Exhibit (3)(a)
PRINCIPAL UNDERWRITER AGREEMENT
AGREEMENT dated September 18/th/, 2003 by and between American Skandia Life
Assurance Corporation ("American Skandia"), a Connecticut corporation, on its
own behalf and on behalf of American Skandia Life Assurance Corporation
Variable Account B ("Variable Account B") and American Skandia Marketing,
Incorporated ("ASM, Inc."), a Delaware corporation.
WITNESSETH:
WHEREAS, Variable Account B is an account established and maintained by
American Skandia pursuant to the laws of the State of Connecticut to support
variable annuities issued by American Skandia (the "Annuities"), under which
income, gains and losses, whether or not realized, from assets allocated to
such account, are, in accordance with the Annuities, credited to or charged
against such account without regard to other income, gains, or losses of
American Skandia; and
WHEREAS, American Skandia, as depositor, has registered, on behalf of Variable
Account B, as registrant, the Annuities under the Securities Act of 1933 (the
"Securities Act"), and has registered such account as a unit investment trust
under the provisions of the Investment Company Act of 1940 (the "Investment
Company Act"), to issue and sell the Annuities to the public through ASM, Inc.
acting as principal underwriter; and
WHEREAS, ASM, Inc. is registered as a broker-dealer under the Securities
Exchange Act of 1934 (the "Securities Exchange Act") and is a member of the
National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the parties have previously executed a Distribution and Sales
Agreement and now wish to supersede that agreement; and
NOW, THEREFORE, in consideration of the mutual undertakings between the parties
and the commissions paid to ASM, Inc., American Skandia and ASM, Inc. hereby
agree as follows:
1. Principal Underwriter. American Skandia grants to ASM, Inc. the exclusive
right, during the term of this Agreement, subject to the registration
requirements of the Securities Act and the Investment Company Act and the
provisions of the Securities Exchange Act, to be the distributor and principal
underwriter of the Annuities. ASM, Inc. is responsible for compliance with the
foregoing laws, and the rules and regulations thereunder, and all other
securities laws, rules and regulations relating to the underwriting of sales
and distributions. American Skandia will pay ASM, Inc. commissions for acting
as principal underwriter, and ASM, Inc. will remit all of such commissions to
the broker-dealers that sell the Annuities pursuant to the Sales Agreements
described in paragraph 2 below.
2. Sales Agreements. ASM, Inc. is authorized to enter into written agreements,
on such terms and conditions as ASM, Inc. may determine not inconsistent with
this Agreement, with organizations which agree to participate in the
distribution of the Annuities and to use their best efforts to solicit
applications for Annuities. Such organizations and their agents or
representatives soliciting applications for the Annuities shall be duly and
appropriately licensed, registered or otherwise qualified for the sale of such
Annuities (and the riders and other contracts offered in connection therewith)
under the insurance laws and any applicable blue-sky laws of each state or
other jurisdiction in which such Annuities, riders and contracts may be
lawfully sold and in which American Skandia is licensed to sell such Annuities,
riders and other contracts. Unless an organization is exempt from registration
as a broker/dealer for the sale of
Principal Underwriting Agreement
Variable Account B
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certain securities, including registered insurance products, each organization
shall be registered both as a broker/dealer under the Securities Exchange Act
and a member of the NASD, or if not so registered or not such a member, then
the agents and representatives of such organization soliciting applications for
contracts shall be agents and registered representatives of a registered
broker/dealer and NASD member which is the parent of such organization and
which maintains full responsibility for the training, supervision, and control
of the agents or representatives selling the Annuities. ASM, Inc. shall have
the responsibility for supervision of all such organizations only to the extent
required by law.
3. Life Insurance Agents. ASM, Inc. is authorized to appoint the organizations
described in paragraph 2 above as independent general agents of American
Skandia for the sale of the Annuities and any riders or contracts in connection
therewith.
4. Suitability. ASM, Inc. shall oversee generally the process under which
distributors engaged by it make suitability determinations, recognizing that
each distributor, as the entity interacting principally with the customer,
bears ultimate responsibility for assessing suitability.
5. Promotional Materials, Prospectuses. ASM, Inc. shall have the responsibility
for consulting with American Skandia with respect to the design and the
drafting, legal review and filing of sales promotion materials, and, if
permitted by law, for the preparation of individual sales proposals related to
the sale of the Annuities. ASM, Inc. shall file with the NASD all sales
literature and advertising.
6. Records. ASM, Inc. shall maintain and preserve for the periods prescribed by
law such accounts, books and other documents as are required of it by
applicable laws and regulations. Such books, accounts and records shall be
maintained so as to clearly and accurately disclose the nature and details of
the transactions.
