Exhibit (d)(6)(iii)
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED AGREEMENT, dated as of July 31, 2003, by and
between The Equitable Life Assurance Society of the United States, a Delaware
corporation ("Equitable" or the "Manager"), and Xxxxxx Xxxxxxx Investment
Management Inc., a Delaware corporation (the "Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an investment
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act");
WHEREAS, the Trust's shareholders are and will be separate accounts
maintained by insurance companies for variable life insurance policies and
variable annuity contracts (the "Policies") under which income, gains, and
losses, whether or not realized, from assets allocated to such accounts are, in
accordance with the Policies, credited to or charged against such accounts
without regard to other income, gains, or losses of such insurance companies;
WHEREAS, the Trust is and will continue to be a series fund having two
or more investment portfolios, each with its own investment objectives, policies
and restrictions;
WHEREAS, Equitable 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 Investment Company Act prohibits any person from acting as
an investment adviser to a registered investment company except pursuant to a
written contract (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and Equitable desire to
retain the Adviser to render investment advisory services to the Portfolio in
the manner and on the terms hereinafter set forth.
NOW, THEREFORE, Equitable and the Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser for
the Portfolio and to manage the investment and reinvestment of the assets of the
Portfolio, subject to the supervision of the Trustees of the Trust and 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 Manager in any
way or otherwise be deemed an agent of the Trust or Manager except as expressly
authorized in this Agreement or another writing by the Trust, Manager and the
Adviser.
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser will manage the investment and reinvestment of the
assets of the Portfolio and determine the composition of the assets of the
Portfolio, subject always to the direction and control of the Trustees of the
Trust and the Manager and in accordance with the provisions of the Trust's
registration statement, as amended from time to time. In fulfilling its
obligations to manage the investment and reinvestment of the assets of the
Portfolio, the Adviser will:
(i) obtain and evaluate pertinent economic, statistical,
financial, and other information affecting the economy generally and
individual companies or industries, the securities of which are included
in the Portfolio or are under consideration for inclusion in the
Portfolio;
(ii) formulate and implement a continuous investment program
for the Portfolio (a) consistent with the investment objectives,
policies and restrictions of the Portfolio as stated in the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and Statement of Additional Information
("SAI") as amended from time to time, and (b) in compliance with the
requirements applicable to both regulated investment companies and
segregated asset accounts under Subchapters M and L of the Internal
Revenue Code of 1986, as amended, and requirements applicable to
registered investment companies under other applicable laws;
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio by the purchase and sale of
securities and other investments authorized under the Trust's Agreement
and Declaration of Trust, By-Laws, and such Portfolio's currently
effective Prospectus and SAI, including the placing of orders for such
purchases and sales;
(iv) regularly report to the Trustees of the Trust and the
Manager with respect to the implementation of the investment program
and, in addition, provide such statistical information and special
reports concerning the Portfolio and/or important developments
materially affecting the investments held, or contemplated to be
purchased, by the Portfolio, as may reasonably be requested by the
Manager or the Trustees of the Trust, including attendance at Board of
Trustees Meetings, as reasonably requested, to present such information
and reports to the Board;
(v) provide determinations of the fair value of certain
portfolio securities when market quotations are not readily available
for the purpose of calculating the Portfolio's net asset value in
accordance with procedures and methods established by the Trustees of
the Trust;
(vi) provide any and all information, records and
supporting documentation about accounts the Adviser manages that have
investment objectives, policies, and strategies substantially similar to
those employed by the Adviser in managing the portfolio which may be
reasonably necessary, under applicable laws, to allow the Portfolio or
its agent to present information concerning the Adviser's prior
performance in the Prospectus and the SAI of the Portfolio and any
permissible reports and materials prepared by the Portfolio or its
agent; provided, however, Adviser shall not be required to provide the
name or identity of any client (other than a registered investment
company) with respect to such information, records and supporting
documentation, nor shall Adviser be required to provide any information
which is considered by it to be confidential; and
(vii) establish appropriate interfaces with the Trust's
administrator and Manager in order to provide such administrator and
Manager with all necessary information reasonably requested by the
administrator and Manager.
