Exhibit (e)(5)(ii)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
CLASS IA SHARES
AXA DISTRIBUTORS, LLC
AMENDED AND RESTATED AGREEMENT, dated as of July 15, 2002, by and between
EQ Advisors Trust (the "Trust") and AXA Distributors, LLC ("AXA Distributors").
W I T N E S S E T H:
WHEREAS, the Trust is a Delaware business trust whose shareholders are and
will be separate accounts in unit investment trust form ("Eligible Separate
Accounts") of insurance companies ("Participating Insurance Companies"); and
WHEREAS, such Participating Insurance Companies issue, among other
products, variable insurance and annuity products ("Variable Products") whose
net premiums, contributions or other considerations may be allocated to Eligible
Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's Class IA shares will not be sold except in connection
with such Variable Products or directly to tax-qualified pension and retirement
plans ("Qualified Plans") outside the separate account context; and
WHEREAS, the Trust desires that AXA Distributors undertake marketing
activities with respect to the Class IA shares of the Trust's constituent series
or investment portfolios ("Portfolios"); and
WHEREAS, the Trust is registered as an open-end investment company under
the Investment Company Act of 1940 ("Investment Company Act"); and
WHEREAS, the Investment Company Act prohibits any principal underwriter for
a registered open-end management investment company from offering for sale,
selling, or delivering after sale any security of which such company is the
issuer, except pursuant to a written contract with such investment company, and
AXA Distributors will be a distributor for sale of the Class IA shares issued by
the Trust; and
WHEREAS, AXA Distributors is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, ("Securities Exchange Act") and is
a member of the National Association of Securities Dealers, Inc. ("NASD").
NOW THEREFORE, the Trust and AXA Distributors agree as follows:
Section 1. The Trust has adopted a form of Participation Agreement, which
was approved by the Board of Trustees of the Trust. This Amended and Restated
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superseded, without prior notice, and this Amended and Restated Agreement shall
be deemed amended to the extent the form of Participation Agreement is amended
or superseded. AXA Distributors represents and warrants that it will act in a
manner consistent with such form of Participation Agreement as it is currently
set forth and as it may be amended or superseded, so long as AXA Distributors
serves as the principal underwriter of the Class IA shares and Class IB shares
of the Trust (collectively, "Shares").
Section 2. AXA Distributors is hereby authorized, from time to time, to
enter into separate written agreements ("Sales Agreements" or, individually, a
"Sales Agreement"), on terms and conditions not inconsistent with this Amended
and Restated Agreement, with Participating Insurance Companies which have
Eligible Separate Accounts and which agree to participate in the distribution of
the Trust's Class IA shares, directly or through affiliated broker dealers by
means of distribution of Variable Products and to use their best efforts to
solicit applications for Variable Products. AXA Distributors may not enter into
any Sales Agreement with any Participating Insurance Company that is more
favorable than that maintained with any other Participating Insurance Company
and Eligible Separate Account, except that not all Portfolios of the Trust need
be made available for investment by all Participating Insurance Companies,
Eligible Separate Accounts or Variable Products. The Board of Trustees of the
Trust may, in its sole discretion, determine that certain Portfolios and classes
of shares of the Trust shall be available only to certain types of Variable
Products or to a single Participating Insurance Company and its affiliates.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly and
appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company shall,
when required by law, be both registered as a broker-dealer under the Securities
Exchange Act and a member of the NASD. Each such Participating Insurance Company
shall agree to comply with all laws and regulations, whether federal or state,
and whether relating to insurance, securities or other general areas, including
but not limited to the recordkeeping and sales supervision requirements of such
laws and regulations.
Section 4. The Trust's shares are divided into series or Portfolios, each
representing a different portfolio of investments. Each Portfolio is further
divided into Class IA and Class IB shares. The Trust's Portfolios and any
restrictions on availability for Class IA shares relating thereto are set forth
in Schedule A hereto, which may be amended from time to time.
Purchases and redemptions of the Trust's Class IA shares of each Portfolio
shall be at the net asset value therefor, computed as set forth in the most
recent relevant Prospectus and Statement of Additional Information relating to
the Trust's Class IA 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 IA shares may not be sold or transferred,
except to an Eligible Separate Account or Qualified Plan, without the prior
approval of the Trust's Board of Trustees.
