INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of [insert date], 2001, by and between The
Equitable Life Assurance Society of the United States, a New York stock life
insurance corporation (the "Manager"), and RS Investment Management Co. LLC, a
limited liability company organized under the laws of the State of California
("Adviser").
WHEREAS, the Manager has entered into an Investment Management
Agreement dated [May 15, 2001] with the Equitable Premier Funds Trust ("Trust")
an investment company registered under the Investment Company Act of 1940, as
amended ("Investment Company Act");
WHEREAS, the Equitable Premier Small/Mid Cap Growth Fund is a series of
the Trust ("Fund");
WHEREAS, the Manager 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;
WHEREAS, the Board of Trustees of the Trust and the Manager desire that
the Manager retain the Adviser to render investment advisory and other services
to the portion of the Fund that has been allocated to Adviser ("Allocated
Portion") in the manner and on the terms hereinafter set forth;
WHEREAS, the Manager has the authority under the Investment Management
Agreement with the Trust to select advisers for each Fund of the Trust; and
WHEREAS, the Adviser is willing to furnish such services to the Manager
and the Fund;
NOW, THEREFORE, the Manager and the Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as an investment adviser
for the Fund, subject to the supervision and oversight of the Manager and the
Trustees of the Trust, and in accordance with 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 the Manager in any way or
otherwise be deemed an agent of the Trust or the Manager except as expressly
authorized in this Agreement or another writing by the Trust, the Manager and
the Adviser.
2. ACCEPTANCE OF APPOINTMENT
The Adviser accepts that appointment and agrees to render the services
herein set forth, for the compensation herein provided.
THE ASSETS OF THE ALLOCATED PORTION WILL BE MAINTAINED IN THE CUSTODY
OF A CUSTODIAN (WHO SHALL BE IDENTIFIED BY THE MANAGER IN WRITING). THE ADVISER
WILL NOT HAVE CUSTODY OF ANY SECURITIES, CASH OR OTHER ASSETS OF THE FUND AND
WILL NOT BE LIABLE FOR ANY LOSS RESULTING FROM ANY ACT OR OMISSION OF THE
CUSTODIAN OTHER THAN ACTS OR OMISSIONS ARISING IN RELIANCE ON INSTRUCTIONS OF
THE ADVISER.
3. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. As investment adviser to the Fund, the Adviser will coordinate the
investment and reinvestment of the assets of the Allocated Portion and determine
the composition of the assets of the Allocated Portion, subject always to the
supervision and control of the Manager and the Trustees of the Trust. In
determining compliance of the Adviser with the procedures and methods of the
Manager and the Trust, the Prospectus and SAI (as defined below) and any
applicable laws or regulations, the Adviser shall be under no obligation to make
any inquiry regarding the nature or quantity of any investment of the Fund other
than the Allocated Portion, and shall be fully protected in acting as if the
invesrments comprising the Allocated Portion are the onlyinvestments of the
Fund.
B. As part of the services it will provide hereunder, the Adviser will:
(i) obtain and evaluate, to the extent deemed necessary and
advisable by the Adviser in its discretion, pertinent economic,
statistical, financial, and other information affecting the economy
generally and individual companies or industries, the securities of
which are included in the Allocated Portion or are under consideration
for inclusion in the Allocated Portion;
(ii) formulate and implement a continuous investment program
for the Allocated Portion;
(iii) take whatever steps are necessary to implement the
investment program for the Allocated Portion by arranging for the
purchase and sale of securities and other investments, including
issuing directives to the administrator of the Trust as necessary for
the appropriate implementation of the investment program of the
Allocated Portion;
(iv) keep the Trustees of the Trust and the Manager fully
informed on an ongoing basis, as agreed by the Manager and Adviser, of
all material facts concerning the investment and reinvestment of the
assets in the Allocated Portion, the Adviser and its key investment
personnel and operations, make periodic special written reports of such
additional information concerning the same as may reasonably be
requested from time to time by the Manager or the Trustees of the
Trust, and the Adviser will attend meetings with the Manager and/or the
Trustees, as reasonably requested, to discuss the foregoing;
(v) in accordance with procedures and methods established by
the Trustees of the Trust, which may be amended from time to time,
provide assistance in determining the fair value of all securities and
other investments/assets in the Allocated Portion, as necessary, and
use reasonable efforts to arrange for the provision of valuation
information or a price(s) from a party(ies) independent of the Adviser
for each security or other investment/asset in the Allocated Portion
for which market prices are not readily available;
