INVESTMENT MANAGEMENT AGREEMENT
INVESTMENT MANAGEMENT AGREEMENT ("AGREEMENT"), dated as of November 30,
2001, between the AXA Premier VIP Trust, a Delaware business trust ("Trust"),
and The Equitable Life Assurance Society of the United States, a New York Stock
life insurance company ("Equitable" or "Manager").
WHEREAS, the Trust is registered as an investment company under the
Investment Company Act of 1940, as amended ("Investment Company Act");
WHEREAS, Equitable is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Trust is and will continue to be a series fund having one
or more investment portfolios, each with its own investment objectives,
investment policies and restrictions;
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; and
WHEREAS, the Board of Trustees of the Trust wishes to appoint Equitable
as the investment manager of the Trust;
NOW, THEREFORE, the Trust and Equitable hereby agree as follows:
1. APPOINTMENT OF MANAGER
The Trust hereby appoints Equitable as the investment manager
for each of the Funds of the Trust specified in Appendix A to this Agreement, as
such Appendix A may be amended by Manager and the Trust from time to time
("Funds"), subject to the supervision of the Trustees of the Trust and in the
manner and under the terms and conditions set forth in this Agreement. Manager
accepts such appointment and agrees to render the services and to assume the
obligations set forth in this Agreement commencing on its effective date.
Manager will be an independent contractor and will have no authority to act for
or represent the Trust in any way or otherwise be deemed an agent unless
expressly authorized in this Agreement or another writing by the Trust and
Manager.
2. DUTIES OF THE MANAGER
A. Subject to the general supervision and control of the Trustees of
the Trust and under the terms and conditions set forth in this Agreement, the
Trust acknowledges and agrees that it is contemplated that Manager will, at its
own expense, select and contract with one or more investment advisers
("Advisers") to manage the investment operations and composition of each and
every Fund of the Trust and render investment advice for each Fund, including
the purchase, retention, and disposition of the investments, securities and cash
contained in each Fund, in accordance with each Fund's investment objectives,
policies and restrictions as stated in the Trust's Agreement and Declaration of
Trust, By-Laws, and such Fund's Prospectus, Statement of Additional Information
("SAI") and Compliance Manual, as is from time to time in effect; provided, that
any contract with an Adviser (an "Advisory Agreement") shall be in compliance
with and approved as required by the Investment Company Act or in accordance
with exemptive relief granted by the Securities and Exchange Commission ("SEC")
under the Investment Company Act.
B. Subject always to the direction and control of the Trustees of the
Trust, Manager will have (i) overall supervisory responsibility for the general
management and investment of each Fund's assets; (ii) full discretion to select
new or additional Advisers for each Fund; (iii) full discretion to enter into
and materially modify existing Advisory Agreements with Advisors; (iv) full
discretion to terminate and replace any Adviser; and (v) full investment
discretion to make all determinations with respect to the investment of a Fund's
assets not then managed by an Adviser. In connection with Manager's
responsibilities herein, Manager will assess each Fund's investment focus and
will seek to implement decisions with respect to the allocation and reallocation
of each Fund's assets among one or more current or additional Advisers from time
to time, as the Manager deems appropriate, to enable each Fund to achieve its
investment goals. In addition, Manager will monitor compliance of each Adviser
with the investment objectives, policies and restrictions of any Fund or Funds
(or portions of any Fund) under the management of such Adviser, and review and
report to the Trustees of the Trust on the performance of each Adviser. Manager
will furnish, or cause the appropriate Adviser(s) to furnish, to the Trust such
statistical information, with respect to the investments that a Fund (or
portions of any Fund) may hold or contemplate purchasing, as the Trust may
reasonably request. On Manager's own initiative, Manager will apprise, or cause
the appropriate Adviser(s) to apprise, the Trust of important developments
materially affecting each Fund (or any portion of a Fund that they advise) and
will furnish the Trust, from time to time, with such information as may be
appropriate for this purpose. Further, Manager agrees to furnish, or cause the
appropriate Adviser(s) to furnish, to the Trustees of the Trust such periodic
and special reports as the Trustees of the Trust may reasonably request. In
addition, Manager agrees to cause the appropriate Adviser(s) to furnish to
third-party data reporting services all currently available standardized
performance information and other customary data.