Section 5. The Trust shall not pay any compensation to AXA Distributors for
services as a distributor hereunder, nor shall the Trust reimburse AXA
Distributors for any expenses related to such services. AXA Distributors may,
but need not, pay or charge Participating Insurance Companies pursuant to Sales
Agreements, as described in Section 2 hereof.
Section 6. The Trust represents to AXA Distributors that the Trust
Prospectus and SAI, as of their respective effective dates, contain all
statements and information which are required to be stated therein by the
Securities Act of 1933, as amended ("Securities Act"), and in all respects
conform to the requirements thereof, and neither the Trust Prospectus nor the
SAI include any untrue statement of a material fact or omit to state any
material fact required to be stated therein
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or necessary to make the statements therein not misleading; provided, however,
that the foregoing representations shall not apply to information contained in
or omitted from the Trust Prospectus and SAI in reliance upon, and in conformity
with, written information furnished by AXA Distributors specifically for use in
the preparation thereof.
In this connection, AXA Distributors acknowledges that the day-to-day
operations of the Trust, including without limitation, investment management,
securities brokerage allocation, cash control, accounting, recordkeeping and
other administrative, marketing and regulatory compliance functions, are carried
on and may in the future be carried on by The Equitable Life Assurance Society
of the United States ("Equitable"), affiliates of Equitable, and other parties
unaffiliated with Equitable on behalf of the Trust (collectively, the "Preparing
Parties"), under various agreements and arrangements, and that such activities
in large measure provide the basis upon which statements and information are
included or omitted from the Trust Prospectus and SAI. AXA Distributors further
acknowledges that because of the foregoing arrangements, the preparation of the
Trust Prospectus and SAI is substantially in the control of the Preparing
Parties, subject to the broad supervisory authority and responsibility of the
Trust's Board of Trustees, and that, essentially, the only Trust Prospectus or
SAI information not independently known to, or prepared by, the Preparing
Parties is personal information as to each Trustee's full name, age, background,
business experience and other personal information that may require disclosures
under securities laws and for which the Preparing Parties necessarily must rely
on each such Trustee to produce.
Section 7. The Trust will periodically prepare Prospectuses (and, if
applicable, SAI's) and any supplements thereto, proxy materials and annual and
semi-annual reports (collectively, the "Documents") and shall, in accordance
with the form of Participation Agreement, provide sufficient copies of such
Documents or shall make camera ready copy available to AXA Distributors for
reproduction by AXA Distributors or the Participating Insurance Companies. With
respect to Documents provided to existing owners of Variable Products, the cost
of preparing, printing, mailing or otherwise distributing such Documents shall
be borne by the Trust. With respect to the Trust's Class IA shares, the Trust
shall not pay the cost of printing, mailing or otherwise distributing such
Documents except as specified in this Section 7. The Trust will use its best
efforts to provide notice to AXA Distributors of anticipated filings or
supplements. AXA Distributors or the Participating Insurance Companies may alter
the form of some or all of the Documents, with the prior approval of the Trust's
officers and legal counsel. Any preparation costs associated with altering the
form of the Documents will be borne by AXA Distributors or the Participating
Insurance Companies, not the Trust.
Section 8. AXA Distributors and officers of the Trust may, from time to
time, authorize descriptions of the Trust for use in sales literature or
advertising by the Participating Insurance Companies (including brochures,
letters, illustrations and other similar materials, whether transmitted directly
to potential applicants or published in print or audio-visual media), which
authorization will not be unreasonably withheld or delayed.
Section 9. AXA Distributors shall furnish to the Trust, at least quarterly,
reports as to the sales of Trust's Class IA shares made pursuant to this Amended
and Restated 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
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body by reason of this Amended and Restated Agreement may request or require as
authorized by applicable laws or regulations.
Section 11. This Amended and Restated Agreement shall be subject to the
provisions of the Investment Company Act, the Securities Exchange Act and the
Securities Act and the rules, regulations, and rulings thereunder and of the
NASD, from time to time in effect, including such exemptions and no-action
positions as the Securities and Exchange Commission or its staff may grant, and
the terms hereof shall be interpreted and construed in accordance therewith.
