PARTICIPATION AGREEMENT
Among
AXA PREMIER VIP TRUST,
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES,
EQUITABLE DISTRIBUTORS, INC.
AXA DISTRIBUTORS, LLC.,
and
AXA ADVISORS, LLC
THIS AGREEMENT, made and entered into as of the 3rd day of December,
2001 by and among THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a
New York stock life insurance company ("Equitable"), on its own behalf and on
behalf of each of its separate accounts set forth on Schedule A hereto, as
amended from time to time (each referred to as the "Account"), AXA PREMIER VIP
Trust, a business trust organized under the laws of the State of Delaware (the
"Trust"), and EQUITABLE DISTRIBUTORS, INC., a Delaware corporation, AXA
DISTRIBUTORS, LLC, a Delaware limited liability company, and AXA ADVISORS, LLC,
a Delaware limited liability company (collectively, the "Distributors").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts of insurance companies that issue variable life insurance
policies, variable annuity contracts and certificates relating to such policies
or contracts (collectively, the "Variable Contracts") and which have entered
into participation agreements with the Trust and its Distributors (the
"Participating Insurance Companies"); and
WHEREAS, the beneficial interests in the Trust are divided into series
of shares, (each a "Portfolio"), each representing the interest in a particular
managed portfolio of securities and other assets, and each Portfolio is divided
or may be divided into one or more classes of shares, i.e., currently the Class
A shares and the Class B shares, or such other classes of shares as may be
created in the future (the "Classes"); and
WHEREAS, one or more Portfolios or Classes thereof may be made
available by the Trust to serve as funding vehicles for Participating Insurance
Companies and their separate accounts funding Variable Contracts; and
WHEREAS, the Securities and Exchange Commission ("SEC") has granted
exemptions from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the
Investment Company Act of 1940, as amended (the "1940 Act") and Rules
6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit
shares of the Trust and each of its Portfolios or Classes to be sold to and held
by insurance company separate accounts funding Variable Contracts of both
affiliated and unaffiliated life insurance companies (the "Shared Funding
Exemptive Order"); and
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WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act, and shares of its Portfolios are registered under
the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, Equitable is an investment manager to the Trust (the
"Manager") and is duly registered with the SEC as an investment adviser under
the Investment Advisers Act of 1940, as amended, and is registered or exempt
from registration under all applicable state securities laws; and
WHEREAS, Equitable has registered or will register each of its Accounts
as a unit investment trust under the 1940 Act and has registered or will
register interests in each Account under the 1933 Act, other than those exempt
from such registration under applicable statutory provisions or regulations; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of Equitable
or through properly delegated authority, and divided into subaccounts, to set
aside and invest assets attributable to the Variable Contracts; and
WHEREAS, each of the Distributors is registered as a broker-dealer with
the SEC under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and is a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, Equitable intends to purchase shares in the Portfolios and one or
more Classes thereof, listed on Schedule B hereto as amended from time to time
(the "Designated Portfolios and Classes") on behalf of each Account, in order to
fund certain of the Variable Contracts, and each of the Distributors is
authorized to sell such shares to each Account at the net asset value applicable
to such Portfolios and the Classes thereof.
NOW, THEREFORE, in consideration of their mutual promises, Equitable,
the Trust and each of the Distributors agree as follows:
ARTICLE I. Sale of Trust Shares
--------------------
1.1. Each of the Distributors agrees to sell to each Account those
shares of the Designated Portfolios and Classes for which it serves as the
Trust's principal underwriter and which each Account orders, executing such
orders at the net asset value per share next computed after receipt by the Trust
or its designee of the order for the shares of the Designated Portfolios and
Classes. For purposes of this Section 1.1, neither Equitable nor any Account
shall be considered the designee of the Trust for receipt of such purchase
orders and receipt by Equitable or any Account shall not constitute receipt by
the Trust for purposes of calculating each Portfolio's net asset value per
share.
1.2. The Trust agrees to make its shares of the Designated Portfolios
and Classes available for purchase by each Account at the applicable net asset
value per share on those days on which the Trust calculates the net asset value
per share of the Designated Portfolios and Classes pursuant to rules of the SEC.
The Trust shall use reasonable efforts to calculate the net asset value per
share of the Designated Portfolios and Classes on each day on which the New York
Stock Exchange is open for trading. Notwithstanding the foregoing, the Board of
Trustees
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of the Trust (the "Board") may refuse to sell shares of any Designated Portfolio
or Class to any person, or suspend or terminate the offering of shares of any
Portfolio or Class thereof, if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the shareholders of
such Portfolio or Class thereof.
1.3. The Trust and each of the Distributors agree that shares of the
Designated Portfolios and Classes will be sold only to Participating Insurance
Companies and/or their separate accounts funding Variable Contracts or to other
persons or entities permitted under Section 817 of the Internal Revenue Code of
1986, as amended (the "Code"), or regulations promulgated thereunder. No shares
of any Portfolio will be sold to the general public, except to the extent
permitted under the Code.
1.4. The Trust and each of the Distributors will not sell Trust shares
to any Participating Insurance Company or separate account funding Variable
Contracts unless an agreement containing provisions substantially the same as
Articles I, III, V, VII and Section 2.5 of Article II of this Agreement is in
effect to govern such sales.