C. Manager will also furnish to the Trust, at its own expense and
without remuneration from or other cost to the Trust, the following:
(i) Office Space. Manager will provide office space in the
offices of the Manager or in such other place as may be reasonably
agreed upon by the parties hereto from time to time, and all necessary
office facilities and equipment;
(ii) Personnel. Manager will provide necessary executive and
other personnel, including personnel for the performance of clerical
and other office functions, exclusive of those functions: (a) related
to and to be performed under the Trust's contract or contracts for
administration, custodial, accounting, bookkeeping, transfer, and
dividend disbursing agency or similar services by any entity, including
Manager or its affiliates, selected to perform such services under such
contracts; and (b) related to the services to be provided by any
Adviser pursuant to an Advisory Agreement; and
(iii) Preparation of Prospectus and Other Documents. Manager
will provide other information and services, other than services of
outside counsel or independent accountants or services to be provided
by any Adviser under any Advisory Agreement, required in connection
with the preparation of all registration statements and Prospectuses,
prospectus supplements, SAIs, all annual, semiannual, and periodic
reports to shareholders of the Trust, regulatory authorities, or
others, and all notices and proxy solicitation materials, furnished to
shareholders of the Trust or regulatory authorities, and all tax
returns.
D. Limitations on Liability. Manager will exercise its best judgment in
rendering its services to the Trust, and the Trust agrees, as an inducement to
Manager's undertaking to do so, that the Manager will not be liable for any
error of judgment or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates, but will be liable
only for willful misconduct, bad faith, gross negligence or reckless disregard
of its duties or obligations in rendering its services to the Trust as specified
in this Agreement. Any person, even though an officer, director, employee or
agent of
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Manager, who may be or become an officer, Trustee, employee or agent of the
Trust, shall be deemed, when rendering services to the Trust or when acting on
any business of the Trust, to be rendering such services to or to be acting
solely for the Trust and not as an officer, director, employee or agent, or one
under the control or direction of Manager, even though paid by it.
E. Section 11 of the Securities Exchange Act of 1934, as amended. The
Trust hereby agrees that any entity or person associated with Manager that is a
member of a national securities exchange is authorized to effect any transaction
on such exchange for the account of a Fund to the extent and as permitted by
Section 11(a)(1)(H) of the Securities Exchange Act of 1934, as amended ("1934
Act").
F. Section 28(e) of the 1934 Act. Subject to the appropriate policies
and procedures approved by the Board of Trustees, the Manager may, to the extent
authorized by Section 28(e) of the 1934 Act, cause a Fund to pay a broker or
dealer that provides brokerage or research services to the Manager, the Adviser,
the Trust and the Fund an amount of commission for effecting a Fund transaction
in excess of the amount of commission another broker or dealer would have
charged for effecting that transaction if the Manager determines, in good faith,
that such amount of commission is reasonable in relationship to the value of
such brokerage or research services provided in terms of that particular
transaction or the Manager's overall responsibilities to the Fund, the Trust or
its other investment advisory clients. To the extent authorized by said Section
28(e) and the Board of Trustees, the Manager shall not be deemed to have acted
unlawfully or to have breached any duty created by this Agreement or otherwise
solely by reason of such action. In addition, subject to seeking "best
execution" and in compliance with the Conduct Rules of the National Association
of Securities Dealers, Inc., the Manager may also consider sales of shares of
the Trust as a factor in the selection of brokers and dealers.
G. Directed Brokerage. Subject to the requirement to seek best
execution, and to the appropriate policies and procedures approved by the Board
of Trustees, the Trust reserves the right to direct the Manager to cause
Advisers to effect transactions in Fund securities through broker-dealers in a
manner that will help generate resources to: (i) pay the cost of certain
expenses which the Trust is required to pay or for which the Trust is required
to arrange payment pursuant to this Agreement; or (ii) finance activities that
are primarily intended to result in the sale of Trust shares. At the discretion
of the Board of Trustees, such resources may be used to pay or cause the payment
of Trust Expenses or may be used to finance activities that are primarily
intended to result in the sale of Trust shares.
3. ALLOCATION OF EXPENSES
A. Expenses Paid by the Manager:
(i) Salaries, Expenses and Fees of Certain Persons. Manager
(or its affiliates) shall pay all salaries, expenses, and fees of the
Trustees and officers of the Trust who are officers,
directors/trustees, partners, or employees of Manager or its
affiliates; and
(ii) Assumption of Trust Expenses. The payment or assumption
by Manager of any expense of the Trust that Manager is not required by
this Agreement to pay or assume shall not obligate Manager to pay or
assume the same or any similar expense of the Trust on any subsequent
occasion.
