EXHIBIT 6(b)
DISTRIBUTION AGREEMENT
CLASS IB SHARES
EQ FINANCIAL CONSULTANTS, INC.
AGREEMENT, dated as of April 14, 1997 by and between EQ Advisors
Trust (the "Trust") and EQ Financial Consultants, Inc. ("EQ Financial").
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 EQ Financial undertake marketing
activities with respect to the Class IB shares of the Trust's constituent
series or investment portfolios ("Portfolios") and to compensate EQ Financial
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 EQ Financial will be a distributor for sale
of the Class IB shares issued by the Trust; and
WHEREAS, EQ Financial 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 EQ Financial 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. EQ Financial
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 EQ Financial serves as the principal
underwriter of the Class IB shares of the Trust.
Section 2. EQ Financial 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.
EQ Financial 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 EQ Financial
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 EQ Financial for services rendered and
expenses borne as a distributor hereunder, each Portfolio shall pay EQ
Financial 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 EQ Financial provides services and/or assumes expenses under the Class
IB Distribution Plan. EQ Financial 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 EQ Financial 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 EQ Financial specifically for use in the preparation
thereof.
In this connection, EQ Financial 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. EQ
Financial 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 EQ Financial for reproduction by EQ Financial 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 EQ Financial of anticipated filings or supplements. EQ
Financial 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 EQ Financial or the Participating Insurance
Companies, not the Trust.
Section 8. EQ Financial 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. EQ Financial 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 EQ Financial or any of the Preparing Parties.
Section 10. EQ Financial shall submit to all regulatory and
administrative bodies having jurisdiction over the operations of EQ Financial,
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 EQ
Financial 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 EQ Financial
from any and all losses, claims, damages or liabilities (or actions in respect
thereof) to which EQ Financial 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 EQ Financial.
EQ Financial 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 EQ Financial 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 EQ Financial 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
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shareholders individually but are binding only upon the assets and property
of each Portfolio.
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
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
------------------------------------
Xxxxxxx X. Xxxxxx
Chairman of the Board and
Chief Executive Officer
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SCHEDULE A
Portfolios of
EQ Advisors Trust
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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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