FORM OF AGREEMENT
CONCERNING
SALES OF SHARES
OF
THE XXXXXX RIVER TRUST
AGREEMENT, dated as of [ ] by and among EQUITABLE DISTRIBUTORS, INC.
("EDI") and THE EQUITABLE OF COLORADO, INC.("EOC"), individually and as
depositor on behalf of each presently existing or hereafter created separate
account supporting EOC variable products (each an EOC "Separate Account" and
collectively the "EOC Separate Accounts").
W I T N E S S E T H:
WHEREAS, EDI is a principal underwriter of shares of The Xxxxxx River
Trust (the "Trust") pursuant to a Distribution Agreement between the Trust and
EDI dated as of July 8, 1996 (the "Distribution Agreement");
WHEREAS, the Trust is a series mutual fund, registered as an open-end
investment company under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, shares of the Trust are sold only to (a) separate accounts
("Eligible Separate Accounts") of insurance companies ("Participating Insurance
Companies") issuing variable life insurance and annuity products ("Variable
Products") whose net premiums, contributions or other considerations are
allocated to such Eligible Separate Accounts, and (b) tax-qualified retirement
plans ("Retirement Plans");
WHEREAS, the Board of Trustees of the Trust may, in its sole
discretion, determine that certain classes of shares and/or portfolios shall be
available only to certain types of Variable Products or to certain Participating
Insurance Companies and/or Retirement Plans;
WHEREAS, EOC is a Participating Insurance Company and issues Variable
Products, whose net premiums are allocated to the EOC Separate Accounts;
WHEREAS, the Separate Accounts are Eligible Separate Accounts and are
eligible to invest in shares of the portfolios of the Trust more particularly
described in the Distribution Agreement;
WHEREAS, EDI is authorized pursuant to the Distribution Agreement to
enter into sales agreements with Participating Insurance Companies which agree
to participate in the distribution of the shares directly or through affiliates
by means of the distribution of Variable Products;
WHEREAS, EOC intends to distribute its Variable Products on behalf of
the EOC Separate Accounts through its affiliates, EDI and EQ Financial
Consultants, Inc. ("EQFC"), each of which is a registered broker-dealer under
the Securities Exchange Act of 1934 (the "1934 Act") and a member of the
National Association of Securities Dealers, Inc. (the "NASD");
WHEREAS, EDI and EOC for itself and on behalf of the Separate Accounts
wish to define and describe the conditions under which shares of the Trust will
be made available for investment by the EOC Separate Accounts;
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NOW, THEREFORE, EDI and EOC for itself and as depositor on behalf of
the EOC Separate Accounts hereby agree as follows:
1. The Board of Trustees of the Trust has adopted a Policy on Conflicts
(the "Policy"). This Agreement shall be subject to the provisions of the Policy,
the terms of which shall be incorporated herein by reference, made a part hereof
and controlling. The Policy may be amended or superseded, without prior notice,
and this Agreement shall be deemed amended to the extent the Policy is amended
or superseded. EOC warrants and represents for itself and each of the EOC
Separate Accounts that it will act in a manner consistent with the Policy as so
set forth and as it may be amended or superseded, so long such EOC Separate
Account owns any shares of the Trust. This provision shall survive the
termination of this Agreement.
2. EDI will make available to the Separate Accounts all classes of
shares of all of the portfolios of the Trust which it is authorized to
distribute under the Distribution Agreement in connection with the distribution
by EOC of its Variable Products allocated to the Separate Accounts.
3. Purchases and redemptions of shares of any class of any portfolio of
the Trust will be at net asset value of the shares of such portfolio, computed
as set forth in the most recent Trust prospectus and Statement of Additional
Information (respectively, "Trust Prospectus" and "SAI") for such class and
portfolio and any supplements thereto, and shall be submitted by EOC to the
Trust's transfer agent pursuant to procedures and in accordance with payment
provisions adopted by the parties from time to time. No shares may be sold or
transferred by EOC or any of the EOC Separate Accounts except to the Trust or an
Eligible Separate Account which is authorized to own shares of such class of
such portfolio.
4. In good faith and as soon as practicable, EDI will provide, at Trust
expense, camera ready copy of the current Trust Prospectus and SAI and any
supplements thereto for distribution by EOC with the prospectus for the Variable
Products, and camera ready copy of Trust proxy materials, annual and semi-annual
reports, and any supplements thereto. To the extent that the foregoing documents
are distributed by EOC to existing owners of Variable Products, EDI will request
reimbursement from the Trust for the printing and mailing costs associated with
such distribution, upon receipt from EOC of adequate documentation for
presentation to the Trust. EDI will use its best efforts to coordinate with EOC
and to provide notice of anticipated filings or supplements. EOC may alter the
form of the Trust Prospectus, SAI, annual and semi-annual reports, proxy
statements or other Trust documents, with the prior approval of the Trust's
officers. EOC shall bear all costs associated with such alteration of form.
Without the prior written consent of EDI, which shall not be unreasonably
withheld or delayed, EOC shall not (i) give any information or make any
representations concerning the Trust, its shares or operations except those
contained in the most recent Trust Prospectus and SAI and any supplements
thereto or (ii) use any description of the Trust in any sales literature or
advertising (including brochures, letters, illustrations and other similar
materials, whether transmitted directly to potential purchasers of Variable
Products or published in print or audio-visual media.
5. (a) EOC 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 EOC, their broker-dealers or
their respective employees, agents or representatives, including but not limited
to improper solicitation of applications for the Variable Products; provided,
however, that EOC shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon the
negligent, improper, fraudulent or unauthorized acts or omissions by EDI or its
employees, agents or representatives in EDI's capacity as a broker-dealer of
EOC.
