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 AIG 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. 811-21230); 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 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 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 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
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First SunAmerica 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
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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 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.
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:
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(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
(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
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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.
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.
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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 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:
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XXXX XXXXXX XXXXX
Senior Vice President
FS VARIABLE ANNUITY ACCOUNT NINE
By: FIRST SUNAMERICA LIFE INSURANCE COMPANY
By:
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XXXX XXXXXX XXXXX
Senior Vice President
AIG SUNAMERICA CAPITAL SERVICES, INC.
By:
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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 AIG SunAmerica
Capital Services, Inc. dated _________________, 2004, regarding the sale of the
following contracts funded in FS Variable Annuity Account Nine:
1. AllianceBernstein Ovation Advantage Variable Annuity
2. AllianceBernstein Ovation Variable Annuity
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