EXHIBIT 6(d)
DISTRIBUTION AGREEMENT
CLASS IB SHARES
EQUITABLE DISTRIBUTORS, INC.
AGREEMENT, dated as of April 14, 1997 by and between EQ Advisors
Trust (the "Trust") and Equitable Distributors, Inc. ("EDI").
W I T N E S S E T H:
WHEREAS, the Trust is a Delaware business trust whose shareholders
are and will be separate accounts in unit investment trust form ("Eligible
Separate Accounts") of insurance companies ("Participating Insurance
Companies"); and
WHEREAS, such Participating Insurance Companies issue, among other
products, variable insurance and annuity products ("Variable Products") whose
net premiums, contributions or other consideration may be allocated to
Eligible Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's Class IB shares will not be sold except in
connection with such Variable Products or directly to tax-qualified pension
and retirement plans ("Qualified Plans") outside the separate account context;
and
WHEREAS, the Trust has adopted a Distribution Plan with respect to
its Class IB shares pursuant to Rule 12b-1 under the Investment Company Act of
1940, as amended ("Investment Company Act"); and
WHEREAS, the Trust desires that EDI undertake marketing activities
with respect to the Class IB shares of the Trust's constituent series or
investment portfolios ("Portfolios") and to compensate EDI for services
rendered and expenses borne in connection therewith; and
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act; and
WHEREAS, the Investment Company Act prohibits any principal
underwriter for a registered open-end management investment company from
offering for sale, selling, or delivering after sale any security of which
such investment company is the issuer, except pursuant to a written contract
with such investment company, and EDI will be a distributor for sale of the
Class IB shares issued by the Trust; and
WHEREAS, EDI is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended, ("Securities Exchange Act"), and is a member
of the National Association of Securities Dealers., Inc. ("NASD").
NOW THEREFORE, the Trust and EDI agree as follows:
Section 1. The Trust has adopted a form of Participation Agreement,
which was approved by the Board of Trustees of the Trust. This Agreement shall
be subject to the provisions of the form of Participation Agreement, the terms
of which are incorporated herein by reference, made a part hereof and
controlling. The form of Participation Agreement may be amended or superseded,
without prior notice, and this Agreement shall be deemed amended to the extent
the form of Participation Agreement is amended or superseded. EDI represents
and warrants that it will act in a manner consistent with the form of
Participation Agreement as it is currently set forth and as it may be amended
or superseded, so long as EDI serves as the principal underwriter of the Class
IA shares and Class IB shares of the Trust (collectively, the "Shares").
Section 2. EDI on behalf of the Trust is hereby authorized, from time
to time, to enter into separate written agreements ("Sales Agreements" or,
individually, a "Sales Agreement"), on terms and conditions not inconsistent
with this Agreement, with Participating Insurance Companies that have Eligible
Separate Accounts and that agree to participate in the distribution of the
Trust's Class IB shares, directly or through their affiliated broker-dealers,
by means of the distribution of Variable Products and to use their best
efforts to solicit applications for Variable Products. EDI may not enter into
any Sales Agreement with any Participating Insurance Company that is more
favorable than that maintained with any other Participating Insurance Company
and Eligible Separate Account, except that not all Portfolios of the Trust
need be made available for investment by all Participating Insurance
Companies, Eligible Separate Accounts or Variable Products. The Board of
Trustees of the Trust may, in its sole discretion, determine that certain
Portfolios and classes of shares of the Trust shall be available only to
certain types of Variable Products or to a single Participating Insurance
Company and its affiliates.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly
and appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company
shall, when required by law, be both registered as a broker-dealer under the
Securities Exchange Act and a member of the NASD. Each such Participating
Insurance Company shall agree to comply with all laws and regulations,
whether federal or state, and whether relating to insurance, securities or
other general areas, including but not limited to the recordkeeping and sales
supervision requirements of such laws and regulations.
Section 4. The Trust's shares are divided into series or Portfolios,
each representing a different portfolio of investments. Each Portfolio is
further divided into Class IA and Class IB shares. The Trust's Portfolios and
any restrictions on availability for Class IB shares relating thereto are set
forth in Schedule A hereto, which may be amended from time to time.
