Exhibit (d)(13)(ii)
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED AGREEMENT, dated as of November 22, 2002, by and
between The Equitable Life Assurance Society of the United States, a New York
corporation ("Equitable" or the "Manager"), and Capital Guardian Trust Company,
a California corporation (the "Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an investment
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act");
WHEREAS, the Trust's shareholders are and will be separate accounts
maintained by insurance companies for variable life insurance policies and
variable annuity contracts under which income, gains, and losses, whether or not
realized, from assets allocated to such accounts are, in accordance with such
policies and contracts, credited to or charged against such accounts without
regard to other income, gains, or losses of such insurance companies;
WHEREAS, the Trust is and will continue to be a series fund having two
or more investment portfolios, each with its own investment objectives, policies
and restrictions;
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act") and is the
investment manager to the Trust;
WHEREAS, the Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Investment Company Act prohibits any person from acting as
an investment adviser to a registered investment company except pursuant to a
written contract (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and Equitable desire to
retain the Adviser to render investment advisory services to the portfolios, or
a discrete portion of a multi-advised portfolio ("Allocated Portion"), as
specified from time to time in Appendix A hereto (each a "Portfolio" and
collectively, the "Portfolios" or "Allocated Portion") in the manner and on the
terms hereinafter set forth (each reference to a Portfolio shall be deemed to be
a reference to each Portfolio).
NOW, THEREFORE, the Manager and the Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser
for the Portfolio and Allocated Portion of the Portfolio, subject to the
supervision and control of the Manager and the Trustees of the Trust, and in
accordance with the terms and conditions of this Agreement. The Adviser will be
an independent contractor and will have no authority to act for or represent the
Trust or the Manager in any way or otherwise be deemed an agent of the Trust or
the Manager except as expressly authorized in this Agreement or another writing
by the Trust, the Manager and the Adviser.
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. As investment adviser to each Portfolio or Allocated Portion, the
Adviser will manage the investment and reinvestment of the assets of the
Portfolios or Allocated Portion and determine the composition of the assets of
the Portfolio or Allocated Portion, subject always to the supervision and
control of the Manager and the Trustees of the Trust.
B. As part of the services it will provide hereunder, the Adviser will:
(i) obtain and evaluate pertinent economic, statistical,
financial, and other information affecting the economy generally and
individual companies or industries, the securities of which are
included in the Portfolios and Allocated Portion or are under
consideration for inclusion in the Portfolio and Allocated Portion;
(ii) formulate and implement a continuous investment program
for the Portfolios and Allocated Portion;
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio and Allocated Portion by the
purchase and sale of securities and other investments, including the
placing of orders for such purchases and sales;
(iv) keep the Trustees of the Trust and the Manager fully
informed on an ongoing basis of all facts concerning the investment and
reinvestment of the assets in the Portfolios and Allocated Portion, the
Adviser and its personnel and operations which the Adviser determines
in its reasonable judgment to be material, make regular and special
written reports of such additional information concerning the
Portfolios and Allocated Portion as may reasonably be requested from
time to time by the Manager or the Trustees of the Trust and attend
meetings with the Manager and/or the Trustees, as reasonably requested,
to discuss the foregoing;
(v) provide pricing information to the Trust to assist the
Trust in making determinations of the fair value of certain portfolio
securities when market quotations are not readily available for the
purpose of calculating the Portfolios' and Allocated Portion net asset
value in accordance with procedures and methods established by the
Trustees of the Trust;
(vi) provide (1) the Adviser's composite results for the
accounts managed by the Adviser with an investment objective, policies
and strategies substantially similar to those employed by the Adviser
in managing the Portfolios and Allocated Portion, and (2) if requested
by the Manager, any and all information, records and supporting
documentation regarding the methodology, calculation and maintenance of
such composites and any component account therein, which may be
reasonably necessary, under applicable laws, to allow the Portfolios
and Allocated Portion or their agent to present information concerning
the Adviser's prior performance in the Trust Prospectus and SAI (as
hereinafter defined) and, with the prior review and consent of the
Adviser which shall not be unreasonably withheld, in any permissible
reports and sales materials by the Portfolio. Allocated Portion or its
agent. It is understood that in using the above information provided by
the Adviser, the Manager shall be fully responsible to meet applicable
disclosure requirements for the Trust Prospectus, SAI and permissible
reports and sales materials; and
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(vii) cooperate with and provide reasonable assistance to the
Manager, the Trust administrator, the Trust's custodian and foreign
custodians, the Trust's transfer agent and pricing agents and all other
agents and representatives of the Trust and the Manager, provide such
information with respect to the Portfolios and Allocated Portion as
they may reasonably request from time to time in the performance of
their obligations to the Trust and the Manager, provide prompt
responses to reasonable requests made by such persons and establish
appropriate interfaces with each so as to promote the efficient
exchange of information.