B. Expenses Paid by the Trust: The Trust will pay all expenses of its
organization, operations, and business not specifically assumed or agreed to be
paid by Manager, as provided in this Agreement, or by an Adviser, as provided in
an Advisory Agreement. Without limiting the generality of the foregoing, the
Trust shall pay or arrange for the payment of the following:
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(i) Preparing, Printing and Mailing of Certain Documents. The
costs of preparing, setting in type, printing and mailing of
Prospectuses, Prospectus supplements, SAIs, annual, semiannual and
periodic reports, and notices and proxy solicitation materials required
to be furnished to shareholders of the Trust or regulatory authorities,
and all tax returns;
(ii) Officers and Trustees. Compensation of the officers and
Trustees of the Trust who are not officers, directors/trustees,
partners or employees of Manager or its affiliates;
(iii) Registration Fees and Expenses. All legal and other fees
and expenses incurred in connection with the affairs of the Trust,
including those incurred with respect to registering its shares with
regulatory authorities and all fees and expenses incurred in connection
with the preparation, setting in type, printing, and filing with
necessary regulatory authorities of any registration statement and
Prospectus, and any amendments or supplements that may be made from
time to time, including registration, filing and other fees in
connection with requirements of regulatory authorities;
(iv) Custodian and Accounting Services. All expenses of the
transfer, receipt, safekeeping, servicing and accounting for the
Trust's cash, securities, and other property, including all charges of
depositories, custodians, and other agents, if any;
(v) Independent Legal and Accounting Fees and Expenses. The
charges for the services and expenses of the independent accountants
and legal counsel retained by the Trust, for itself or its Independent
Trustees (as defined herein);
(vi) Transfer Agent. The charges and expenses of maintaining
shareholder accounts, including all charges of transfer, bookkeeping,
and dividend disbursing agents appointed by the Trust;
(vii) Brokerage Commissions. All brokers' commissions and
issue and transfer taxes chargeable to the Trust in connection with
securities transactions to which the Trust is a party;
(viii) Taxes. All taxes and corporate fees payable by or with
respect to the Trust to federal, state, or other governmental agencies,
including preparation of such documents as required by any governmental
agency in connection with such taxes;
(ix) Trade Association Fees. Any membership fees, dues or
expenses incurred in connection with the Trust's membership in any
trade association or similar organizations;
(x) Bonding and Insurance. All insurance premiums for fidelity
and other coverage;
(xi) Shareholder and Board Meetings. All expenses incidental
to holding shareholders and Trustees meetings, including the printing
of notices and proxy materials and proxy solicitation fees and
expenses;
(xii) Pricing. All expenses of pricing of the net asset value
per share of each Fund, including the cost of any equipment or services
to obtain price quotations; and
(xiii) Nonrecurring and Extraordinary Expenses. Such
extraordinary expenses, such as indemnification payments or damages
awarded in litigation or settlements made.
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4. COMPENSATION OF MANAGER
For its services performed hereunder, the Trust will pay Manager with
respect to each Fund the compensation specified in Appendix A to this Agreement.
Such compensation shall be paid to Manager by the Trust on the first day of each
month; however, the Trust will calculate this charge on the daily average value
of the assets of each Fund and accrue it on a daily basis.
5. NON-EXCLUSIVITY
The services of Manager to the Trust are not to be deemed to be
exclusive, and Manager shall be free to render investment management, advisory
or other services to others (including other investment companies) and to engage
in other activities so long as the services provided hereunder by Manager are
not impaired. It is understood and agreed that the directors, officers and
employees of Manager 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.
6. SUPPLEMENTAL ARRANGEMENTS
Manager may enter into arrangements with its parent or other persons
affiliated or unaffiliated with Manager for the provision of certain personnel
and facilities to Manager to enable Manager to fulfill its duties and
obligations under this Agreement.
7. REGULATION
Manager 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 Manager 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 Manager free
from any claim or retention of rights therein, provided that the Manager may
retain copies of any such records that are required by law. Manager 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 lawfully requested by applicable
federal or state regulatory authorities.
9. DURATION OF AGREEMENT
This Agreement shall become effective upon the date first above
written, provided that this Agreement shall not take effect unless it has been
approved: (i) by a vote of a majority of those trustees of the Trust who are not
"interested persons" (as defined in the Investment Company Act) ("Independent
Trustees") of any party to the Agreement, cast in person at a meeting called for
the purpose of voting on such approval, and (ii) by vote of a majority of the
Trust's outstanding securities. The 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 either by (i) the
Trustees of the Trust or (ii) by the vote of either a majority of the
outstanding voting securities of the Trust or, as appropriate, a majority of the
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outstanding voting securities of any affected Fund. The required shareholder
approval of the Agreement or of any continuance of the Agreement shall be
effective with respect to any affected Fund if a "majority of the outstanding
voting securities" (as defined in Rule 18f-2(h) under the Investment Company
Act) of the affected Fund votes to approve the Agreement or its continuance,
notwithstanding that the Agreement or its continuance may not have been approved
by a majority of the outstanding voting securities of (a) any other Fund
affected by the Agreement or (b) all the Funds of the Trust.
