIFE INSURANCE COMPANY
By:
----------------------------------------
XXX X. XXXXXXX
President and Chief Executive Officer
FS VARIABLE ANNUITY ACCOUNT NINE
By: AIG SUNAMERICA LIFE ASSURANCE COMPANY
By:
----------------------------------------
XXX X. XXXXXXX
President
SUNAMERICA CAPITAL SERVICES, INC.
By:
----------------------------------------
J. XXXXXX XXXXXX
President
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Attachment A
CONTRACT SPECIFICATION SHEET
The following variable annuity contracts are the subject of the Distribution
Agreement between First SunAmerica Life Insurance Company and SunAmerica Capital
Services, Inc. dated _________________, 2004, regarding the sale of the
following contracts funded in Variable Annuity Account Nine:
1. AllianceBernstein Ovation Advantage Variable Annuity
2. AllianceBernstein Ovation Variable Annuity
3. AllianceBernstein Ovation Plus Variable Annuity
4. AllianceBernstein Ovation Advisor Variable Annuity
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