Exhibit A
Limited Liability Company Agreement
of
First Defined Portfolio Fund, LLC
a Delaware Limited Liability Company
as of
January 8, 1999
Limited Liability Company Agreement
of
First Defined Portfolio Fund, LLC
▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Member") hereby forms a limited liability company
pursuant to and in accordance with the Delaware Limited Liability
Company Act, 6 Del. C. Section 18-101, et seq. (the "Act")
and hereby declares the following to be the Limited Liability Company
Agreement (the "Agreement") of such limited liability company:
Recitals:
Whereas, the parties have agreed to organize and operate a limited
liability company in accordance with the terms and subject to the
conditions set forth in this Agreement.
Now, Therefore, for good and valuable consideration, the parties,
intending legally to be bound, agree as follows:
Article I
Definitions
Section 1.1. Definitions. Whenever used herein, unless otherwise
required by the context or specifically provided:
(a) "Act" means the Delaware Limited Liability Company Act,
as amended from time to time.
(b) "Agreement" means this limited liability company
agreement, as amended from time to time.
(c) "Board of Trustees" refers initially to ▇▇▇▇▇ ▇. ▇▇▇▇▇
and, thereafter, to any other individuals who at the time in question
have been duly elected or appointed and qualified in accordance with
Article V hereof and are then in office; no member of the Board of
Trustees shall be deemed to be a "Manager" as defined in the Act,
although the Board of Trustees, collectively, shall be deemed to be the
sole "Manager" under the Act whose rights and duties are limited as set
forth herein.
(d) "Bylaws" shall mean the Operating Bylaws of the Company
included herewith as Exhibit A as amended from time to time.
(e) "Certificate" means the Certificate of Formation of the
Company provided for in the Act, as originally filed in the office of
Secretary of State of Delaware and as amended from time to time, as the
context may require.
(f) "Member" means a record owner of a Membership Interest.
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(g) "Membership Interests" shall mean a limited liability
company interest issued and authorized pursuant to Article IV hereof and
having the rights, preferences, and designations set forth therein, in
this Agreement, in the Bylaws, and, to the extent not inconsistent with
this Agreement, the Act.
(h) "Variable Annuity Owners" means the parties who have
variable annuity policies (the "Policies") with American Skandia Life
Assurance Corporation ("American Skandia") that utilize American Skandia
Life Assurance Corporation Variable Account B to fund the benefits of
the Policies and who have indirect rights in the Membership Interests
pursuant to the Policies into which such parties have entered.
(i) The "1940 Act" refers to the Investment Company Act of
1940 (and any successor statute) and the Rules and Regulations
thereunder, all as amended from time to time; and
(j) The terms "Commission," "Interested Person," "Principal
Underwriter" and "Vote of a Majority of the Outstanding Voting
Securities" shall have the meanings ascribed to them in the 1940 Act.
Article II
Formation
Section 2.1. Organization. Pursuant to the Act, an authorized
person of the Company, W. ▇▇▇▇▇ ▇▇▇▇▇▇▇, filed the Certificate on
January 8, 1999 establishing the Company as a Delaware limited liability
company on that date. Except as set forth in Section 2.3 hereof, in
accordance with Section 18-201(d) of the Act, this Agreement
is effective as of formation of the Company on January 8, 1999. ▇▇.
▇▇▇▇▇▇▇ and any other person appointed by the Board of Trustees or the
President of the Company shall serve as an authorized person of the
Company for purposes of executing and filing with the Delaware Secretary
of State any amendments to the Certificate. Such an authorized person
shall from time to time hereafter, as may be required by law or as may
be determined by the Board of Trustees or the President of the Company,
do all filings, recordings and other acts as may be appropriate to
enable the Company to comply with the provisions of the Act.
Section 2.2. Intent. It is the intent of the Member that the
Company shall always be operated in a manner consistent with its
treatment as a "disregarded entity" for federal and state income tax
purposes. The Member shall not take any action inconsistent with the
express intent of the parties hereto.
Section 2.3. Name of the Company. The name under which the
Certificate of the Company was filed was "First Defined Portfolio
Management Fund LLC." Effective from and after June 8, 1999, the date
the Certificate was amended to reflect a change in name of the Company,
the name of the Company has been and continues to be "First Defined
Portfolio Fund, LLC." The Board of Trustees may change, and pursuant to
Section 8.2 hereof shall change, the name of the Company from time to
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time, and the Company may do business under any other name or names
determined by the Board of Trustees.
Section 2.4. Purpose. The purpose of the Company is to transact
any and all lawful business to which the Member agrees and for which
limited liability companies may be organized under the Act. The Company
shall have any and all powers necessary or desirable to carry out the
purposes and business of the Company, to the extent that the same is
lawfully exercised by limited liability companies ("LLCs") under the Act.
Section 2.5. Waiver of Compliance. No provision of this
Agreement shall be effective to require a waiver of compliance with any
provisions of the Securities Act of 1933, as amended, or the 1940 Act,
or of any valid rule, regulation or order of the Commission thereunder.
Section 2.6. Term. The Company shall have perpetual existence,
unless sooner terminated as provided in this Agreement or the Act.
Section 2.7. Member. (a) There shall be a single Member. The
Member shall be entitled to vote on all Company matters in which a
Member is entitled to vote or consent pursuant to this Agreement, the By-
laws, and, to the extent not inconsistent with this Agreement or the By-
laws, the Act. As of the date of this Agreement, the Member shall
initially be ▇▇▇▇▇ ▇. ▇▇▇▇▇. ▇▇. ▇▇▇▇▇ shall transfer his Membership
Interests and his status as a Member to American Skandia Life Assurance
Corporation Variable Account B ("Variable Account B"), or any successor
thereof pursuant to a merger or other reorganization. In connection
with such transfer, Variable Account B shall be deemed admitted to the
Company as a substitute Member in respect of ▇▇. ▇▇▇▇▇'▇ Membership
Interests. Upon the transfer, ▇▇. ▇▇▇▇▇ shall be deemed withdrawn as
the Member of the Company in respect of such Membership Interests. At
no point may the Company have more than one Member. The address,
capital contribution and the Membership Interests of the sole Member are
set forth on Exhibit B hereto, as it may be amended from time to time.
(b) The Member shall have the power to exercise any and all rights
or powers granted to the Member pursuant to the express terms of this
Agreement or as otherwise required by the Act. Except as otherwise
specifically provided by this Agreement or required by the Act, the
Member shall not have the power to act for or on behalf of, or to bind,
the Company.
Section 2.8. Variable Annuity Owners and Voting Rights. At such
time as Variable Account B is admitted as the Member of the Company, to
the extent required by applicable laws, regulations and Commission
positions, the Member is obligated to vote each Membership Interest in a
manner consistent with the instructions of the Variable Annuity Owner,
if any, who has an indirect right in the Membership Interest pursuant to
a Policy issued by American Skandia.
Accordingly, to the extent so required by applicable laws, regulations
and Commission positions, any reference in this Agreement, the By-laws,
or the Act to the voting rights of the Member or of the Membership
Interests, quorum requirements or other matters requiring the vote or
consent of the Member or of the Membership Interests, shall be construed
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to require the Member to vote, consent or otherwise act in a manner that
is consistent with the instructions of the Variable Annuity Owners.
Article III
Registered Agent; Principal Place of Business
Section 3.1. Registered Office; Principal Place of Business. The
registered office of the Company in the State of Delaware shall be
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New
Castle, or at any other place within the State of Delaware upon which
the Board of Trustees agree. The principal office and place of business
of the Company in the State of Illinois shall be located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at any other
place which the Board of Trustees shall determine.
Section 3.2. Registered Agent. The name and address of the
Company's resident agent in the State of Delaware shall be The
Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. At any time, the Board of Trustees may designate another
registered agent and/or registered office.
Article IV
Membership Interests
Section 4.1. Membership Interests. The Membership Interests in
the Company shall be divided into such transferable Membership
Interests, of such series or classes, and of such designations and with
such rights, preferences, privileges and restrictions as shall be
determined by the Board of Trustees in its sole discretion, without
Member approval, from time to time and shall initially consist of one
class of transferable Membership Interests. The number of Membership
Interests is unlimited and each Membership Interest shall be fully paid
and nonassessable. The Board of Trustees shall have full power and
authority, in its sole discretion and without obtaining any prior
authorization or vote of the Member of the Company (including in its
capacity as the Member of any series or class of Membership Interests),
to create and establish (and to change in any manner) Membership
Interests or any series or classes thereof with such preferences, voting
powers, rights and privileges as the Board of Trustees may from time to
time determine; to divide or combine the Membership Interests or the
Membership Interests of any series or classes thereof into a greater or
lesser number; to classify or reclassify any issued Membership Interests
into one or more series or classes of Membership Interests; to abolish
any one or more series or classes of Membership Interests; to create
Membership Interests that may be senior to outstanding Membership
Interests; and to take such other action with respect to the Membership
Interests as the Board of Trustees may deem desirable. Except as may be
specifically set forth in Section 4.2 of this Article IV or in an
instrument establishing and designating classes or series of Membership
Interests, the Membership Interests shall have the powers, preferences,
rights, qualifications, limitations and restrictions described below:
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(i) In the event of the termination of the Company the Member
shall be entitled to receive pro rata the net distributable assets of
the Company;
(ii) The Member shall be entitled to one vote for each
Membership Interest held on each matter submitted to a vote of the
Member as a single class. However, where separate class or series
voting is specifically provided for herein or pursuant to applicable
law, only Membership Interests of such class or series are entitled to
vote.
