PLACEMENT AGENCY AGREEMENT
AMERICAN SKANDIA MASTER TRUST
Xxxxxx House
P.O. Box 309
South Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands, BWI
May ___, 1997
American Skandia Marketing, Incorporated
Xxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, AMERICAN SKANDIA MASTER TRUST, a Delaware business
trust (the "Fund") consisting of the series named on Schedule 1 hereto, as such
Schedule may be revised from time to time (each, a "Series"), has agreed that
you shall be, for the period of this Agreement, the exclusive placement agent
for shares of beneficial interest of each Series.
1. You will act as agent for the private placement of shares
of each Series covered by, and in accordance with, the most recent registration
statement filed by the Fund under the Investment Company Act of 1940, as
amended, and will transmit promptly any orders received by you for purchase or
redemption of shares of a Series to the Transfer and Dividend Disbursing Agent
for the Fund of which the Fund has notified you in writing. All orders from you
shall be subject to acceptance and confirmation by the Fund.
2. You shall act as exclusive placement agent for each Series'
shares in compliance with all applicable laws, rules and regulations, including,
without limitation, all rules and regulations made or adopted pursuant to the
Investment Company Act of 1940, as amended, by the Securities and Exchange
Commission or any securities association registered under the Securities
Exchange Act of 1934, as amended. In so acting, you will offer and sell the
shares of each Series in a manner that is exempt from the registration
requirements of the Securities Act of 1933, as amended.
3. Whenever in their judgment such action is warranted by
market, economic or political conditions, or by abnormal circumstances of any
kind, the Fund's officers may decline to accept any orders for, or make any
sales of, any of the Series' shares until such time
NC152113.3
as they deem it advisable to accept such orders and to make such sales and the
Fund shall advise you promptly of such determination.
4. Ownership of Series shares sold hereunder shall be
registered in such names and denominations as are specified in writing to the
Fund or to its agent designated for the purpose. No certificates for shares of
the Series will be issued.
5. The Fund agrees to pay all expenses in connection with
maintaining facilities for the issue and transfer of the Series' shares and for
supplying information, prices and other data to be furnished by the Fund
hereunder, and all expenses in connection with preparing and printing the Fund's
registration statement for regulatory purposes and for distribution to
shareholders; provided, however, that nothing contained herein shall be deemed
to require the Fund to pay any of the costs of advertising the sale of the
Series' shares. You shall pay all other expenses incurred by you in connection
with the sale of the Series' shares as contemplated in this agreement.
6. All shares offered for sale and sold by you shall be
offered for sale and sold by you to investors at the price per share (the
"offering price," which is the net asset value per share) specified and
determined as provided in the prospectus relating to the offering of relevant
Series' shares for sale. If the offering price is not an exact multiple of one
cent, it shall be adjusted to the nearest full cent. The Fund shall determine
and furnish promptly to you a statement of the offering price at least once on
each day on which the prospectus states the Fund is required to determine the
relevant Series' net asset value for the purpose of pricing purchase orders.
Each offering price shall become effective at the time and shall remain in
effect during the period specified in the statement. Each such statement shall
show the basis of its computation. For purposes of establishing the offering
price, the Fund shall consider a purchase order to have been presented to it at
the time it was originally entered by you for transmission to it, provided the
original purchase order and your fulfilling order to the Fund are appropriately
time stamped or evidenced to show the time of original entry and that your
fulfilling order to the Fund is received by the Fund within a time deemed by it
to be reasonable after the purchase order was originally entered. Purchases of
shares shall be made for full and fractional shares, carried to the third
decimal place.
7. The Fund shall furnish you from time to time, for use in
connection with the sale of the Series' shares, such information with respect to
the Fund and the Series' shares as you may reasonably request, all of which
shall be signed by one or more of the Fund's duly authorized officers; and the
Fund warrants that the statements contained in any such information, when so
signed by the Fund's officers, shall be true and correct. The Fund also shall
furnish you with copies of its reports to shareholders and such additional
information regarding a Series' financial condition as you may reasonably
request from time to time.