Purchases and redemptions of the Trust's Class IB shares of each
Portfolio shall be at the net asset value therefor, computed as set forth in
the most recent relevant Prospectus and Statement of Additional Information
relating to the Trust's Class IB shares contained in its Registration
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Statement on Form N-1A or any amendments thereto (respectively, "Trust
Prospectus" and "SAI"), and any supplements thereto and shall be submitted by
the Participating Insurance Company to the Trust's transfer agent pursuant to
procedures and in accordance with payment provisions adopted by EDI and the
Trust from time to time. The Trust's Class IB shares may not be sold or
transferred, except to an Eligible Separate Account or Qualified Plan, without
the prior approval of the Trust's Board of Trustees.
Section 5. As compensation to EDI for services rendered and expenses
borne as a distributor hereunder, each Portfolio shall pay EDI a monthly fee
(payable on or before the fifth (5th) business day of the following month) at
a rate equal to 0.25% per annum of the average daily net assets of the
Portfolio attributable to Class IB shares with respect to which EDI provides
services and/or assumes expenses under the Class IB Distribution Plan. EDI
may, but need not, pay or charge Participating Insurance Companies pursuant to
Sales Agreements, as described in Section 2 hereof.
Section 6. The Trust represents to EDI that the Trust Prospectus and
SAI, as of their respective effective dates, contain (or will contain) all
statements and information which are required to be stated therein by the
Securities Act of 1933, as amended ("Securities Act"), and in all respects
conform to the requirements thereof, and neither the Trust Prospectus nor the
SAI include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the foregoing
representations shall not apply to information contained in or omitted from
the Trust Prospectus and SAI in reliance upon, and in conformity with, written
information furnished by EDI specifically for use in the preparation thereof.
In this connection, EDI acknowledges that the day-to-day operations
of the Trust, including without limitation, investment management, securities
brokerage allocation, cash control, accounting, recordkeeping and other
administrative, marketing and regulatory compliance functions, are carried on
and may in the future be carried on by The Equitable Life Assurance Society of
the United States ("Equitable"), affiliates of Equitable, and other parties
unaffiliated with Equitable on behalf of the Trust (collectively, the
"Preparing Parties"), under various agreements and arrangements, and that such
activities in large measure provide the basis upon which statements and
information are included or omitted from the Trust Prospectus and SAI. EDI
further acknowledges that because of the foregoing arrangements, the
preparation of the Trust Prospectus and SAI is substantially in the control of
the Preparing Parties, subject to the broad supervisory authority and
responsibility of the Trust's Board of Trustees, and that, essentially, the
only Trust Prospectus or SAI information not independently known to, or
prepared by, the Preparing Parties is personal information as to each
Trustee's full name, age, background, business experience and other personal
information that may require disclosures under securities laws and for which
the Preparing Parties necessarily must rely on each such Trustee to produce.
Section 7. The Trust will periodically prepare Prospectuses (and, if
applicable, SAIs) and any supplements thereto, proxy materials and semi-annual
reports (collectively, the "Documents")
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and shall, in accordance with the form of Participation Agreement, provide
sufficient copies of such Documents or shall make camera ready copy available
to EDI for reproduction by EDI or the Participating Insurance Companies. To
the extent that the foregoing Documents are with respect to Class IB shares,
the cost of preparing, printing, mailing and otherwise distributing such
Documents will be at the expense of such Class IB shares with respect to
prospective owners of Variable Products. In addition, with respect to
Documents provided to existing owners of Variable Products, the cost of
preparing, printing, mailing and otherwise distributing such Documents shall
be borne by the Trust. The Trust will use its best efforts to provide notice
to EDI of anticipated filings or supplements. EDI or the Participating
Insurance Companies may alter the form of some or all of the Documents, with
the prior approval of the Trust's officers and legal counsel. Any preparation
costs associated with altering the form of the Documents will be borne by EDI
or the Participating Insurance Companies, not the Trust.
Section 8. EDI and officers of the Trust may, from time to time,
authorize descriptions of the Trust for use in sales literature or advertising
by the Participating Insurance Companies (including brochures, letters,
illustrations and other similar materials, whether transmitted directly to
potential applicants or published in print or audio-visual media), which
authorization will not be unreasonably withheld or delayed.
Section 9. EDI shall furnish to the Trust, at least quarterly,
reports as to the sales of the Trust's Class IB shares made pursuant to this
Agreement. These reports may be combined with any similar report prepared by
EDI or any of the Preparing Parties.