(iii)Distributions to the Member, when made by the Board of
Trustees, which shall be paid in cash or reinvested in full and
fractional Membership Interests of the Company as the Board of Trustees
shall direct;
(iv) Any Membership Interests purchased or redeemed by the
Company shall be retired automatically;
(v) Membership Interests may be issued from time to time,
without the vote of the Member (or, if the Board of Trustees in its sole
discretion deem advisable, with a vote of the Member), either for cash
or for such other consideration (which may be in any one or more
instances a certain specified consideration or certain specified
considerations) and on such terms as the Board of Trustees, from time to
time, may deem advisable, and the Company may in such manner acquire
other assets (including the acquisition of assets subject to, and in
connection with the assumption of liabilities); and
(vi) The Company may issue Membership Interests in fractional
denominations to the same extent as its whole Membership Interests, and
Membership Interests in fractional denominations shall be Membership
Interests having proportionately to the respective fractions represented
thereby all the rights of whole Membership Interests, including, without
limitation, the right to vote, the right to receive dividends and
distributions and the right to participate upon termination of the
Company. The Board of Trustees may from time to time, without the vote
of the Member, divide or combine Membership Interests into a greater or
lesser number without thereby changing the Member's proportionate
Membership Interests in the Company.
Section 4.2. Establishment of Series and Classes of Membership
Interests.
(a) Series. The Board of Trustees, in its sole discretion, without
obtaining any prior authorization or vote of the Member of the Company
or of the Member of any series or class of Membership Interests, from
time to time may authorize the division of Membership Interests into two
or more series, the number and relative rights, privileges and
preferences of which shall be established and designated by the Board of
Trustees, in its discretion, upon and subject to the following provisions:
(i) All Membership Interests shall be identical except that
there may be such variations as shall be fixed and determined by the
Board of Trustees between different series as to purchase price, right
of redemption, and the price, terms and manner of redemption, and
special and relative rights as to dividends and on liquidation.
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(ii) The number of Membership Interests of each series that
may be issued shall be unlimited. The Board of Trustees may classify or
reclassify any unissued Membership Interests or any Membership Interests
previously issued and reacquired of any series into one or more series
that may be established and designated from time to time.
(iii)The power of the Board of Trustees to invest and reinvest
the assets of the Company allocated or belonging to any particular
series shall be governed by Section 6.1 of Article VI hereof unless
otherwise provided in the instrument of the Board of Trustees
establishing such series which is hereinafter described.
(iv) Each Membership Interest of a series shall represent an
interest in the net assets allocated or belonging to such series only,
and such interest shall not extend to the assets of the Company
generally. Dividends and distributions on Membership Interests of a
particular series may be paid with such frequency as the Board of
Trustees may determine, which may be monthly or otherwise, pursuant to a
standing vote or votes adopted only once or with such frequency as the
Board of Trustees may determine, to the Member, as the sole holder of
Membership Interests of such series, from such of the income and capital
gains, accrued or realized, from the assets belonging to that series.
All dividends and distributions on Membership Interests of a particular
series shall be distributed pro rata to the Member, as the sole holder
of Membership Interests of that series, in proportion to the number of
Membership Interests of that series held by the Member at the date and
time of record established for the payment of such dividends or
distributions. Membership Interests of any particular series of the
Company may be redeemed solely out of the assets of the Company
allocated or belonging to that series. Upon liquidation or termination
of a series of the Company, the Member, as the sole holder of Membership
Interests of such Series, shall be entitled to receive a pro rata share
of the net assets of such series only.
(v) Notwithstanding any provision hereof or in an instrument
establishing and designating classes or series of Membership Interests
to the contrary, on any matter submitted to a vote of the Member of the
Company, all Membership Interests then entitled to vote shall be voted
by individual series, except that (i) when required by the 1940 Act to
be voted in the aggregate, Membership Interests shall not be voted by
individual series, (ii) when the Board of Trustees has determined that
the matter affects only the interests of the Member in its capacity as
holder of one or more series, only the Member in its capacity as a
holder of such series shall be entitled to vote thereon, and (iii) all
series shall vote together on the election of Trustees.
(vi) The establishment and designation of any series of
Membership Interests shall be effective upon the execution by a majority
of the Board of Trustees of an instrument setting forth such
establishment and designation and the relative rights and preferences of
such series or as otherwise provided in such instrument.
(b) Classes. Notwithstanding anything in this Agreement to the
contrary, the Board of Trustees may, in its discretion, without
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obtaining any prior authorization or vote of the Member of the Company
(including in its capacity as holder of any series or class of
Membership Interests), from time to time authorize the division of
Membership Interests of the Company or any series thereof into
Membership Interests of one or more classes upon the execution by a
majority of the Board of Trustees of an instrument setting forth such
establishment and designation and the relative rights and preferences of
such class or classes. The Board of Trustees may create new classes
that may be senior to existing classes. All Membership Interests of a
class shall be identical with each other and with the Membership
Interests of each other classes of the same series except for such
variations between classes as may be approved by the Board of Trustees
and set forth in such instrument of establishment and designation and be
permitted under the 1940 Act or pursuant to any exemptive order issued
by the Commission.
Section 4.3. Ownership of Membership Interests. The ownership
and transfer of Membership Interests shall be recorded on the books of
the Company or its transfer or similar agent. The Board of Trustees may
make such rules as they consider appropriate for the transfer of
Membership Interests and similar matters. The record books of the
Company, as kept by the Company or any transfer or similar agent of the
Company, shall be conclusive as to who is the Member.
Section 4.4. No Preemptive Rights, Etc. The Member shall not
have any right to acquire, purchase or subscribe for any Membership
Interests or securities of the Company which it may hereafter issue or
sell, other than such right, if any, as the Board of Trustees in its
discretion may determine. The Member shall have no appraisal rights
with respect to its Membership Interests and, except as otherwise
determined by resolution of the Board of Trustees in its sole
discretion, shall have no exchange or conversion rights with respect to
its Membership Interests.
Section 4.5. Assets and Liabilities of Series. In the event that
the Company, pursuant to Section 4.2 of this Article IV, shall authorize
the division of Membership Interests into two or more series, the
following provisions shall apply:
(a) All consideration received by the Company for the issue
or sale of Membership Interests of a particular series, together with
all assets in which such consideration is invested or reinvested, all
income, earnings, profits and proceeds thereof, including any proceeds
derived from the sale, exchange or liquidation of such assets, and any
funds or payments derived from any reinvestment of such proceeds in
whatever form the same may be, shall irrevocably belong to that series
for all purposes and shall be segregated from the assets of any other
series, and shall be so recorded upon the books of the Company as set
forth in the instrument of establishment and designation for such
Membership Interests. Such consideration, assets, income, earnings,
profits and proceeds, including any proceeds derived from the sale,
exchange or liquidation of such assets and any funds or payments derived
from any reinvestment of such proceeds, in whatever form the same may
be, together with any General Asset Items (as hereinafter defined)
allocated to that series as provided in the following sentence, are
herein referred to as "assets belonging to" that series. In the event
that there are any assets, income, earnings, profits or proceeds
thereof, funds or payments which are not readily identifiable as
belonging to any particular series (collectively "General Asset Items"),
the Board of Trustees shall allocate such General Asset Items to and
among any one or more of the series created from time to time in such
manner and on such basis as it, in its sole discretion, deem fair and
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equitable; and any General Asset Items allocated to a particular series
shall thereafter constitute "assets belonging to" that series. Each
such allocation by the Board of Trustees shall be conclusive and binding
upon the Member in its capacity as a holder of any and all series for
all purposes.
(b) The assets belonging to a particular series shall be
charged with the liabilities of the Company in respect of that series
and with all expenses, costs, charges and reserves attributable to that
series and shall be so recorded upon the books of the Company.
Liabilities, expenses, costs, charges and reserves charged to a
particular series, together with any General Liability Items (as
hereinafter defined) allocated to that series as provided in the
following sentence, are herein referred to as "liabilities belonging to"
that series and shall be segregated from the liabilities of any other
series. In the event there are any general liabilities, expenses,
costs, charges or reserves of the Company which are not readily
identifiable as belonging to any particular series (collectively
"General Liability Items"), the Board of Trustees shall allocate and
charge such General Liability Items to and among any one or more of the
series created from time to time in such manner and on such basis as the
Board of Trustees in its sole discretion deem fair and equitable; and
any General Liability Items so allocated and charges to a particular
series shall thereafter constitute "liabilities belonging to" that
series. Each such allocation by the Board of Trustees shall be
conclusive and binding upon the Member in its capacity as a holder of
any and all series for all purposes.