7. Independent Contractor. ASM, Inc. shall act as an independent contractor and
nothing herein contained shall constitute ASM, Inc. or its agents or employees
as employees of American Skandia in connection with the sale of the Annuities.
8. Non-Exclusivity. This agreement is non-exclusive with respect to ASM, Inc.
ASM, Inc. may render services, whether of like or unlike kind to those
described herein, to or for others, and whether as underwriter, distributor, or
dealer.
9. (a.) Investigations and Proceedings. ASM, Inc. and American Skandia agree to
cooperate fully in any insurance regulatory investigation or proceeding or
judicial proceeding arising in connection with the Annuities distributed under
this Agreement. ASM, Inc. and American Skandia further agree to cooperate with
each other in any securities regulatory investigation or proceeding or judicial
proceeding with respect to American Skandia, ASM, Inc., their affiliates and
their agents or representatives to the extent that such investigation or
proceeding is in connection with Annuities distributed under this Agreement.
Without limiting the foregoing:
(i) ASM, Inc. will be notified promptly of any customer complaint or
notice of any regulatory investigation or proceeding or judicial proceeding
received by American Skandia with respect to ASM, Inc.
Principal Underwriting Agreement
Variable Account B
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(ii) ASM, Inc. will promptly notify American Skandia of any customer
complaint or notice of any regulatory investigation or proceeding received
by ASM, Inc. or its affiliates with respect to ASM, Inc. or any agent or
representative in connection with any Annuities distributed under this
Agreement or any activity in connection with any such Annuities.
(b.) In the case of a material customer complaint against both American
Skandia and ASM, Inc., ASM, Inc. and American Skandia will cooperate in
investigating such complaint and any response to such complaint will be sent to
the other party to this Agreement for approval not less than five (5) business
days prior to it being sent to the customer or regulatory authority, except
that if a more prompt response is required, the proposed response may be
communicated by telephone or facsimile.
10. Limitations on Liability. In the absence of willful misfeasance, bad faith,
gross negligence, or reckless disregard of its obligations and duties hereunder
on the part of ASM, Inc., ASM, Inc. shall not be subject to liability to
Variable Account B or American Skandia for any act or omission in the course
of, or connected with, rendering services hereunder or for any losses that may
be sustained in the purchase, holding or sale of any such Annuity or security.
11. Assignment and Termination. This Agreement may not be assigned nor duties
hereunder delegated without the signed written consent of the other party. This
Agreement shall terminate automatically if it shall be assigned without such
approval. This Agreement may be terminated at any time by either party hereto
on 60 days' written notice to the other party hereto, without the payment of
any penalty. Upon termination of this Agreement all authorizations, rights and
obligations shall cease except (i) the obligation to settle accounts hereunder,
including commissions on premiums subsequently received for Annuities in effect
at the time of termination and (ii) the agreements contained in paragraphs 9
and 10 hereof.
12. Regulation. This Agreement shall be subject to the provisions of the
Securities Act, the Investment Company Act and the Securities Exchange Act and
the rules, regulations and rulings thereunder, and of the NASD, from time to
time in effect, including such exemptions from the Investment Company Act as
the Securities and Exchange Commission may grant, and the terms hereof shall be
interpreted and construed in accordance therewith. Without limiting the
generality of the foregoing, the term "assigned" shall not include any
transaction exempted from section 15(b) (2) of the Investment Company Act. ASM,
Inc. shall submit to all regulatory and administrative bodies having
jurisdiction over the operations of American Skandia or Variable Account B,
present or future, any information, reports or other material which any such
body by reason of this Agreement may request or require pursuant to applicable
laws or regulations.
13. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
14. Applicable Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Connecticut.
15. Complete Agreement. This Agreement contains the entire agreement between
the parties with respect to the underwriting and distribution of Annuities
issued through Variable Account B, and supersedes any prior agreements or
understandings with respect to the subject matter thereof, including, but not
limited to, the Distribution and Sales Agreement previously executed by the
parties, and may not be altered or amended except by an agreement in writing,
signed by both parties.
Principal Underwriting Agreement
Variable Account B
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
AMERICAN SKANDIA LIFE ASSURANCE
CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
Attest:
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Secretary (Assistant)
AMERICAN SKANDIA LIFE ASSURANCE
CORPORATION as Depositor to
American
Skandia Life Assurance
Corporation Variable
Account B
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
Attest:
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Secretary (Assistant)
AMERICAN SKANDIA MARKETING,
INCORPORATED
By: /s/ Lincoln X. Xxxxxxx
-----------------------------
Lincoln X. Xxxxxxx
Attest:
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Secretary (Assistant)
