DISTRIBUTION AGREEMENT
BETWEEN
AXA PREMIER VIP TRUST
AND
EQUITABLE DISTRIBUTORS, INC.
(Applicable to Class B Shares)
AGREEMENT, dated as of November 30, 2001, by and between AXA Premier
VIP 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 B 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 B 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 B 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 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 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 B 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 such 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 A shares and
Class B 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 B shares, directly or through 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 A and Class B shares. The Trust's Portfolios and any
restrictions on availability for Class B 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 B 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 B shares contained in its Registration 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 B 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 B shares with respect to which EDI provides services
and/or assumes expenses under the Class B 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 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 annual and
semi-annual reports (collectively, the "Documents") 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 B shares, the cost of preparing, printing,
mailing and otherwise distributing such Documents will be at the expense of such
Class B 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 or 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 B 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 Securities 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 B 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 B shares which are present at a meeting of such persons if the holders
of more than 50% of all votes in respect of Class B 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 Trust's
Board of Trustees.
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)
("Independent Trustees") and 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 of the Trust, 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 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 B 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AXA PREMIER VIP TRUST
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
EQUITABLE DISTRIBUTORS, INC.
By: /s/ Xxxx XxxXxxxxxxxx
-------------------------------
Name: Xxxx XxxXxxxxxxxx
Title: President
SCHEDULE A
TO
DISTRIBUTION AGREEMENT
OF
AXA PREMIER VIP TRUST
CLASS B SHARES
AXA Premier VIP Large Cap Growth Portfolio
AXA Premier VIP Large Cap Core Equity Portfolio
AXA Premier VIP Large Cap Value Portfolio
AXA Premier VIP Small/Mid Cap Growth Portfolio
AXA Premier VIP Small/Mid Cap Value Portfolio
AXA Premier VIP International Portfolio
AXA Premier VIP Technology Portfolio
AXA Premier VIP Health Care Portfolio
AXA Premier VIP Core Bond Portfolio
