FORM OF PARTICIPATION AGREEMENT
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Among
EQ ADVISORS TRUST,
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THE EQUITABLE OF COLORADO, INC.
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EQUITABLE DISTRIBUTORS, INC.,
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and
EQ FINANCIAL CONSULTANTS, INC.
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THIS AGREEMENT, made and entered into as of the ___day of ____ by and
among THE EQUITABLE OF COLORADO, INC., a Colorado stock life insurance company
("EOC"), on its own behalf and on behalf of each of its presently existing and
hereafter created separate accounts (each referred to as the "Account"), EQ
ADVISORS TRUST, a business trust organized under the laws of the State of
Delaware (the "Trust"), and EQUITABLE DISTRIBUTORS, INC., a Delaware
corporation, and EQ FINANCIAL CONSULTANTS, INC., a Delaware corporation
(collectively, the "Distributors").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts of insurance companies that issue variable life insurance
policies, variable annuity contracts and certificates relating to such policies
or contracts (collectively, the "Variable Contracts") and which have entered
into participation agreements with the Trust and its Distributors (the
"Participating Insurance Companies"); and
WHEREAS, the beneficial interests in the Trust are divided into series
of shares, (each a "Portfolio"), each representing the interest in a particular
managed portfolio of securities and other assets, and each Portfolio is divided
or may be divided into one or more classes of shares, i.e., currently the Class
IA shares and the Class IB shares, or such other classes of shares as may be
created in the future (the "Classes"); and
WHEREAS, one or more Portfolios or Classes thereof may be made
available by the Trust to serve as funding vehicles for Participating Insurance
Companies and their separate accounts funding Variable Contracts; and
WHEREAS, the Trust has received an order from the Securities and
Exchange Commission (the "Commission" or the "SEC") granting Participating
Insurance Companies and their separate accounts funding Variable Contracts
exemptions from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the
Investment Company Act of 1940, as amended (the "1940 Act") and Rules
6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit
shares of the Trust and each of its Portfolios or Classes to be sold to and held
by insurance company separate accounts funding Variable Contracts of both
affiliated and unaffiliated life insurance companies (the "Shared
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Funding Exemptive Order"); and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act, and shares of its Portfolios are registered under
the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, EQ Financial Consultants, Inc., in addition to being one of
the Distributors, is also the investment manager to the Trust (the "Manager")
and is duly registered with the SEC as an investment adviser under the
Investment Advisers Act of 1940, as amended, and is registered or exempt from
registration under all applicable state securities laws; and
WHEREAS, EOC has registered or will register each of its Accounts as a
unit investment trust under the 1940 Act and has registered or will register
interests in each Account under the 1933 Act, other than those exempt from such
registration under applicable statutory provisions or regulations; and
WHEREAS, each Account is, or will be, a duly organized, validly
existing segregated asset account, established by resolution of the Board of
Directors of EOC or through properly delegated authority, and divided into
subaccounts, to set aside and invest assets attributable to the Variable
Contracts; and
WHEREAS, each of the Distributors is registered as a broker-dealer with
the SEC under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and is a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, EOC intends to purchase shares in the Portfolios and one or more
Classes thereof, (the "Designated Portfolios and Classes") on behalf of each
Account, in order to fund certain of the Variable Contracts, and each of the
Distributors is authorized to sell such shares to each Account at the net asset
value applicable to such Portfolios and the Classes thereof.
NOW, THEREFORE, in consideration of their mutual promises, EOC, the
Trust and each of the Distributors agree as follows:
ARTICLE I. Sale of Trust Shares
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1.1. Each of the Distributors agrees to sell to each Account those
shares of the Designated Portfolios and Classes for which it serves as the
Trust's principal underwriter and which each Account orders, executing such
orders on a daily basis at the net asset value per share next computed after
receipt by the Trust or its designee of the order for the shares of the
Designated Portfolios and Classes. For purposes of this Section 1.1, neither EOC
nor any Account shall be considered the designee of the Trust for receipt of
such purchase orders and receipt by EOC or any Account shall not constitute
receipt by the Trust for purposes of calculating each Portfolio's net asset
value per share.
1.2. The Trust agrees to make its shares of the Designated Portfolios
and Classes available for purchase by each Account at the applicable net asset
value per share on those days on which the
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Trust calculates the net asset value per share of the Designated Portfolios and
Classes pursuant to rules of the SEC. The Trust shall use reasonable efforts to
calculate the net asset value per share of the Designated Portfolios and Classes
on each day on which the New York Stock Exchange is open for trading.
Notwithstanding the foregoing, the Board of Trustees of the Trust (the "Board")
may refuse to sell shares of any Designated Portfolio or Class to any person, or
suspend or terminate the offering of shares of any Portfolio or Class thereof,
if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in good faith and
in light of its fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Portfolio or Class
thereof.