B. The Adviser, at its expense, will furnish: (i) all necessary
investment and management facilities and investment personnel, including
salaries, expenses and fees of any personnel required for it to fully and in
good faith perform its duties under this Agreement; and (ii) administrative
facilities, including bookkeeping, clerical personnel and equipment necessary
for the efficient conduct of the
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investment affairs of the Portfolio (excluding that necessary for the
determination of net asset value and shareholder accounting services).
C. The Adviser will select brokers and dealers to effect all
portfolio 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 brokerage transactions for the Portfolio in accordance
with such policies or practices as may be established by the Board of Trustees
and described in the Trust's currently effective Prospectus and SAI, as amended
from time to time. In placing orders for the purchase or sale of investments for
the Portfolio, in the name of the Portfolio or its nominees, the Adviser shall
use its best efforts to obtain for the Portfolio the most favorable price and
best execution available, considering all of the circumstances, and shall
maintain records adequate to demonstrate compliance with this requirement.
In accordance with Section 11 (a) of the Securities Exchange Act of
1934, as amended ("1934 Act") and subject to any other applicable laws and
regulations, including Section 17(e) of the Investment Company Act and Rule
17e-1 thereunder, the Adviser may engage affiliates and broker-dealers to effect
portfolio transaction in securities for the Portfolio.
Subject to the appropriate policies and procedures approved by the Board
of Trustees, the Adviser may, to the extent authorized by Section 28(e) of the
1934 Act, cause the Portfolio to pay a broker or dealer that provides brokerage
or research services to the Manager, the Adviser, and the Portfolio an amount of
commission for effecting a portfolio 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 Portfolio or its other advisory
clients. To the extent authorized by said 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 the most favorable price and best
execution available, the Adviser may also consider sales of shares of the Trust
as a factor in the selection of brokers and dealers.
D. On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of the Portfolio 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. In such event, 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 the Adviser considers to
be the most equitable and consistent with its fiduciary obligations to the
Portfolio and to its other clients.
E. The Adviser will maintain all accounts, books and records with
respect to the Portfolio 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.
F. The Adviser will, unless and until otherwise directed by the
Manager or the Board of Trustees, exercise all rights of security holders with
respect to securities held by the Portfolio, including, but not limited to:
voting proxies; converting, tendering, exchanging or redeeming securities;
acting as a claimant in class action litigation (including litigation with
respect to securities previously held); and exercising rights in the context of
a bankruptcy or other reorganization.
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3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to the Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on the first day of each month; however, this advisory fee will
be calculated on the daily average value of the Portfolio's assets and accrued
on a daily basis.
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its affiliates, directors, officers, or
employees nor anyone who controls the Adviser (or any of its affiliates,
directors, officers, or employees) within the meaning of Section 15 of the
Securities Act of 1933, as amended (" 1933 Act"), shall be liable to the Manager
for any loss suffered by the Manager resulting from its acts or omissions as
Adviser to the Portfolio, except for losses to the Manager or the Trust
resulting from willful misconduct, bad faith, or gross negligence in the
performance of, or from reckless disregard of, the duties of the Adviser or any
of its affiliates, directors, officers or employees. The Adviser, its
affiliates, directors, officers or employees and anyone who controls the Adviser
(and any of its affiliates, directors, officers and employees) within the
meaning of Section 15 of the 1933 Act shall not be liable to the Manager or the
Trust for any loss suffered as a consequence of any action or inaction of other
service providers to the Trust in failing to observe the instructions of the
Adviser, provided such action or inaction of such other service providers to the
Trust is not a result of the willful misconduct, bad faith or gross negligence
in the performance of, or from reckless disregard of, the duties of the Adviser
under this Agreement.
5. NON-EXCLUSIVITY
The services of the Adviser to the Portfolio 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 (including other investment companies) 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, including other investment companies.
6. SUPPLEMENTAL ARRANGEMENTS
The Adviser may enter into arrangements with other persons affiliated
with the Adviser for the provision of certain personnel and facilities to the
Adviser to better enable it to fulfill its duties and obligations under this
Agreement.