Section 10. EDI shall submit to all regulatory and administrative
bodies having jurisdiction over the operations of EDI, the Trust, or any
Participating Insurance Company, present or future, any information, reports
or other material which any such body by reason of this Agreement may request
or require as authorized by applicable laws or regulations.
Section 11. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Exchange Act and the 1933 Act and the
rules, regulations, and rulings thereunder and of the NASD, from time to time
in effect, including such exemptions and no-action positions as the Securities
and Exchange Commission or its staff may grant, and the terms hereof shall be
interpreted and construed in accordance therewith. Without limiting the
generality of the foregoing, (a) the term "assigned" shall not include any
transaction exempted from section 15(b)(2) of the Investment Company Act and
(b) the vote of the persons having voting rights in respect of the Trust
referred to in Section 12 shall be the affirmative votes of the lesser of (i)
the holders of more than 50% of all votes in respect of Class IB shares
entitled to be cast in respect of the Trust or (ii) the holders of at least
67% of the votes in respect of Class IB shares which are present at a meeting
of such persons if the holders of more than 50% of all votes in respect of
Class IB shares entitled to be cast in respect of the Trust are present or
represented by proxy at such meeting, in either case voted in accordance with
the provisions contained in the form of Participation Agreement or any
policies on conflicts adopted by the Board of Trustees.
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Section 12. This Agreement shall continue in effect only so long as
such continuance is specifically approved at least annually by a majority of
the Trustees of the Trust who are not interested persons of the Trust or EDI
and who have no direct or indirect financial interest in the distribution plan
pursuant to which this Agreement has been authorized (or any agreement
thereunder) (the "Independent Trustees") by (a) persons having voting rights
in respect of the Trust, by the vote stated in Section 11, voted in accordance
with the provisions contained in the form of Participation Agreement or any
policies on conflicts adopted by the Board of Trustees, or (b) the
Board of Trustees of the Trust. This Agreement may be terminated at any time,
without penalty, by a majority of the Independent Trustees or by persons
having voting rights in respect of the Trust by the vote stated in Section 11.
Section 13. This Agreement shall terminate automatically if it shall
be assigned.
Section 14. The Trust shall indemnify and hold harmless EDI from any
and all losses, claims, damages or liabilities (or actions in respect thereof)
to which EDI may be subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or result from
negligent, improper, fraudulent or unauthorized acts or omissions by the Trust
or its officers, trustees, agents or representatives, other than acts or
omissions caused directly or indirectly by EDI.
EDI will indemnify and hold harmless the Trust, its officers,
trustees, agents and representatives against any losses, claims, damages or
liabilities, to which the Trust its officers, trustees, agents and
representatives may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Trust Prospectus and/or SAI or any supplements thereto; (ii)
the omission or alleged omission to state any material fact required to be
stated in the Trust Prospectus and/or SAI or any supplements thereto or
necessary to make the statements therein not misleading; or (iii) other
misconduct or negligence of EDI in its capacity as a principal underwriter of
the Trust's Class IB shares and will reimburse the Trust, its officers,
Trustees, agents and representatives for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that EDI shall not be liable in any such instance to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Trust Prospectus and/or SAI or any supplement in good faith
reliance upon and in conformity with written information furnished by the
Preparing Parties specifically for use in the preparation of the Trust
Prospectus and/or SAI.
Section 15. A copy of the Amended and Restated Agreement and
Declaration of Trust of the Trust is on file with the Secretary of State of
Delaware and notice is given hereby that this Agreement is executed on behalf
of the Trustees of the Trust as trustees and not individually, and that the
obligations of or arising out of this Agreement are not binding upon any of
the Trustees or shareholders individually but are binding only upon the assets
and property of each Portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EQ ADVISORS TRUST
By: /s/
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Xxxxx X. Xxxxx
President and Trustee
EQUITABLE DISTRIBUTORS, INC.
By: /s/
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Xxxxxx X. Xxxxxx
Chairman of the Board
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SCHEDULE A
Portfolios of
EQ Advisors Trust
X. Xxxx Price International Stock Portfolio
X. Xxxx Price Equity Income Portfolio
EQ/Xxxxxx Growth & Income Value Portfolio
EQ/Xxxxxx International Equity Portfolio
EQ/Xxxxxx Investors Growth Portfolio
EQ/Xxxxxx Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Xxxxxx Xxxxxxx Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Xxxxxxx Xxxxx World Strategy Portfolio
Xxxxxxx Xxxxx Basic Value Equity Portfolio
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