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EXHIBIT 3(b)
SELLING AGREEMENT
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This Selling Agreement ("Agreement"), dated _____________________, is by and
among Anchor National Life Insurance Company ("Insurer"), SunAmerica Capital
Services, Inc. ("Distributor") and ________________________________________,
together with its duly licensed insurance affiliates indicated on the attached
Annex I (the "Affiliates" and collectively, "Broker/Dealer"). Where permitted by
state law, Broker/Dealer is acting as general agent hereunder and shall be
responsible for the duties of broker/dealer and general agent hereunder. If
state law does not permit Broker/Dealer to hold a corporate insurance license,
the appropriate duly licensed insurance affiliate identified on Annex I shall
act as general agent hereunder. Upon execution of Annex I, such entity or
entities agree to be bound by the terms hereof as if it were included in the
definition of Broker/Dealer.
1. Appointment. This Agreement is for the purpose of arranging for the
distribution of certain variable and fixed annuity contracts and any other life
insurance products identified on Exhibit 1 (the "Contracts"), issued by the
Insurer and, in the case of variable contracts, for which Distributor is
distributor, through sales people who are licensed agents of the Insurer for
insurance purposes, are associated with and registered representatives of
Broker/Dealer (each, a "Subagent"). In consideration of the mutual promises and
covenants contained in this Agreement, the Insurer and Distributor each appoint
Broker/Dealer and, as provided in Section 3, its Subagents, to solicit and
procure applications for the Contracts. This appointment is not deemed to be
exclusive in any manner and only extends to those jurisdictions where the
Contracts have been approved for sale and in which Insurer and Broker/Dealer are
both licensed as required by prevailing regulatory requirements.
2. Representations and Warranties.
A. Each party hereto represents and warrants to each other party,
as follows:
(i) It is duly organized, validly existing and in good standing under
the laws of the state of its incorporation or other corresponding applicable law
and has all requisite power, corporate or otherwise to carry on its business as
now being conducted and to perform its obligations as contemplated by this
Agreement.
(ii) It has all licenses, approvals, permits and authorizations of, and
registrations with, all authorities and agencies, including non-governmental
self-regulatory agencies, required under all federal, state, and local laws and
regulations to enable it to perform its obligations as contemplated by this
Agreement.
(iii) The execution, delivery and performance of this Agreement have
been duly and validly authorized by all necessary corporate action, if
applicable, and this Agreement constitutes the legal, valid and binding
agreement of such party, enforceable against it in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and general principles of equity.
B. Broker/Dealer additionally represents and warrants as follows:
(i) It is registered as a broker and dealer under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and is a member in good
standing of the National Association of Securities Dealers, Inc. ("NASD").
(ii) It will comply with all applicable laws, rules and regulations of,
as well as any and all directives and guidelines issued by any agency or other
regulatory body with authority over Broker/Dealer or over the premises on which
Broker/Dealer and its Subagents are soliciting the sale of Contracts.
(iii) It is duly licensed as a corporate insurance agent, or it has
identified on Annex I hereto its Affiliates which hold such licenses and are
permitted to do so under applicable laws.
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3. Subagents. Broker/Dealer is authorized to recommend Subagents for
appointment to solicit sales of the Contracts. Broker/Dealer is responsible for
investigating the character, work experience and background of any proposed
Subagent prior to recommending appointment by Insurer. No Subagent shall act on
behalf of Insurer until properly appointed by Insurer. To the extent that
Exhibit 1 does not include all annuity Contracts of Insurer which are registered
as securities under the Federal Securities laws, Broker/Dealer is responsible
for ensuring that its Subagents, unless otherwise agreed to with Insurer in
writing, do not offer to sell any other variable annuity contracts issued by
Insurer, other than the Contracts, unless a selling agreement with respect
thereto has been executed by the parties. Broker/Dealer is responsible for
supervising the activities of its Subagents and for ensuring that Subagents are
properly licensed and in compliance with all applicable federal, state and local
laws and regulations and all rules and procedures of Insurer. Broker/Dealer
shall notify Insurer promptly, in writing, of any giving or receiving of notice
of termination of any subagent. Insurer reserves the right to refuse to appoint
any proposed Subagent and to terminate any relationship with any Subagent, with
or without cause, at any time. By submitting a Subagent for appointment,
Broker/Dealer warrants that: (1) such Subagent is recommended for appointment;
(2) such Subagent is fully licensed under applicable laws to transact business
with Insurer and is a duly registered representative of Broker/Dealer; and (3)
all background investigations required by state and federal laws have been made
with respect to such Subagent.
