Exhibit (d)(7)(v)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of December 12, 2003 by and between The Equitable Life
Assurance Society of the United States, Inc., a New York stock life insurance
corporation ("Equitable" or the "Manager"), and Xxxxxxx Xxxxx Investment
Managers International Limited, a company organized under the laws of England
and Wales (the "Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an open-end
management investment company under the Investment Company Act of 1940, as
amended (the "Investment Company Act");
WHEREAS, the Trust's shareholders are and will be separate accounts
maintained by insurance companies for variable life insurance policies and
variable annuity contracts (the "Policies") under which income, gains, and
losses, whether or not realized, from assets allocated to such accounts are, in
accordance with the Policies, credited to or charged against such accounts
without regard to other income, gains, or losses of such insurance companies;
WHEREAS, the Trust is and will continue to be a series fund having two or
more investment portfolios, each with its own investment objectives, policies
and restrictions;
WHEREAS, Equitable is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act") and is the
investment manager to the Trust;
WHEREAS, the Adviser is registered as an investment adviser under the
Advisers Act and also is an authorised person for purposes of the Financial
Services and Markets Act of the United Kingdom;
WHEREAS, the Investment Company Act prohibits any person from acting as an
investment adviser to a registered investment company except pursuant to a
written contract (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and Equitable desire to retain
the Adviser to render investment advisory services to the EQ/Mercury
International Value Portfolio ("Portfolio") in the manner and on the terms
hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and covenants hereinafter
contained, Equitable and Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser to the
Portfolio and to furnish the investment advisory services described below,
subject to the supervision of the Trustees of the Trust and the terms and
conditions of this Agreement. The Adviser will be an independent contractor and
will have no authority to act for or represent the Trust or Manager in any way
or otherwise be deemed an agent of the Trust or Manager except as
expressly authorized in this Agreement or another writing by the Trust, Manager
and the Adviser.
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser will manage the investment and reinvestment of the assets
of the Portfolio and determine the composition of the assets of the Portfolio,
subject always to the direction and control of the Trustees of the Trust and the
Manager and in accordance with the provisions of the Trust's registration
statement, as amended from time to time. In fulfilling its obligations to manage
the investment and reinvestment of the assets of the Portfolio, the Adviser
will:
(i) furnish investment research and advice and formulate and implement a
continuous investment program for the Portfolio (a) consistent with the
investment objectives, policies and restrictions of the Portfolio as stated in
the Trust's Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and Statement of Additional information ("SAI")
as amended from time to time and provided to the Adviser pursuant to Section 2.B
of this Agreement, and (b) in compliance with the requirements applicable to
both regulated investment companies and segregated asset accounts under
Subchapters M and L of the Internal Revenue Code of 1986, as amended;
(ii) take whatever steps are necessary to implement the investment program
for the Portfolio by the purchase, sale and exchange of securities and other
investments, including cash, authorized under the Trust's Agreement and
Declaration of Trust, By-Laws, and such Portfolio's currently effective
Prospectus and SAI and provided to the Adviser pursuant to Section 2.B of this
Agreement, including the placing of orders for such purchases, sales and
exchanges for the account of the Trust on behalf of the Portfolio with such
brokers and dealers as the Adviser shall have selected; to this end, the Adviser
is expressly authorized as the agent of the Trust on behalf of the Portfolio to
give instructions to the Custodian of the Trust as to deliveries of securities
and payments of cash for the account of the Trust on behalf of such Portfolio;
(iii) regularly report to the Trustees of the Trust and the Manager with
respect to the implementation of the investment program and, in addition, will
provide such statistical information and special reports concerning the
Portfolio and/or important developments materially affecting the investments
held, or contemplated to be purchased, by the Portfolio, as may reasonably be
requested by the Manager or the Trustees of the Trust, and will attend Board of
Trustees' Meetings, as reasonably requested, to present such information and
reports to the Board;
(iv) provide determinations of the fair value of certain portfolio
securities when market quotations are not readily available for the purpose of
calculating the Portfolio's net asset value in accordance with Procedures and
methods established by the Trustees of the Trust; and
(v) establish appropriate interfaces with the Trust's administrator and
Manager in order to provide such administrator and Manager with all information
reasonably requested by
the administrator and Manager necessary to the provision of the Adviser's
services hereunder to the Portfolio.