1.5. The Trust agrees to redeem for cash or in-kind, at the request of
any Account or Equitable, any full or fractional shares of the Trust held by the
Account or Equitable. The Trust will execute such requests at the net asset
value per share of the Designated Portfolios and Classes next computed after
receipt by the Trust or its designee of the request for redemption. For purposes
of this Section 1.5, neither Equitable nor any Account shall be considered the
designee of the Trust for receipt of requests for redemption, and receipt by
Equitable or any Account shall not constitute receipt by the Trust for purposes
of calculating each Portfolio's net asset value per share.
1.6. Equitable agrees that purchases and redemptions of shares of the
Designated Portfolios and Classes offered by a then-current prospectus of the
Trust shall be made in accordance with the provisions of such prospectus.
Equitable agrees that all net amounts available under the Variable Contracts
listed on Schedule A attached hereto and incorporated herein by this reference,
as such Schedule A may be amended from time to time hereafter by mutual written
agreement of all the parties hereto (the "Equitable Contracts"), shall be
invested in the Trust and in such other investment companies or other investment
vehicles advised by the Manager as may be mutually agreed to in writing by the
parties hereto, or in Equitable's general account. In addition, amounts also may
be invested in investment companies other than the Trust if: (a) any such other
investment company, or series thereof, has investment objectives or policies
that are, in the opinion of the Manager, substantially different from the
investment objectives and policies of the Portfolios of the Trust in which the
Accounts invest; or (b) Equitable gives the Trust and the Distributors
forty-five (45) days written notice of its intention to make such other
investment companies available as a funding vehicle for the Equitable Contracts,
and no written objection is received by Equitable; or (c) any such other
investment companies were available as a funding vehicle for the Equitable
Contracts prior to the date of this Agreement and Equitable so informs the Trust
and Distributors prior to their signing this Agreement (a list of such other
investment companies appears on Schedule C to this Agreement); or (d) the Trust
and the Distributors consent to the use of any such other investment company.
1.7. Equitable shall pay for shares of Designated Portfolios and
Classes thereof purchased for the Accounts or its general account on the
business day on which an order to
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purchase Trust shares is made in accordance with the provisions of Section 1.1
hereof. "Business Day" shall mean any day on which the New York Stock Exchange
is open for trading and on which the Trust calculates its net asset value
pursuant to the rules of the SEC. Payment shall be in federal funds transmitted
by wire. For purposes of Section 2.9 and 2.10, upon receipt by the Trust of the
federal funds so wired, such funds shall cease to be the responsibility of
Equitable and shall become the responsibility of the Trust.
1.8. Issuance and transfer of the shares of the Designated Portfolios
and Classes thereof will be by book entry only. Stock certificates will not be
issued to Equitable or any Account. Shares ordered from the Trust will be
recorded in an appropriate title for each Account or the appropriate subaccount
of each Account.
1.9. The Trust shall furnish same Business Day notice (by wire or
telephone, followed by written confirmation) of any income dividends or capital
gain distributions payable on the shares of the Designated Portfolios and
Classes thereof. Equitable and each Account hereby elect to receive all such
income dividends and capital gain distributions as are payable on the shares of
the Designated Portfolios and Classes thereof in additional shares of the
relevant Designated Portfolios and Classes. (Equitable and each Account reserve
the right to revoke this election and to receive all such income dividends and
capital gain distributions in cash.) The Trust shall provide notification by the
end of the next Business Day of the number of shares so issued as payment of
such dividends and distributions. The Trust shall provide advance notice to
Equitable and each Account of any date on which the Trust reasonably expects to
make a dividend distribution; normally this notice will be given at least ten
(10) days in advance of the ex-dividend date.
1.10. The Trust shall make the net asset value per share for each
Designated Portfolio and Class thereof available to Equitable and each Account
or their designee on each Business Day as soon as reasonably practical after the
net asset value per share is calculated (normally by 6:30 p.m. New York time)
and shall use its best efforts to make such net asset value per share available
by 7:00 p.m. New York time.
ARTICLE II. Representations and Warranties
------------------------------
2.1. Equitable represents and warrants that: (a) the Equitable
Contracts will be issued and sold in compliance, in all material respects, with
all applicable federal and state laws; and (b) it requires each Distributor to
comply, in all material respects, with state insurance suitability requirements.
Equitable further represents and warrants that: (a) it is an insurance company
duly organized and in good standing under applicable law; (b) it has legally and
validly established each Account, prior to any issuance or sale of interests
therein, as a segregated asset account under applicable insurance laws; (c) it
has registered or, prior to any issuance or sale of the Equitable Contracts,
will register each Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for the
Equitable Contracts, unless such Accounts are exempt from such registration
under applicable statutory provisions or regulations; and (d) it has registered
or, prior to the issuance or sale of the Equitable Contracts, will register
interests in the Accounts under the 1933 Act, unless interests in such Accounts
are exempt from such registration under applicable statutory provisions or
regulations.
2.2. The Trust, to the best of its knowledge, represents and warrants
that Trust shares sold pursuant to this Agreement shall be: (a) registered under
the 1933 Act; and (b) duly
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authorized for issuance; and (c) sold in compliance with and all applicable
federal securities laws. The Trust further represents and warrants that it is
and shall remain registered under the 1940 Act. The Trust shall amend the
registration statement for its shares (the "Registration Statement") under the
1933 Act and the 1940 Act from time to time as required in order to effect the
continuous offering of shares of the Designated Portfolios and Classes. This
requirement shall not, however, in any manner limit the Trust's ability to cease
offering shares in one or more of the Designated Portfolios or Classes, provided
such action complies with applicable laws and regulations.