(vi) provide any and all material composite performance
information, records and supporting documentation about accounts the
Adviser manages, if appropriate, which are relevant to the Allocated
Portion and that have investment objectives, policies, and strategies
substantially similar to those employed by the Adviser in managing the
Allocated Portion that may be reasonably necessary, under applicable
laws, to allow the
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Fund or its agent to present information concerning Adviser's prior
performance in the Trust's Prospectus and SAI (as hereinafter defined)
and any permissible reports and materials prepared by the Fund or its
agent; and
(vii) upon the request of the Manager, cooperate with and
provide reasonable assistance to the Manager, the Trust's
administrator, the Trust's custodian and foreign custodians, the
Trust's transfer agent and pricing agents and all other agents and
representatives of the Trust and the Manager, keep all such persons
fully informed as to such matters as they may reasonably deem necessary
to the performance of their obligations to the Trust and the Manager,
provide prompt responses to reasonable requests made by such persons
and maintain any appropriate interfaces with each so as to promote the
efficient exchange of information.
C. In furnishing services hereunder, the Adviser shall be subject to,
and shall perform in accordance with the following: (i) the Trust's Agreement
and Declaration of Trust, as the same may be hereafter modified and/or amended
from time to time ("Trust Declaration"); (ii) the By-Laws of the Trust, as the
same may be hereafter modified and/or amended from time to time ("By-Laws");
(iii) the currently effective Prospectus and Statement of Additional Information
of the Trust filed with the SEC and delivered to the Adviser, as the same may be
hereafter modified, amended and/or supplemented ("Prospectus and SAI"); (iv) the
Investment Company Act and the Advisers Act and the rules under each, and all
other federal and state laws or regulations applicable to the Trust and the
Fund; (v) the Trust's Compliance Manual and other policies and procedures
adopted from time to time by the Board of Trustees of the Trust; and (vi) the
written instructions of the Manager. Prior to commencement of the Adviser's
services hereunder, the Manager shall provide the Adviser with current copies of
the Trust Declaration, By-Laws, Prospectus, SAI, Compliance Manual and other
relevant policies and procedures that are adopted by the Board of Trustees. The
Manager undertakes to provide the Adviser with copies or other written notice of
any amendments, modifications or supplements to any such above-mentioned
document.
D. The Adviser, at its expense, will furnish: (i) all necessary
facilities and personnel, including salaries, expenses and fees of any personnel
required for them to faithfully perform their duties under this Agreement; and
(ii) administrative facilities, including bookkeeping, and all equipment
necessary for the efficient conduct of the Adviser's duties under this
Agreement.
E. The Adviser will select brokers and dealers to effect all Fund
transactions subject to the conditions set forth herein. The Adviser will place
all necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions, if applicable. The Adviser is directed at all times to
seek to execute transactions for the Allocated Portion (i) in accordance with
any written policies, practices or procedures that may be established by the
Board of Trustees or the Manager from time to time and which have been provided
to the Adviser or (ii) as described in the Trust's Prospectus and SAI. In
placing any orders for the purchase or sale of investments for the Fund, in the
name of the Allocated Portion or its nominees, the Adviser shall subject to
Section 3.F. below, use its best efforts to obtain for the Allocated
Portion"best execution," considering all of the circumstances, and shall
maintain records adequate to demonstrate compliance with this requirement. In no
instance will portfolio securities be purchased from or sold to the Adviser, or
any affiliated person thereof, except in accordance with the Investment Company
Act, the Advisers Act and the rules under each, and all other federal and state
laws or regulations applicable to the Trust and the Fund.
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F. Subject to the appropriate policies and procedures approved by the
Board of Trustees, Adviser may, to the extent authorized by Section 28(e) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") cause the Allocated
Portion to pay a broker or dealer that provides brokerage or research services
to the Manager, the Adviser and the Allocated Portion an amount of commission
for effecting a Fund 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 Fund or its other advisory clients. To the extent
authorized by 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 "best execution," the Manager or the Adviser may also consider sales
of shares of the Trust as a factor in the selection of brokers and dealers.
