DISTRIBUTION AGREEMENT
BETWEEN
AXA PREMIER VIP TRUST
AND
AXA DISTRIBUTORS, LLC
(Applicable to Class B Shares)
AGREEMENT, dated as of November 30, 2001, by and between AXA Premier
VIP Trust, (the "Trust") and AXA Distributors, LLC. ("AXA Distributors").
W I T N E S S E T H:
WHEREAS, the Trust is a Delaware business trust whose shareholders are
and will be separate accounts in unit investment trust form ("Eligible Separate
Accounts") of insurance companies ("Participating Insurance Companies"); and
WHEREAS, such Participating Insurance Companies issue, among other
products, variable insurance and annuity products ("Variable Products") whose
net premiums, contributions or other consideration may be allocated to Eligible
Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's Class B shares will not be sold except in
connection with such Variable Products or directly to tax-qualified pension and
retirement plans ("Qualified Plans") outside the separate account context; and
WHEREAS, the Trust has adopted a Distribution Plan with respect to its
Class B shares pursuant to Rule 12b-1 under the Investment Company Act of 1940,
as amended ("Investment Company Act"); and
WHEREAS, the Trust desires that AXA Distributors undertake marketing
activities with respect to the Class B shares of the Trust's constituent series
or investment portfolios ("Portfolios") and to compensate AXA Distributors for
services rendered and expenses borne in connection therewith; and
WHEREAS, the Trust is registered as an open-end investment company
under the Investment Company Act; and
WHEREAS, the Investment Company Act prohibits any principal underwriter
for a registered open-end management investment company from offering for sale,
selling, or delivering after sale any security of which such company is the
issuer, except pursuant to a written contract with such investment company, and
AXA Distributors will be a distributor for sale of the Class B shares issued by
the Trust; and
WHEREAS, AXA Distributors is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, ("Securities Exchange Act") and is
a member of the National Association of Securities Dealers, Inc. ("NASD").
NOW THEREFORE, the Trust and AXA Distributors agree as follows:
Section 1. The Trust has adopted a form of Participation Agreement,
which was approved by the Board of Trustees of the Trust. This Agreement shall
be subject to the provisions of the form of Participation Agreement, the terms
of which are incorporated herein by reference, made a part hereof and
controlling. The form of Participation Agreement may be amended or superseded,
without prior notice, and this Agreement shall be deemed amended to the extent
the form of Participation Agreement is amended or superseded. AXA Distributors
represents and warrants that it will act in a manner consistent with such form
of Participation Agreement as it is currently set forth and as it may be amended
or superseded, so long as AXA Distributors serves as the principal underwriter
of the Class A shares and Class B shares of the Trust (collectively, the
"Shares").
Section 2. AXA Distributors on behalf of the Trust is hereby
authorized, from time to time, to enter into separate written agreements ("Sales
Agreements" or, individually, a "Sales Agreement"), on terms and conditions not
inconsistent with this Agreement, with Participating Insurance Companies that
have Eligible Separate Accounts and that agree to participate in the
distribution of the Trust's Class B shares, directly or through affiliated
broker dealers, by means of the distribution of Variable Products and to use
their best efforts to solicit applications for Variable Products. AXA
Distributors may not enter into any Sales Agreement with any Participating
Insurance Company that is more favorable than that maintained with any other
Participating Insurance Company and Eligible Separate Account, except that not
all Portfolios of the Trust need be made available for investment by all
Participating Insurance Companies, Eligible Separate Accounts or Variable
Products. The Board of Trustees of the Trust may, in its sole discretion,
determine that certain Portfolios and classes of shares of the Trust shall be
available only to certain types of Variable Products or to a single
Participating Insurance Company and its affiliates.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly and
appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company shall,
when required by law, be both registered as a broker-dealer under the Securities
Exchange Act and a member of the NASD. Each such Participating Insurance Company
shall agree to comply with all laws and regulations, whether federal or state,
and whether relating to insurance, securities or other general areas, including
but not limited to the recordkeeping and sales supervision requirements of such
laws and regulations.
Section 4. The Trust's shares are divided into series or Portfolios,
each representing a different portfolio of investments. Each Portfolio is
further divided into Class A and Class B shares. The Trust's Portfolios and any
restrictions on availability for Class B shares relating thereto are set forth
in Schedule A hereto, which may be amended from time to time.