C. In furnishing services hereunder, the Adviser shall be subject to,
and shall perform in accordance with, but only to the extent the same reasonably
relates to the Portfolios and are consistent with the scope of the Adviser's
obligations as reasonably contemplated in the other provisions of this
Agreement, (1) the Trust's Agreement and Declaration of Trust, as the same may
be hereafter modified and/or amended from time to time (the "Trust
Declaration"), (2) the By-Laws of the Trust, as the same may be hereafter
modified and/or amended from time to time (the "By-Laws"), (3) the currently
effective Prospectus and Statement of Additional Information of the Trust filed
with the Securities and Exchange Commission ("SEC"), as the same may be
hereafter modified, amended and/or supplemented (the "Prospectus and SAI"), (4)
the Investment Company Act, with the requirements applicable to both regulated
investment companies and segregated asset accounts under Subchapters M and L of
the Internal Revenue Code of 1986, as amended, (5) all other applicable state
and federal securities and other laws, (6) all regulations with respect to the
foregoing, (7) the Trust's Compliance Manual and other policies and procedures
adopted from time to time by the Board of Trustees of the Trust and (8) the
written instructions of the Manager.
D. The Adviser, at its expense, will furnish: (i) all necessary
investment and management facilities and investment personnel, including
salaries, expenses and fees of any personnel required for it to faithfully
perform its duties under this Agreement; and (ii) administrative facilities,
including bookkeeping, clerical personnel and equipment necessary for the
efficient conduct of the Adviser's duties under this Agreement.
E. The Adviser will select brokers and dealers to effect all portfolio
transactions subject to the conditions set forth herein. The Adviser will place
all necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions if applicable. The Adviser is directed at all times to
seek to execute brokerage transactions for the Portfolios and Allocated Portion
in accordance with such policies or practices as may be established by the Board
of Trustees and described in the Trust's Prospectus, subject to the Adviser
seeking to obtain best execution. In placing orders for the purchase or sale of
investments for the Portfolios and Allocated Portion, in the name of the
Portfolios, Allocated Portion or its nominees, the Adviser shall use its best
efforts to obtain for the Portfolios and Allocated Portion the most favorable
price and best execution available, considering all of the circumstances, and
shall maintain records adequate to demonstrate compliance with this requirement.
F. Subject to the appropriate policies and procedures approved by the
Board of Trustees, the Adviser may, to the extent authorized by Section 28(e) of
the Securities Exchange Act of 1934, cause a Portfolio or Allocated Portion to
pay a broker or dealer that provides brokerage or research services to the
Manager, the Adviser, and each Portfolio and Allocated Portion an amount of
commission for effecting a portfolio transaction in excess of the amount of
commission another broker or dealer would have charged for effecting that
transaction if the
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Adviser determines, in good faith, that such amount of commission is reasonable
in relationship to the value of such brokerage or research services provided
viewed in terms of that particular transaction or the Adviser's overall
responsibilities to the Portfolios, or Allocated Portion or its other advisory
clients. To the extent authorized by said Section 28(e) and the Trust's Board of
Trustees, the Adviser shall not be deemed to have acted unlawfully or to have
breached any duty created by this Agreement or otherwise solely by reason of
such action. In addition, subject to seeking the most favorable price and best
execution available, the Adviser may also consider sales of shares of the Trust
as a factor in the selection of brokers and dealers.
G. On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of each Portfolio and Allocated Portion as
well as other clients of the Adviser, the Adviser to the extent permitted by
applicable laws and regulations, may, but shall be under no obligation to,
aggregate the securities to be purchased or sold to attempt to obtain a more
favorable price or lower brokerage commissions and efficient execution. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Adviser in the manner
the Adviser considers to be the most equitable and consistent with its fiduciary
obligations to each Portfolio and Allocated Portion and to its other clients.
