SALES AGREEMENT
AGREEMENT, dated as of September 30,1991, by and among Equitable
Variable Life Insurance Company ("Equitable Variable"), The Equitable Life
Assurance Society of the United States, ("Equitable"), and Equitable's Separate
Account A ( the "Separate Account").
WITNESSETH:
WHEREAS, Equitable Variable is a principal underwriter of The
Xxxxxx River Trust ( the "Trust"), a series mutual fund whose shareholders are
separate accounts ("Eligible Separate Accounts") of insurance companies
("Participating Insurance Companies"), pursuant to a Distribution Agreement
dated as of September 30, 1991 ("Distribution Agreement");
WHEREAS, such Participating Insurance Companies issue, among other
products, variable life insurance and annuity products ("Variable Products")
whose net premiums, contributions or other considerations are allocated to
Eligible Separate Accounts for investment in the Trust, and shares of the Trust
are not sold except in connection with such Variable Products;
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WHEREAS, the Trust is registered as an open-end investment company
under the Investment Company Act of 1940 ( the "1940 Act");
WHEREAS, the Board of Trustees of the Trust may, in its sole
discretion, determine that certain portfolios shall be available only to certain
types of Variable Products or to a single insurer and its affiliates;
WHEREAS, Equitable issues Variable Products, whose net premiums are
allocated to the Separate Account, and which are eligible for investment in the
Trust's portfolios;
WHEREAS, Equitable will distribute the Variable Products, either
directly or indirectly through one or more affiliated or nonaffiliated
broker-dealers with whom Equitable has selling agreements;
WHEREAS, Equitable and Equitable Variable are each registered as a
broker-dealer under the Securities Exchange Act of 1934 ( the "1934 Act") and
each is a member of the National Association of Securities Dealers, Inc. (the
"NASD");
WHEREAS, Equitable Variable and Equitable wish to define and describe
the conditions under which shares of the Trust will be made available for
investment by the Separate Account.
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NOW THEREFORE, Equitable Variable, Equitable and the Separate Account
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. Equitable and the Separate Account each
represent and warrant that it will act in a manner consistent with such Policy
as so set forth and as it may be amended or superseded, so long as it owns any
Trust shares. This provision shall survive the termination of this Agreement.
2. Equitable Variable will make available to the Separate Account
shares of the Trust's portfolios in connection with Variable Products funded by
the Separate Account only as set forth on Schedule A hereto. Schedule A may be
modified from time to time by written agreement of the parties.
3. Purchases and redemptions of shares will be at net asset value for
the appropriate portfolio, computed as set forth in the most recent Trust
prospectus and Statement of Additional Information (respectively, "Trust
Prospectus" and "SAI") and any supplements thereto, and shall be submitted by
Equitable to the
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Trust's transfer agent pursuant to procedures and in accordance with payment
provisions adopted by the parties from time to time.
Trust shares may not be sold or transferred except to an Eligible
Separate Account and only in accordance with Schedule A.
4. (a) In good faith and as soon as practicable, Equitable Variable
will provide at Trust expense camera ready copy of the current Prospectus and
SAI and any supplements thereto for printing and distribution by Equitable with
the prospectus for the Variable Products. Equitable Variable will also provide
camera ready copy of Trust proxy materials and semi-annual reports, and any
supplements thereto. Equitable Variable will use its best efforts to coordinate
with Equitable and to provide notice of anticipated filings or supplements.
Equitable may alter the form of the prospectus, SAI, semi-annual reports, proxy
statements or other Trust documents, with the prior approval of the Trust's
officers. Equitable shall bear all costs associated with such alteration of
form. Equitable is not authorized (i) to 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) to 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
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Products or published in print or audio-visual media), except in either case as
Equitable Variable or officers of the Trust may authorize in advance, which
authorization will not be unreasonably withheld or delayed.
Equitable shall indemnify and hold harmless Equitable Variable
from any and all losses, claims, damages or liabilities (or actions in respect
thereof) to which Equitable Variable 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
Equitable, its employees, agents or representatives, including but not limited
to improper solicitation of applications for Variable Products.
