Exhibit (d)(12)(ix)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of May 1, 2003, by and between The Equitable Life
Assurance Society of the United States, a New York stock life insurance
corporation (the "Manager"), and Alliance Capital Management L.P., a limited
partnership organized under the laws of the State of Delaware ("Adviser").
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Manager has entered into an Amended and Restated Investment
Management Agreement dated May 1, 2000 with EQ Advisors Trust ("Trust") an
investment company registered under the Investment Company Act of 1940, as
amended ("Investment Company Act");
WHEREAS, the Trust's shareholders are and will be primarily 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; as
well as other shareholders as permitted under Section 817(h) of the Internal
Revenue Code of 1986, as amended ("Code"), and the rules and regulations
thereunder with respect to the qualification of variable annuity contracts and
variable life insurance policies as insurance contracts under the Code;
WHEREAS, the EQ/Small Company Index Portfolio is a series of the Trust
("Portfolio");
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 Portfolio 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 Portfolio of the Trust; and
WHEREAS, the Adviser is willing to furnish such services to the Manager
and the Portfolio;
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 Portfolio, 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 Portfolio 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 Portfolio 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 Portfolio, the Adviser will
coordinate the investment and reinvestment of the assets of the Portfolio and
determine the composition of the assets of the Portfolio, subject always to the
supervision and control of the Manager and the Trustees of the Trust.
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 Portfolio or are under consideration for
inclusion in the Portfolio;
(ii) formulate and implement a continuous investment program
for the Portfolio;
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio 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 Portfolio;
(iv) keep the Trustees of the Trust and the Manager fully
informed in writing 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 Portfolio, the Adviser and its key investment
personnel and operations, make regular and 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 Portfolio, 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 Portfolio for which market
prices are not readily available;
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(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 Portfolio and
that have investment objectives, policies, and strategies substantially
similar to those employed by the Adviser in managing the Portfolio that
may be reasonably necessary, under applicable laws, to allow the
Portfolio 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 Portfolio or
its agent; and
(vii) 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 Portfolio; (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 the
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
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 transactions for the Portfolio (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 Portfolio, in
the name of the Portfolio or its nominees, the Adviser shall use its best
efforts to obtain for the Portfolio "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
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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 Portfolio.
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
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 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 direct the Adviser to effect transactions in portfolio securities
through broker-dealers in a manner that will help generate resources to: (i) pay
the cost of certain expenses that the Trust is required to pay or for which the
Trust is required to arrange payment; or (ii) recognize broker-dealers for the
sale of Portfolio shares.
G. 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. 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 Portfolio 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 Portfolio. 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 Portfolio, 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 Portfolio 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 Portfolio.
H. 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 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 Portfolio's
securities and exercise rights in
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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.
4. COMPENSATION OF ADVISER
The Manager will pay the Adviser an advisory fee with respect to the
Portfolio 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 Portfolio based on the net assets of the
Portfolio 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 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 Portfolio, 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 or its Affiliates for, and the Adviser 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 Portfolio 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
made in reliance upon information furnished to the Manager or the Trust by the
Adviser Indemnitees (as defined below) for use therein.
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
Portfolio, 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 arising out of or based on (i) any
willful misconduct, bad faith, reckless disregard or gross negligence of the
Manager 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 Portfolio or the omission to state therein a material fact
known to the Manager that was required to be stated therein or necessary to make
the
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statements therein not misleading, unless such statement or omission was made in
reliance upon information 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
Portfolio 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 Portfolio,
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 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 adviser of an investment company pursuant to Section
9(a) of the Investment Company Act or otherwise. The Adviser will also promptly
notify the Portfolio 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 Portfolio, provided, however, that routine regulatory examinations shall not
be required to be reported by this provision.
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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 Portfolio 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 Trust, 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 Portfolio, 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 Portfolio in its composite performance.
G. The Adviser agrees that it will notify the Manager of any
changes on the membership of the general partners of the Adviser within a
reasonable time after such change.
8. NON-EXCLUSIVITY
The services of the Adviser to the Manager, 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 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
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
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hereunder, provided that no such person shall perform any services with respect
to the Portfolio 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 business. In the event of the termination of this
Agreement, such other 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 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, 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
Portfolio's outstanding securities. This Agreement shall 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
Portfolio, 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 (as defined in 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
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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 Portfolio (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 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.
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 notify the Trust and the Manager of any changes in its key
employees within a reasonable time thereafter.
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17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio.
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 or such other address as specified
in a notice duly given to the other parties. 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
1290 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: EQ Advisors Trust
Xxxxxxxx Xxxxx, Vice President and Secretary
1290 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: Alliance Capital Management L.P.
Xxxx X. Xxxxxx, Senior Vice President,
Counsel and Assistant Secretary
0000 Xxxxxx xx xxx Xxxxxxxx
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 Portfolio. 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
Portfolio, 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 ALLIANCE CAPITAL MANAGEMENT L.P.
SOCIETY OF THE UNITED STATES
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, its General Partner
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
------------------------ -------------------
Xxxxx X. Xxxxx Xxxx X. Xxxxxx
Executive Vice President Assistant Secretary
11
APPENDIX A
TO
INVESTMENT ADVISORY AGREEMENT
WITH
ALLIANCE CAPITAL MANAGEMENT L.P.
PORTFOLIO ADVISORY FEE
EQ/Small Company Index Portfolio 0.05% of the Portfolio's average daily net
assets
12