2.3. Equitable represents that the Equitable Contracts are currently
treated as annuity, endowment or life insurance contracts under applicable
provisions of the Code and that it will make every effort to maintain such
treatment and that it will notify the Trust and the Distributors immediately
upon having a reasonable basis for believing that the Equitable Contracts have
ceased to be so treated or that they might not be so treated in the future.
2.4. The Trust currently intends for one or more Classes, particularly
Class B, to make payments to finance its distribution expenses pursuant to a
Plan adopted under Rule 12b-1 under the 1940 Act, although it may determine to
discontinue such practice in the future. To the extent that any Class of the
Trust finances its distribution expenses pursuant to a Plan adopted under Rule
12b-1, the Trust undertakes to have a Board, a majority of whose members are not
interested persons of the Trust or its Distributors or Manager, and to otherwise
comply with any then current SEC and SEC staff interpretations concerning Rule
12b-1 or any successor provision.
2.5. The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states,
except that the Trust represents that the investment objectives, policies, fees
and expenses of each of the Designated Portfolios and Classes thereof are and
shall at all times remain in compliance with the insurance laws of the State of
New York, and the Trust and the Distributors severally represent that their
respective operations are and shall at all times remain in compliance, in all
material respects, with the insurance laws of the State of New York to the
extent required to perform their respective obligations under this Agreement.
2.6. Each of the Distributors represents and warrants that: (a) it is
duly organized and has the authority to enter into this agreement, (b) it is a
member in good standing of the NASD; and (c) it is registered as a broker-dealer
with the SEC and all necessary states. Each Distributor further represents that
it will sell and distribute the Trust's shares in accordance with the laws of
the State of New York and all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, the 1940 Act, and all
applicable Rules of the NASD.
2.7. The Trust represents that (a) it is lawfully organized and validly
existing under the laws of the State of Delaware, (b) it has the authority to
enter into this agreement, and (c) that it does and will comply, in all material
respects, with the 1940 Act.
2.8. The Trust and each of the Distributors severally represent and
warrant that all of their trustees, directors, officers, employees, investment
managers and investment advisers, and other individuals/entities dealing with
the money and/or securities of the Trust are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Trust in an amount not less than the minimal coverage required by Rule
17g-(1) of the
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1940 Act or such related provisions as may be promulgated from time to time. The
aforesaid fidelity bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.9. Equitable represents and warrants that all of its directors,
officers, employees, and other individuals/entities dealing with the money
and/or securities of the Trust are covered by a blanket fidelity bond or similar
coverage for the benefit of the Trust. Equitable further represents and warrants
that said fidelity bond is issued by a reputable bonding company, includes
coverage for larceny and embezzlement, and is in an amount not less than $5
million. Equitable agrees to make all reasonable efforts to see that this
fidelity bond or another bond containing these provisions is continuously in
effect and agrees to notify the Trust and the Distributors in the event that
such coverage no longer applies.
ARTICLE III. Prospectuses and Proxy Statements; Voting
-----------------------------------------
3.1. The Trust or its Distributors shall provide Equitable with as many
printed copies of the Trust's current prospectus and Statement of Additional
Information and any supplements thereto for the Designated Portfolios and
Classes thereof as Equitable may reasonably request. If requested by Equitable
in lieu thereof, the Trust or its Distributors shall provide camera-ready film
containing the Trust's prospectus and Statement of Additional Information and
any supplements thereto for the Designated Portfolios and Classes thereof, and
such other assistance as is reasonably necessary in order for Equitable once
each year (or more frequently if the prospectus and/or Statement of Additional
Information for the Designated Portfolios and Classes thereof is amended during
the year) to have the prospectus for the Account, with respect to the Equitable
Contracts, and the Trust's prospectus printed together in one document, and to
have the Statement of Additional Information for the Trust and the Statement of
Additional Information for the Account, with respect to the Equitable Contracts,
printed together in one document. Alternatively, Equitable may print the
prospectus and/or Statement of Additional Information for the Designated
Portfolios and Classes thereof in combination within the prospectuses and
Statements of Additional Information for other investment companies. To the
extent that the foregoing Trust prospectuses, Statements of Additional
Information and any supplements thereto are with respect to Class B shares, or
other Classes of shares subject to a Plan adopted under Rule 12b-1 under the
1940 Act, the cost of preparing, printing, and distributing such documents will
be at the expense of such Class or Classes of shares, with respect to
prospective owners of Equitable Contracts. In addition, with respect to
prospectuses and Statements of Additional Information for the Designated
Portfolios and Classes thereof provided by Equitable to its existing owners of
Equitable Contracts ("Contractowners") in order to update disclosure as required
by the 1933 Act and/or the 1940 Act, the cost of preparing, printing, mailing
and otherwise distributing such prospectuses and Statements of Additional
Information and any supplements thereto shall be borne by the Trust.
Furthermore, if in such case Equitable or the Distributors are provided with
camera-ready film of such documents in lieu of printed documents, Equitable or
the Distributors shall request reimbursement from the Trust for their printing,
mailing and other costs associated with such distribution.
Equitable and the Distributors each agree to provide the Trust or its
designee with such information as may be reasonably requested by the Trust to
assure that the Trust's expenses or the expenses of any Class do not include the
cost of printing, mailing and otherwise distributing any prospectuses,
Statements of Additional Information or supplements thereto for the Designated
Portfolios and Classes thereof other than those actually distributed (a) to
existing
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Contractowners; or (b) under a Rule 12b-1 Plan for a particular Class of shares
to prospective Contractowners.