8. The Fund represents to you that all registration statements
filed by the Fund with the Securities and Exchange Commission under the
Investment Company Act of 1940, as amended, with respect to the Series' shares
have been carefully prepared in conformity with the requirements of said Act and
rules and regulations of the Securities and Exchange Commission thereunder. As
used in this agreement the terms "registration statement" shall mean
NC152113.3
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any registration statement filed with the Securities and Exchange Commission and
any amendments and supplements thereto which at any time shall have been filed
with said Commission. The Fund represents and warrants to you that any
registration statement will contain, when filed, all statements required to be
stated therein in conformity with said Act and the rules and regulations of said
Commission; that all statements of fact contained in any such registration
statement will be true and correct when such registration statement is filed;
and that any registration statement when such registration statement is filed
will not include 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. The Fund may but shall not be obligated to propose from
time to time such amendment or amendments to any registration statement as, in
the light of future developments, may, in the opinion of the Fund's counsel, be
necessary or advisable. If the Fund shall not propose such amendment or
amendments and/or supplement or supplements within fifteen days after receipt by
the Fund of a written request from you to do so, you may, at your option,
terminate this agreement or decline to make offers of the Series' securities
until such amendments are made. The Fund shall not file any amendment to any
registration statement without giving you reasonable notice thereof in advance;
provided, however, that nothing contained in this agreement shall in any way
limit the Fund's right to file at any time such amendments to any registration
statement, of whatever character, as the Fund may deem advisable, such right
being in all respects absolute and unconditional.
9. The Fund authorizes you to use the registration statement
in the form furnished to you from time to time, in connection with the sale of
the Series' shares. The Fund agrees to indemnify, defend and hold you, your
several officers and directors, and any person who controls you within the
meaning of Section 15 of the Securities Act of 1933, as amended, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which you,
your officers and directors, or any such controlling person, may incur under the
Securities Act of 1933, as amended, or under common law or otherwise, arising
out of or based upon any untrue statement, or alleged untrue statement, of a
material fact contained in any registration statement or arising out of or based
upon any omission, or alleged omission, to state a material fact required to be
stated in any registration statement necessary to make the statements therein
not misleading; provided, however, that the Fund's agreement to indemnify you,
your officers or directors, and any such controlling person shall not be deemed
to cover any demands, liabilities or expenses arising out of any untrue
statement or alleged untrue statement or omission or alleged omission made in
any registration statement in reliance upon and in conformity with written
information furnished to the Fund by you specifically for use in the preparation
thereof. The Fund's agreement to indemnify you, your officers and directors, and
any such controlling person, as aforesaid, is expressly conditioned upon the
Fund's being notified of any action brought against you, your officers or
directors, or any such controlling person, such notification to be given by
letter or by telegram addressed to the Fund at its address set forth above
within ten days after the summons or other first legal process shall have been
served. The failure so to notify the Fund of any such action shall not relieve
the Fund from any liability which the Fund may have to the person against whom
such action is brought by reason of any such untrue, or alleged untrue,
statement or omission, or alleged omission, otherwise than on account of the
Fund's indemnity
NC152113.3
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agreement contained in this paragraph 9. The Fund will be entitled to assume the
defense of any suit brought to enforce any such claim, demand or liability, but,
in such case, such defense shall be conducted by counsel of good standing chosen
by the Fund and approved by you. In the event the Fund elects to assume the
defense of any such suit and retain counsel of good standing approved by you,
the defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but in case the Fund does not elect
to assume the defense of any such suit, or in case you do not approve of counsel
chosen by the Fund, the Fund will reimburse you, your officers and directors, or
the controlling person or persons named as defendant or defendants in such suit,
for the fees and expenses of any counsel retained by you or them. The Fund's
indemnification agreement contained in this paragraph 9 and the Fund's
representations and warranties in this agreement shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
you, your officers and directors, or any controlling person, and shall survive
the delivery of any of the Series' shares. This agreement of indemnity will
inure exclusively to your benefit, to the benefit of your several officers and
directors, and their respective estates, and to the benefit of any controlling
persons and their successors. The Fund agrees promptly to notify you of the
commencement of nay litigation or proceedings against the Fund or any of its
officers or Board members in connection with the issue and sale of any of the
Series' shares.