H. The Adviser (a) will maintain all accounts, books and records with
respect to each Portfolio and Allocated Portion as are required of an investment
adviser of a registered investment company pursuant to the Investment Company
Act and the rules thereunder, (b) will maintain all accounts, books and records
required to be maintained in accordance with Section 206 of the Advisers Act,
and (c) shall file with the SEC all forms pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, with respect to the discretionary
management of the assets of the Portfolios and Allocated Portion.
I. The Adviser will, unless and until otherwise directed by the Manager
or the Board of Trustees, vote proxies with respect to each Portfolio's and the
Allocated Portion's securities and exercise rights in corporate actions or
otherwise in accordance with the Adviser's proxy voting guidelines, as amended
from time to time, which shall be provided to the Trust and the Manager.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser an advisory fee with respect to each
Portfolio and Allocated Portion on a quarterly basis in arrears at the annual
rate specified in Appendix A to this Agreement. The advisory fee due and payable
hereunder on account of any day shall be calculated by multiplying the net asset
value of the Portfolio and Allocated Portion at the close of the immediately
preceding business day (as defined in the Prospectus and SAI) by the annual rate
specified in Appendix A and dividing the result by the number of days in the
year. The advisory fee due and payable hereunder on account of the days in any
calendar quarter shall be due and payable within ten (10) business days
following the end of such calendar quarter.
4. LIABILITY AND INDEMNIFICATION
(a) Except as may otherwise be provided by the Investment Company Act
or any other federal securities law, the Adviser shall not be liable for any
losses, claims, damages,
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liabilities or litigation (including legal and other expenses) incurred or
suffered by the Manager or the Trust as a result of any error of judgment or
mistake of law by the Adviser with respect to a Portfolio or Allocated Portion,
except that nothing in this Agreement shall operate or purport to operate in any
way to exculpate, waive or limit the liability of the Adviser for, and the
Adviser shall indemnify and hold harmless the Trust, the Manager, all affiliated
persons thereof (within the meaning of Section 2(a)(3) of the Investment Company
Act) and all controlling persons (as described in Section 15 of the Securities
Act of 1933) (collectively, the "Manager Indemnitees") against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses) to which any of the Manager Indemnities may become subject
under the Securities Act of 1933, the Investment Company Act, the Advisers Act,
or under any other statute, at common law or otherwise arising out of or based
on (a) any willful misconduct, bad faith, reckless disregard or gross negligence
of the Adviser in the performance of any of its duties or obligations hereunder
or (b) any untrue statement of a material fact contained in the Prospectus and
SAI, proxy materials, reports, advertisements, sales literature, or other
materials pertaining to the Portfolio or the omission to state therein a
material fact known to the Adviser which was required to be stated therein or
necessary to make the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished in writing to the
Manager or the Trust by an Adviser Indemnitee (as defined below) for use
therein; and
(b) Except as may otherwise be provided by the Investment Company Act
or any other federal securities law, the Manager and the Trust shall not be
liable for any losses, claims, damages, liabilities or litigation (including
legal and other expenses) incurred or suffered by the Adviser as a result of any
error of judgment or mistake of law by the Manager with respect to a Portfolio
and Allocated Portion, except that nothing in this Agreement shall operate or
purport to operate in any way to exculpate, waive or limit the liability of the
Manager for, and the Manager shall indemnify and hold harmless the Adviser, all
affiliated persons thereof (within the meaning of Section 2(a)(3) of the
Investment Company Act) and all controlling persons (as described in Section 15
of the Securities Act of 1933) (collectively, the "Adviser Indemnitees") against
any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses) to which any of the Adviser Indemnities may
become subject under the Securities Act of 1933, the Investment Company Act, the
Advisers Act, or under any other statute, at common law or otherwise arising out
of or based on (a) any willful misconduct, bad faith, reckless disregard or
gross negligence of the Manager in the performance of any of its duties or
obligations hereunder or (b) any untrue statement of a material fact contained
in the Prospectus and SAI, proxy materials, reports, advertisements, sales
literature, or other materials pertaining to the Portfolio or the omission to
state therein a material fact known to the Manager which was required to be
stated therein or necessary to make the statements therein not misleading,
unless such statement or omission was made in reliance upon information
furnished in writing to the Manager or the Trust by an Adviser Indemnitee for
use therein.