Without limiting the generality of the foregoing, (a) the term "assigned" shall
not include any transaction exempted from section 15(b)(2) of the Investment
Company Act and (b) the vote of the persons having voting rights in respect of
the Trust referred to in Section 12 shall be the affirmative votes of the lesser
of (i) the holders of more than 50% of all votes in respect of Class IA shares
entitled to be cast in respect of the Trust or (ii) the holders of at least 67%
of the votes in respect of Class IA shares which are present at a meeting of
such persons if the holders of more than 50% of all votes in respect of Class IA
shares entitled to be cast in respect of the Trust are present or represented by
proxy at such meeting, in either case voted in accordance with the provisions
contained in the form of Participation Agreement or any policies on conflicts
adopted by the Trust's Board of Trustees.
Section 12. This Amended and Restated Agreement shall continue in effect
only so long as such continuance is specifically approved at least annually by a
majority of the Trustees of the Trust who are not interested persons of the
Trust or AXA Distributors ("Independent Trustees") and by (a) persons having
voting rights in respect of the Trust, by the vote stated in Section 11, voted
in accordance with the provisions contained in the form of Participation
Agreement or any policies on conflicts adopted by the Board of Trustees of the
Trust, or (b) the Board of Trustees of the Trust. This Amended and Restated
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 Amended and Restated 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 material fact contained
in the Trust Prospectus and/or SAI or any supplements thereto; (ii) the omission
or alleged omission to state any material fact required to be stated in the
Trust Prospectus and/or SAI or any supplements thereto or necessary to make the
statements therein not misleading; or (iii) other misconduct or negligence of
AXA Distributors in its capacity as a principal underwriter of the Trust's Class
IA shares and will reimburse the Trust, its officers, Trustees, agents and
representatives for any legal or other expenses reasonably incurred by any of
them in connection with investigating or defending against such loss, claim,
damage, liability or action; provided, however, that AXA Distributors
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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 Amended and Restated 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 Amended and Restated 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 Amended and
Restated Agreement to be duly executed as of the day and year first above
written.
EQ ADVISORS TRUST
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Trustee
AXA DISTRIBUTORS, LLC
By: /s/ Xxxx XxxXxxxxxxxx
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Xxxx XxxXxxxxxxxx
Executive Vice President
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SCHEDULE A
EQ Advisors Trust Portfolios
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EQ/Alliance Common Stock Portfolio EQ/Evergreen Omega Portfolio
(fka EQ/Evergreen Portfolio)
EQ/Aggressive Stock Portfolio
(fka Alliance Aggressive Stock Portfolio) EQ/FI Mid Cap Portfolio
EQ/Alliance Global Portfolio EQ/FI Small/Mid Cap Value Portfolio
(fka Warburg Pincus Small Company Value Portfolio)
EQ/Alliance Growth and Income Portfolio
EQ/International Equity Index Portfolio
EQ/Alliance Growth Investors Portfolio (fka BT International Equity Index Portfolio)
EQ/ High Yield Portfolio EQ/Janus Large Cap Growth Portfolio
(fka EQ/Alliance High Yield Portfolio)
EQ/X.X. Xxxxxx Core Bond Portfolio
EQ/Alliance International Portfolio (fka JPM Core Bond Portfolio)
EQ/Alliance Intermediate Government Securities EQ/Lazard Small Cap Value Portfolio
EQ/Alliance Money Market Portfolio EQ/Xxxxxxx Focus Portfolio
EQ/Alliance Quality Bond Portfolio EQ/Mercury Basic Value Equity Portfolio
(fka Xxxxxxx Xxxxx Basic Value Equity Portfolio)
EQ/Alliance Small Cap Growth Portfolio
EQ/MFS Emerging Growth Companies Portfolio
EQ/Alliance Premier Growth Portfolio
EQ/MFS Investors Trust Portfolio
EQ/Alliance Technology Portfolio
EQ/MFS Research Portfolio
EQ/Xxxxxxxx Diversified Value Portfolio
EQ/Emerging Markets Equity Portfolio
EQ/Balanced Portfolio
(fka Alliance Balanced Portfolio) EQ/Xxxxxx Growth & Income Value Portfolio
EQ/Xxxxxxx Socially Responsible Portfolio EQ/Xxxxxx International Equity Portfolio
EQ/Capital Guardian International Equity Portfolio EQ/Xxxxxx Voyager Portfolio
(fka EQ/Xxxxxx Investors Growth Portfolio)
EQ/Capital Guardian Research Portfolio EQ/Small Company Index Portfolio
(fka BT Small Company Index Portfolio)
EQ/Capital Guardian U.S. Equity Portfolio
EQ/Equity 500 Index Portfolio
(fka Alliance Equity Index Portfolio)
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