Section 4.6. Status of Membership Interests and Limitation of
Personal Liability. Membership Interests shall be deemed to be personal
property giving only the rights provided in this instrument. The Member
by virtue of having become the Member shall be held to have expressly
assented and agreed to the terms of this Agreement and to have become a
party thereto. Ownership of Membership Interests shall not entitle the
Member to any title in or to the whole or any part of the Company
property or right to call for a partition or division of the same or for
an accounting. Except for explicitly set forth herein, neither the
Trustees, nor any officer, employee or agent of the Company shall have
any power to bind the Member personally or to call upon the Member for
the payment of any sum of money or assessment whatsoever other than such
as the Member may at any time personally agree to pay by way of
subscription for any Membership Interests or otherwise.
Article V
The Trustees
Section 5.1 Management of the Company. The business and affairs
of the Company shall be managed by the Board of Trustees, and they shall
have all powers necessary and desirable to carry out that responsibility.
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Section 5.2. Qualification and Number. Each Trustee shall be a
natural person. A Trustee need not be the Member, a citizen of the
United States, or a resident of the State of Delaware. By the vote or
consent of a majority of the Trustees then in office, the Board of
Trustees may fix the number of Trustees at a number not less than one
(1) nor more than twelve (12) and may fill the vacancies created by any
such increase in the number of Trustees. Except as determined from time
to time by resolution of the Board of Trustees, no decrease in the
number of Trustees shall have the effect of removing any Trustee from
office prior to the expiration of his term, but the number of Trustees
may be decreased in conjunction with the removal of a Trustee pursuant
to Section 5.4 of this Article V.
Section 5.3. Term and Election. Each Trustee shall hold office
until the next meeting of the Member is called, in accordance with this
Agreement and the By-Laws, for the purpose of considering the election
or re-election of such Trustee or of a successor to such Trustee, and
until his successor is elected and qualified, and any Trustee who is
appointed by the Board of Trustees in the interim to fill a vacancy as
provided hereunder shall have the same remaining term as that of his
predecessor, if any, or such term as the Board of Trustees may
determine. Any vacancy resulting from a newly created Trusteeship or
the death, resignation, retirement, removal, or incapacity of a Trustee
may be filled by the affirmative vote or consent of a majority of the
Trustees then in office.
Section 5.4. Resignation and Removal. Any Trustee may resign his
position or retire as a Trustee (without need for prior or subsequent
accounting) by an instrument in writing signed by him and delivered or
mailed to the Chairman, if any, the President or the Secretary and such
resignation or retirement shall be effective upon such delivery, or at a
later date according to the terms of the instrument. Any Trustee who
has become incapacitated by illness or injury as determined by a
majority of the other Trustees, may be retired by written instrument
signed by a majority of the other Trustees. Except as aforesaid, any
Trustee may be removed from office only for "Cause" (as hereinafter
defined) and only (i) by action of at least sixty-six and two-thirds
percent (66-2/3%) of the outstanding Membership Interests, or (ii) by
written instrument, signed by at least sixty-six and two-thirds percent
(66-2/3%) of the remaining Trustees, specifying the date when such
removal shall become effective. "Cause" shall require willful
misconduct, dishonesty, fraud or a felony conviction as determined by at
least sixty-six and two-thirds percent (66-2/3%) of the remaining
Trustees.
Section 5.5. Vacancies. The death, declination, resignation,
retirement, removal, or incapacity, of the Trustees, or any one of them,
shall not operate to annul the Company or to revoke any existing agency
created pursuant to the terms of this Agreement. Whenever a vacancy in
the number of Trustees shall occur, until such vacancy is filled as
provided herein, or the number of Trustees as fixed is reduced, the
Trustees in office, regardless of their number, shall have all the
powers granted to the Board of Trustees, and during the period during
which any such vacancy shall occur, only the Trustees then in office
shall be counted for the purposes of the existence of a quorum or any
action to be taken by such Board of Trustees.
Section 5.6. Voting Requirements. In addition to the voting
requirements imposed by law or by any other provision of this Agreement,
the provisions set forth in this Article V may not be amended, altered
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or repealed in any respect, nor may any provision inconsistent with this
Article V be adopted, without the affirmative vote of at least sixty-six
and two-thirds percent (66-2/3%) of the outstanding Membership
Interests. In the event the outstanding Membership Interests of any
series or class are required by law or any other provision of this
Agreement to approve such an action by a class vote of such Membership
Interests, such action must be approved by at least sixty-six and two-
thirds percent (66-2/3%) of the outstanding Membership Interests of such
series or class or such other percentage as may be required by law or
any other provision of this Agreement.
Article VI
Powers of Trustees
Section 6.1. Powers. The Board of Trustees in all instances
shall have full, absolute and exclusive power, control and authority
over the Company assets and the business and affairs of the Company.
The Board of Trustees shall have full power and authority to do any and
all acts and to make and execute any and all contracts and instruments
that they may consider necessary or appropriate in connection with the
management of the Company. The enumeration of any specific power herein
shall not be construed as limiting the aforesaid powers. In construing
the provisions of this Agreement, there shall be a presumption in favor
of the grant of powers and authority to the Board of Trustees. The
Member, in its capacity as the Member, shall not have any power to act
for, sign for or do any act, that would bind the Company except as set
forth herein or as determined by the Board of Trustees. Subject to any
applicable limitation in this Agreement, the Board of Trustees shall
have power and authority:
(a) To invest and reinvest in, to buy or otherwise acquire,
to hold, for investment or otherwise, to sell or otherwise dispose of,
to lend or to pledge, to trade in or deal in securities or interests of
all kinds, however evidenced, or obligations of all kinds, however
evidenced, or rights, warrants, or contracts to acquire such securities,
interests, or obligations, of any private or public company,
corporation, association, general or limited partnership, trust or other
enterprise or organization foreign or domestic, or issued or guaranteed
by any national or state government, foreign or domestic, or their
agencies, instrumentalities or subdivisions (including but not limited
to, bonds, debentures, bills, time notes and all other evidences or
indebtedness); negotiable or nonnegotiable instruments; any and all
options and futures contracts, derivatives or structured securities;
government securities and money market instruments (including but not
limited to, bank certificates of deposit, finance paper, commercial
paper, bankers acceptances, and all kinds of repurchase agreements) and,
without limitation, all other kinds and types of financial instruments;
(b) To adopt Bylaws not inconsistent with this Agreement
providing for the conduct of the business of the Company and to amend
and repeal them to the extent that they do not reserve that right to the
Member. Such Bylaws are attached hereto as Exhibit A and may be amended
from time to time;
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(c) To elect and remove such officers and appoint and
terminate such agents and authorized persons as they consider appropriate;
(d) To set record dates for any purpose;
(e) To delegate such authority as they consider desirable to
any officers of the Company and to any investment adviser, investment
subadviser, transfer agent, custodian, underwriter, administrator or
other independent contractor or agent;
(f) Subject to Section 9.1 hereof, to merge or consolidate
the Company with any other corporation, association, trust or other
organization; or to sell, convey, transfer, or lease all or
substantially all of the assets of the Company;
(g) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and to
execute and deliver proxies or powers of attorney to such person or
persons as the Board of Trustees shall deem proper, granting to such
person or persons such power and discretion with relation to securities
or property as the Board of Trustees shall deem proper;
(h) To exercise powers and rights of subscription or
otherwise which in any manner arise out of ownership of securities;
(i) To hold any security or property, whether in bearer,
unregistered or other negotiable form; or either in their or the
Company's name or in the name of a custodian or a nominee or nominees;
(j) To issue, sell, repurchase, retire, cancel, acquire,
hold, resell, reissue, dispose of, transfer and otherwise deal in a
Membership Interest and in any options, warrants or other rights to
purchase a Membership Interest;
(k) To set apart, from time to time, out of any funds of the
Company a reserve or reserves for any proper purpose, and to abolish any
such reserve;
(l) To consent to or participate in any plan for the
reorganization, consolidation or merger of any corporation or issuer,
any security or property of which is held in the Company; to consent to
any contract, lease, mortgage, purchase, or sale of property by such
corporation or issuer, and to pay calls or subscriptions with respect to
any security held in the Company;
(m) To compromise, arbitrate, or otherwise adjust claims in
favor of or against the Company or any matter in controversy including,
but not limited to, claims for taxes;
(n) To make distributions to the Member;
(o) To borrow money and to pledge, mortgage, or hypothecate
the assets of the Company;
Page 11
(p) To establish, from time to time, a minimum total
investment for the Member, and to require the redemption of the
Membership Interests of the Member if the investment is less than such
minimum upon such terms as shall be established by the Board of Trustees;
(q) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or trustee, and to delegate to them such
power and authority with relation to any security (whether or not so
deposited or transferred) as the Board of Trustees shall deem proper,
and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Board of
Trustees shall deem proper;
(r) To purchase and pay for out of Company property such
insurance as they may deem necessary or appropriate for the conduct of
the business of the Company, including, without limitation, insurance
policies insuring the assets of the Company and payment of distributions
and principal on its portfolio investments, and insurance policies
insuring the Member, Trustees, officers, employees, agents, investment
advisers, investment subadvisers or managers, principal underwriters, or
independent contractors of the Company individually against all claims
and liabilities of every nature arising by reason of holding, being or
having held any such office or position, or by reason of any action
alleged to have been taken or omitted by any such person as Member,
Trustee, officer, employee, agent, investment adviser, subadviser or
manager, principal underwriter, or independent contractor, whether or
not any such action may be determined to constitute negligence, and
whether or not the Company would have the power to indemnify such person
against such liability; and
(s) To pay pensions for faithful service, as deemed
appropriate by the Board of Trustees, and to adopt, establish and carry
out pension, profit-sharing, share bonus, Membership Interest purchase,
savings, thrift and other retirement, incentive and benefit plans,
trusts and provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other
benefits, for any or all of the Trustees, officers, employees and agents
of the Company.