4. Sales Material.
A. Broker/Dealer shall not use any written or audiovisual sales material
(including prepared scripts for oral presentations) in connection with the sales
of the Contracts or solicitations thereof, unless such material has been
provided by, or approved in writing in advance of such use by, the Insurer and
Distributor.
B. In accordance with the requirements of federal and certain state
laws, Broker/Dealer shall, to the extent required by such laws, maintain
complete records indicating the manner and extent of distribution of any such
sales material. This material shall be made available to appropriate federal and
state regulatory agencies as required by law or regulation and to Distributor
and Insurer upon written request.
5. Prospectuses. For any Contract which is a registered security, Broker/Dealer
warrants that solicitation will be made by use of currently effective
prospectuses for the Contract and the underlying funds; and if required by state
law, the Statement of Additional Information for the Contract; that the
prospectuses will be delivered concurrently with each sales presentation and
that no statements shall be made to a client superseding or controverting or
otherwise inconsistent with any statement made in the prospectus. The Insurer
and Distributor shall furnish Broker/Dealer, at no cost to such party,
reasonable quantities of currently effective prospectuses.
6. Conduct of Business.
A. Broker/Dealer will fully comply with the requirements of all
applicable laws, rules and regulations of regulatory authorities (including
self-regulatory organizations) having jurisdiction over the activities of
Broker/Dealer or over the activities contemplated by this Agreement to be
conducted by Broker/Dealer.
B. Neither Broker/Dealer nor any Subagent shall solicit an application
from, or recommend the purchase of a Contract to, an applicant without having
reasonable grounds to believe, in accordance with, among other things,
applicable regulations of any state insurance commission, the Securities and
Exchange Commission ("SEC") and the NASD, that such purchase is suitable for the
applicant. While not limited to the following, a determination of suitability
shall be based on information supplied after a reasonable inquiry concerning the
applicant's insurance and investment objectives and financial situation and
needs.
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C. Broker/Dealer has or will have established, prior to its commencement
of any solicitation of sales of Contracts pursuant to the terms of this
Agreement, such rules, procedures, supervisory and inspection techniques as
necessary to diligently supervise the activities of its Subagents pursuant to
this Agreement and to ensure compliance with the terms of this Agreement
necessary to establish diligent supervision. Broker/Dealer shall be responsible
for securities training, supervision and control of its Subagents in connection
with their solicitation activities with respect to the Contracts and shall
supervise compliance with applicable federal and state securities laws and NASD
requirements in connection with such solicitation activities. Broker/Dealer will
observe, and will comply with, all requirements of any bank on whose premises
Broker/Dealer engages in sales activities pursuant to this Agreement. Upon
request by Insurer or Distributor, Broker/Dealer will furnish appropriate
records as are necessary to establish diligent supervision.
D. Broker/Dealer will fully comply with the requirements of applicable
state insurance laws and regulations and will maintain all books and records and
file all reports required thereunder to be maintained or filed by a licensed
insurance agent. Broker/Dealer shall comply with the terms and conditions of any
letter issued by the Staff of the SEC with respect to the non-registration as a
broker-dealer under the 1934 Act of a corporation licensed as an insurance agent
and associated with a registered broker-dealer. Broker/Dealer shall notify
Distributor immediately in writing if Broker/Dealer fails to comply with any
such terms and conditions and shall take such measures as may be necessary to
comply with any such terms and conditions.