Subject to seeking best execution, the Board of Trustees or the Manager may
cause the Adviser to effect transactions in Fund securities through
broker-dealers in a manner that will help generate resources to: (i) pay the
cost of certain expenses which the Trust is required to pay or for which the
Trust is required to arrange payment; or (ii) finance activities that are
primarily intended to result in the sale of Trust shares.
G. On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of the Allocated Portion 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. 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 which the Adviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Allocated Portion and to its other clients over time. THE MANAGER AGREES
THAT ADVISER AND ITS AFFILIATES MAY GIVE ADVICE AND TAKE ACTION IN THE
PERFORMANCE OF THEIR DUTIES WITH RESPECT TO ANY OF THEIR OTHER CLIENTS THAT MAY
DIFFER FROM ADVICE GIVEN, OR THE TIMING OR NATURE OF ACTIONS TAKEN, WITH RESPECT
TO THE ALLOCATED PORTION. THE MANAGER ALSO ACKNOWLEDGES THAT ADVISER AND ITS
AFFILIATES ARE FIDUCIARIES TO OTHER ENTITIES, SOME OF WHICH HAVE THE SAME OR
SIMILAR INVESTMENT OBJECTIVES (AND WILL HOLD THE SAME OR SIMILAR INVESTMENTS) AS
THE ALLOCATED PORTION, AND THAT ADVISER WILL CARRY OUT ITS DUTIES HEREUNDER
TOGETHER WITH ITS DUTIES UNDER SUCH RELATIONSHIPS. NOTHING IN THIS AGREEMENT
SHALL BE DEEMED TO CONFER UPON ADVISER ANY OBLIGATION TO PURCHASE OR TO SELL OR
TO RECOMMEND FOR PURCHASE OR SALE FOR THE ALLOCATED PORTION ANY INVESTMENT THAT
ADVISER, ITS AFFILIATES, OFFICERS OR EMPLOYEES MAY PURCHASE OR SELL FOR ITS OR
THEIR OWN ACCOUNT OR FOR THE ACCOUNT OF ANY CLIENT, IF IN THE SOLE AND ABSOLUTE
DISCRETION OF ADVISER IT IS FOR ANY REASON IMPRACTICAL OR UNDESIRABLE TO TAKE
SUCH ACTION OR MAKE SUCH RECOMMENDATION FOR THE ALLOCATED PORTION.
H. The Adviser will maintain all accounts, books and records with
respect to the Allocated Portion 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 and shall file with the SEC all forms
pursuant to Section 13 of the Exchange Act, with respect to its duties as are
set forth herein.
I. The Adviser will, unless and until otherwise directed by the Manager
or the Board of Trustees, vote proxies with respect to the Allocated Portion's
securities and exercise rights in corporate actions or otherwise in accordance
with the Adviser's proxy voting guidelines, as amended from time to time, which
shall be provided to the Trust and the Manager.
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4. COMPENSATION OF ADVISER
The Manager will pay the Adviser an advisory fee with respect to the
Allocated Portion as specified in Appendix A to this Agreement. Payments shall
be made to the Adviser on or about the fifth day of each month; however, this
advisory fee will be calculated daily for the Allocated Portion based on the net
assets of the Allocated Portion on each day and accrued on a daily basis.