If the shareholders of any Fund fail to approve the Agreement or any
continuance of the Agreement, Manager will continue to act as investment manager
with respect to such Fund pending the required approval of the Agreement or its
continuance or of a new contract with Manager or a different investment manager
or other definitive action; provided, that the compensation received by Manager
in respect of such Fund during such period will be no more than its actual costs
incurred in furnishing investment advisory and management services to such Fund
or the amount it would have received under the Agreement in respect of such
Fund, whichever is less.
10. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of
any penalty, by the Trustees, including a majority of the Independent Trustees
of the Trust, by the vote of a majority of the outstanding voting securities of
the Trust, or with respect to any affected Fund, by the vote of a majority of
the outstanding voting securities of such Fund, on sixty (60) days' written
notice to Manager, or by Manager on sixty (60) days' written notice to the
Trust. This Agreement will automatically terminate, without payment of any
penalty, in the event of its assignment.
11. PROVISION OF CERTAIN INFORMATION BY MANAGER
Manager will promptly notify the Trust in writing of the occurrence of
any of the following events:
A. Manager fails to be registered as an investment adviser under the
Advisers Act or under the laws of any jurisdiction in which Manager is required
to be registered as an investment adviser in order to perform its obligations
under this Agreement;
B. Manager 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; and/or
C. the chief executive officer or controlling stockholder of Manager or
the Fund manager of any Fund changes or there is otherwise an actual change in
control or management of Manager.
12. AMENDMENTS TO THE AGREEMENT
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 each of the Funds affected by the amendment (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 of the Trust 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 any Fund if a majority of the outstanding voting
securities of that Fund vote to approve the amendment, notwithstanding that the
amendment may not have been approved by a majority of the outstanding voting
securities of (a) any other Fund affected by the amendment or (b) all the Funds
of the Trust.
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13. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties.
14. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
15. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the last known business address of the Trust or Manager
in person or by registered mail or a private mail or delivery service providing
the sender with notice of receipt. Notice shall be deemed given on the date
delivered or mailed in accordance with this section.
16. FORCE MAJEURE
Manager shall not be liable for delays or errors occurring by reason of
circumstances beyond its control, including but not limited to acts of civil or
military authority, national emergencies, work stoppages, fire, flood,
catastrophe, acts of God, insurrection, war, riot, or failure of communication
or power supply. In the event of equipment breakdowns beyond its control,
Manager shall take reasonable steps to minimize service interruptions but shall
have no liability with respect thereto.
17. 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.
18. INTERPRETATION
Nothing herein contained shall be deemed to require the Trust to take
any action contrary to its Amended and Restated Agreement and Declaration of
Trust or By-Laws, or any applicable statutory or regulatory requirements to
which it is subject or by which it is bound, or to relieve or deprive the
Trustees of their responsibility for and control of the conduct of the affairs
of the Trust.
19. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware (without giving effect to its
conflict of laws principles), 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. 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 unless otherwise stated herein. In addition,
where the effect of a requirement of the Investment Company Act reflected in any
provision of this Agreement is relaxed by a
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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.
AXA PREMIER VIP TRUST
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Xxxxxx X. Xxxxx
President
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx
Executive Vice President and
Chief Investment Officer
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APPENDIX A
TO THE
INVESTMENT MANAGEMENT AGREEMENT
Funds
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FUND MANAGEMENT FEE
AXA Premier VIP Large Cap Core Equity Portfolio 0.90% of the Fund's average daily net assets
AXA Premier VIP Large Cap Growth Portfolio 0.90% of the Fund's average daily net assets
AXA Premier VIP Large Cap Value Portfolio 0.90% of the Fund's average daily net assets
AXA Premier VIP Small/Mid Cap Growth Portfolio 1.10% of the Fund's average daily net assets
AXA Premier VIP Small/Mid Cap Value Portfolio 1.10% of the Fund's average daily net assets
AXA Premier VIP International Equity Portfolio 1.05% of the Fund's average daily net assets
AXA Premier VIP Technology Portfolio 1.20% of the Fund's average daily net assets
AXA Premier VIP Health Care Portfolio 1.20% of the Fund's average daily net assets
AXA Premier VIP Core Bond Portfolio 0.60% of the Fund's average daily net assets