E. Broker/Dealer shall promptly notify Insurer and Distributor of any
written customer complaint or notice of any regulatory investigation or
proceeding received by Broker/Dealer or any Subagent relating to a Contract or
any activities undertaken in connection with this Agreement. Insurer and
Broker/Dealer shall each cooperate fully in any investigation or proceeding
including but not limited to any securities or insurance regulatory
investigation or proceeding or judicial proceeding arising in connection with
the Contracts.
F. Broker/Dealer shall pay all expenses incurred by it in the
performance of this Agreement unless otherwise specifically provided for in this
Agreement or in a writing signed by Insurer and/or Distributor and
Broker/Dealer.
G. Applications shall be taken only on preprinted application forms
supplied by the Insurer. The Contract forms and applications are the sole
property of the Insurer. No person other than the Insurer has the authority to
make, alter or discharge any policy, Contract application, Contract certificate,
supplemental contract or form issued by the Insurer. No person other than the
Insurer has the right to waive any provision with respect to any Contract or
policy. No person other than the Insurer has the authority to enter into any
proceeding in a court of law or before a regulatory agency in the name of or on
behalf of the Insurer.
H. Broker/Dealer and Subagent shall accept premiums in the form of a
check or money order made payable to Insurer. Broker/Dealer shall ensure that
all checks and money orders and applications for the Contracts received by it or
any Subagent are remitted promptly to Insurer. In the event that any other
premiums are sent to a Subagent or Broker/Dealer rather than to Insurer, they
shall promptly remit such premiums to Insurer. Broker/Dealer acknowledges that
if any premium is held at any time by it, such premium shall be held on behalf
of Insurer, and Broker/Dealer shall segregate such premium from its own funds
and promptly remit such premium to Insurer. All such premiums, whether by check,
money order or wire, shall at all times be the property of Insurer.
I. Upon issuance of a Contract by Insurer and delivery of such Contract
to Broker/Dealer, Broker/Dealer shall promptly deliver such Contract to its
purchaser. For purposes of this provision, "promptly" shall be deemed to mean
not later than five calendar days, or such shorter period as is reasonable under
the circumstances. Broker/Dealer shall return promptly to Insurer all receipts
for delivered Contracts, all undelivered Contracts and all receipts for
cancellation, in accordance with the instructions from Insurer.
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J. Unless required by a determination of suitability, during the term of
this Agreement and after termination hereof, Broker/Dealer covenants on behalf
of itself and any Subagent appointed hereunder, that they shall not solicit,
induce or attempt to solicit or induce Contract owners to terminate, surrender,
cancel, replace or exchange such Contract. Broker/Dealer acknowledges and agrees
that the provisions contained in this Section 6 may be enforced by an action for
an injunction, as well as or in addition to any action for damages.
7. Commission Payments.
A. Broker/Dealer shall be entitled to receive a commission based upon
premiums received and accepted by the Insurer for Contracts issued pursuant to
this Agreement, based on the applicable rate of commission set forth in the
Commission Schedule attached hereto as Exhibit 1 which is incorporated herein by
reference. Broker/Dealer shall be solely responsible for the payment of any
commission or consideration of any kind to Subagents.
B. In no event shall the Insurer be liable for the payment of any
commissions with respect to any solicitation made, in whole or in part, by any
person not appropriately licensed and registered prior to the commencement of
such solicitation.
C. If a Contract is returned to the Insurer pursuant to the "Free Look"
provision or any other right to examine provision of the Contract, the full
commission paid by the Insurer will be unearned and shall be returned to the
Insurer upon demand or, in the absence of such demand, charged back to the
recipient of the commission. Broker/Dealer covenants and agrees to promptly
deliver Contracts and to hold the Insurer harmless from and against any claim
arising from market loss resulting from their breach of this covenant.
