Exhibit (e)(5)(i)
DISTRIBUTION AGREEMENT
CLASS IA SHARES
AXA DISTRIBUTORS, LLC
AGREEMENT, dated as of January 2, 2002, by and between EQ Advisors
Trust (the "Trust") and AXA Distributors, LLC ("AXA Distributors").
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 considerations may be allocated to Eligible
Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's Class IA 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 desires that AXA Distributors undertake marketing
activities with respect to the Class IA Shares of the Trust's constituent series
or investment portfolios ("Portfolios") Portfolios; and
WHEREAS, the Trust is registered as an open-end investment company
under the Investment Company Act of 1940 ("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
AXA Distributors will be a distributor for sale of the Class IA shares issued by
the Trust; and
WHEREAS, AXA Distributors 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 AXA Distributors 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 The form of Participation Agreement may be amended or superseded,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. AXA Distributors
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 AXA Distributors serves as the principal underwriter
of the Class IA shares and Class IB shares of the Trust (collectively,
"Shares").
Section 2. AXA Distributors 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 which have Eligible Separate
Accounts and which agree to participate in the distribution of the Trust's Class
IA shares, directly or through affiliated broker dealers by means of
distribution of Variable Products and to use their best efforts to solicit
applications for Variable Products. AXA Distributors 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 IA and Class IB shares. The Trust's Portfolios and
any restrictions on availability for Class IA 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 IA 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 IA 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 AXA Distributors and the Trust from time to
time. The Trust's Class IA 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. The Trust shall not pay any compensation to AXA Distributors
for services as a distributor hereunder, nor shall the Trust reimburse AXA
Distributors for any expenses related to such services. AXA Distributors 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 AXA Distributors 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
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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 AXA Distributors specifically for use in
the preparation thereof.
In this connection, AXA Distributors 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. AXA Distributors 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 AXA Distributors for
reproduction by AXA Distributors or the Participating Insurance Companies. 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. With respect to the Trust's Class IA shares, the Trust
shall not pay the cost of printing, mailing or otherwise distributing such
Documents except as specified in this Section 7. The Trust will use its best
efforts to provide notice to AXA Distributors of anticipated filings or
supplements. AXA Distributors 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 AXA Distributors or the Participating
Insurance Companies, not the Trust.
Section 8. AXA Distributors 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. AXA Distributors shall furnish to the Trust, at least
quarterly, reports as to the sales of Trust's Class IA shares made pursuant to
this Agreement. These reports may be combined with any similar report prepared
by AXA Distributors or any of the Preparing Parties.
Section 10. AXA Distributors 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.
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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 IA 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 IA shares which are present at a meeting of such persons if the holders
of more than 50% of all votes in respect of Class IA 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 AXA
Distributors ("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 AXA
Distributors from any and all losses, claims, damages or liabilities (or actions
in respect thereof) to which AXA Distributors 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.
AXA Distributors 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 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
AXA Distributors in its capacity as a principal underwriter of the Trust's Class
IA 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 AXA Distributors 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
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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.
EQ ADVISORS TRUST
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Trustee
AXA DISTRIBUTORS, LLC
By: /s/ Xxxx XxxXxxxxxxxx
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Xxxx XxxXxxxxxxxx
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SCHEDULE A
EQ Advisors Trust
Portfolios
EQ/Alliance Common Stock Portfolio EQ/FI Small/Mid Cap Value Portfolio
EQ/Aggressive Stock Portfolio (fka Warburg Pincus Small Company Value Portfolio)
(fka Alliance Aggressive Stock Portfolio) EQ/International Equity Index Portfolio
EQ/Alliance Global Portfolio (fka BT International Equity Index Portfolio)
EQ/Alliance Growth and Income Portfolio EQ/Janus Large Cap Growth Portfolio
EQ/Alliance Growth Investors Portfolio EQ/X.X. Xxxxxx Core Bond Portfolio
EQ/Alliance High Yield Portfolio (fka JPM Core Bond Portfolio)
EQ/Alliance International Portfolio EQ/Lazard Small Cap Value Portfolio
EQ/Alliance Intermediate Government Securities EQ/Xxxxxxx Focus Portfolio
EQ/Alliance Money Market Portfolio EQ/Mercury Basic Value Equity Portfolio
EQ/Alliance Quality Bond Portfolio (fka Xxxxxxx Xxxxx Basic Value Equity Portfolio)
EQ/Alliance Small Cap Growth Portfolio EQ/MFS Emerging Growth Companies Portfolio
EQ/Alliance Premier Growth Portfolio EQ/MFS Investors Trust Portfolio
EQ/Alliance Technology Portfolio EQ/MFS Research Portfolio
EQ/AXP New Dimensions Portfolio EQ/ Emerging Markets Equity Portfolio
EQ/AXP Strategy Aggressive Portfolio EQ/Xxxxxx Growth & Income Value Portfolio
EQ/Xxxxxxxx Diversified Value Portfolio EQ/Xxxxxx International Equity Portfolio
EQ/Balanced Portfolio EQ/Xxxxxx Investors Growth Portfolio
(fka Alliance Balanced Portfolio) EQ/Small Company Index Portfolio
EQ/Xxxxxxx Socially Responsible Portfolio (fka BT Small Company Index Portfolio)
EQ/Capital Guardian International Equity Portfolio EQ/X. Xxxx Price International Stock Portfolio
EQ/Capital Guardian Research Portfolio
EQ/Capital Guardian U.S. Equity Portfolio
EQ/ Equity 500 Index Portfolio
(fka Alliance Equity Index Portfolio)
EQ/Evergreen Omega Portfolio
EQ/FI Mid Cap Portfolio
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