B. To facilitate the Adviser's fulfillment of its obligations under this
Agreement, the Manager will undertake the following:
(i) the Manager agrees promptly to provide the Adviser with all
amendments or supplements to the Portfolio's Prospectus, SAI, the Trust's
registration statement on Form N-1A ("Registration Statement"), the Trust's
Agreement and Declaration of Trust, and By-Laws;
(ii) the Manager agrees, on an ongoing basis, to notify the Adviser
expressly in writing of each change in the fundamental and nonfundamental
investment policies of the Portfolio;
(iii) the Manager agrees to provide or cause to be provided to the Adviser
with such assistance as may be reasonably requested by the Adviser in connection
with its activities pertaining to the Portfolio under this Agreement, including,
without limitation, information as to the general condition of the Portfolio's
affairs; and
(iv) the Manager will promptly provide the Adviser with any guidelines and
procedures applicable to the Adviser or the Portfolio adopted from time to time
by the Board of Trustees of the Trust and agrees to promptly provide the Adviser
copies of all amendments thereto.
C. The Adviser, at its expense, will furnish: all necessary investment
and management facilities, overhead expenses and investment personnel, including
salaries, expenses and fees of any personnel required for it to faithfully
perform its duties under this Agreement.
D. The Adviser will select brokers and dealers to effect all portfolio
transactions subject to the conditions set forth herein. The Adviser will place
all necessary orders with brokers, dealers, or issuers. The Adviser is directed
at all times to seek to execute brokerage transactions for the Portfolio in
accordance with such policies or practices as may be established by the Board of
Trustees and described in the Trust's currently effective Prospectus and SAI, as
amended from time to time and provided to the Adviser pursuant to Section 2.B of
this Agreement, including in particular policies and procedures in accordance
with Section 17(e) and Rule 17e-1 under the Investment Company Act.
Notwithstanding the foregoing, in placing orders for the purchase or sale of
investments for the Portfolio, in the name of the Trust on behalf of the
Portfolio or its nominees, the Adviser shall use its best efforts to obtain for
the Portfolio the most favorable net price and best execution available,
considering all of the circumstances, and shall maintain records adequate to
demonstrate compliance with this requirement.
Subject to the appropriate policies and procedures approved by the Board of
Trustees, the Adviser may, to the extent authorized by Section 28(e) of the
Securities and Exchange Act of 1934, cause the Portfolio to pay a broker or
dealer that provides brokerage or research services to the Manager, the Adviser,
and the Portfolio an amount of commission for effecting a portfolio transaction
in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction if the Adviser determines, in good
faith, that such amount of commission is reasonable in relationship to the value
of such brokerage or research services provided viewed in terms of that
particular transaction or the Adviser's overall responsibilities to the
Portfolio or its other advisory clients. To the extent authorized by said
Section 28(e) and the Trust's Board of Trustees, the Adviser shall not be deemed
to have acted unlawfully or to have breached any duty created by this Agreement
or otherwise solely by reason of such action. In addition, subject to seeking
the most favorable net price and best execution available, the Adviser may also
consider sales of shares of the Trust as a factor in the selection of brokers
and dealers.
E. On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of the Portfolio as well as other clients of
the Adviser, the Adviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be purchased or sold to attempt to obtain a more favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Adviser in the manner the Adviser considers to
be the most equitable and consistent with its fiduciary obligations to the
Portfolio and to its other clients.
F. The Adviser will maintain all accounts, books and records generated
by it with respect to the Portfolio as are required of an investment adviser of
a registered investment company pursuant to the Investment Company Act and
Advisers Act and the rules thereunder.