D. In no event shall Insurer incur obligations under this Agreement to
issue any Contracts or pay any commission in connection therewith if the
Contract owner is over the maximum issue age with respect to that product when
the Contract application was accepted. With respect to such Contracts, the full
commission paid by the Insurer will be unearned and shall be returned to the
Insurer upon demand or, in the absence of such demand, charged back to the
recipient of the commission.
E. With respect to any Contract that is rescinded, as determined by the
Insurer in its sole discretion (other than a rescission with respect to which a
surrender charge applies), or if the Insurer otherwise determines that a
commission has not been earned (but such determination may not contravene any
other provision of this Agreement), 100% of such unearned commission will be
returned to the Insurer upon demand or, in the absence of such demand, charged
back to the recipient of the commission.
F. Compensation for the sale of any Contract which is renewed, changed,
exchanged or otherwise converted from any other contract issued by the Company
shall be paid according to the Insurer's guidelines and practices.
G. With respect to any Contract, or group of Contracts which the Insurer
in its sole discretion deems to be a single case, and which at the time of
application submission the initial purchase payment is greater than $500,000,
the Insurer may determine in its sole discretion that the commissions set forth
on Exhibit 1 not apply. In the event the Insurer determines that the
commission(s) do not apply, the Insurer may establish an alternate commission
for such Contract or Contracts.
8. Indemnification
A. Broker/Dealer shall indemnify, defend and hold harmless Insurer and
Distributor and each person who controls or is associated with Insurer or
Distributor within the meaning of the federal securities laws and any director,
officer, corporate agent, employee, attorney and any representative thereof,
from and against all losses, expenses, claims, damages and liabilities
(including any costs of investigation and legal expenses and any amounts paid in
settlement of any action, suit or proceeding of any claim asserted) which result
from, arise out of or are based upon:
(i) any breach by Broker/Dealer or its Affiliates of any representation,
warranty or other provision of this Agreement, including any acts or
omissions of Broker/Dealer, Affiliates, Subagents and other associated
persons; or
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(ii) any violation by Broker/Dealer, any Affiliate or any Subagent of
any federal or state securities law or regulation, insurance law or
regulation or any rule or requirement of the NASD;
(iii) the use by Broker/Dealer, any Affiliate or any Subagent of any
sales or promotional material which has not received specific written
approval of Insurer and Distributor as provided in Section 4 of this
Agreement, any oral or written misrepresentations or any unlawful sales
practices concerning the Contracts by Broker/Dealer, any Affiliate or
any Subagent; or
(iv) Claims by Subagents or other agents or representatives of
Broker/Dealer for commissions or other compensation or remuneration of
any type.
B. The indemnification provided for herein shall survive termination of
this Agreement.
9. Fidelity Bond. Broker/Dealer represents that all directors, officers,
employees, representatives and/or Subagents who are appointed pursuant to this
Agreement or who have access to funds of the Insurer are and will continue to be
covered by a blanket fidelity bond including coverage for larceny, embezzlement
or any other defalcation, issued by a reputable bonding company. This bond shall
be maintained at Broker/Dealer's expense. Such bond shall be at least equivalent
to the minimal coverage required under the NASD Rules of Fair Practice, endorsed
to extend coverage to life insurance and annuity transactions. Broker/Dealer
acknowledges that the Insurer may require evidence that such coverage is in
force and Broker/Dealer shall promptly give notice to the Insurer of any notice
of cancellation or change of coverage. Broker/Dealer assigns any proceeds
received from the fidelity bond company to the Insurer to the extent of the
Insurer's loss due to activities covered by the bond. If there is any
deficiency, Broker/Dealer will promptly pay the Insurer that amount on demand,
and Broker/Dealer shall indemnify and hold harmless the Insurer from any
deficiency and from the cost of collection.