3.2 Equitable may alter the form of the Trust's prospectus, Statement
of Additional Information, Annual and Semi-Annual Reports to shareholders, proxy
statements, and other Trust documents with the prior approval of the Trust.
Equitable shall bear all costs associated with such alteration of form.
3.3. The Trust's prospectus for the Designated Portfolios and Classes
thereof shall state that the Statement of Additional Information for the
Designated Portfolios and Classes thereof is available from the Distributors or
Equitable (or in the Trust's discretion, the prospectus shall state that such
Statement of Additional Information is available from the Trust).
3.4. The Trust, at its expense, shall provide Equitable with copies of
its proxy statements, Annual and Semi-Annual Reports to shareholders, and other
communications to shareholders in such quantities as Equitable shall reasonably
require for mailing or otherwise distributing such materials to Contractowners
and shall assume all expenses associated with mailing or otherwise distributing
those materials. In the alternative, the Trust shall reimburse Equitable for its
costs in printing, mailing and distributing such materials to Contractowners.
3.5. If and to the extent required by law, Equitable shall:
(a) solicit voting instructions from Contractowners;
(b) vote the Trust shares for the Designated Portfolios and
Classes in accordance with instructions received from Contractowners;
and
(c) vote Trust shares for the Designated Portfolios and
Classes for which no instructions have been received in a particular
Account in the same proportion as Trust shares for the Designated
Portfolios and Classes for which instructions have been received so
long as and to the extent that the SEC continues to interpret the 1940
Act to require pass-through voting privileges for Contractowners.
Equitable reserves the right to vote Trust shares held in any Account
in its own right, to the extent permitted by law. Participating
Insurance Companies shall be responsible for assuring that each of
their separate accounts participating in the Trust calculates voting
privileges in a manner consistent with the standards adopted by the
Board, which standards will be provided to all other Participating
Insurance Companies.
3.6. The Trust will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Trust will comply with
Section 16(c) of the 1940 Act as well as with Sections 16(a) and, if and when
applicable, Section 16(b). Further, the Trust will act in accordance with the
SEC or SEC staff's written interpretation concerning the requirements of Section
16(a) with respect to periodic elections of Trustees and with whatever rules the
SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
------------------------------
4.1. The Distributors shall furnish, or shall cause to be furnished, to
the Trust or its designee, the form of each piece of sales literature or other
promotional material in which the Trust, the Manager or the Distributors are
named prior to its first use. No such material shall be
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used if the Trust or its designee reasonably objects to its use after the
Trust's receipt of such material.
4.2. Equitable shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the sale of the Equitable Contracts other than the information
or representations contained in or accurately derived from the Registration
Statements, prospectus or Statement of Additional Information for the Trust, as
such Registration Statements, prospectus or Statement of Additional Information
may be amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional material
approved by the Trust or its designee, except with the permission of the Trust
or its designees.
4.3. The Trust or the Distributors, or their respective designees,
shall furnish, or shall cause to be furnished, to Equitable or its designees,
the form of each piece of sales literature or other promotional material in
which Equitable is named prior to its use. No such material shall be used if
Equitable or its designees reasonably object to its use after receipt of such
material.
4.4. The Trust and the Distributors shall not give any information or
make any representations on behalf of Equitable or concerning Equitable, each
Account, or the Equitable Contracts other than the information or
representations contained in or accurately derived from a registration
statement, prospectus or Statement of Additional Information for the Accounts
with respect to the Equitable Contracts, as such registration statement,
prospectus or Statement of Additional Information may be amended or supplemented
from time to time, or in published reports for each Account which are in the
public domain or approved by Equitable for distribution to Contractowners, or in
sales literature or other promotional material approved by Equitable or its
designees, except with the permission of Equitable.
4.5. The Trust shall provide to Equitable at least one complete copy of
all Registration Statements, prospectuses, Statements of Additional Information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Trust or its shares, contemporaneously
with the filing of such document with the SEC, the NASD, or other regulatory
authorities.
4.6. Equitable shall provide to the Trust at least one complete copy of
all registration statements, prospectuses, Statements of Additional Information,
reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Equitable
Contracts or any Account if such document also relates to the Trust,
contemporaneously with the filing of such document with the SEC, the NASD, or
other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Trust or any affiliate of the Trust: advertisements
(including materials published or designed for use in a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, electronic messages or
communications or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other
communications
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distributed or made generally available to some or all agents or employees, and
registration statements, prospectuses, Statements of Additional Information,
shareholder reports, and proxy materials. However, it is anticipated that
materials provided solely: (a) internally to Equitable's or the Distributors'
own employees or counsel; or (b) to certain designated third parties and that
are not designed to be provided or communicated in any manner to the general
public (e.g., training materials provided to distributors or agents) will not be
filed with the SEC, the NASD, or any state securities or insurance regulatory
authorities, although such materials will be prepared in accordance with
applicable laws.
ARTICLE V. Fees and Expenses
-----------------
5.1. The Trust and the Distributors shall pay no fee or other
compensation to Equitable under this Agreement except for: (a) items covered in
Article III; or (b) pursuant to a Plan adopted by the Trust in accordance with
Rule 12b-1 under the 1940 Act to finance the distribution expenses of any Class.