Purchases and redemptions of the Trust's Class B shares of each
Portfolio shall be at the net asset value therefor, computed as set forth in the
most recent relevant Prospectus and Statement of Additional Information relating
to the Trust's Class B shares contained in its
Registration Statement on Form N-1A, or any amendments thereto (respectively,
"Trust Prospectus" and "SAI"), and any supplements thereto and shall be
submitted by the Participating Insurance Company to the Trust's transfer agent
pursuant to procedures and in accordance with payment provisions adopted by AXA
Distributors and the Trust from time to time. The Trust's Class B shares may
not be sold or transferred, except to an Eligible Separate Account or Qualified
Plan, without the prior approval of the Trust's Board of Trustees.
Section 5. As compensation to AXA Distributors for services rendered
and expenses borne as a distributor hereunder, each Portfolio shall pay AXA
Distributors a monthly fee (payable on or before the fifth (5th) business day of
the following month) at a rate equal to 0.25% per annum of the average daily net
assets of the Portfolio attributable to Class B shares with respect to which AXA
Distributors provides services and/or assumes expenses under the Class B
Distribution Plan. AXA Distributors may, but need not, pay or charge
Participating Insurance Companies pursuant to Sales Agreements, as described in
Section 2 hereof.
Section 6. The Trust represents to AXA Distributors that the Trust
Prospectus and SAI, as of their respective effective dates, contain all
statements and information which are required to be stated therein by the
Securities Act of 1933, as amended ("Securities Act"), and in all respects
conform to the requirements thereof, and neither the Trust Prospectus nor the
SAI include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing representations
shall not apply to information contained in or omitted from the Trust Prospectus
and SAI in reliance upon, and in conformity with, written information furnished
by AXA Distributors specifically for use in the preparation thereof.
In this connection, AXA Distributors acknowledges that the day-to-day
operations of the Trust, including without limitation, investment management,
securities brokerage allocation, cash control, accounting, recordkeeping and
other administrative, marketing and regulatory compliance functions, are carried
on and may in the future be carried on by The Equitable Life Assurance Society
of the United States ("Equitable), affiliates of Equitable, and other parties
unaffiliated with Equitable on behalf of the Trust (collectively, the "Preparing
Parties"), under various agreements and arrangements, and that such activities
in large measure provide the basis upon which statements and information are
included or omitted from the Trust Prospectus and SAI. AXA Distributors further
acknowledges that because of the foregoing arrangements, the preparation of the
Trust Prospectus and SAI is substantially in the control of the Preparing
Parties, subject to the broad supervisory authority and responsibility of the
Trust's Board of Trustees, and that, essentially, the only Trust Prospectus or
SAI information not independently known to, or prepared by, the Preparing
Parties is personal information as to each Trustee's full name, age, background,
business experience and other personal information that may require disclosures
under securities laws and for which the Preparing Parties necessarily must rely
on each such Trustee to produce.
Section 7. The Trust will periodically prepare Prospectuses (and, if
applicable, SAIs) and any supplements thereto, proxy materials and annual and
semi-annual reports (collectively, the "Documents") and shall, in accordance
with the form of Participation Agreement, provide sufficient copies of such
Documents or shall make camera ready copy available to AXA Distributors for
reproduction by AXA Distributors or the Participating Insurance Companies. To
the extent that the foregoing Documents are with respect to Class B shares, the
cost of preparing, printing, mailing and otherwise distributing such Documents
will be at the expense of such Class B shares with respect to prospective owners
of Variable Products. In addition, with respect to Documents provided to
existing owners of Variable Products, the cost of preparing, printing,
mailing or otherwise distributing such Documents shall be borne by the Trust.
The Trust will use its best efforts to provide notice to AXA Distributors of
anticipated filings or supplements. AXA Distributors or the Participating
Insurance Companies may alter the form of some or all of the Documents, with
the prior approval of the Trust's officers and legal counsel. Any preparation
costs associated with altering the form of the Documents will be borne by AXA
Distributors or the Participating Insurance Companies, not the Trust.
Section 8. AXA Distributors and officers of the Trust may, from time to
time, authorize descriptions of the Trust for use in sales literature or
advertising by the Participating Insurance Companies (including brochures,
letters, illustrations and other similar materials, whether transmitted directly
to potential applicants or published in print or audio-visual media), which
authorization will not be unreasonably withheld or delayed.
Section 9. AXA Distributors shall furnish to the Trust, at least
quarterly, reports as to the sales of the Trust's Class B shares made pursuant
to this Agreement. These reports may be combined with any similar report
prepared by AXA Distributors or any of the Preparing Parties.
Section 10. AXA Distributors shall submit to all regulatory and
administrative bodies having jurisdiction over the operations of AXA
Distributors, the Trust, or any Participating Insurance Company, present or
future, any information, reports or other material which any such body by reason
of this Agreement may request or require as authorized by applicable laws or
regulations.