Any determination made by or pursuant to the direction of the Board of
Trustees in good faith and consistent with the provisions of this
Agreement shall be final and conclusive and shall be binding upon the
Company and the Member, including, but not limited to the following
matters: the amount of the assets, obligations, liabilities and expenses
of the Company; the amount of the net income of the Company from
dividends, capital gains, interest or other sources for any period and
the amount of assets at any time legally available for the payment of
dividends or distributions; the amount, purpose, time of creation,
increase or decrease, alteration or cancellation of any reserves or
charges and the propriety thereof (whether or not any obligation or
liability for which such reserves or charges were created shall have
been paid or discharged); the market value, or any quoted price to be
applied in determining the market value, of any security or other asset
owned or held by the Company; the fair value of any security for which
Page 12
quoted prices are not readily available, or of any other asset owned or
held by the Company; the number of Membership Interests of the Company
issued; the net asset value per Membership Interest; any matter relating
to the acquisition, holding and depositing of securities and other
assets by the Company; any question as to whether any transaction
constitutes a purchase of securities on margin, a short sale of
securities, a borrowing, or an underwriting of the sale of, or
participation in any underwriting or selling group in connection with
the public distribution of, any securities, and any matter relating to
the issue, sale, redemption, repurchase, and/or other acquisition or
disposition of Membership Interests of the Company. No provision of
this Agreement shall be effective to protect or purport to protect any
Trustee or officer of the Company against any liability to the Company
or to its security holders to which he would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his office.
Section 6.2. Manner of Acting; Operating Bylaws. The Bylaws
shall make provision from time to time for the manner in which the Board
of Trustees may take action, including, without limitation, at meetings
within or without Delaware, including meetings held by means of a
conference telephone or other communications equipment, or by written
consents, the quorum and notice, if any, that shall be required for any
meeting or other action, and the delegation of some or all of the power
and authority of the Board of Trustees to any one or more committees
which they may appoint from its own number, and terminate, from time to
time.
Article VII
Expenses of the Company
The Trustees shall have the power to reimburse themselves from the
Company property for its expenses and disbursements, to pay reasonable
compensation to themselves from the Company property, and to incur and
pay out of the Company property any other expenses which in the opinion
of the Board of Trustees are necessary or incidental to carry out any of
the purposes of this Agreement, or to exercise any of the powers of the
Trustees hereunder.
Article VIII
Investment Adviser, Underwriter
and Transfer Agent
Section 8.1. Investment Adviser. The Company may enter into
written contracts with one or more persons (which term shall include any
firm, corporation, trust or association), to act as investment adviser
or investment subadviser to the Company, and as such to perform such
functions as the Board of Trustees may deem reasonable and proper,
including, without limitation, investment advisory, management,
research, valuation of assets, clerical and administrative functions,
under such terms and conditions, and for such compensation, as the Board
of Trustees may in its discretion deem advisable. However, the Board of
Trustees is responsible for the general supervision of the duties
performed for the Company by any such party.
Page 13
Section 8.2. Change of Name. Upon the termination of any contract with
First Trust Advisors L.P., or any corporation affiliated with Nike
Securities L.P., acting as investment adviser or manager, the Board of
Trustees is hereby required to promptly change the name of the Company
to a name which does not include "First Defined Portfolio", "First
Trust" or "Nike" or any approximation or abbreviation thereof.
Section 8.3. Underwriter; Transfer Agent. The Company may enter
into a written contract or contracts with an underwriter or underwriters
or distributor or distributors whereby the Company may either agree to
sell Membership Interests to the other party or parties to the contract
or appoint such other party or parties its sales agent or agents for
such Membership Interests and with such other provisions as the Board of
Trustees may deem reasonable and proper, and the Board of Trustees may
in its discretion from time to time enter into transfer agency,
administrative services and/or Member service contract(s), in each case
with such terms and conditions, and providing for such compensation, as
the Board of Trustees may in its discretion deem advisable.
Section 8.4. Parties to Contract. Any contract of the character
described in Sections 8.1 and 8.3 of this Article VIII or in Article X
hereof may be entered into with any corporation, firm, partnership,
trust or association, including, without limitation, the investment
adviser, any investment subadviser or an affiliate of the investment
adviser or investment subadviser, although one or more of the Board of
Trustees or officers of the Company may be an officer, director,
trustee, shareholder, or member of such other party to the contract, or
otherwise interested in such contract and no such contract shall be
invalidated or rendered voidable by reason of the existence of any such
relationship, nor shall any person holding such relationship be liable
merely by reason of such relationship for any loss or expense to the
Company under or by reason of said contract or accountable for any
profit realized directly or indirectly therefrom, provided that the
contract when entered into was not inconsistent with the provisions of
this Article VIII, Article X, or the Bylaws, the parties hereto hereby
agreeing that no such inconsistency exists between the terms hereof and
any provision of that certain Distribution Agreement, Services
Agreement, Fund Participation Agreement, Administrative Services
Agreement, Custody Agreement, License and Sub-License Agreements,
Investment Advisory and Management Agreement, Name Agreement, Foreign
Custody Management Agreement, Share Purchase Agreement and Fund
Participation Agreement each of which having been approved by the Board
of Directors involving the Company and various service providers. The
same person (including a firm, corporation, partnership, trust or
association) may be the other party to contracts entered into pursuant
to Sections 8.1 and 8.3 above or Article X, and any individual may be
financially interested or otherwise affiliated with persons who are
parties to any or all of the contracts mentioned in this Section 8.4.
Article IX
Member's Voting Powers and Meetings
Section 9.1. Voting Powers. The Member shall have power to vote
only: (a) for the election or removal of Trustees as provided in Article
Page 14
V, (b) with respect to any investment advisory or management contract to
the extent required by the 1940 Act, (c) with respect to any termination
of the Company or a series thereof to the extent and as provided in this
Section 9.1, (d) with respect to any amendment of this Agreement to the
extent and as provided in Section 13.4, (e) with respect to a merger or
consolidation of the Company or any series thereof with any corporation,
association, trust or other organization or a reorganization or
recapitalization of the Company or series thereof, or a sale, lease or
transfer of all or substantially all of the assets of the Company or any
series thereof (other than in the regular course of the Company's
investment activities) to the extent and as provided in this Section
9.1, and (f) with respect to such additional matters relating to the
Company as may be required by law, the 1940 Act, this Agreement, the
Bylaws of the Company, or any registration of the Company with the
Commission or any State, or as the Board of Trustees may consider
necessary or desirable. As provided in Section 2.8 of this Agreement,
to the extent required by applicable laws, regulations and Commission
positions, the Member is required to submit matters requiring a vote to
the Variable Annuity Owners and to vote each Membership Interest in
accordance with the instructions of the Variable Annuity Owner who has
an indirect right in the Membership Interest pursuant to a Policy issued
by American Skandia.
An affirmative vote of at least sixty-six and two-thirds percent (66-
2/3%) of the outstanding Membership Interests of the Company (or, in the
event of any action set forth below affecting only one or more series or
classes of the Company, an affirmative vote of at least sixty-six and
two-thirds percent of the outstanding Membership Interests of such
affected series or class) shall be required to approve, adopt or
authorize (i) a merger or consolidation of the Company or a series of
the Company with any corporation, association, trust or other
organization or a reorganization or recapitalization of the Company or a
series of the Company, (ii) a sale, lease or transfer of all or
substantially all of the assets of the Company or series of the Company
(other than in the regular course of the Company's investment
activities), or (iii) a termination of the Company or a series of the
Company (other than a termination by the Board of Trustees as provided
for in Section 13.1 hereof), unless in any case such action is
recommended by the Board of Trustees, in which case the affirmative Vote
of a Majority of the Outstanding Voting Securities of the Company or the
affected series or class shall be required.
Section 9.2. Meetings. Meetings of the Member of the
Company ( in its capacity as such or in the particular capacity as
holder of the Membership Interests of one or more series thereof) may be
called and held from time to time, for the purpose of taking action upon
any matter requiring the vote or authority of the Member as herein
provided or upon any other matter deemed by the Board of Trustees to be
necessary or desirable. Such meetings are not required except as set
forth herein or in the Bylaws. Meetings of the Member shall be held at
such place within the United States as shall be fixed by the Board of
Trustees, and stated in the notice of the meeting. Meetings of the
Member may be called by the Board of Trustees and shall be called by the
Board of Trustees if the Board of Trustees receives written requests
representing at least one-tenth of the outstanding Membership Interests
entitled to vote. The Member shall be entitled to at least ten days'
written notice of any meeting, except where the meeting is an adjourned
meeting and the date, time and place of the meeting were announced at
the time of the adjournment.