Nevertheless, the Distributors may make payments to Equitable or to any
distributor for the Equitable Contracts in amounts agreed to by the Distributors
in any writing, and such payments by the Distributors (other than pursuant to a
Rule 12b-1 Plan) may be made out of existing fees otherwise payable to the
Distributors, past profits of the Distributors, or other resources available to
the Distributors.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. Without limiting the foregoing, the Trust
shall see to it that all shares are registered and authorized for issuance prior
to their sale in accordance with applicable federal law, and shall bear all
expenses with respect to: registration and qualification of the Trust's shares;
preparation and filing of the Trust's Registration Statement, prospectus,
Statement of Additional Information, proxy materials, and reports; setting the
prospectus and Statement of Additional Information in type; setting in type,
printing, mailing or otherwise distributing proxy materials and Semi-Annual and
Annual Reports sent to Contractowners (including the costs of setting in type,
printing, mailing or otherwise distributing a prospectus that constitutes an
Annual Report) and if certain Classes of the Trust so elect and the Rule 12b-1
Plan so provides, the preparation, printing, mailing or otherwise distributing
of such materials to prospective owners of Equitable Contracts; the preparation
of all statements and notices required by any federal or state law; and all
taxes on the issuance or transfer of the Trust's shares.
ARTICLE VI. Diversification
---------------
6.1. The Trust represents that: (a) it currently has elected to qualify
as a regulated investment company under Subchapter M of the Code; (b) it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision); (c) it will notify Equitable immediately upon
having a reasonable basis for believing that it has ceased to so qualify or that
it might not so qualify in the future; and (d) it will seek to minimize any
damages and to rectify its failure to so qualify promptly. The Trust
acknowledges that any failure to qualify as a regulated investment company will
eliminate the ability of the Accounts to avail themselves of the "look through"
provisions of Section 817(h) of the Code and that, as a result, the Equitable
Contracts will almost certainly fail to qualify as life insurance and annuity
contracts under Section 817(h) of the Code.
6.2. The Trust further represents that it will at all times invest
money from the Accounts in such a manner as to assure that the Equitable
Contracts will be treated as variable annuity or variable life insurance
contracts under the Code and the regulations issued thereunder. Without
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limiting the scope of the foregoing, the Trust represents that it will at all
times comply with Section 817(h) of the Code and Treasury Regulation 1.817-5,
relating to the diversification requirements for variable annuity, endowment, or
life insurance contracts, and any amendments or other modifications to such
Section or Regulations. In the event of a breach of this Article VI by the
Trust, the Trust warrants that it will take all reasonable steps: (a) to
immediately notify Equitable of such breach; and (b) to adequately diversify the
Trust's assets so as to achieve compliance within the grace period afforded by
Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
-------------------
7.1. The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contractowners of all
variable annuity and variable life insurance separate accounts investing in the
Trust. A material irreconcilable conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority; or (b) a
change in applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; or (c) an administrative or judicial decision in any
relevant proceeding; or (d) the manner in which the investments of any
Designated Portfolio are being managed; or (e) a difference in voting
instructions given by owners of Variable Contracts; or (f) a decision by an
insurer to disregard the voting instructions of owners of Variable Contracts.
The Board shall promptly inform Equitable if it determines that a material
irreconcilable conflict exists and the implications thereof.
7.2. Equitable will report any potential or existing conflicts, of
which it is aware, to the Board. Equitable will assist the Board in carrying out
its responsibilities under any Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an obligation by Equitable
to inform the Board whenever the voting instructions of owners of Variable
Contracts are disregarded. Equitable's responsibilities under this Section 7.2
will be carried out with a view only to the interests of its Contractowners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested Trustees, that a material irreconcilable conflict exists,
Equitable and other Participating Insurance Companies shall, at their expense
and to the extent reasonably practicable (as determined by a majority of the
disinterested Trustees), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, up to and including: (a)
withdrawing the assets allocable to some or all of the variable annuity and
variable life insurance separate accounts from the Trust or any Portfolio and
reinvesting such assets in a different investment medium, including (but not
limited to) another Portfolio of the Trust, or submitting the question of
whether such withdrawal should be implemented to a vote of all affected owners
of Variable Contracts and, as appropriate, withdrawing the assets of any
appropriate group (i.e., owners of variable annuity contracts or owners of
variable life insurance contracts of one or more Participating Insurance
Companies) that votes in favor of such withdrawal, or offering to the affected
owners of Variable Contracts the option of making such a change; and (b)
establishing a new registered management investment company or managed separate
account. Equitable's responsibilities under this Section 7.3 will be carried out
with a view only to the interests of Contractowners.