Section 11. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Exchange Act and the Securities Act and
the rules, regulations, and rulings thereunder and of the NASD, from time to
time in effect, including such exemptions and no-action positions as the
Securities and Exchange Commission or its staff may grant, and the terms hereof
shall be interpreted and construed in accordance therewith. Without limiting the
generality of the foregoing, (a) the term "assigned" shall not include any
transaction exempted from section 15(b)(2) of the Investment Company Act and (b)
the vote of the persons having voting rights in respect of the Trust referred to
in Section 12 shall be the affirmative votes of the lesser of (i) the holders of
more than 50% of all votes in respect of Class B shares entitled to be cast in
respect of the Trust or (ii) the holders of at least 67% of the votes in respect
of Class B shares which are present at a meeting of such persons if the holders
of more than 50% of all votes in respect of Class B shares entitled to be cast
in respect of the Trust are present or represented by proxy at such meeting, in
either case voted in accordance with the provisions contained in the form of
Participation Agreement or any policies on conflicts adopted by the Trust's
Board of Trustees.
Section 12. This Agreement shall continue in effect only so long as
such continuance is specifically approved at least annually by a majority of the
Trustees of the Trust who are not interested persons of the Trust or AXA
Distributors and who have no direct or indirect financial interest in the
distribution plan pursuant to which this Agreement has been authorized (or any
agreement thereunder) ("Independent Trustees") and by (a) persons having voting
rights in respect of the Trust, by the vote stated in Section 11, voted in
accordance with the provisions contained in the form of Participation Agreement
or any policies on conflicts adopted by the Board of Trustees of the Trust, or
(b) the Board of Trustees of the Trust. This Agreement may be terminated at any
time, without penalty, by a majority of the Independent Trustees or by persons
having voting rights in respect of the Trust by the vote stated in Section 11.
Section 13. This Agreement shall terminate automatically if it shall be
assigned.
Section 14. The Trust shall indemnify and hold harmless AXA
Distributors from any and all losses, claims, damages or liabilities (or actions
in respect thereof) to which AXA Distributors may be subject, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or result from negligent, improper, fraudulent or unauthorized acts or
omissions by the Trust or its officers, trustees, agents or representatives,
other than acts or omissions caused directly or indirectly by AXA Distributors.
AXA Distributors will indemnify and hold harmless the Trust, its
officers, trustees, agents and representatives against any losses, claims,
damages or liabilities, to which the Trust, its officers, trustees, agents and
representatives may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement of any of any material fact
contained in the Trust Prospectus and/or SAI or any supplements thereto; (ii)
the omission or alleged omission to state any material fact required to be
stated in the Trust Prospectus and/or SAI or any supplements thereto or
necessary to make the statements therein not misleading; or (iii) other
misconduct or negligence of AXA Distributors in its capacity as a principal
underwriter of the Trust's Class B shares and will reimburse the Trust, its
officers, trustees, agents and representatives for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
against such loss, claim, damage, liability or action; provided, however, that
AXA Distributors shall not be liable in any such instance to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Trust Prospectus and/or SAI or any supplement in good faith reliance upon
and in conformity with written information furnished by the Preparing Parties
specifically for use in the preparation of the Trust Prospectus and/or SAI.
Section 15. A copy of the Amended and Restated Agreement and
Declaration of Trust of the Trust is on file with the Secretary of State of
Delaware and notice is given hereby that this Agreement is executed on behalf of
the Trustees of the Trust as trustees and not individually, and that the
obligations of or arising out of this Agreement are not binding upon any of the
Trustees or shareholders individually but are binding only upon the assets and
property of each Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AXA PREMIER VIP TRUST
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
AXA DISTRIBUTORS, LLC
By: /s/ Xxxx XxxXxxxxxxxx
-------------------------------
Name: Xxxx XxxXxxxxxxxx
Title: President
SCHEDULE A
TO
DISTRIBUTION AGREEMENT
OF
AXA PREMIER VIP TRUST
CLASS B SHARES
AXA Premier VIP Large Cap Growth Portfolio
AXA Premier VIP Large Cap Core Equity Portfolio
AXA Premier VIP Large Cap Value Portfolio
AXA Premier VIP Small/Mid Cap Growth Portfolio
AXA Premier VIP Small/Mid Cap Value Portfolio
AXA Premier VIP International Portfolio
AXA Premier VIP Technology Portfolio
AXA Premier VIP Health Care Portfolio
AXA Premier VIP Core Bond Portfolio
