Exhibit (d)(12)(viii)
INTERIM INVESTMENT ADVISORY AGREEMENT
INTERIM INVESTMENT ADVISORY AGREEMENT, dated as of January 2, 2003, by
and between The Equitable Life Assurance Society of the United States, a New
York stock life insurance company ("Equitable" or the "Manager"), and Alliance
Capital Management L.P., a Delaware limited partnership (the "Adviser")
("Interim Agreement").
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 Investment Company Act prohibits any person from acting as
an investment adviser to a registered investment company except pursuant to a
written contract (the "Interim Agreement"); and
WHEREAS, the Board of Directors of the Trust and Equitable desire to
retain the Adviser to render investment advisory services to the portfolios to
be known as EQ/Small Company Index Portfolio and EQ/International Equity Index
Portfolio (each a "Portfolio" and collectively, the "Portfolios") in the manner
and on the terms hereinafter set forth, which Portfolios are more particularly
described in Post-Effective Amendment No. 3 to the Registration Statement on
Form N-1A for the Trust filed with the Securities and Exchange Commission on
October 31, 1997;
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 each Portfolio and to manage the investment and reinvestment of the assets
of each Portfolio, subject to the supervision of the Trustees of the Trust and
the terms and conditions of this Interim 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 Interim 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 each Portfolio and determine the composition of the assets of each
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 each
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
Interim 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;
(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 Interim
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
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in the Prospectus and the SAI of the Portfolio and any permissible
reports and materials prepared by the Portfolio or its agent; and
(vii) establish appropriate interfaces with the Trust's
administrator and Manager in order to provide such administrator and
Manager with all necessary information 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 faithfully
perform its duties under this Interim Agreement; and (ii) administrative
facilities, including bookkeeping, clerical personnel and equipment necessary
for the efficient conduct of the investment affairs of each 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 each 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 each
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.
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 Securities and Exchange Act of 1934, cause each 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 each 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 Interim 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 Portfolios 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
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Adviser in the manner the Adviser considers to be the most equitable and
consistent with its fiduciary obligations to each Portfolio and to its other
clients.
E. The Adviser will maintain all accounts, books and records with
respect to the Portfolios 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.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to each Portfolio, the
compensation specified in Appendix A to this Interim Agreement, which shall be
calculated on the daily average value of each Portfolio's assets and accrued on
a daily basis. The compensation earned under the Interim Agreement shall be held
in an interest-bearing account with the Trust's Custodian and shall be paid
(including interest earned) to the Adviser upon approval of an investment
advisory agreement with the Adviser by a majority of each Portfolio's
outstanding voting securities. In the event a majority of each Portfolio's
outstanding voting securities do not approve an investment advisory agreement,
the Adviser will be paid, out of the escrow account, the lesser of (a) any costs
incurred in performing this Interim Agreement (plus interest earned); or (b) the
total amount in the escrow account (plus interest earned).
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its directors, officers, or employees
shall be liable to the Manager for any loss suffered by the Manager resulting
from its acts or omissions as Adviser to the Portfolios, 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 directors, officers or employees. The Adviser, its
directors, officers or employees 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 Interim Agreement.
5. NON-EXCLUSIVITY
The services of the Adviser to the Portfolios 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.
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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
Interim Agreement.
7. REGULATION
The Adviser shall submit to all regulatory and administrative bodies
having jurisdiction over the services provided pursuant to this Interim
Agreement any information, reports, or other material which any such body by
reason of this Interim Agreement may request or require pursuant to applicable
laws and regulations.
8. RECORDS
The records relating to the services provided under this Interim
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 Interim Agreement, such records shall promptly be returned
to the Trust by the Adviser free from any claim or retention of rights therein.
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 expressly required or
requested by applicable federal or state regulatory authorities.
9. DURATION OF INTERIM AGREEMENT
This Interim Agreement shall become effective with respect to each
Portfolio on the date of its execution provided that it has been approved for
each Portfolio by a vote of those Trustees who are not "interested persons" (as
defined in the Investment Company Act of 1940) of the Trust ("Independent
Trustees") cast at an in-person meeting. This Interim Agreement shall continue
in effect for a period of 150 days following the date of effectiveness; or until
approval by a vote of a majority of each Portfolio's outstanding voting
securities of an investment advisory agreement for each Portfolio, whichever is
earlier.
10. TERMINATION OF INTERIM AGREEMENT
This Interim Agreement may be terminated as to any individual Portfolio
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 such Portfolio, on ten (10) days' written
notice to the Adviser. This Interim Agreement will automatically terminate as to
all the portfolios, without the payment of any penalty, in the event of the
assignment (as defined in the Investment Company Act) of this Interim Agreement
or in the event the Investment Management Agreement between the Manager and the
Trust is assigned or terminates for any other reason. This Interim Agreement
will also terminate upon written notice to the other party that the other party
is in material breach of this Interim Agreement, unless the other party in
material breach of this Interim Agreement cures such breach to the
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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 Interim 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;
C. the chief executive officer or controlling stockholder of the
Adviser or the portfolio manager of either Portfolio changes or there is
otherwise an actual change in control or management of the Adviser; and/or
D. change in the membership of the general partners of the Adviser
within a reasonable time after such change.
12. USE OF ADVISER'S NAME
The Manager will not use the Adviser's name (or that of any affiliate)
in Trust literature without prior review and approval by the Adviser, which may
not be unreasonably withheld or delayed.
13. AMENDMENTS TO THE INTERIM 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 Interim 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
affected Portfolio or Portfolios (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 such Portfolio if a
majority of the outstanding voting securities of such 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 or all
the portfolios of the Trust.
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14. ENTIRE INTERIM AGREEMENT
This Interim Agreement contains the entire understanding and agreement
of the parties with respect to the Portfolios.
15. HEADINGS
The headings in the sections of this Interim 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 Interim 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 Interim Agreement for any reason be held to
be void in law or in equity, the Interim Agreement shall be construed, insofar
as is possible, as if such portion had never been contained herein.
18. GOVERNING LAW
The provisions of this Interim 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 Interim 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 Interim
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 Interim 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Interim
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
-------------------------------
Xxxxx X. Xxxxx
Executive Vice President
ALLIANCE CAPITAL MANAGEMENT L.P.
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, its General Partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
Assistant Secretary
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APPENDIX A
TO
INTERIM INVESTMENT ADVISORY AGREEMENT
WITH
ALLIANCE CAPITAL MANAGEMENT L.P.
Portfolio Advisory Fee
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EQ/Small Company Index 0.05% of the Portfolio's average daily net assets
EQ/International Equity Index 0.15% of the Portfolio's average daily net assets
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