10. Market Timer Program. Insurer has available a Market Timer Program
which allows a market timer service to effect multiple transfers or other
transactions. Parties may use this program at the discretion of Insurer and upon
execution of a Market Timer Agreement. Among other provisions, the Market Timer
Agreement specifies that if the impact of processing exchange transactions
received from all outside sources is deemed to be injurious to one of the
separate accounts or a subaccount thereof, then Insurer in its sole discretion
may elect not to process the exchanges and that Insurer will notify the Market
Timer Service of the inability to process the requested exchange. Insurer
reserves the right to terminate participation in or the entire Market Timer
Program at any time and for any reason.
11. RapidApp Program. If applications are transmitted to the Insurer
pursuant to the Insurer's RapidApp Program, the following provisions shall apply
to such applications and Contracts issued pursuant to the RapidApp Program.
A. Broker/Dealer agrees to communicate with owners of the Contracts
issued through the RapidApp Program in order to obtain and deliver to the
Insurer the signed confirmation for the Contract. Broker/Dealer further agrees
to provide any assistance or cooperation required to enforce a Contract issued
under the RapidApp Program which shall include, but not be limited to, providing
the Insurer access to recordings of telephone conversations with customers
containing their consent to the purchase of Contracts, or providing statements
or affidavits from such Subagents as to the customer's consent to the making of
the Contract.
B. In the event the owner of a Contract repudiates or rescinds the
Contract and the Insurer, in its sole discretion, waives any surrender charges,
the full commission paid by the Insurer will be returned to the Insurer upon
demand or, in the absence of such demand, charged back to the recipient of the
commission. In addition, all amounts equal to any market loss arising from such
rescission or repudiation will be paid by Broker/Dealer on demand, or in the
absence of such demand, charged back to Broker/Dealer.
C. Broker/Dealer agrees that it will be solely responsible for the
transmission or failure of transmission of application information to the
Insurer. Broker/Dealer warrants that all application information will be
accurate and can be relied upon by the Insurer.
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D. Broker/Dealer agrees to pay the Insurer all amounts equal to any
market loss resulting from the misallocation of the initial purchase payment
into the subaccounts, which misallocation was the result of Insurer relying on
Broker/Dealer's or their Subagents' application information. In the absence of a
demand for payment, such amounts shall be charged back to Broker/Dealer.
E. Broker/Dealer agrees that its Subagents who are resident and licensed
in those jurisdictions approved by the Insurer may submit applications to the
Insurer pursuant to the RapidApp Program and agree to the provisions of this
Section 11. Broker/Dealer acknowledges that agreeing to the provisions of this
Section 11 does not require its Subagents to submit all applications to the
Insurer pursuant to the RapidApp Program.
12. Termination.
A. Normal Termination. This Agreement shall continue for an indefinite
term, subject to the termination by either party upon written notice to the
other parties hereto, which shall be effective upon receipt thereof. In
addition, Insurer may terminate this Agreement without notice if Broker/Dealer
fails to satisfy the Insurer's production requirements, as determined in the
sole discretion of the Insurer.
B. Automatic Termination for Cause. This Agreement shall automatically
terminate upon: (1) a material breach of this Agreement, including without
limitation the failure to comply with the laws or regulations of any state or
other governmental agency or body having jurisdiction over the sale of
insurance; and (2) the suspension, revocation or non-renewal of any then
required insurance or securities license of Broker/Dealer or any of its
Affiliates, or the deregistration of the Broker/Dealer or its termination of
membership with the NASD.
C. Rights and Obligations. Upon termination of this Agreement, except as
otherwise provided herein, all authorizations,rights and obligations shall
cease. If this Agreement is terminated for cause as described above,
Broker/Dealer's right to receive compensation shall immediately terminate.
13. General Provisions.
A. Waiver. Waiver by any of the parties to promptly insist upon strict
compliance with any of the obligations of any other party under this Agreement
will not be deemed to constitute a waiver of the right to enforce strict
compliance.