7.4. If a material irreconcilable conflict were ever to arise because
of a decision by Equitable to disregard Contractowner voting instructions and
that decision represents a minority
-10-
position or would preclude a majority vote, Equitable may be required, at the
Trust's election, to withdraw the affected Account's (or subaccount's)
investment in the Trust and terminate this Agreement with respect to such
Account (or subaccount); provided, however, that such withdrawal and termination
shall be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
No charge or penalty shall be imposed as a result of such withdrawal. Any such
withdrawal and termination must take place within six (6) months after the Trust
gives written notice that this provision is being implemented and, until the end
of that six (6) month period, the Distributors and Trust shall continue to
accept and implement orders by Equitable for the purchase (and redemption) of
shares of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because a
particular state insurance regulator's decision applicable to Equitable
conflicts with the majority of other state regulators, then Equitable shall
withdraw the affected Account's (or subaccount's) investment in the Trust and
terminate this Agreement with respect to such Account (or subaccount) within six
(6) months after the Board informs Equitable in writing that it has determined
that such decision has created a material irreconcilable conflict; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested members of the Board. Until the end of the
foregoing six (6) month period, the Distributors and Trust shall continue to
accept and implement orders by Equitable for the purchase (and redemption) of
shares of the Trust.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict, but in
no event will the Trust be required to establish a new funding medium for the
Equitable Contracts. Equitable shall not be required by Section 7.3 to establish
a new funding medium for the Equitable Contracts if an offer to do so has been
declined by vote of a majority of Contractowners materially adversely affected
by the material irreconcilable conflict. In the event that the Board determines
that any proposed action does not adequately remedy any material irreconcilable
conflict, then Equitable will withdraw the Account's (or subaccount's)
investment in the Trust and terminate this Agreement within six (6) months after
the Board informs Equitable in writing of the foregoing determination; provided,
however, that such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then: (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and
7.5 of this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted; and (c) this Agreement shall be otherwise
amended by the Trust, without the need for any consent of the other parties, as
required by such change in law.
-11-
ARTICLE VIII. Indemnification
---------------
8.1. Indemnification By Equitable
----------------------------
8.1(a). Equitable agrees to indemnify and hold harmless the Trust, each
member of the Board, the Distributors, and the directors and officers and each
person, if any, who controls any such person within the meaning of Section 15 of
the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of Equitable), investigation
of claims or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Trust's shares or the Equitable Contracts or interests in
the Accounts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the
registration statement, prospectus, or Statement of Additional
Information for the Equitable Contracts or contained in the Equitable
Contracts or sales literature for the Equitable Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such statement
or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to Equitable by or on
behalf of the Trust for use in the registration statement, prospectus,
or Statement of Additional Information for the Equitable Contracts or
in the Equitable Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the
Equitable Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the Registration Statement, prospectus or Statement of Additional
Information, or sales literature of the Trust not supplied by Equitable
or persons under its control) or wrongful conduct of Equitable or
persons under its control, with respect to the sale or distribution of
the Equitable Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement,
prospectus, or Statement of Additional Information, or sales literature
of the Trust or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance upon
information furnished to the Trust by or on behalf of Equitable; or
(iv) arise as a result of any failure by Equitable to provide
the services and furnish the materials required to be provided or
furnished by it under the terms of this Agreement; or
-12-
(v) arise out of or result from any material breach of any
representation and/or warranty made by Equitable in this Agreement or
arise out of or result from any other material breach of this Agreement
by Equitable;
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). Equitable shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations or duties under this
Agreement or to the Trust, whichever is applicable.
8.1(c). Equitable shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified Equitable in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify Equitable of any
such claim shall not relieve Equitable from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, Equitable shall be entitled to participate, at
its own expense, in the defense of such action. Equitable also shall be entitled
to assume the defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from Equitable to such party of Equitable's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and Equitable will
not be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.1(d). The Indemnified Parties shall promptly notify Equitable of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Trust's shares or the Equitable Contracts or the
operation of the Trust.
8.2. Indemnification by the Distributors
-----------------------------------
8.2(a). Each of the Distributors agrees to indemnify and hold harmless
Equitable, and the Trust and each of their directors and officers and each
person, if any, who controls Equitable within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Distributors), investigation
of claims or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Trust's shares or the Equitable Contracts or interests in
the Accounts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, prospectus or Statement of Additional
Information, or sales literature of the Trust (or any amendment
-13-
or supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall
not apply as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon and in
conformity with information furnished to the Distributors or Trust by
or on behalf of Equitable for use in the Registration Statement,
prospectus, or Statement of Additional Information for the Trust, or in
sales literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Equitable Contracts or Trust shares;
or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the registration statement, prospectus or Statement of Additional
Information, or sales literature for the Equitable Contracts not
supplied by the Distributors or persons under their control) or
wrongful conduct of the Distributors or persons under their control,
with respect to the sale or distribution of the Equitable Contracts or
Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or Statement of Additional Information or sales literature
covering the Equitable Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
to Equitable by or on behalf of the Distributors or the Trust; or
(iv) arise as a result of any failure by the Distributors or
the Trust to provide the services and furnish the materials required to
be provided or furnished by the Distributors or the Trust under the
terms of this Agreement (including a failure, whether unintentional or
in good faith or otherwise, to comply with the diversification or other
qualification requirements specified in Article VI of this Agreement);
or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributors in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Distributors;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2(b). Each of the Distributors shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities, or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Equitable or any Account, whichever is applicable.
8.2(c). Each of the Distributors shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Distributors in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on
-14-
any designated agent), but failure to notify the Distributors of any such claim
shall not relieve the Distributors from any liability which they may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought against
the Indemnified Parties, the Distributors will be entitled to participate, at
their own expense, in the defense thereof. Each of the Distributors also shall
be entitled to assume the defense thereof, with counsel reasonably satisfactory
to the party named in the action. After notice from the Distributors to such
party of the Distributors' election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributors will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
8.2(d). Equitable agrees promptly to notify the Distributors of the
commencement of any material litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the Equitable
Contracts or the operation of each Account.