5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company Act or
any other federal securities law, neither the Adviser nor any of its officers,
members or employees (its "Affiliates") shall not be liable for any losses,
claims, damages, liabilities or litigation (including legal and other expenses)
incurred or suffered by the Manager or the Trust as a result of any error of
judgment or mistake of law by the Adviser or its affiliates with respect to the
Fund, except that nothing in this Agreement shall operate or purport to operate
in any way to exculpate, waive or limit the liability of the Adviser for, and
the Adviser or its Affiliates shall indemnify and hold harmless the Trust, the
Manager, all affiliated persons thereof (within the meaning of Section 2(a)(3)
of the Investment Company Act) and all controlling persons (as described in
Section 15 of the Securities Act of 1933, as amended ("1933 Act"))
(collectively, "Manager Indemnitees") against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses) to which any of the Manager Indemnitees may become subject under the
1933 Act, the Investment Company Act, the Advisers Act, or under any other
statute, at common law or otherwise arising out of or based on (i) any willful
misconduct, bad faith, reckless disregard or gross negligence of the Adviser in
the performance of any of its duties or obligations hereunder or (ii) any untrue
statement of a material fact contained in the Prospectus and SAI, proxy
materials, reports, advertisements, sales literature, or other materials
pertaining to the Allocated Portion or the omission to state therein a material
fact known to the Adviser which was required to be stated therein or necessary
to make the statements therein not misleading, if such statement or omission was
properly made in reliance upon information relating to the investment advisory
operations and furnished to the Manager or the Trust by the Adviser Indemnitees
(as defined below) for use therein, provided, however, that the Adviser shall
have no liability under this Section 5A.(ii) to the extent the Manager or the
Trust knew or should have known that such information was not reliable.
B. Except as may otherwise be provided by the Investment Company Act or
any other federal securities law, the Manager and the Trust shall not be liable
for any losses, claims, damages, liabilities or litigation (including legal and
other expenses) incurred or suffered by the Adviser as a result of any error of
judgment or mistake of law by the Manager with respect to the Allocated Portion,
except that nothing in this Agreement shall operate or purport to operate in any
way to exculpate, waive or limit the liability of the Manager for, and the
Manager shall indemnify and hold harmless the Adviser, all affiliated persons
thereof (within the meaning of Section 2(a)(3) of the Investment Company Act)
and all controlling persons (as described in Section 15 of the 1933 Act)
(collectively, "Adviser Indemnitees") against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses) to which any of the Adviser Indemnitees may become subject under the
1933 Act, the Investment Company Act, the Advisers Act, or under any other
statute, at common law or otherwise, except to the extent such losses, claims,
damages, liabilities orlitigation arises out of or is based on (i) any willful
misconduct, bad faith, reckless disregard or gross negligence of the Adviser in
the performance of any of its duties or obligations hereunder or (ii) any untrue
statement of a material fact contained in the Prospectus and SAI, proxy
materials, reports, advertisements, sales literature, or other
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materials pertaining to the Fund or the omission to state therein a material
fact known to the Adviser that was required to be stated therein or necessary to
make the statements therein not misleading, unless such statement or omission
was properly made in reliance upon information elating to the Adviser's
provisionof investment advisory operations and furnished to the Manager or the
Trust.
6. REPRESENTATIONS OF MANAGER
The Manager represents, warrants and agrees that:
A. The Manager has been duly authorized by the Board of Trustees of the
Trust to delegate to the Adviser the provision of investment services to the
Allocated Portion as contemplated hereby.
B. The Manager has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Adviser with a copy of such code of ethics.
C. The Manager is currently in compliance and shall at all times
continue to comply with the requirements imposed upon the Manager by applicable
law and regulations.
D. THE MANAGER (I) IS REGISTERED AS AN INVESTMENT ADVISER UNDER THE
ADVISERS ACT AND WILL CONTINUE TO BE SO REGISTERED FOR SO LONG AS THIS AGREEMENT
REMAINS IN EFFECT; (II) IS NOT PROHIBITED BY THE INVESTMENT COMPANY ACT, THE
ADVISERS ACT OR OTHER LAW, REGULATION OR ORDER FROM PERFORMING THE SERVICES
CONTEMPLATED BY THIS AGREEMENT; (III) TO THE BEST OR ITS KNOWLEDGE, HAS MET AND
WILL SEEK TO CONTINUE TO MEET FOR SO LONG AS THIS AGREEMENT IS IN EFFECT, ANY
OTHER APPLICABLE FEDERAL OR STATE REQUIREMENTS, OR THE APPLICABLE REQUIREMENTS
OF ANY REGULATORY OR INDUSTRY SELF-REGULATORY AGENCY NECESSARY TO BE MET IN
ORDER TO PERFORM THE SERVICES CONTEMPLATED BY THIS AGREEMENT; AND (V) WILL
PROMPTLY NOTIFY ADVISER OF THE OCCURRENCE OF ANY EVENT THAT WOULD DISQUALIFY
MANAGER FROM SERVING AS INVESTMENT MANAGER OF AN INVESTMENT COMPANY PURSUANT TO
SECTION 9(A) OF THE INVESTMENT COMPANY ACT OR OTHERWISE. THE MANAGER WILL ALSO
PROMPTLY NOTIFY THE ADVISER IF IT 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 FUND,
PROVIDED, HOWEVER, THAT ROUTINE REGULATORY EXAMINATIONS SHALL NOT BE REQUIRED TO
BE REPORTED BY THIS PROVISION.
