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EXHIBIT 3(a)
DISTRIBUTION AGREEMENT
THIS AGREEMENT, entered into as of this 11th day of December, 2000, is
among FIRST SUNAMERICA LIFE INSURANCE COMPANY ("First Sun"), a life insurance
company organized under the laws of the State of New York, on behalf of itself
and FS VARIABLE SEPARATE ACCOUNT ("Separate Account"), a Separate Account
established by First Sun 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 Sun issues to the public certain variable annuity
contracts identified on the contract specification sheet attached hereto as
Attachment A ("Contracts"); and
WHEREAS, First Sun, by resolution adopted on September 9, 1994,
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. 811-8810); and
WHEREAS, the Contracts to be issued by First Sun are registered with the
Commission under the Securities Act of 1933 (the "Act") (File No. 33-85014 and
33-45946) 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 Sun desires to obtain the services of the Distributor as
distributor of said Contracts issued by First Sun 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 Sun, 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 Sun 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.
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3. Subject to agreement of First Sun, 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 Sun 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 Sun for purposes of the
federal securities laws for the distribution of Contracts issued
through the Separate Account.
4. Warranties
(a) First Sun 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 First Sun by the
Distributor expressly for use therein;
(iii) First Sun 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 Sun 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 First Sun
is a party or by which First Sun is bound, First
Sun'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 Fist sun 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 sun
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 Sun or the
Separate Account is a party or of which any
property of First Sun 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 Sun, if determined adversely to
First Sun, would individually or in the aggregate
have a material adverse effect on the financial
position, surplus or operations of First Sun.
(b) The Distributor represents and warrants to First Sun 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 Sun 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
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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 Sun
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 Sun and with respect to its activities under this Agreement
for First Sun. 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 Sun 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 Sun 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 Sun 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
Sun.
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 Sun 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. First Sun 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 Sun reserves the right at any time to suspend or limit the
public offering of the subject Contracts.
15. First Sun 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 Sun 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 Sun, upon sixty days' advance
written notice to the Distributor; or
(b) at the option of the Distributor upon 90 days' written
notice to First Sun; or
(c) at the option of First Sun 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 Sun 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 Sun 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 Sun
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 Sun specifically for use therein; and
provided, further, that nothing herein shall be so
construed as to protect the Distributor against any
liability to First Sun 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 Sun, 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 Sun.
22. This Agreement covers and includes all agreements, verbal and
written, between First Sun 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 Sun 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:
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XXX XXXXX
President
FS VARIABLE SEPARATE ACCOUNT
By: FIRST SUNAMERICA LIFE
INSURANCE COMPANY
By:
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XXX XXXXX
President
SUNAMERICA CAPITAL SERVICES, INC.
By:
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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 First SunAmerica Life Insurance Company and SunAmerica Capital
Services, Inc. dated December 11, 2000, regarding the sale of the following
contracts funded in FS Variable Separate Account:
1. First SunAmerica Polaris Variable Annuity
2. First SunAmerica Advisor Variable Annuity
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