G. The Adviser will, unless and until otherwise directed by the Manager
or the Board of Trustees, exercise all rights of security holders with respect
to securities held by the Portfolio, including, but not limited to: voting
proxies, converting, tendering, exchanging or redeeming securities; acting as a
claimant in class action litigation (including litigation with respect to
securities previously held); and exercising rights in the context of a
bankruptcy or other reorganization.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to the Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on or about the fifth day of each month for the preceding month
or portion thereof; however, this advisory fee will be calculated on the average
daily value of the Portfolio's assets, as calculated in accordance with the
computation of net asset value included in the Trust's Registration Statement,
and accrued on a daily basis. In the event the calculation of the Portfolio's
net asset value is suspended, the net asset value used for any day will be that
for the last business day prior to such suspension until net asset value
calculations are resumed.
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its directors, officers, or employees shall
be liable to the Manager or the Trust for any loss suffered by the Manager or
the Trust resulting from its acts or omissions as Adviser to a Portfolio, except
for losses to the Manager or the Trust resulting from willful misconduct, bad
faith, or gross negligence in the performance of, or from reckless disregard of,
the duties hereunder of the Adviser or any of its directors, officers or
employees.
The Adviser, its directors, officers or employees shall not be liable to
the Manager or the Trust for any loss suffered as a consequence of any action or
inaction of other services providers to Trust in failing to observe the
instructions of the Adviser, unless such action or inaction of such other
service providers to the Trust is a result of the willful misconduct, bad faith
or gross negligence in the performance of, or from reckless disregard of, the
duties of the Adviser, its directors, officers or employees under this
Agreement.
5. INDEMNIFICATIONS
A. The Manager shall indemnify the Adviser and its controlling persons,
officers, directors, employees, agents, legal representatives and Persons
controlled by it (which shall not include the Trust or the Portfolio)
(collectively, "Adviser Related Persons") to the fullest extent permitted by law
against any and all loss, damage, judgments, fines, amounts paid in settlement
and reasonable expenses, including attorneys' fees (collectively "Losses"),
incurred by the Adviser or Adviser Related Persons arising from or in connection
with this Agreement or the performance by the Adviser or Adviser Related Persons
of its or their duties hereunder so long as such Losses arise out of the
Manager's gross negligence, willful misconduct or bad faith, in performing its
responsibilities hereunder or under its agreements with the Trust or the gross
negligence, willful misconduct or bad faith of any companies affiliated with the
Manager that provide services to the Trust, including, without limitation, such
Losses arising under any applicable law or that may be based upon any untrue
statement of a material fact contained in the Trust's Registration Statement, or
any amendment thereof or any supplement thereto, or the omission to state
therein a material fact known or which should have been known and was required
to be stated therein or necessary to make the statements therein not misleading,
unless such statement or omission was made in reasonable reliance upon written
information furnished to the Manager or the Trust by the Adviser or an Adviser
Related Person specifically for inclusion in the Registration Statement or any
amendment or supplement thereto, except to the extent any such Losses referred
to in this paragraph (i.e., paragraph A.) result from willful misfeasance, bad
faith, gross negligence or reckless disregard on the part of the Adviser or an
Adviser Related Person in the performance of any of its duties under, or in
connection with, this Agreement.
B. The Adviser shall indemnify the Manager and its controlling persons,
officers, directors, employees, agents, legal representatives and persons
controlled by it (which shall not include the Trust or the Portfolio)
(collectively, "Manager Related Persons") to the fullest extent permitted by law
against any and all Losses incurred by the Manager or Manager Related Persons
arising from or in connection with this Agreement or the performance by the
Manager or Manager Related Persons of its or their duties hereunder so long as
such Losses arise out of the Adviser's gross negligence, willful misconduct or
bad faith in performing its responsibilities hereunder, including, without
limitation, such Losses arising under any applicable law or that may be based
upon any untrue statement of a material fact contained in the Trust's
Registration Statement, or any amendment thereof or any supplement thereto or
the omission to state therein a material fact known or which should have been
known and was required to be stated therein or necessary to make the statements
therein not misleading, in any case only to the extent that such statement or
omission was made in reasonable reliance upon written information furnished by
the Adviser or Adviser Related Person to the Manager or the Trust specifically
for inclusion in the Registration Statement or any amendment or supplement
thereto, except to the extent any such Losses referred to in this paragraph
(i.e., paragraph B.) result from willful misfeasance, bad faith, gross
negligence or reckless disregard on the part of the Manager or a Manager Related
Person in the performance of any of its duties under, or in connection with,
this Agreement.