8.3. Indemnification By the Trust
----------------------------
8.3(a). The Trust agrees to indemnify and hold harmless Equitable and
each of its directors and officers and each person, if any, who controls
Equitable within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Trust), investigation of claims or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements result from the gross negligence, bad faith or willful
misconduct of the Board or any member thereof, are related to the operations of
the Trust and:
(i) arise as a result of any failure by the Trust to provide
the services and furnish the materials required to be provided or
furnished by it under the terms of this Agreement (including a failure
to comply with the diversification and other qualification requirements
specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Trust;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations and duties under this
Agreement or to Equitable, the Trust, the Distributors, or each Account,
whichever is applicable.
8.3(c). The Trust shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust in writing within a
reasonable time after the summons or other first legal process giving
-15-
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Trust of any
such claim shall not relieve the Trust from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Trust will be entitled to participate, at
its own expense, in the defense thereof. The Trust also shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from the Trust to such party of the Trust's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Trust will
not be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3(d). Equitable and the Distributors each agree promptly to notify
the Trust of the commencement of any material litigation or proceedings against
it or any of its respective officers or directors in connection with this
Agreement, the issuance or sale of the Equitable Contracts, with respect to the
operation of any Account, or the sale or acquisition of shares of the Trust.
ARTICLE IX. Applicable Law
--------------
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934, and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules, and regulations as the SEC
may grant (including, but not limited to, any Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
-----------
10.1. This Agreement shall continue in full force and effect until
the first to occur of:
(a) termination by any party, with or without cause,
upon six (6) months' advance written notice delivered to the
other parties; or
(b) termination by Equitable upon thirty (30) days' written
notice to the Trust and the Distributors with respect to any
Designated Portfolio or Class thereof based upon Equitable's
determination that shares of such Designated Portfolio or
Class thereof are not reasonably available to meet the
requirements of the Equitable Contracts or are not consistent
with Equitable's obligations to Contractowners; or
(c) termination by Equitable upon thirty (30) days' written
notice to the Trust and the Distributors with respect to any
Designated Portfolio or Class thereof in the event any of the
Designated Portfolio's shares or any shares with respect to
any Class are not registered, issued or sold in accordance
with applicable federal and/or state law or such law precludes
the use of such shares
-16-
as the underlying investment media of the Equitable Contracts
issued or to be issued by Equitable; or
(d) termination by Equitable by written notice to the Trust
and the Distributors with respect to any Designated Portfolio
or Class thereof in the event that such Designated Portfolio
or Class thereof ceases to qualify as a regulated investment
company under Subchapter M of the Code or any other failure
under Section 817 of the Code, or under any successor or
similar provision of either, or if Equitable reasonably
believes that the Trust may fail to so qualify; or
(e) termination by either the Trust or the Distributors by
written notice to Equitable, if the Trust or the Distributors
shall determine, in their sole judgment exercised in good
faith, that Equitable and/or its affiliated companies have
suffered a material adverse change in their business,
operations, financial condition, or prospects since the date
of this Agreement or are the subject of material adverse
publicity; but no termination shall be effective under this
subsection (e) until Equitable has been afforded a reasonable
opportunity to respond to a statement by the Trust or the
Distributors concerning the reason for notice of termination
hereunder; or
(f) termination by Equitable by written notice to the Trust
and the Distributors, if Equitable shall determine, in its
sole judgment exercised in good faith, that either the Trust
or the Distributors has suffered a material adverse change in
its business, operations, financial condition, or prospects
since the date of this Agreement or is the subject of material
adverse publicity; but no termination shall be effective under
this subsection (f) until the Trust or the Distributors have
been afforded a reasonable opportunity to respond to a
statement by Equitable concerning the reason for notice of
termination hereunder.
10.2. Notwithstanding any termination of this Agreement, the Trust and
the Distributors shall, at the option of Equitable, continue to make available
additional shares of the Trust pursuant to the terms and conditions of this
Agreement, for all Equitable Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing Equitable
Contracts"). Specifically, without limitation, the owners of the Existing
Equitable Contracts shall be permitted to reallocate investments in the Trust,
redeem investments in the Trust, and/or invest in the Trust upon the making of
additional purchase payments under the Existing Equitable Contracts. The parties
agree that this Section 10.2 shall not apply to any terminations under Article
VII and the effect of such Article VII terminations shall be governed by Article
VII of this Agreement.
10.3. Equitable shall not redeem Trust shares attributable to the
Equitable Contracts (as opposed to Trust shares attributable to Equitable's
assets held in any Account) except: (a) as necessary to implement Contractowner
initiated or approved transactions; or (b) as required by federal and/or state
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"); or (c) as
permitted pursuant to Section 26(b) of the 1940 Act or otherwise pursuant to an
order of the SEC that permits Equitable to redeem Trust shares attributable to
Equitable Contracts. Upon request, Equitable shall promptly furnish to the Trust
and the Distributors the opinion of counsel for Equitable
-17-
(which counsel shall be reasonably satisfactory to the Trust and the
Distributors) to the effect that any redemption pursuant to clause (b) above is
a Legally Required Redemption or any redemption pursuant to clause (b) is
permitted without first obtaining an order of the SEC pursuant to Section 26(b)
or any other provision of the 1940 Act. Furthermore, except in cases where
permitted under the terms of the Equitable Contracts, and as may be in the best
interests of Contractowners, as determined by Equitable, Equitable shall not
prevent Contractowners from allocating payments to a Designated Portfolio or
Class thereof that was otherwise available under the Equitable Contracts without
first giving the Trust or the Distributors ninety (90) days' notice of its
intention to do so.