5. NON-EXCLUSIVITY
The services of the Adviser to each Portfolio, Allocated Portion and
the Trust are not to be deemed to be exclusive, and the Adviser shall be free to
render investment advisory or other services to others (including other
investment companies) and to engage in other activities. It is understood and
agreed that the directors, officers, and employees of the Adviser are not
prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers, directors,
trustees, or employees of any other firm or corporation, including other
investment companies.
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6. SUPPLEMENTAL ARRANGEMENTS
The Adviser may from time to time employ or associate with itself any
person it believes to be particularly fitted to assist it in providing the
services to be performed by the Adviser hereunder, provided that no such person
shall perform any services with respect to the Portfolio which would constitute
an assignment or require a written advisory agreement pursuant to the Investment
Company Act. Any compensation payable to such persons such be the sole
responsibility of the Advisor, and neither the Manager nor the Trust shall have
any obligations with respect thereto.
7. REGULATION
The Adviser shall submit to all regulatory and administrative bodies
having jurisdiction over the services provided pursuant to this Agreement any
information, reports, or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations.
8. RECORDS
The records relating to the services provided under this Agreement
shall be the property of the Trust and shall be under its control; however, the
Trust shall furnish to the Adviser such records and permit it to retain such
records (either in original or in duplicate form) as it shall reasonably require
in order to carry out its duties. In the event of the termination of this
Agreement, such records shall promptly be returned to the Trust by the Adviser,
upon request, free from any claim or retention of rights therein. The Adviser
shall keep confidential any information obtained in connection with its duties
hereunder and disclose such information only if the Trust has authorized such
disclosure or if such disclosure is expressly required or requested by
applicable federal or state regulatory authorities.
9. DURATION OF AGREEMENT
This Agreement shall become effective with respect to the Portfolios
and Allocated Portion on the date of its execution. This Agreement will continue
in effect for a period more than one year from the date of its execution only so
long as such continuance is specifically approved at least annually by the Board
of Trustees provided that in such event such continuance shall also be approved
by the vote of a majority of the Trustees who are not "interested persons" (as
defined in the Investment Company Act) ("Independent Trustees") of any party to
this Agreement cast in person at a meeting called for the purpose of voting on
such approval.
10. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of
any penalty, by the Board of Trustees, including a majority of the Independent
Trustees, by the vote of a majority of the outstanding voting securities of a
Portfolio, on sixty (60) day's written notice to the Manager and the Adviser, or
by the Manager or Adviser on sixty (60) day's written notice to the Trust and
the other party. This Agreement will automatically terminate, effective upon
notice to the Adviser, without the payment of any penalty, in the event of its
assignment (as defined in the Investment Company Act) or in the event the
Investment Management Agreement between the
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Manager and the Trust is assigned or terminates for any other reason. This
Agreement will also terminate upon written notice to the other party that the
other party is in material breach of this Agreement, unless the other party in
material breach of this Agreement cures such breach to the reasonable
satisfaction of the party alleging the breach within thirty (30) days after
written notice.
11. PROVISION OF CERTAIN INFORMATION BY ADVISER
The Adviser will promptly notify the Manager in writing of the
occurrence of any of the following events:
A. the Adviser fails to be registered as an investment adviser under
the Advisers Act or under the laws of any jurisdiction in which the Adviser is
required to be registered as an investment adviser in order to perform its
obligations under the Agreement;
B. the Adviser is served or otherwise receives notice of any action,
suit, proceeding, inquiry, or investigation, at law or in equity, before or by
any court, public board, or body, involving the affairs of the Trust (excluding
class action suits in which the Trust is a member of the plaintiff class by
reason of the Portfolio's ownership of shares in the defendant); and/or
C. the chief executive officer or controlling stockholder of the
Adviser or the portfolio managers of the Portfolio changes or there is otherwise
an actual change in control or a material change in management of the Adviser.
12. USE OF ADVISER'S NAME
The parties agree that the name "Capital Guardian Trust Company", the
names of the Adviser's affiliates within The Capital Group Companies, Inc., and
any derivative or logo or trademark or service xxxx or trade name (including,
but not limited to, the American Funds Group of mutual funds) are the valuable
property of the Adviser and its affiliates. The Manager and the Trust shall have
the right to use such name(s), derivatives, logos, trademarks or service marks
or trade names only with the prior written approval of the Adviser, which
approval shall not be unreasonably withheld or delayed so long as this Agreement
is in effect. The Adviser hereby consents to the names "EQ/Capital Guardian
Research Portfolio", "EQ/Capital Guardian U.S. Equity Portfolio" and "EQ/Capital
Guardian International Portfolio" as, respectively, the designated name of each
Portfolio.
