EXHIBIT 3(a)
DISTRIBUTION
AGREEMENT
THIS AGREEMENT, entered into as of this January 1, 2012, is by THE UNITED
STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK ("USL"), a life insurance
company organized under the 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, USL issues to the public certain variable annuity contracts
identified on the contract specification sheet attached hereto as Attachment A
("Contracts"); and
WHEREAS, First SunAmerica Life Insurance Company (a predecessor entity of
USL that merged into USL on December 31, 2011) established by resolution FS
Variable Separate Account, FS Variable Annuity Account One, FS Variable Annuity
Account Two, and FS Annuity Account Five (collectively the "Separate Accounts")
for the purpose of issuing variable annuity contracts; and
WHEREAS, the Separate Accounts are each registered with the
Securities and Exchange Commission ("Commission") as a unit investment trust
under the Investment Company Act of 1940; and
WHEREAS, the Contracts to be issued by USL 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, USL desires to obtain the services of the Distributor as
distributor of said Contracts issued by USL through the Separate Accounts;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, USL 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 USL through the Separate Accounts.
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
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said Contracts. Moreover, the Distributor shall conduct its affairs in
accordance with the Rules of Fair Practice of Financial Regulatory
Authority ("FINRA").
3. Subject to agreement of USL, 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 USL through the Separate Accounts. Any
such contractual arrangement is expressly made subject to this
Agreement, and the Distributor will at all times be responsible to USL
for purposes of the federal securities laws for the distribution of
Contracts issued through the Separate Accounts.
4. Warranties
(a) USL 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 USL by the Distributor
expressly for use therein;
(iii) USL 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 Accounts
and offered for sale by the Distributor on behalf of USL
hereunder have been duly and validly authorized and, when
issued and delivered against payment therefore 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 USL is a party or by
which USL is bound, USL'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 USL or any of its property; and no consent, approval,
authorization or order of any court or governmental agency
or body is required for the consummation by USL 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 USL or the Separate Accounts is a party or
of which any property of USL or the Separate Accounts 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 USL, if determined adversely
to USL, would individually or in the aggregate have a
material adverse effect on the financial position, surplus
or operations of USL.
(b) The Distributor represents and warrants to USL 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 FINRA, 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 USL 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
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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 USL 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 USL and with respect to its
activities under this Agreement for USL. The party maintaining the
books and records required hereunder shall make such records and books
of account available for inspection by the Commission, and USL 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 USL 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 FINRA.
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 USL 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 USL.
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 USL for immediate
allocation to the Separate Accounts 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 there under. 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 agree that the Distributor may render similar
services or act as a distributor or dealer in the distribution of
other variable contracts.
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13. USL 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. USL reserves the right at any time to suspend or limit the public
offering of the subject Contracts.
15. USL 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. USL will furnish to the Distributor such information with respect to
the Separate Accounts 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
American International Group, Inc. This Agreement shall terminate,
without the payment of any penalty by either party:
(a) at the option of USL, upon sixty days' advance written notice to
the Distributor; or
(b) at the option of the Distributor upon 90 days' written notice to
USL; or
(c) at the option of USL upon institution of formal proceedings
against the Distributors by FINRA 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.
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19. Each notice required by this Agreement may be given by telephone or
facsimile and confirmed in writing.
20. Indemnity.
(a) USL 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 USL 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 USL 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 is in conformity with information
furnished by the Distributor to USL specifically for use therein;
and provided, further, that nothing herein shall be so construed
as to protect the Distributor against any liability to USL 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 USL,
each of its directors and officers and each person, if any, who
controls USL 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 USL 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 USL.
22. This Agreement covers and includes all agreements, verbal and
written, between USL 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 USL
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.
THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
By:
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Name:
---------------------------------
Title:
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SUNAMERICA CAPITAL SERVICES, INC.
By:
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Name:
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Title:
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ATTACHMENT A
CONTRACT SPECIFICATION SHEET
FS VARIABLE SEPARATE ACCOUNT
1. Polaris Choice IV
2. Polaris Platinum O-Series
3. Polaris Advantage
4. Polaris Preferred Solution
5. Polaris Platinum III
6. Polaris II / Polaris II Xxxxx
7. Polaris Choice III
8. Polaris Advantage II
9. Polaris [TBD] 5-Year CDSC
10. Polaris / Polaris II / Polaris II Xxxxx
11. Polaris Advantage
12. Polaris Choice / Polaris Choice III
13. Polaris II A-Class Platinum Series
14. Polaris II A-Class Platinum Series
15. FS VSA Advisor
16. WM Diversified Strategies III
FS VARIABLE ANNUITY ACCOUNT ONE
1. ICAP II
FS VARIABLE ANNUITY ACCOUNT TWO
1. Vista Capital Advantage
FS VARIABLE ANNUITY ACCOUNT FIVE
1. Seasons Triple Elite / Seasons Elite
2. Seasons Select II
3. Seasons Elite
4. Seasons Select II
5. Seasons Advantage
This Agreement will also include such other contracts as USL sells subsequently.
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