(b) EDI will indemnify and hold harmless EOC and the EOC Separate
Accounts against any losses, claims, damages or liabilities, to which EOC or the
EOC Separate Accounts 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 any Trust Prospectus and/or SAI or any supplements thereto, (ii)
the omission or alleged omission to state any material
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fact required to be stated in any 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 distributor of the
Trust; and will reimburse EOC and the EOC Separate Accounts for any legal or
other expenses reasonably incurred by 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 case 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
any Trust Prospectus and/or SAI or any such supplement in good faith reliance
upon and in conformity with written information furnished by EOC specifically
for use in the preparation thereof.
(c) EDI shall not indemnify EOC for the failure to furnish, send or
give an applicant for a Variable Product, a contract owner or a policyholder at
or prior to written confirmation of the sale thereof and at such later times as
required by state or federal securities laws, a copy of the prospectus relating
to the Variable Products, together with the applicable Trust Prospectus, any
supplements to the applicable Trust Prospectus furnished to EOC and, if
requested by the applicant from EOC or required by applicable law, the
applicable Trust SAI and any supplements thereto and, as required by applicable
law, the Trust's annual and semi-annual reports, other required reports and
proxy statements.
6. This Agreement will terminate automatically if it is assigned. The
Agreement shall also terminate automatically in its entirety if the Distribution
Agreement is terminated or in part as to any Class 1B Shares which EDI is no
longer authorized to distribute under the Distribution Agreement, as the same
may be modified and amended from time to time.
7. If EDI is notified that the Distribution Agreement will be
terminated and that it shall cease to be a principal underwriter of the Class 1B
Shares of the Trust, EDI shall immediately notify EOC in writing of such
termination, and this Agreement shall continue in effect until the effective
date of the termination of the Distribution Agreement. This Agreement may be
terminated by any party at any time on one hundred eighty days' written notice
to the other parties, without the payment of any penalty.
8. This Agreement shall be subject to the provisions of the 1940 Act,
the 1934 Act and the Securities Act of 1933 and the rules, regulations, and
rulings thereunder and of the NASD, from time to time in effect, including such
exemptions from the 1940 Act 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, the term "assigned" shall not include any
transaction exempt from section 15(b)(2) of the Investment Company Act by order
of the Securities and Exchange Commission or any transaction as to which the
staff of the Securities and Exchange Commission has taken a no-action position.
9. EOC shall, in connection with its obligations hereunder, comply with
all laws and regulations applicable thereto, whether federal or state, and
whether relating to insurance, securities or other general areas, including but
not limited to the record keeping and sales supervision requirements of such
laws and regulations.
10. EDI shall immediately notify EOC of the issuance by any regulatory
body of any stop order with respect to any Trust Prospectus or SAI or the
initiation of any proceeding for that purpose or for any other purpose relating
to the registration or an offering of shares of the Trust and of any other
action or circumstances that may prevent the lawful offer or sale of shares of
the Trust in any state or jurisdiction.
11. EDI and EOC shall each submit to all regulatory and administrative
bodies having jurisdiction over the operation of any party hereto or the Trust,
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.
12. EDI shall keep confidential any information about the Variable
Products or policy owners obtained pursuant to this Agreement and shall disclose
such information only if EOC has authorized such
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disclosure, or if such disclosure is required by state or federal regulatory
bodies, as authorized by applicable law. EDI will notify EOC of disclosures
required by regulatory bodies as soon as possible.
13. EDI agrees that all records and other data pertaining to the
Variable Products are the exclusive property of EOC and that all such records
and other data in EDI's possession, whether maintained in written or electronic
format, shall be furnished to EOC upon termination of this Agreement for any
reason whatsoever. This shall not preclude EDI from keeping copies of such data
or records for its own files subject to the provisions of this paragraph.
14. EOC retains the ultimate right of control over, and responsibility
for marketing the Variable Products.
15. EDI represents that neither EDI nor any person employed in any
material connection with respect to the services provided pursuant to this
Agreement:
(a) Within the last 10 years has been convicted of any felony
or misdemeanor arising out of conduct involving embezzlement, fraudulent
conversion, or misappropriation of funds or securities, or involving violations
of xx.xx. 1341, 1342, or 1343 of Xxxxx 00, Xxxxxx Xxxxxx Code; or
(b) Within the last 10 years has been found by any state
regulatory authority to have violated or has acknowledged violation of any
provision of any state insurance law involving fraud, deceit or knowing
misrepresentation; or
(c) Within the last 10 years has been found by any federal or
state regulatory authorities to have violated or have acknowledged violation of
any provision of federal or state securities laws involving fraud, deceit or
knowing misrepresentation.
16. EDI and EOC each represent to the other that no commission or other
fee shall be charged or paid to any person or entity in connection with the sale
or purchase of any shares of the Trust to or from the EOC Separate Accounts,
other than regular salary or wages.
17. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written. The effective date of
this Agreement shall be the date first above written.
THE EQUITABLE OF COLORADO, INC. EQUITABLE DISTRIBUTORS, INC.
for itself and as depositor on behalf of
all presently existing and hereafter
created separate accounts supporting
its variable products By:__________________________
Xxxxx X. Xxxxxxxxxxx, III
Co-President and Co-Chief
By:________________________________ Executive Officer
Xxxx Xxxxxx
Senior Executive Vice President
and Chief Distribution Officer
By:__________________________
Xxxx Xxxxxxxxx
Co-President and Co-Chief
Executive Officer
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