10.4. Notwithstanding any termination of this Agreement for any reason,
the terms and conditions of the following provisions of this Agreement shall
remain in effect with respect to any Existing Contract, for so long as any
assets invested in the Trust are attributable to such Existing Contract:
Sections 1.3 to 1.10 of Article I (governing the pricing and redemption of
shares); Article II (Representations and Warranties); Sections 3.1 through 3.4
and 3.6 of Article III (Prospectuses and Proxy Statements, and Voting); Articles
IV through IX (Sales Material and Information; Fees and Expenses;
Diversification; Potential Conflicts; Indemnification; and Applicable Law);
Article XI (Notices); and Sections 12.1, 12.2, and 12.5 through 12.8 of Article
XII (Miscellaneous). Further, notwithstanding any termination of this Agreement
for any reason, the terms and conditions of the following provisions of this
Agreement shall remain in effect with regard to Equitable Contracts whose assets
were previously invested in the Trust: Article II (Representations and
Warranties), Article VI (Diversification) and Article VII (Indemnification).
ARTICLE XI. Notices
-------
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Trust:
AXA Premier VIP Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
If to Equitable:
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
If to the Distributors:
Equitable Distributors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx XxxXxxxxxxxx
-00-
XXX Xxxxxxxxxxxx, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx XxxXxxxxxxxx
AXA Advisors LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
ARTICLE XII. Miscellaneous
-------------
12.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board (or its members), officers, agents, or shareholders shall
assume any personal liability for obligations entered into on behalf of the
Trust.
12.2 Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the Contractowners and all information reasonably identified as confidential
in writing by any other party hereto and, except as permitted by this Agreement,
shall not disclose, disseminate, or utilize such names and addresses and other
confidential information until such time as it may come into the public domain
without the express written consent of the affected party. Without limiting the
foregoing, no party hereto shall disclose any information that such party has
been advised is proprietary, except such information that such party is required
to disclose by any appropriate governmental authority (including without
limitation the SEC, the NASD, and state securities or insurance regulators).
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule, or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.7. The rights, remedies, and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies, and
obligations, at law or in equity, to which the parties hereto are entitled under
federal and state laws.
-19-
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Distributors may assign this Agreement or
any rights or obligations hereunder to any affiliate of or company under common
control with the Distributors (but in such event the Distributors shall continue
to be liable under Article VIII of this Agreement for any indemnification due to
Equitable, and the assignee shall also be liable), if such assignee is duly
licensed and registered to perform the obligations of the Distributors under
this Agreement.
12.9. Equitable shall furnish, or shall cause to be furnished, to the
Trust or its designee upon request copies of the following reports:
(a) Equitable's annual statements (prepared under statutory accounting
principles) and annual reports (prepared under generally accepted accounting
principles ("GAAP"), if any), as soon as practical and in any event within
ninety (90) days after the end of each fiscal year;
(b) any material financial statement, proxy statement, notice, or
report of Equitable sent to policyholders, as soon as practical after the
delivery thereof to stockholders;
(c) any registration statement (without exhibits) and financial reports of
Equitable filed with the SEC or any state insurance regulator, as soon as
practical after the filing thereof; and
(d) any other report submitted to Equitable by independent accountants
in connection with any annual, interim, or special audit made by them of the
books of Equitable, as soon as practical after the receipt thereof; but nothing
in this subsection shall require Equitable to disclose any information that is
privileged or which, if disclosed, would put Equitable at a competitive
disadvantage or is both: (a) confidential; and (b) not material to Equitable's
financial condition.
12.10 At the request of any party to this Agreement, each other party
will make available to the requesting party's independent auditors and/or
representatives of the appropriate regulatory agencies, all records, data, and
access to operating procedures that may be reasonably requested in connection
with compliance and regulatory requirements related to this Agreement or any
party's obligations under this Agreement.
12.11 Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
-20-
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified above.
AXA PREMIER VIP TRUST
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Chief Investment Officer
AXA ADVISORS, LLC
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: President
EQUITABLE DISTRIBUTORS, INC.
By: /s/ Xxxx XxxXxxxxxxxx
-----------------------------------
Name: Xxxx XxxXxxxxxxxx
Title: President
AXA DISTRIBUTORS, LLC
By: /s/ Xxxx XxxXxxxxxxxx
-----------------------------------
Name: Xxxx XxxXxxxxxxxx
Title: President
-21-
SCHEDULE A
ACCOUNTS AND ASSOCIATED VARIABLE INSURANCE CONTRACTS
Name of Account
---------------
Separate Account 301
Separate Account 45
Separate Account 49
Separate Account 65
Separate Account 66
Separate Account A
Separate Account FP
Separate Account I
SCHEDULE B
AXA PREMIER VIP TRUST
---------------------
Portfolios Classes
---------- -------
AXA Premier VIP Large Cap Growth Portfolio Class A and Class B
AXA Premier VIP Large Cap Core Equity Portfolio Class A and Class B
AXA Premier VIP Large Cap Value Portfolio Class A and Class B
AXA Premier VIP Small/Mid Cap Growth Portfolio Class A and Class B
AXA Premier VIP Small/Mid Cap Value Portfolio Class A and Class B
AXA Premier VIP International Equity Portfolio Class A and Class B
AXA Premier VIP Technology Portfolio Class A and Class B
AXA Premier VIP Health Care Portfolio Class A and Class B
AXA Premier VIP Core Bond Portfolio Class A and Class B
SCHEDULE C
LIST OF OTHER INVESTMENT COMPANIES