B. Independent Contractor. Broker/Dealer is an independent
contractor and its Subagents who are appointed as insurance agents of Insurer
are agents of Broker/Dealer and not employees, agents or representatives of
Insurer or Distributor.
C. Independent Assignment. No assignment of this Agreement or of
commissions or other payments under this Agreement shall be valid without the
prior written consent of the Insurer.
D. Notice. Any notice pursuant to this Agreement shall be
mailed, postage paid, to the last address communicated by the receiving party
to the other parties to this Agreement.
E. Severability. To the extent this Agreement may be in conflict with
any applicable law or regulation, this Agreement shall be construed in a manner
not inconsistent with such law or regulation. The invalidity or illegality of
any provision of this Agreement shall not be deemed to affect the validity or
legality of any other provision of this Agreement.
F. Amendment. No Amendment to this Agreement shall be effective unless
in writing and signed by all the parties hereto.
G. California Law. This Agreement shall be construed in accordance with
the laws of the State of California.
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H. Effectiveness. This Agreement shall be effective as of the
date set forth above.
IN WITNESS WHEREOF, this Agreement has been executed by duly authorized
representatives of the parties to this Agreement as of the date set forth above.
"INSURER":
ANCHOR NATIONAL LIFE INSURANCE COMPANY
By: __________________________________
Name:
Title:
"DISTRIBUTOR":
SUNAMERICA CAPITAL SERVICES, INC.
By: ____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇, President
"BROKER/DEALER":
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By: ___________________________________
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ANNEX I
This Annex I appends that certain Selling Agreement dated
_______________________ (the "Agreement") between Anchor National Life Insurance
Company, SunAmerica Capital Services, Inc. and _______________________________
("Broker/Dealer"). Each of the undersigned is affiliated with Broker/Dealer and
represents that it holds the necessary corporate insurance license to act as
general agent in connection with the sale of Contracts, as defined in the
Agreement, in those states so identified next to its name. By executing this
Annex I each of the undersigned agrees to be bound by the terms and conditions
of the Agreement as if it were a party thereto.
COMPANY STATE(S) TAX I.D. NO.
Signature:
Signature:
Signature:
Signature:
Signature:
Signature:
Signature:
Signature:
Signature:
Signature:
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Signature:
Signature:
Signature:
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Signature:
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BANK RIDER
This rider is appended to that certain Selling Agreement date
____________________________between Anchor National Life Insurance Company
("Insurer"), SunAmerica Capital Services, Inc. ("Distributor") and
_____________________________, together with its duly licensed insurance
affiliates indicated on Annex I of the Selling Agreement ("Broker/Dealer"). This
Rider is to be executed by any Broker/Dealer which is selling, or intends to
sell, Contracts on the premises of any federal or state chartered bank, thrift
or savings and loan institution (collectively, "Bank"). Pursuant hereto,
Broker/Dealer represents and warrants that it will comply with the requirements
of applicable laws, regulations and guidelines of any regulatory authority
having jurisdiction over the activities of Bank or occurring on Bank premises,
including without limitation, the Interagency Statement on Retail Sales of
Nondeposit Investment Products (Board of Governors of the Federal Reserve
System, Federal Deposit Insurance Corporation, Office of the Comptroller of the
Currency, and Office of Thrift Supervision, February 14, 1994) and any
subsequent release designed to provide governance to banks in connection with
the sale of nondeposit investment products ("applicable banking laws").
Broker/Dealer agrees that it shall be responsible for ensuring that applicable
banking laws are complied with in connection with the activities undertaken
pursuant to the Selling Agreement, including without limitation, ensuring that
all advertisements and sales literature used by Broker/Dealer comply with
applicable banking laws. Broker/Dealer further agrees that it shall inform the
Insurer in writing of any legends and other disclosures that are required by
applicable banking laws to be contained in advertisements or sales literature
for policies issued by the Insurer.
"Broker/Dealer"
By:
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Printed Name & Title