Page 15
Section 9.3. Quorum and Action. (a) The Trustees shall set in
the Bylaws the quorum required for the transaction of business by the
Member at a meeting, which quorum shall in no event be less than thirty
percent (30%) of the Membership Interests entitled to vote at such
meeting. If a quorum is present when a duly called or held meeting is
convened, the Membership Interests present may continue to transact
business until adjournment, even though the withdrawal of a number of
Membership Interests originally present leaves less than the proportion
or number otherwise required for a quorum.
(b) The Member shall take action by the affirmative vote of a
majority, except in the case of the election of the Board of Trustees
which shall only require a plurality, of the Membership Interests
present in person or by proxy and entitled to vote at a meeting of the
Member at which a quorum is present, except as may be otherwise required
by the 1940 Act or any provision of this Agreement or the Bylaws. As
provided in Section 2.8 of this Agreement, to the extent required by
applicable laws, regulations and Commission positions, the Member is
required to submit matters requiring a vote to the Variable Annuity
Owners and to vote each Membership Interest in accordance with the
instructions of the Variable Annuity Owner who has an indirect right in
the Membership Interest pursuant to a Policy issued by American Skandia.
Section 9.4. Voting. Each whole Membership Interest shall be
entitled to one vote as to any matter on which it is entitled to vote
and each fractional Membership Interest shall be entitled to a
proportionate fractional vote, except that Membership Interests held in
the treasury of the Company shall not be voted. In the event that there
is more than one series of the Membership Interests, Membership
Interests shall be voted by individual series on any matter submitted to
a vote of the Member of the Company except as provided in Sections
4.2(a)(v) and 4.2(b). There shall be no cumulative voting in the
election of Board of Trustees or on any other matter submitted to a vote
of the Member. Membership Interests may be voted in person or by proxy.
Until Membership Interests are issued, the Board of Trustees may
exercise all rights of the Member and may take any action required or
permitted by law, this Agreement or the Bylaws of the Company to be
taken by the Member.
Section 9.5. Action by Written Consent in Lieu of Meeting of the
Member. Any action required or permitted to be taken at a meeting of
the Member may be taken without a meeting by written action signed by
the Member in the respective capacity as holder of whichever Membership
Interests are otherwise required hereunder to be entitled to vote with
respect to such action. The written action is effective when it has
been signed by all of those parties, unless a different effective time
is provided in the written action.
Article X
Custodian
All securities and cash of the Company shall be held by one or more
custodians and subcustodians, each meeting the requirements for a
custodian contained in the 1940 Act, or shall otherwise be held in
accordance with the 1940 Act.
Page 16
Article XI
Distributions and Redemptions
Section 11.1. Distributions. The Board of Trustees may in
its sole discretion from time to time declare and pay, or may prescribe
and set forth in a duly adopted vote or votes of the Board of Trustees,
the bases and time for the declaration and payment of, such dividends
and distributions to the Member as they may deem necessary or desirable,
after providing for actual and accrued expenses and liabilities
(including such reserves as the Board of Trustees may establish)
determined in accordance with good accounting practices.
Section 11.2. Redemption of Membership Interests. All
Membership Interests of the Company shall be redeemable as directed by
the Member in accordance with this Agreement, at the redemption price
determined in the manner set out in this Agreement. The Company shall
redeem the Membership Interests of the Company or any series or class
thereof at the price determined as hereinafter set forth, upon the
appropriately verified application of the Member (or upon such other
form of request as the Board of Trustees may determine) at such office
or agency as may be designated from time to time for that purpose by the
Board of Trustees. The Board of Trustees may from time to time specify
additional conditions, not inconsistent with the 1940 Act, regarding the
redemption of Membership Interests in the Company's then effective
prospectus under the Securities Act of 1933.
Section 11.3. Redemption Price. Membership Interests shall
be redeemed at their net asset value (less any applicable redemption fee
or sales charge) determined as set forth in Section 11.7 of this Article
XI as of such time as the Board of Trustees shall have theretofore
prescribed by resolution. In the absence of such resolution, the
redemption price of Membership Interests submitted for redemption shall
be the net asset value of such Membership Interests next determined as
set forth in such Section hereof after receipt of such application.
Section 11.4. Payment. Payment of the redemption price of
Membership Interests of the Company or any series or class thereof shall
be made in cash or in property or partly in cash and partly in property
to the Member at such time and in the manner, not inconsistent with the
1940 Act or other applicable laws, as may be specified from time to time
in the Company's then effective prospectus under the Securities Act of
1933.
Section 11.5. Redemption of Member's Interest. The Board of
Trustees, in its sole discretion, may cause the Company to redeem all of
the Membership Interests of the Company or one or more series of the
Company held by the Member if the value of such Membership Interests
held by the Member is less than the minimum amount established from time
to time by the Board of Trustees.
Section 11.6. Suspension of Right of Redemption.
Notwithstanding the foregoing, the Company may postpone payment of the
redemption price and may suspend the right of the Member to require the
Company to redeem Membership Interests (a) during any period when the
New York Stock Exchange (the "Exchange") is closed (other than customary
weekend and holiday closings), (b) when trading in the markets the
Page 17
Company normally utilizes is restricted, or an emergency exists as
determined by the Commission so that disposal of the Company's
investments or determination of its net asset value is not reasonably
practicable, or (c) for such other periods as the Commission may by
order, rule or otherwise permit.
Section 11.7. Determination of Net Asset Value and Valuation
of Portfolio Assets. The Board of Trustees may in its sole discretion
from time to time prescribe and shall set forth in the Bylaws or in a
duly adopted vote or votes of the Board of Trustees such bases and times
for determining the per Membership Interest net asset value of the
Membership Interests and the valuation of portfolio assets as they may
deem necessary or desirable.
The Company may suspend the determination of net asset value during any
period when it may suspend the right of the Member to require the
Company to redeem Membership Interests.
Article XII
Limitation of Liability and Indemnification
Section 12.1. Limitation of Liability. No personal liability
for any debt or obligation of the Company or any Series shall attach to
any Trustee, Member, officer, employee or authorized person of the
Company. Without limiting the foregoing, a Trustee shall not be
responsible for or liable in any event for any neglect or wrongdoing of
any officer, agent, employee, investment adviser, subadviser, authorized
person, principal underwriter or custodian of the Company or any Series,
nor shall any Trustee be responsible or liable for the act or omission
of any other Trustee. In addition, a Trustee is not obligated to
supervise those persons. Nothing contained herein shall protect any
Trustee against any liability to which such Trustee would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office.
Every note, bond, contract, instrument, certificate, Membership Interest
or undertaking and every other act or thing whatsoever executed or done
by or on behalf of the Company or the Trustees or any of them in
connection with the Company shall be conclusively deemed to have been
executed or done only in or with respect to their or his capacity as
Trustees or Trustee and neither such Trustees or Trustee nor the Member
shall be personally liable thereon.
All persons extending credit to, contracting with or having any claim
against the Company or any applicable series of the Company shall look
only to the assets of the Company or the applicable series of the
Company, as the case may be, for payment under such credit, contract or
claim; and neither the Member nor the Trustees, nor any of the Company's
officers, employees, authorized persons or agents, whether past, present
or future, shall be personally liable therefor.
Section 12.2. Board of Trustees' Good Faith Action, Expert Advice,
No Bond or Surety. To the extent that, at law or in equity, the Member
or a Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to the Member or a Trustee:
Page 18
(i) The Member or any Trustee acting under the Agreement
shall not be liable to the Company, to the Member or to a Trustee, as
the case may be, for the Member's or Trustee's good faith reliance on
the provisions of the Agreement; and
(ii) The Member's or a Trustee's duties and liabilities may be
expanded or restricted by provisions in the Agreement.
Without limiting the generality of the foregoing, the exercise by the
Board of Trustees of its powers and discretions thereunder shall be
binding upon everyone interested. A Trustee shall be liable only for
his own willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of the office of
Trustee, and for nothing else, and shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and operation of
this Agreement and their duties as Trustees hereunder, and shall be
under no liability for any act or omission in accordance with such
advice or for failing to follow such advice. In discharging their
duties, the Trustees, when acting in good faith, shall be entitled to
rely upon the books of account of the Company and upon written reports
made to the Trustees by any officer appointed by them, any independent
public accountant and (with respect to the subject matter of the
contract involved) any officer, partner or responsible employee of any
other party to any contract entered into hereunder. The Trustees shall
not be required to give any bond as such, nor any surety if a bond is
required.
Section 12.3. Liability of Third Persons Dealing with Board
of Trustees. No person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be
made by the Board of Trustees or to see to the application of any
payments made or property transferred to the Company or upon its order.