7. REPRESENTATIONS OF ADVISER
The Adviser represents, warrants and agrees as follows:
A. The Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) has met and will seek to continue to meet
for so long as this Agreement remains in effect, any other applicable material,
federal or state requirements, or the applicable requirements of any regulatory
or industry self-regulatory agency necessary to be met in order to perform the
services contemplated by this Agreement; (iv) has the authority to enter into
and perform the services contemplated by this Agreement; and (v) will promptly
notify Manager of the occurrence of any event that would disqualify the Adviser
from serving as an investment
6
adviser of an investment company pursuant to Section 9(a) of the Investment
Company Act or otherwise. The Adviser will also promptly notify the Fund and the
Manager if it 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 Fund, provided,
however, that routine regulatory examinations shall not be required to be
reported by this provision.
B. The Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Manager and the Board with a copy of such code of ethics, together with evidence
of its adoption. Within forty-five days of the end of the last calendar quarter
of each year that this Agreement is in effect, and as otherwise requested, the
president, Chief Operating Officer or a vice-president of the Adviser shall
certify to the Manager that the Adviser has complied with the requirements of
Rule 17j-1 during the previous year and that there has been no material
violation of the Adviser's code of ethics or, if such a material violation has
occurred, that appropriate action was taken in response to such violation. Upon
the written request of the Manager, the Adviser shall permit the Manager, its
employees or its agents to examine the reports required to be made to the
Adviser by Rule 17j-1(c)(1) and all other records relevant to the Adviser's code
of ethics.
C. The Adviser has provided the Trust and the Manager with a copy of
its Form ADV, which as of the date of this Agreement is its Form ADV as most
recently filed with the Securities and Exchange Commission and promptly will
furnish a copy of all amendments to the Trust and the Manager at least annually.
Such amendments shall reflect all changes in the Adviser's organizational
structure, professional staff or other significant developments affecting the
Adviser, as required by the Advisers Act.
D. The Adviser will notify the Trust and the Manager of any assignment
of this Agreement or change of control of the Adviser, as applicable, and any
changes in the key personnel who are either the portfolio manager(s) of the
Allocated Portion or senior management of the Adviser, in each case prior to or,
promptly after, such change. The Adviser agrees to bear all reasonable expenses
of the Fund, if any, arising out of an assignment or change in control.
E. The Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage.
F. The Adviser agrees that neither it, nor any of its affiliates, will
knowingly in any way refer directly or indirectly to its relationship with the
Trust, the Fund, the Manager or any of their respective affiliates in offering,
marketing or other promotional materials without the express written consent of
the Manager, except as required by rule, regulation or upon the request of a
governmental authority. However, the Adviser may use the performance of the
Allocated Portion in its composite performance.
8. NON-EXCLUSIVITY
The services of the Adviser to the Manager, the Allocated Portion 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 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.
9. SUPPLEMENTAL ARRANGEMENTS
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The Adviser may from time to time employ or associate itself with any
person it believes to be particularly suited to assist it in providing the
services to be performed by such Adviser hereunder, provided that no such person
shall perform any services with respect to the Allocated Portion that would
constitute an assignment or require a written advisory agreement pursuant to the
Investment Company Act. Any compensation payable to such persons shall be the
sole responsibility of the Adviser, and neither the Manager nor the Trust shall
have any obligations with respect thereto or otherwise arising under the
Agreement.
10. 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.
11. 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, provided, that the Adviser
may retain any such records that are required by law or regulation. The Manager
and the Adviser shall keep confidential any information designated as
confidential and 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, or judicial authorities, or otherwise required by law.
12. 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: (i) 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, and (ii) by vote of a
majority of the Fund's outstanding securities. This Agreement will 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 provided that in such event such continuance shall also be approved
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.
13. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of
any penalty, by the Board of Trustees, including a majority of the Independent
Trustees, by the vote of a majority of the outstanding voting securities of the
Fund, 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, (i) in the event of its assignment (as defined in the Investment
Company Act), or (ii) in the event the Investment Management Agreement between
the Manager and the Trust is assigned
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(within the meaning of the Investment Company Act) 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.
14. USE OF ADVISER'S NAME
The parties agree that the name of the Adviser, the names of any
affiliates of the Adviser and any derivative or logo or trademark or service
xxxx or trade name are the valuable property of the Adviser and its affiliates.
The Manager and the Trust shall have the right to use such name(s), derivatives,
logos, trademarks or service marks or trade names only with the prior written
approval of the Adviser, which approval shall not be unreasonably withheld or
delayed so long as this Agreement is in effect.
Upon termination of this Agreement, the Manager and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. The Manager and the Trust agree that they will review with
the Adviser any advertisement, sales literature, or notice prior to its use that
makes reference to the Adviser or its affiliates or any such name(s),
derivatives, logos, trademarks, service marks or trade names so that the Adviser
may review the context in which it is referred to, it being agreed that the
Adviser shall have no responsibility to ensure the adequacy of the form or
content of such materials for purposes of the Investment Company Act or other
applicable laws and regulations. If the Manager or the Trust makes any
unauthorized use of the Adviser's names, derivatives, logos, trademarks or
service marks or trade names, the parties acknowledge that the Adviser shall
suffer irreparable harm for which monetary damages may be inadequate and thus,
the Adviser shall be entitled to injunctive relief, as well as any other remedy
available under law
15. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the
rules or regulations thereunder or pursuant to exemptive relief granted by the
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 Fund (unless such approval is not required by Section
15 of the Investment Company Act as interpreted by the SEC or its staff or
unless the SEC has granted an exemption from such approval requirement) 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 Fund if a majority of the
outstanding voting securities of the Fund 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 Fund affected by the amendment or
all the Funds of the Trust.
16. ASSIGNMENT
Any assignment (as that term is defined in the Investment Company Act)
of the Agreement made by the Adviser without the prior written consent of the
Trust and the Manager shall result in the automatic termination of this
Agreement, as provided in Section 13 hereof. Notwithstanding the foregoing, no
assignment shall be deemed to result from any changes in the directors, officers
or employees of such Adviser except as may be provided to the contrary in the
Investment Company Act or the rules or regulations thereunder. The Adviser
agrees that it will
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notify the Trust and the Manager of any changes in its key employees within a
reasonable time thereafter.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Allocated Portion.
18. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
19. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the address listed below of each applicable party in
person or by registered or certified mail or a private mail or delivery service
providing the sender with notice of receipt.. Notice shall be deemed given on
the date delivered or mailed in accordance with this paragraph.
FOR: THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
XXXXXXXX XXXXX, VICE PRESIDENT AND COUNSEL
0000 XXXXXX XX XXX XXXXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
For: RS Investment Management Co. LLC
[name and title]
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
FOR: EQUITABLE PREMIER FUNDS TRUST
XXXXXXXX XXXXX, VICE PRESIDENT AND SECRETARY
1290 AVENUE OF THE XXXXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
20. 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.
21. TRUST AND SHAREHOLDER LIABILITY
The Manager and Adviser are hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Agreement and
Declaration of Trust of the Trust and agree that obligations assumed by the
Trust pursuant to this Agreement shall be limited in all cases to the Trust and
its assets, and if the liability relates to one or more series, the obligations
hereunder shall be limited to the respective assets of the Fund. The Manager and
Adviser further agree that they shall not seek satisfaction of any such
obligation from the shareholders or any individual shareholder of the Fund, nor
from the Trustees or any individual Trustee of the Trust.
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22. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of New York, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
23. INTERPRETATION
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES RS INVESTMENT MANAGEMENT CO. LLC
By: By:
--------------------------------- ---------------------------------
Xxxxx X. X'Xxxx Xxxxxx Xxxxx
Executive Vice President Manager
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APPENDIX A
TO
INVESTMENT ADVISORY AGREEMENT
WITH
RS INVESTMENT MANAGEMENT CO. LLC
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