Upon termination of this Agreement, the Manager and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. The Manager and the Trust agree that they will review with
the Adviser any advertisement, sales literature, or notice prior to its use that
makes reference to the Adviser or its affiliates or any such name(s),
derivatives, logos, trademarks, service marks or trade names so that the Adviser
may review the context in which it is referred to, it being agreed that the
Adviser shall have no responsibility to ensure the adequacy of the form or
content of such materials for purposes of the 1940 Act or other applicable laws
and regulations. If the Manager or the Trust makes any unauthorized use of the
Adviser's name(s), derivatives, logos, trademarks or service marks or trade
names, the parties acknowledge that the Adviser shall suffer irreparable harm
for which monetary damages are inadequate and thus, the Adviser shall be
entitled to injunctive relief.
13. REPRESENTATIONS
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(a) The Manager hereby warrants and represents to the Adviser that (a)
it has obtained all applicable licenses, permits, registrations and approvals
that may be required in order to serve in its designated capacities with respect
to the Portfolio, and shall continue to keep current such licenses, permits,
registrations and approvals for so long as this Agreement is in effect; (b) it
is not prohibited by the 1940 Act or other applicable laws and regulations from
performing the services contemplated by this Agreement; (c) it will immediately
notify the Adviser of the occurrence of any event that would disqualify it from
serving in its designated capacities with respect to the Portfolio; and (d) this
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Manager and is a valid and binding agreement of the Manager enforceable
in accordance with its terms;
(b) The Adviser hereby warrants and represents to the Manager that (a)
it is registered as an investment adviser under the Advisers Act; (b) it has
obtained all applicable licenses, permits, registrations and approvals that may
be required in order to serve in its designated capacities with respect to the
Portfolio, and shall continue to keep current such licenses, permits,
registrations and approvals for so long as this Agreement is in effect; (c) it
is not prohibited by the 1940 Act or other applicable laws and regulations from
performing the services contemplated by this Agreement; (d) it will immediately
notify the Manager of the occurrence of any event that would disqualify it from
serving in its designated capacities with respect to the Portfolio; and (e) this
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Adviser and is a valid and binding agreement of the Adviser enforceable
in accordance with its terms;
(c) The Adviser hereby warrants and represents that it has adopted a
written code of ethics complying with the requirements of Rule 17j-1 under the
Investment Company Act and will provide the Manager and the Board with a copy of
such code of ethics. Within forty-five days of the end of the last calendar
quarter of each year that this Agreement is in effect, and as otherwise
requested, the president, chief operating officer or a vice-president of the
Adviser shall certify to the Manager that the Adviser's code of ethics has
complied with the requirements of Rule 17j-1 during the previous year and that
there has been no material violation of the Adviser's code of ethics or, if such
a material violation has occurred, that appropriate action was taken in response
to such violation. In the event a material violation of the Adviser's code of
ethics has occurred, upon request, the Adviser shall provide the Manager with
appropriate documentation as to the nature of the violation and steps taken to
remedy such breach.
(d) The Adviser hereby warrants and represents that it has provided the
Trust and the Manager with a copy of its Form ADV Part II, which as of the date
of this Agreement is its Form ADV Part II as most recently filed with the SEC
and promptly will furnish a copy of all amendments to the Adviser's Form ADV
Part II to the Trust and the Manager at least annually. Such amendments shall
reflect all changes in the Adviser's organizational structure, professional
staff or other significant developments affecting the Adviser, as required by
the Advisers Act;
(e) The Adviser agrees that it will notify the Trust and the Manager of
any assignment (within the meaning of the Investment Company Act) of this
Agreement or change of control (within the meaning of the Investment Company
Act) of the Adviser, as applicable, in each case prior to or promptly after,
such change. In the event of any such assignment or change of control, the
parties agree that the Adviser will bear reasonable expenses of the Trust, if
any, arising out of such assignment or change of control as is mutually
agreeable between the parties;
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(f) The Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage; and
(g) The Adviser agrees that neither it, nor any of its affiliates, will
knowingly in any way refer directly or indirectly to its relationship with the
Trust, the Portfolios or the Allocated Portion, the Manager or any of their
respective affiliates in offering, marketing or other promotional materials
without the express written consent of the Manager, except as required by rule,
regulation or upon the request of a governmental authority. However, the Adviser
may use the performance of the Portfolios or the Allocated Portion in its
composite performance.