7. 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.
8. 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 the Adviser is required by
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applicable law or regulatory authorities to retain as well as those records that
the Adviser 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. In such event, the Adviser will be permitted to retain duplicates of
such records as are required by the Adviser to be retained under applicable law
or by regulatory authorities. The Adviser shall keep confidential any
information obtained in connection with its duties hereunder and disclose such
information only if the Trust has authorized such disclosure or if such
disclosure is required or requested by applicable federal or state regulatory
authorities or self regulatory organization of which the Adviser or its
affiliates may be a member.
9. DURATION OF AGREEMENT
This Agreement shall become effective upon the date first above written
and, unless otherwise terminated, will continue in effect from year to year
thereafter so long as such continuance is specifically approved at least
annually by: (i) the Board of Trustees or by vote of a majority of the
Portfolio's outstanding voting securities, and (ii) by vote of a majority of the
Trustees who are not "interested persons" (as defined in the Investment Company
Act) ("Independent Trustees") of any party to this Agreement cast in person at a
meeting called for the purpose of voting on such approval.
10. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Trustees, or by vote of a majority of the outstanding
voting securities of the Portfolio, on sixty (60) days' written notice to the
Manager and the Adviser, or by the Manager or the 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, in the event of its
assignment (as defined in the Investment Company Act) or in the event the
Investment Management Agreement between the Manager and the Trust is assigned 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.
11. PROVISION OF CERTAIN INFORMATION BY ADVISER
The Adviser will promptly notify the Manager in writing of the
occurrence of any of the following events:
A. the Adviser fails to be registered as an investment adviser
under the Advisers Act or under the laws of any jurisdiction in which the
Adviser is required to be registered as an investment adviser in order to
perform its obligations under this Agreement;
B. the Adviser 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 Trust;
and/or
C. the chief executive officer or controlling stockholder of the
Adviser or the portfolio manager of the Portfolio changes or there is otherwise
an actual change in control or management of the Adviser.
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12. USE OF ADVISER'S NAME
The Manager will not use the Adviser's name (or that of any affiliate,
including the name "Xxxxxx Xxxxxxx") in Trust promotional or sales related
materials prepared by or on behalf of the Manager or the Trust without prior
review and approval by the Adviser, which may not be unreasonably withheld or
delayed. The Manager and the Trust agree that if this Agreement is terminated
and the Adviser or an affiliate of the Adviser shall no longer be the adviser to
the Portfolio, the Trust will change the name of the Portfolio to delete any
reference to the name of the Adviser or that of any affiliate.
13. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the
rules or regulations thereunder or pursuant to any exemptive relief granted by
the Securities and Exchange Commission ("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 Portfolio (unless
such approval is not required by Section 15 of the Investment Company Act as
interpreted by the SEC or its staff) 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 Portfolio if a majority of the outstanding voting securities
of the Portfolio 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 portfolio affected by the amendment or all the
portfolios of the Trust.
14. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio listed in Appendix A.
15. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
16. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the last known business address of each applicable party
in person or by registered mail or a private mail or delivery service providing
the sender with notice of receipt. The specific person to whom notice shall be
provided for each party will be specified in writing to the other party. Notice
shall be deemed given on the date delivered or mailed in accordance with this
paragraph.
17. 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.
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18. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of Delaware, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
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 under seal by their duly authorized officers as of the date first
mentioned above.
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxx Xxx
-------------------------------
Name: Xxxx Xxx
Title: Executive Director
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APPENDIX A
Portfolio Advisory Fee
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EQ/Emerging Markets Equity Portfolio 1.00% of the Portfolio's average daily
net assets up to and including $100
million; 0.80% of the Portfolio's
average daily net assets over $100
million and up to and including $400
million; 0.60% of the Portfolio's
average daily net assets over $400
million and up to and including $500
million; and 0.40% of the Portfolio's
average daily net assets in excess of
$500 million.
Amended and Restated: July 31, 2003
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