C. The indemnifications provided in this Section 5 shall survive the
termination of this Agreement.
6. NON-EXCLUSIVITY
The services of the Adviser to the Portfolio and the Trust are not to be
deemed to be exclusive, and the Adviser shall be free to render investment
advisory or other services to others (including other investment companies) and
to engage in other activities. It is understood and agreed that the directors,
officers, and employees of the Adviser are not prohibited from engaging in any
other business activity or from rendering services to any other person, or from
serving as partners, officers, directors, trustees, or employees of any other
firm or corporation, including other investment companies.
7. SUPPLEMENTAL ARRANGEMENTS
The Adviser may enter into arrangements with other persons affiliated with
the Adviser for the provision of certain personnel and facilities to the Adviser
to better enable it to fulfill its duties and obligations under this Agreement.
As used in this Agreement, any reference to the "Adviser" refers also to such
affiliate.
The Adviser may delegate certain administrative, non-advisory functions
assumed hereunder to The Bank of New York Europe Limited ("BNYE"). BNYE is not
an affiliate of the Adviser. BNYE is part of a group of companies, the ultimate
parent of which is The Bank of New York Company, Inc. The Adviser's liability
for all functions so delegated to BNYE is not affected hereby. Such
administrative, non-advisory functions so delegated and the Adviser's acceptance
of liability in respect thereof, do not extend to any custodial services
provided by BNYE where it has been appointed as Custodian (or other provider of
services) by the Manager or the Trust.
8. REGULATION
The Adviser shall submit to all regulatory and administrative bodies having
jurisdiction over the services provided pursuant to this Agreement any
information, reports, or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations or
any court of competent jurisdiction.
9. RECORDS
The records relating to the services provided under this Agreement shall be
the property of the Trust and shall be under its control; however, the Trust
shall furnish to the Adviser such records and permit it to retain such records
(either in original or in duplicate form) as it shall reasonably require in
order to carry out its duties. In the event of the termination of this
Agreement, such records shall promptly be returned to the Trust by the Adviser
free from any
claim or retention of rights therein. The Adviser shall keep
confidential any information obtained in connection with its duties hereunder
and disclose such information only if the Trust has authorized such disclosure
or if such disclosure is expressly required or requested by applicable federal,
or state regulatory authorities.
10. DURATION OF AGREEMENT
This Agreement shall become effective upon the date first above written,
provided that this Agreement shall not take effect unless it has first been
approved by a vote of a majority of those trustees of the Trust who are not
"interested persons" (as defined in the Investment Company Act) of any party to
this Agreement ("Independent Trustees"), cast in person at a meeting called for
the purpose of voting on such approval. This Agreement shall continue in effect
for a period more than two years from the date of its execution only so long as
such continuance is specifically approved at least annually by the Board of
Trustees in the manner required by the Investment Company Act and rules
thereunder or in accordance with exemptive or other relief granted by the SEC or
its staff.
11. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any
penalty, by the Manager at the direction of the Board of Trustees, including a
majority of the Independent Trustees, by the vote of a majority of the
outstanding voting securities of the Portfolio, on sixty (60) days' written
notice to the Manager and the Adviser, or by the Manager or Adviser on sixty
(60) days' written notice to the Trust and the other party. This Agreement will
automatically terminate, without the payment of any penalty, in the event of its
assignment (as defined in the Investment Company Act) or in the event the
Investment Management Agreement between the Manager and the Trust is assigned or
terminates for any other reason. This Agreement will also terminate upon written
notice to the other party that the other party is in material breach of this
Agreement, unless the other party in material breach of this Agreement cures
such breach to the reasonable satisfaction of the party alleging the breach
within thirty (30) days after written notice. The Adviser may terminate this
Agreement immediately upon notice to the Manager and the Trust if so required by
any regulatory authority having jurisdiction over the Adviser.