(b) Equitable Variable will indemnify and hold harmless
Equitable and the Separate Account against any losses, claims, damages or
liabilities, to which Equitable or the Separate Account 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
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Equitable Variable in its capacity as a distributor of the Trust; and will
reimburse Equitable or the Separate Account for any legal or other expenses
reasonably incurred by it in connection with investigating or defending against
such loss, claim, damage, liability or action; provided, however, that Equitable
Variable 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 the Trust
Prospectus and/or SAI or any such supplement in good faith reliance upon and in
conformity with written information furnished by Equitable specifically for use
in the preparation thereof.
Equitable Variable shall not indemnify Equitable or the Separate
Account for any action where an applicant for the Variable Products or a
policyholder was not furnished or sent or given, at or prior to written
confirmation of the sale of the Variable Products 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 Trust Prospectus, any supplements to
the Trust Prospectus Equitable Variable may furnish to Equitable and, if
requested by the applicant from Equitable or required by applicable law, the
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.
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5. This Agreement shall terminate automatically if it shall be
assigned. The Agreement shall also terminate automatically if the Distribution
Agreement shall terminate.
6. This Agreement may not be terminated by any party at any time prior
to April 1, 1992; provided, however, that Equitable Variable may terminate this
Agreement prior to April 1, 1992, without the payment of any penalty, if
Equitable Variable shall cease to be the principal underwriter of the Trust
pursuant to the Distribution Agreement. If Equitable Variable is notified that
the Distribution Agreement will be terminated and that it shall cease to be the
principal underwriter of the Trust, Equitable Variable shall immediately notify
the other parties 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 after March 31, 1992, on one hundred eighty days' written notice to the
other parties, without the payment of any penalty.
7. 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
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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.
Equitable 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.
Equitable Variable shall immediately notify Equitable of the
issuance by any regulatory body of any stop order with respect to the 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.
8. Equitable and Equitable Variable shall submit to all regulatory and
administrative bodies having jurisdiction over the operations of Equitable,
Equitable Variable or the Trust, present or future, any information, reports or
other material
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which any such body by reason of this Agreement may request or require as
authorized by applicable laws or regulations.
Equitable Variable shall keep confidential any information about
Equitable's Variable Products or policyowners obtained pursuant to this
Agreement and shall disclose such information only if Equitable has authorized
such disclosure, or if such disclosure is required by state or Federal
regulatory bodies, as authorized by applicable law. Equitable Variable will
notify Equitable of disclosures required by regulatory bodies as soon as
possible.
Equitable Variable agrees that all records and other data
pertaining to the Variable Products are the exclusive property of Equitable and
that any such records and other data, whether maintained in written or
electronic format, shall be furnished to Equitable by Equitable Variable upon
termination of this Agreement for any reason whatsoever. This shall not preclude
Equitable Variable from keeping copies of such data or records for its own files
subject to the provisions of this paragraph.
9. Equitable retains the ultimate right of control over, and
responsibility for, marketing the Variable Products.
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10. Equitable Variable represents that neither Equitable Variable
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 Secs. 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.
11. Equitable Variable and Equitable each represent that no
commission or other fee shall be charged or paid to any person or entity in
connection with the sale or purchase of the Trust's shares to or from the
Separate Account, other than regular salary or wages.
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12. 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.
EQUITABLE VARIABLE LIFE
INSURANCE COMPANY
Attest:
/s/ Xxxxx Xxxxxxx By: /s/ Xxx X. Xxxxxxx
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President
THE EQUITABLE LIFE INSURANCE
SOCIETY OF THE UNITED STATES
Attest:
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx, Xx.
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SEPARATE ACCOUNT A
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
as depositor
Attest:
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx, Xx.
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0334i
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SCHEDULE A
All Xxxxxx River Trust Portfolios are available to the Separate
Account for premiums and contributions associated with all variable products
funded by the Separate Account.