10. You agree to indemnify, defend and hold the Fund, its
several officers and Board members, and any person who controls the Fund within
the meaning of Section 15 of the Securities Act of 1933, as amended, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
Fund, its officers or Board members, or any such controlling person, may incur
under the Securities Act of 1933, as amended, or under common law or otherwise,
but only to the extent that such liability or expense incurred by the Fund, its
officers or Board members, or such controlling person resulting from such claims
or demands, shall arise out of or be based upon any untrue, or alleged untrue,
statement of a material fact contained in information furnished in writing by
you to the Fund specifically for use in the Fund's registration statement and
used in the answers to any of the items of the registration statement, or shall
arise out of or be based upon any omission, or alleged omission, to state a
material fact in connection with such information furnished in writing by you to
the Fund and required to be stated in such answers or necessary to make such
information not misleading. Your agreement to indemnify the Fund, its officers
and Board members, and any such controlling person, as aforesaid, is expressly
conditioned upon your being notified of any action brought against the Fund, its
officers or Board members, or any such controlling person, such notification to
be given by letter or telegram addressed to you at your address set forth above
within ten days after the summons or other first legal process shall have been
served. You shall have the right to control the defense of such action, with
counsel of your own choosing, satisfactory to the Fund, if such action is based
solely upon such alleged misstatement or omission on your part, and in any other
event the Fund, its officers or Board members or such controlling person shall
each have the right to participate in the defense or preparation of the defense
of any such action. The failure so to notify you of any such action shall not
relieve you from any liability which you may have to the Fund, its officers or
Board members, or to such controlling person by reason of any such untrue, or
alleged untrue, statement or omission, or alleged omission, otherwise than on
account of your indemnity
NC152113.3
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agreement contained in this paragraph 10. This agreement of indemnity will inure
exclusively to the Fund's benefit, to the benefit of the Fund's officers and
Board members, and their respective estates, and to the benefit of any
controlling persons and their successors. You agree promptly to notify the Fund
of the commencement of any litigation or proceedings against you or any of your
officers or directors in connection with the issue and sale of any of the
Series' shares.
11. None of the Series' shares shall be offered by either you
or the Fund under any of the provisions of this agreement and no orders for the
purchase or sale of such shares hereunder shall be accepted by the Fund if and
so long as the effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the Investment Company Act of 1940, as amended; provided, however, that nothing
contained in this paragraph 11 shall in any way restrict or have an application
to or bearing upon the Fund's obligation to repurchase any of the Series' shares
from any shareholder in accordance with the provisions of the Fund's charter
documents.
12. The Fund agrees to advise you immediately in writing:
(a) of any request by the Securities and Exchange
commission for amendments to the registration statement then
filed or for additional information;
(b) in the event of the issuance by the Securities
and Exchange Commission of any stop order suspending the
effectiveness of the registration statement then filed or the
initiation of any proceeding for that purpose;
(c) of the happening of any event which makes untrue
any statement of a material fact made in the registration
statement then filed or which requires the making of a change
in such registration statement in order to make the statements
therein not misleading; and
(d) of all actions of the Securities and Exchange
Commission with respect to any amendments to any registration
statement which may from time to time be filed with the
Securities and Exchange Commission.
13. Insofar as they concern the Fund, the Fund shall comply
with all applicable laws, rules and regulations, including, without limiting the
generality of the foregoing, all rules or regulations made or adopted pursuant
to the Securities Act of 1933, as amended, the Investment Company Act of 1940,
as amended, or by any securities association registered under the Securities
Exchange Act of 1934, as amended.
14. You may, if you desire and at your own cost and expense,
appoint or employ agents to assist you in carrying out your obligations under
this agreement, but no such appointment or employment shall relieve you of any
of your responsibilities or obligations to the Fund under this agreement.
NC152113.3
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15. As to each Series, subject to the provisions of paragraph
8, this agreement shall continue until the date set forth opposite such Series'
name on Schedule 1 hereto (the "Reapproval Date"), and thereafter shall continue
automatically for successive annual periods ending on the day of each year set
forth opposite such Series' name on Schedule 1 hereto (the "Reapproval Day"),
provided such continuance is specifically approved at least annually by (i) the
Fund's Board or (ii) vote of a majority (as defined in the Investment Company
Act of 1940, as amended) of the Fund's outstanding voting securities, provided
that in either event its continuance also is approved by a majority of the
Fund's Board members who are not "interested persons" (as defined in said Act)
of any party to this agreement, by vote cast in person at a meeting called for
the purpose of voting on such approval. As to each Series, this agreement is
terminable without penalty, on 60 days' notice, by the Fund's Board or by vote
of holders of a majority of such Series' shares or, upon not less than 90 days'
notice, by you. This agreement also will terminate automatically, as to the
relevant Series, in the event of its assignment (as defined in said Act).
16. This agreement has been executed on behalf of the Fund by
the undersigned officer of the Fund in his capacity as an officer of the Fund.
The obligations of this agreement shall only be binding upon the assets and
property of the relevant Series, as provided for in the Fund's charter
documents, and shall not be binding upon any Board member, officer or
shareholder of the Fund or Series individually.
Please confirm that the foregoing is in accordance with your
understanding and indicate your acceptance hereof by signing below, whereupon it
shall become a binding agreement between us.
Very truly yours,
AMERICAN SKANDIA MASTER TRUST
By:
ACCEPTED:
AMERICAN SKANDIA MARKETING, INCORPORATED
By: _____________________________________