Section 12.4. Indemnification. (a) Subject to the exceptions
and limitations contained in this Section 12.4, every person who is, or
has been, a Trustee, director, officer, employee, authorized person or
agent of the Company, including persons who serve at the request of the
Company as Trustees, officers, employees, authorized persons or agents,
of another organization in which the Company has an interest as a
shareholder, creditor or otherwise (hereinafter referred to as a
"Covered Person"), shall be indemnified by the Company to the fullest
extent permitted by law against liability and against all expenses
reasonably incurred or paid by him in connection with any claim, action,
suit or proceeding in which he becomes involved as a party or otherwise
by virtue of his being or having been such a Trustee, director, officer,
employee, authorized person or agent and against amounts paid or
incurred by him in settlement thereof.
(b) No indemnification shall be provided hereunder to a Covered Person:
(i) against any liability to the Company or the Member by
reason of a final adjudication by the court or other body before which
the proceeding was brought that he engaged in willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties involved in
the conduct of his office;
Page 19
(ii) with respect to any matter as to which he shall have been
finally adjudicated not to have acted in good faith in the reasonable
belief that his action was in the best interests of the Company; or
(iii)in the event of a settlement or other disposition not
involving a final adjudication (as provided in paragraph (a) or (b)) and
resulting in a payment by a Covered Person, unless there has been either
a determination that such Covered Person did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office by the court or other body
approving the settlement or other disposition, or a reasonable
determination, based on a review of readily available facts (as opposed
to a full trial-type inquiry), that he did not engage in such conduct:
(A) by a vote of a majority of the Disinterested Trustees acting
on the matter (provided that a majority of the Disinterested Trustees
then in office act on the matter); or
(B) by written opinion of independent legal counsel.
(c) The rights of indemnification herein provided may be insured
against by policies maintained by the Company, shall be severable, shall
not affect any other rights to which any Covered Person may now or
hereafter be entitled, shall continue as to a person who has ceased to
be such a Covered Person and shall inure to the benefit of the heirs,
executors and administrators of such a person. Nothing contained herein
shall affect any rights to indemnification to which Company personnel
other than Covered Persons may be entitled by contract or otherwise
under law.
(d) Expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding subject to a claim for indemnification under
this Section 12.4 shall be advanced by the Company prior to final
disposition thereof upon receipt of an undertaking by or on behalf of
the recipient to repay such amount if it is ultimately determined that
he is not entitled to indemnification under this Section 12.4, provided
that either:
(i) such undertaking is secured by a surety bond or some
other appropriate security or the Company shall be insured against
losses arising out of any such advances; or
(ii) a majority of the Disinterested Trustees acting on the
matter (provided that a majority of the Disinterested Trustees then in
office act on the matter) or independent legal counsel in a written
opinion shall determine, based upon a review of the readily available
facts (as opposed to a full trial-type inquiry), that there is reason to
believe that the recipient ultimately will be found entitled to
indemnification.
As used in this Section 12.4, a "Disinterested Trustee" is one (x) who
is not an Interested Person of the Company (including anyone, as such
Disinterested Trustee, who has been exempted from being an Interested
Person by any rule, regulation or order of the Commission), and (y)
Page 20
against whom none of such actions, suits or other proceedings or another
action, suit or other proceeding on the same or similar grounds is then
or has been pending.
As used in this Section 12.4, the words "claim," "action," "suit" or
"proceeding" shall apply to all claims, actions, suits, proceedings
(civil, criminal, administrative or other, including appeals), actual or
threatened; and the words "liability" and "expenses" shall include
without limitation, attorneys' fees, costs, judgments, amounts paid in
settlement, fines, penalties and other liabilities.
Section 12.5. Member. No personal liability for any debt or
obligation of the Company shall attach to the Member or any former
Member of the Company. In case the Member or former Member of the
Company shall be held to be personally liable solely by reason of his
being or having been the Member and not because of his acts or omissions
or for some other reason, the Member or former Member (or his heirs,
executors, administrators or other legal representatives or in the case
of a corporation or other entity, its corporate or other general
successor) shall be entitled out of the assets of the Company to be held
harmless from and indemnified against all loss and expenses arising from
such liability; provided, however, there shall be no liability or
obligation of the Company arising hereunder to reimburse the Member for
taxes paid by reason of such Member's ownership of any Membership
Interest or for losses suffered by reason of any changes in value of any
Company assets. The Company shall, upon request by the Member or former
Member, assume the defense of any claim made against the Member for any
act or obligation of the Company and satisfy any judgment thereon.
Article XIII
Miscellaneous
Section 13.1. Termination of Company. Unless terminated as
provided herein, the Company shall continue without limitation of time.
The Company or any series of the Company may be terminated in accordance
with Section 9.1 hereof.
Upon termination of the Company or any series thereof, after paying or
otherwise providing for all charges, taxes, expenses and liabilities,
whether due or accrued or anticipated, as may be determined by the Board
of Trustees, the Company shall, in accordance with such procedures as
the Board of Trustees consider appropriate, reduce the remaining assets
of the Company or of the particular series thereof to distributable form
in cash or other securities, or any combination thereof, and distribute
the proceeds to the Member of the Company or such series in the manner
set forth by resolution of the Board of Trustees.
Section 13.2. References, Headings. The original or a copy
of this instrument and of each amendment hereto shall be kept in the
office of the Company where it may be inspected by the Member. Anyone
dealing with the Company may rely on a certificate by an officer or
Trustee of the Company as to whether or not any such amendments have
been made and as to any matters in connection with the Company
hereunder, and with the same effect as if it were the original, may rely
on a copy certified by an officer or Trustee of the Company to be a copy
Page 21
of this instrument or of any such amendments. In this instrument or in
any such amendment, references to this instrument, and all expressions
like "herein," "hereof" and "hereunder," shall be deemed to refer to
this instrument as a whole and as amended or affected by any such
amendment, and masculine pronouns shall be deemed to include the
feminine and the neuter, as the context shall require. Headings are
placed herein for convenience of reference only, and in case of any
conflict, the text of this instrument, rather than the headings, shall
control. This instrument may be executed in any number of counterparts,
each of which shall be deemed an original.
Section 13.3. Board of Trustees May Resolve Ambiguities. The
Board of Trustees may construe any of the provisions of this Agreement
and the Bylaws insofar as the same may appear to be ambiguous or
inconsistent with any other provisions hereof or in the Bylaws, and any
such construction by the Board of Trustees in good faith shall be
conclusive as to the meaning to be given to such provisions.
Section 13.4. Amendments. Except as otherwise specifically
provided in this Agreement, this Agreement may be amended at any time by
an instrument in writing signed by a majority of the then Board of
Trustees with the consent of the Member holding more than fifty percent
(50%) of Membership Interests entitled to vote except that an amendment
which in the determination of the Board of Trustees shall affect one or
more series or classes of Membership Interests but not all outstanding
series or classes shall be authorized by vote of a majority of the
Membership Interests entitled to vote of each series and class affected
and no vote of the Membership Interests of a series or class not
affected shall be required. In addition, notwithstanding any other
provision to the contrary contained in this Agreement, the Board of
Trustees may amend this Agreement without the vote or consent of the
Member (i) at any time if the Board of Trustees deem it necessary in
order for the Company or any series or class thereby to meet the
requirements of applicable Federal or State laws or regulations, or the
requirements of the Internal Revenue Code, (ii) to designate series or
classes or exercise other powers with respect thereto in accordance with
Section 4.1 and 4.2 of Article IV hereof, (iii) change the name of the
Company or to supply any omission, cure any ambiguity or cure, correct
or supplement any defective or inconsistent provision contained herein,
or (iv) for any reason at any time before a registration statement under
the Securities Act of 1933, as amended, covering the initial public
offering of Membership Interests has become effective and Membership
Interests have been issued.
Section 13.5. Filing of Certificate of Cancellation. Upon
the dissolution and completion of winding up of the Company, the Board
of Trustees shall promptly file or cause to be filed a Certificate of
Cancellation with the Secretary of State of the State of Delaware. If
there is no Board of Trustees, then the Certificate of Cancellation
shall be filed by the remaining Member; if there are no remaining
Member, the Certificate shall be filed by the last Person to be the
Member; if there is neither a Board of Trustees, remaining Member, or a
Person who last was the Member, the Certificate shall be filed by the
legal or personal representatives of the Person who last was the Member.
Section 13.6. Applicable Law. All questions concerning the
construction, validity, and interpretation of this Agreement and the
Page 22
performance of the obligations imposed by this Agreement shall be
governed by the internal law, not the law of conflicts, of the State of
Delaware.
Section 13.7. Jurisdiction and Venue. Any suit involving any
dispute or matter arising under this Agreement may be brought in the
federal or state court located in the States of Illinois or Delaware
having jurisdiction over the subject matter of the dispute or matter.
The Member hereby consents to the exercise of personal jurisdiction by
any such court with respect to any such proceeding. The Member and the
other parties hereto hereby consent to (i) the non-exclusive
jurisdiction of the courts of the States of Illinois of Delaware and any
Federal court sitting in Chicago, Illinois or Wilmington, Delaware, and
(ii) service of process by first-class mail.