12. PROVISION OF CERTAIN INFORMATION BY ADVISER
The Adviser will promptly notify the Manager in writing of the occurrence
of any of the following events:
A. the Adviser fails to be registered as an investment adviser under the
Advisers Act or, under the laws of any jurisdiction in which the Adviser is
required to be registered as an investment adviser in order to perform its
obligations under this Agreement;
B. the Adviser is served or otherwise receives notice of any action,
suit, proceeding, inquiry, or investigation, at law or in equity, before or by
any court, public board, or body, involving the affairs of the Adviser as they
relate to the Adviser's responsibilities under this Agreement; and/or
C. the portfolio manager or managers of the Portfolio change or there
occurs any actual change in control or management of the Adviser. The Adviser
will notify the Manager and the Trust of any change in the ownership of the
company within a reasonable time after such change.
13. USE OF ADVISER'S NAME
The Manager will not use the Adviser's name (or that of any affiliate) in
Trust literature without prior review and approval by the Adviser, which may not
be unreasonably withheld or delayed.
14. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules
or regulations thereunder or pursuant to any exemptive relief granted by the
Securities and Exchange Commission ("SEC"), this Agreement may be amended by the
parties only if such amendment, if material, is specifically approved by the
vote of a majority of the outstanding voting securities of the Portfolio (unless
such approval is not required by Section 15 of the Investment Company Act as
interpreted by the SEC or its staff or the Trust has obtained an exemption from
the voting requirements of Section 15) and by the vote of a majority of the
Independent Trustees cast in person at a meeting called for the purpose of
voting on such approval. The required shareholder approval shall be effective
with respect to the Portfolio if a majority of the outstanding voting securities
of the Portfolio vote to approve the amendment, notwithstanding that the
amendment may not have been approved by a majority of the outstanding voting
securities of any other portfolio affected by the amendment or all the
portfolios of the Trust.
15. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio listed in Appendix A.
16. HEADINGS
The headings in the sections of this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
17. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the last known business address of each applicable party
in person or by registered mail or a private mail or delivery service providing
the sender with notice of receipt. The specific person to whom notice shall be
provided with respect to the Adviser shall be Xxxxxxxx Xxxx, Esq., General
Counsel, 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx, and with
respect to the Manager shall be Xxxxx X. Xxxxx, unless another person is
specified in writing to the other party. Notice shall be deemed given on the
date delivered or mailed in accordance with this paragraph.
18. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void in
law or in equity, the Agreement shall be construed, insofar as is possible, as
if such portion had never been contained herein.
19. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of Delaware, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
Investment Company Act shall be resolved by reference to such term or provision
of the Investment Company Act and to interpretations thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued pursuant to the
Investment Company Act. Specifically, the terms "vote of a majority of the
outstanding voting securities," "interested persons," "assignment," and
"affiliated persons," as used herein shall have the meanings assigned to them by
Section 2(a) of the Investment Company Act. In addition, where the effect of a
requirement of the Investment Company Act reflected in any provision of this
Agreement is relaxed by a rule, regulation or order of the SEC, whether of
special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
20. The Adviser agrees not to consult with any of the entities listed
herein concerning transactions for the Portfolio in securities or other assets:
(a) other sub-advisers to the Portfolio, if any; (b) other sub-advisers to any
other portfolio of the Trust; and (c) other sub-advisers to a portfolio under
common control with the Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers as or the date first
mentioned above.
THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
Xxxxxxx Xxxxx Investment Managers
International Limited
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
APPENDIX A
Portfolio Advisory Fee
------------------------------------- ----------------------------------------
EQ/Mercury International Value 0.44% of the Portfolio average daily net
assets for the first $100 million; 0.42%
of the average daily net assets in
excess of $100 million up to and
including $200 million; and 0.40% of the
average daily net assets in excess of
$200 million.
Dated December 12, 2003