14. AMENDMENTS TO THE AGREEMENT
Any amendments to this Agreement must be in writing and signed by both
the Manager and the Adviser. Further, except to the extent permitted by the
Investment Company Act or the rules or regulations thereunder or pursuant to any
exemptive relief granted by the SEC, this Agreement may be amended by the
parties only if such amendment, if material, is specifically approved by the
vote of a majority of the outstanding voting securities of the Portfolio (unless
such approval is not required by Section 15 of the Investment Company Act as
interpreted by the SEC or its staff) and by the vote of a majority of the
Independent Trustees cast in person at a meeting called for the purpose of
voting on such approval. The required shareholder approval shall be effective
with respect to the Portfolio if a majority of the outstanding voting securities
of the Portfolio vote to approve the amendment, notwithstanding that the
amendment may not have been approved by a majority of the outstanding voting
securities of any other Portfolio affected by the amendment or all the
portfolios of the Trust.
15. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolios and Allocated Portion listed in Appendix
A.
16. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
17. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the last known business address of each applicable party
in person or by registered mail or a private mail or delivery service providing
the sender with notice of receipt. The specific person to whom notice shall be
provided for each party will be specified in writing to the other party. Notice
shall be deemed given on the date delivered or mailed in accordance with this
paragraph.
18. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void
in law or in equity, the Agreement shall be construed, insofar as is possible,
as if such portion had never been contained herein.
19. GOVERNING LAW
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The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of Delaware, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
20. INTERPETATION
Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the Investment Company Act shall be resolved by reference to such term or
provision of the Investment Company Act and to interpretations thereof, if any,
by the United States courts or, in the absence of any controlling decision of
any such court, by rules, regulations or orders of the SEC validly issued
pursuant to the Investment Company Act. Specifically, the terms "vote of a
majority of the outstanding voting securities," "interested persons,"
"assignment," and "affiliated persons," as used herein shall have the meanings
assigned to them by Section 2(a) of the Investment Company Act. In addition,
where the effect of a requirement of the Investment Company Act reflected in any
provision of this Agreement is relaxed by a rule, regulation or order of the
SEC, whether of special or of general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
THE EQUITABLE LIFE ASSURANCE OF CAPITAL GUARDIAN TRUST COMPANY
THE UNITED STATES
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------------- ------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: Executive Vice President Title: Vice President
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APPENDIX A
INVESTMENT ADVISORY AGREEMENT
Portfolio Annual Advisory Fee
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EQ/Capital Guardian Research Portfolio 0.50% of the Portfolio's daily net assets up to and including $150
million; 0.45% of the Portfolio's daily net assets over $150
million and up to and including $300 million; 0.35% of the
Portfolio's daily net assets over $300 million and up to and
including $500 million; and 0.30% of the Portfolio's daily net
assets in excess of $500 million and up to and including $1
billion; 0.275% of the Portfolio's average daily net assets in
excess of $1 billion and up to and including $2 billion and 0.25%
of the Portfolio's daily net asset in excess of $2 billion.
EQ/Capital Guardian U.S. Equity Portfolio 0.50% of the Portfolio's daily net assets up to and including $150
million; 0.45% of the Portfolio's daily net assets over $150
million and up to and including $300 million; 0.35% of the
Portfolio's daily net assets over $300 million and up to and
including $500 million; and 0.30% of the Portfolio's daily net
assets in excess of $500 million and up to and including $1
billion; 0.275% of the Portfolio's average daily net assets in
excess of $1 billion and up to and including $2 billion and 0.25%
of the Portfolio's daily net asset in excess of $2 billion.
EQ/Capital Guardian International Portfolio 0.65% of the Portfolio's daily net assets up to and including $150
million; 0.55% of the Portfolio's daily net assets over $150
million and up to and including $300 million; 0.45% of the
Portfolio's daily net assets over $300 million and up to and
including $500 million; and 0.40% of the Portfolio's daily net
assets in excess of $500 million.
EQ/ Balanced Portfolio* 0.30% of the Capital Guardian Allocated Portion's average daily
(Capital Guardian Allocated Portion) net assets.
* Fee to be paid with respect to this Portfolio shall be based only on the
portion of the Portfolio's average daily net assets advised by the Adviser,
which may be referred to as the "Capital Allocated Portion".
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