Page 23
In Witness Whereof, the undersigned, being the Company, the Sole Member
of the Company and Sole Trustee, respectively, have executed this
Agreement as of the date first written above.
Sole Member:
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________
Its Sole Trustee and Member
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Board of Trustees by the Sole Trustee
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
Its Sole Trustee and Member
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Page 24
Exhibit A
Operating Bylaws
of
First Defined Portfolio Fund, LLC
Article I
Limited Liability Company Agreement
and
Offices
Section 1.1. Agreement of Company. Pursuant to Section 6.1
of the Limited Liability Company Agreement, as from time to time in
effect (the "Agreement"), of First Defined Portfolio Fund, LLC, the
Delaware limited liability company referenced in the Agreement (the
"Company"), the Board of Trustees of the Company is authorized to adopt
these Bylaws provided that such Bylaws are not inconsistent with the
Agreement. Accordingly, with regards to any provision of these Bylaws
that is inconsistent with the Agreement, the terms of the Agreement
shall control.
Section 1.2. Other Offices. The Company may have such other
offices and places of business within or without the State of Delaware
as the Board of Trustees shall determine.
Article II
Members
Section 2.1. Place of Meetings. Meetings of the Member may
be held at such place or places within or without the State of Delaware
as shall be fixed by the Board of Trustees and stated in the notice of
the meeting.
Section 2.2. Regular Meeting. No regular meetings of the
Member for the election of the Board of Trustees and the transaction of
such other business as may properly come before the meeting shall be
held unless the Board of Trustees by resolution shall designate such
date and time of such meeting or except as otherwise required by
applicable law.
Section 2.3. Special Meeting. Special meetings of the
Member for any purpose or purposes may be called by the Chairman of the
Board, the President or two or more members of the Board of Trustees,
and must be called at the written request stating the purpose or
purposes of the meeting, of at least 10 percent of the Membership
Interests entitled to vote at the meeting.
Section 2.4. Notice of Meetings. Notice stating the time
and place of the meeting and in the case of a special meeting the
purpose or purposes thereof and by whom called, shall be delivered to
the Member not less than ten nor more than sixty days prior to the
meeting, except where the meeting is an adjourned meeting and the date,
time and place of the meeting were announced at the time of the
adjournment.
Page 1
Section 2.5. Quorum and Action. (a) Thirty percent (30%) of
the voting power of the Membership Interests of the Company entitled to
vote at a meeting is a quorum for the transaction of business. If a
quorum is present when a duly called or held meeting is convened, the
Membership Interests present may continue to transact business until
adjournment, even though the withdrawal of a number of Membership
Interests originally present leaves less than the proportion or number
otherwise required for a quorum.
(b) The Company shall take action by the affirmative vote of a
majority, except in the case of the election of Trustees which shall
only require a plurality, of the voting power of the Membership
Interests present and entitled to vote at a meeting of the Member at
which a quorum is present, except as may be otherwise required by the
Investment Company Act of 1940, as amended (the "1940 Act"), or the
Agreement.
Section 2.6. Voting. At each meeting of the Member, each
Membership Interests then entitled to vote may be voted by the Member in
person or by proxy and shall be entitled to one vote for each Membership
Interest. As provided in Section 2.8 of this Agreement, to the extent
required by applicable laws, regulations and Commission positions, the
Member is required to submit matters requiring a vote to the Variable
Annuity Owners and to vote each Membership Interest in accordance with
the instructions of the Variable Annuity Owner who has an indirect right
in the Membership Interest pursuant to a Policy issued by American
Skandia.
Section 2.7. Proxy Representation. The Member may cast or
authorize the casting of a vote through the filing of a written
appointment of a proxy with an officer of the Company at or before the
meeting at which the appointment is to be effective. The appointment of
a proxy is valid for eleven months, unless a longer period is expressly
provided in the appointment. No appointment is irrevocable unless the
appointment is coupled with an interest in the Membership Interests.
Section 2.8. Adjourned Meetings. Any meeting of the Member
may be adjourned to a designated time and place by the vote of a
majority of the Membership Interests present and entitled to vote
thereat even though less than a quorum is so present without any further
notice except by announcement at the meeting. An adjourned meeting may
reconvene as designated, and when a quorum is present any business may
be transacted which might have been transacted at the meeting as
originally called.
Article III
Board of Trustees
Section 3.1. Qualifications and Number: Vacancies. Each
Trustee shall be a natural person. A Trustee need not be the Member, a
citizen of the United States, or a resident of the State of Delaware.
The number of Trustees of the Company, their term and election and the
filling of vacancies, shall be as provided in the Agreement.
Page 2
Section 3.2. Powers. The business and affairs of the
Company shall be managed under the direction of the Board of Trustees.
All powers of the Company may be exercised by or under the authority of
the Board of Trustees, except those conferred on or reserved to the
Member by law, the Agreement or these Bylaws.
Section 3.3. Investment Polices. It shall be the duty of
the Board of Trustees to ensure that the purchase, sale, retention and
disposal of portfolio securities and the other investment practices of
the Company are at all times consistent with the investment objectives,
policies and restrictions with respect to securities investments and
otherwise of the Company filed from time to time with the Securities and
Exchange Commission and as required by the 1940 Act, unless such duty is
delegated to an investment adviser pursuant to a written contract, as
provided in the Agreement. The Board of Trustees may delegate the duty
of management of the assets of the Company to an individual or corporate
investment adviser or subadviser to act as investment adviser or
subadviser pursuant to a written contract. However, the Board of
Trustees is responsible for the general supervision of the duties
performed for the Company by any such party.
Section 3.4. Meetings. Regular meetings of the Board of
Trustees may be held without notice at such times as the Board of
Trustees shall fix. Special meetings of the Board of Trustees may be
called by the Chairman of the Board or the President, and shall be
called at the written request of two or more Trustees. Unless waived by
each Trustee, three days' notice of special meetings shall be given to
each Trustee in person, by mail, by telephone, or by telegram or cable,
or by any other means that reasonably may be expected to provide similar
notice. Notice of special meetings need not state the purpose or
purposes thereof. Meetings of the Board of Trustees may be held at any
place within or outside the United States. A conference among Trustees
by any means of communication through which the Trustees may
simultaneously hear each other during the conference constitutes a
meeting of the Board of Trustees or of a committee of the Board of
Trustees, if the notice requirements have been met (or waived) and if
the number of Trustees participating in the conference would be
sufficient to constitute a quorum at such meeting. Participation in
such meeting by that means constitutes presence in person at the meeting.
Section 3.5. Quorum and Action. A majority of the members
of the Board of Trustees currently holding office, or in the case of a
meeting of a committee of the Board of Trustees, a majority of the
members of such committee, shall constitute a quorum for the transaction
of business at any meeting. If a quorum is present when a duly called
or held meeting is convened, the Trustees present may continue to
transact business until adjournment, even though the withdrawal of a
number of Trustees originally present leaves less than the proportion or
number otherwise required for a quorum. At any duly held meeting at
which a quorum is present, the affirmative vote of the majority of the
Trustees present shall be the act of the Board of Trustees or the
committee, as the case may be, on any question, except where the act of
a greater number is required by these Bylaws or by the Agreement. No
individual Trustee shall have the power to act for or on behalf of, or
to bind, the Company except as provided by the Agreement, Bylaws or by a
resolution of the Board of Trustees.
Page 3
Section 3.6. Action by Written Consent in Lieu of Meetings
of Board of Trustees. An action which is required or permitted to be
taken at a meeting of the Board of Trustees or a committee of the Board
of Trustees may be taken by written action signed by the number of
Trustees that would be required to take the same action at a meeting of
the Board of Trustees or committee, as the case may be, at which all
Trustees were present and voted. The written action is effective when
signed by the required number of Trustees, unless a different effective
time is provided in the written action. When written action is taken by
less than all Trustees, all Trustees shall be notified immediately of
its text and effective date.
Section 3.7. Committees. The Board of Trustees, by
resolution adopted by the affirmative vote of a majority of the Board of
Trustees, may designate from its members an Executive Committee, an
Audit Committee and any other committee or committees, each such
committee to consist of two or more Trustees and to have such powers and
authority (to the extent permitted by law) as may be provided in such
resolution. Any such committee may be terminated at any time by the
affirmative vote of a majority of the Trustees.
Article IV
Officers
Section 4.1. Number and Qualifications. The officers of the
Company shall include a Chairman of the Board, a President, a
Controller, one or more Vice Presidents (one of whom may be designated
an Executive Vice President), a Treasurer, and a Secretary. Any two or
more offices may be held by the same person. Unless otherwise
determined by the Board of Trustees, each officer shall be appointed by
the Board of Trustees for a term which shall continue until the meeting
of the Board of Trustees following the next regular meeting of the
Member and until his successor shall have been duly elected and
qualified, or until his death, or until he shall have resigned or have
been removed, as hereinafter provided in these Bylaws. The Board of
Trustees may from time to time elect, or delegate to the Chairman of the
Board or the President, or both, the power to appoint, such officers
(including one or more Assistant Vice Presidents, one or more Assistant
Treasurers and one or more Assistant Secretaries) and such agents as may
be necessary or desirable for the business of the Company. Such other
officers shall hold office for such terms as may be prescribed by the
Board of Trustees or by the appointing authority.
Section 4.2. Resignations. Any officer of the Company may
resign at any time by giving written notice of his resignation to the
Board of Trustees, the Chairman of the Board, the President or the
Secretary. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt, and, unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 4.3. Removal. An officer may be removed at any
time, with or without cause, by a resolution approved by the affirmative
vote of a majority of the Board of Trustees present at a duly convened
meeting of the Board of Trustees.
Page 4
Section 4.4. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause may be
filled for the unexpired portion of the term by the Board of Trustees,
or in the manner determined by the Board of Trustees.
Section 4.5. The Chairman of the Board. The Chairman of the
Board shall be elected from among the Board of Trustees. He shall be
the chief executive officer of the Company and shall:
(a) have general active management of the business of the
Company;
(b) when present, preside at all meetings of the Board of
Trustees and of the Member;
(c) see that all orders and resolutions of the Board of
Trustees are carried into effect; and
(d) sign and deliver in the name of the Company any deeds,
mortgages, bonds, contracts or other instruments pertaining to the
business of the Company, except in cases in which the authority to sign
and deliver is required by law to be exercised by another person or is
expressly delegated by the Agreement or Bylaws or by the Board of
Trustees to some other officer or agent of the Company.
The Chairman of the Board shall be authorized to do or cause to be done
all things necessary or appropriate, including preparation, execution
and filing of any documents, to effectuate the registration from time to
time of the Membership Interests of the Company with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended.
He shall perform all duties incident to the office of Chairman of the
Board and such other duties as from time to time may be assigned to him
by the Board of Trustees or by these Bylaws.
Section 4.6. The President. The President shall be the
chief operating officer of the Company and, subject to the Chairman of
the Board, he shall have general authority over and general management
and control of the business and affairs of the Company. In general, he
shall discharge all duties incident to the office of the chief operating
officer of the Company and such other duties as may be prescribed by the
Board of Trustees and the Chairman of the Board from time to time. The
President shall also have the power to appoint and terminate authorized
persons and agents of the Company. In the absence of the Chairman of
the Board or in the event of his disability or inability to act or to
continue to act, the President shall perform the duties of the Chairman
of the Board and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the Chairman of the Board.
Section 4.7. Executive Vice-President. In the case of the
absence or inability to act of the President and the Chairman of the
Board, any Executive Vice-President shall perform the duties of the
President and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the President. Any Executive Vice-
President shall perform all duties incident to the office of Executive
Vice-President and such other duties as from time to time may be
assigned to him by the Board of Trustees, the President or these Bylaws.
Page 5
Section 4.8. Vice Presidents. Each Vice-President shall
perform all such duties as from time to time may be assigned to him by
the Board of Trustees, the Chairman of the Board or the President.
Section 4.9. Controller. The Controller shall:
(a) keep accurate financial records for the Company;
(b) render to the Chairman of the Board, the President and
the Board of Trustees, whenever requested, an account of all
transactions by and of the financial condition of the Company; and
(c) in general, perform all the duties incident to the office
of Controller and such other duties as from time to time may be assigned
to him by the Board of Trustees, the Chairman of the Board or the
President.
Unless the Board of Trustees determines otherwise, the Treasurer of the
Company shall also serve as Controller.
Section 4.10. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all
the funds and securities of the Company, except those which the Company
has placed in the custody of a bank or trust company pursuant to a
written agreement designating such bank or trust company as custodian of
the property of the Company, as required by Article X of the Agreement;
(b) deposit all money, drafts, and checks in the name of and
to the credit of the Company in the banks and depositories designated by
the Board of Trustees;
(c) endorse for deposit all notes, checks, and drafts
received by the Company making proper vouchers therefor;
(d) disburse corporate funds and issue checks and drafts in
the name of the Company, as ordered by the Board of Trustees; and
(e) in general, perform all the duties incident to the office
of Treasurer and such other duties as from time to time may be assigned
to him by the Board of Trustees, the Chairman of the Board or the
President.
Section 4.11. Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided
for the purpose, the minutes of all meetings of the Board of Trustees,
the committees of the Board of Trustees and the Member;
Page 6
(b) see that all notices are duly given in accordance with
the provisions of these Bylaws and as required by statute;
(c) maintain records and serve as custodian of the records of
the Company;
(d) see that the books, reports, statements, certificates and
other documents and records required by statute to be kept and filed are
properly kept and filed;
(e) Whenever necessary, certify all proceedings of the Board
of Trustees and the Member; and
(f) in general, perform all the duties incident to the office
of Secretary and such other duties as from time to time may be assigned
to him by the Board of Trustees, the Chairman of the Board or the
President.
Section 4.12. Salaries. The salaries of all officers shall
be fixed by the Board of Trustees.
Article V
Membership Interests
Section 5.1. Membership Interest Certificates. No
Membership Interest certificates shall be issued.
Section 5.2. Books and Records; Inspection. The Company shall
keep at its principal executive office, or at another place or places
within the United States determined by the Board of Trustees, a
Membership Interest register not more than one year old, containing the
name and address of the Member and the number of Membership Interests
held by the Member. The Company shall also keep, at its principal
executive office, or at another place or places within the United States
determined by the Board of Trustees, a record of the dates on which
certificates representing Membership Interests were issued.
Section 5.3. Membership Interest Transfers. Upon compliance
with any provisions restricting the transferability of the Membership
Interest that may be set forth in the Agreement, these Bylaws, or any
resolution or written agreement in respect thereof, transfers of
Membership Interests of the Company shall be made only on the books of
the Company by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with
an officer of the Company, or with a transfer agent or a registrar and
on surrender of any certificate or certificates for such Membership
Interests properly endorsed and the payment of all taxes thereon.
Except as may be otherwise provided by law or these Bylaws, the person
in whose name Membership Interests stand on the books of the Company
shall be deemed the owner thereof for all purposes as regards the Company.
Section 5.4. Regulations. The Board of Trustees may make
such additional rules and regulations, not inconsistent with these
Page 7
Bylaws, as they may deem expedient concerning the issue, certification,
transfer and registration of Membership Interests of the Company. They
may appoint, or authorize any officer or officers to appoint, one or
more transfer agents or one or more transfer clerks and one or more
registrars.
Section 5.5. Record Date: Certification of Membership
Interests. (a) The Board of Trustees may fix a date not more than
ninety (90) days before the date of a meeting of the Member as the date
for the determination of the Membership Interests entitled to notice of
and entitled to vote at the meeting or any adjournment thereof.
(b) The Board of Trustees may fix a date for determining the
Member entitled to receive payment of any dividend or distribution or
allotment of any rights or entitled to exercise any rights in respect of
any change, conversion or exchange of Membership Interests.
(c) In the absence of such fixed record date, (i) the date for
determination of the Member entitled to notice of and entitled to vote
at a meeting of the Member shall be the later of the close of business
on the day on which notice of the meeting is mailed or the thirtieth day
before the meeting, and (ii) the date for determining the Member
entitled to receive payment of any dividend or distribution or an
allotment of any rights or entitled to exercise any rights in respect of
any change, conversion or exchange of Membership Interests shall be the
close of business on the day on which the resolution of the Board of
Trustees is adopted.
Article VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Company
shall be as fixed by the Board of Trustees of the Company.
Section 6.2. Notice and Waiver of Notice. (a) Any notice of
a meeting required to be given under these Bylaws to the Member or the
Board of Trustees, or both, may be waived by any such person (i) orally
or in writing signed by such person before, at or after the meeting or
(ii) by attendance at the meeting in person or, in the case of the
Member, by proxy.
(b) Except as otherwise specifically provided herein, all notices
required by these Bylaws shall be printed or written, and shall be
delivered either personally, by telecopy, telegraph or cable, or by mail
or courier or delivery service, and, if mailed, shall be deemed to be
delivered when deposited in the United States mail, postage prepaid,
addressed to the Member or Trustee at his address as it appears on the
records of the Company.
Page 8
Article VII
Amendments
Section 7.1. These Bylaws may be amended or repealed, or new
Bylaws may be adopted, by the Board of Trustees at any meeting thereof
or by action of the Board of Trustees by written consent in lieu of a
meeting.
Dated as of January 8, 1999
Page 9
Exhibit B
The Dow (sm) Target 5 Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
The Dow (sm) Dart 10 Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
Global Target 15 Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
Page 1
S&P Target 10 Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
NASDAQ Target 15 Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
First Trust 10 Uncommon Values Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
First Trust Energy Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
Page 2
First Trust Financial Services Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
First Trust Pharmaceutical Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
First Trust Technology Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
First Trust Internet Portfolio
Capital Percentage of Membership
Member Address Contribution Interests
American Skandia Life Assurance One Corporate Drive, Shelton, $0 100%
Corporation Variable Account B Connecticut 06484-0883
Amended October, 1999
Page 3