1.3. The Trust and each of the Distributors agree that shares of the
Designated Portfolios and Classes will be sold only to Participating Insurance
Companies and/or their separate accounts funding Variable Contracts or to other
persons or entities permitted under Section 817 of the Internal Revenue Code of
1986, as amended (the "Code"), or regulations promulgated thereunder. No shares
of any Portfolio will be sold to the general public, except to the extent
permitted under the Code.
1.4. The Trust and each of the Distributors will not sell Trust shares
to any Participating Insurance Company or separate account funding Variable
Contracts unless an agreement containing provisions substantially the same as
Articles I, III, V, VII and Section 2.5 of Article II of this Agreement is in
effect to govern such sales.
1.5. The Trust agrees to redeem for cash or in-kind, at the request of
any Account or EOC, any full or fractional shares of the Trust held by the
Account or EOC. The Trust will execute such requests on a daily basis at the net
asset value per share of the Designated Portfolios and Classes next computed
after receipt by the Trust or its designee of the request for redemption. For
purposes of this Section 1.5, neither EOC nor any Account shall be considered
the designee of the Trust for receipt of requests for redemption, and receipt by
EOC or any Account shall not constitute receipt by the Trust for purposes of
calculating each Portfolio's net asset value per share.
1.6 EOC agrees that purchases and redemptions of shares of the
Designated Portfolios and Classes offered by a then-current prospectus of the
Trust shall be made in accordance with the provisions of such prospectus.
1.7. EOC shall pay for shares of Designated Portfolios and Classes
thereof purchased for the Accounts or its general account on the business day on
which an order to purchase Trust shares is made in accordance with the
provisions of Section 1.1 hereof. "Business Day" shall mean any day on which the
New York Stock Exchange is open for trading and on which the Trust calculates
its net asset value pursuant to the rules of the SEC. Payment shall be in
federal funds transmitted by wire. For purposes of Section 2.9 and 2.10, upon
receipt by the Trust of the federal funds so wired, such funds shall cease to be
the responsibility of EOC and shall become the responsibility of the Trust.
1.8. Issuance and transfer of the shares of the Designated Portfolios
and Classes thereof will be by book entry only. Stock certificates will not be
issued to EOC or any Account. Shares ordered from the Trust will be recorded in
an appropriate title for each Account or the appropriate subaccount of each
Account.
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1.9. The Trust shall furnish same day notice (by wire or telephone,
followed by written confirmation) of any income dividends or capital gain
distributions payable on the shares of the Designated Portfolios and Classes
thereof. EOC and each Account hereby elect to receive all such income dividends
and capital gain distributions as are payable on the shares of the Designated
Portfolios and Classes thereof in additional shares of the relevant Designated
Portfolios and Classes. (EOC and each Account reserve the right to revoke this
election and to receive all such income dividends and capital gain distributions
in cash.) The Trust shall provide notification by the end of the next Business
Day of the number of shares so issued as payment of such dividends and
distributions. The Trust shall provide advance notice to EOC and each Account of
any date on which the Trust reasonably expects to make a dividend distribution;
normally this notice will be given at least ten (10) days in advance of the
ex-dividend date.
1.10. The Trust shall make the net asset value per share for each
Designated Portfolio and Class thereof available to EOC and each Account or
their designee on a daily basis as soon as reasonably practical after the net
asset value per share is calculated (normally by 6:30 p.m. New York time) and
shall use its best efforts to make such net asset value per share available by
7:00 p.m. New York time.
ARTICLE II. Representations and Warranties
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2.1. EOC represents and warrants that: (a) the EOC Contracts will be
issued and sold in compliance, in all material respects, with all applicable
federal and state laws; and (b) it requires each Distributor to comply, in all
material respects, with state insurance suitability requirements. EOC further
represents and warrants that: (a) it is an insurance company duly organized and
in good standing under applicable law; (b) it has legally and validly
established each Account, prior to any issuance or sale of interests therein, as
a segregated asset account under applicable insurance laws; (c) it has
registered or, prior to any issuance or sale of the EOC Contracts, will register
each Account as a unit investment trust in accordance with the provisions of the
1940 Act to serve as a segregated investment account for the EOC Contracts,
unless such Accounts are exempt from such registration under applicable
statutory provisions or regulations; and (d) it has registered or, prior to the
issuance or sale of the EOC Contracts, will register interests in the Accounts
under the 1933 Act, unless interests in such Accounts are exempt from such
registration under applicable statutory provisions or regulations.
2.2. The Trust, to the best of its knowledge, represents and warrants
that Trust shares sold pursuant to this Agreement shall be: (a) registered under
the 1933 Act; and (b) duly authorized for issuance; and (c) sold in compliance
with and all applicable federal securities laws. The Trust further represents
and warrants that it is and shall remain registered under the 1940 Act. The
Trust shall amend the registration statement for its shares (the "Registration
Statement") under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of shares of the Designated Portfolios
and Classes. This requirement shall not, however, in any manner limit the
Trust's ability to cease offering shares in one or more of the Designated
Portfolios or Classes, provided such action complies with applicable laws and
regulations.
2.3. EOC represents that the EOC Contracts are currently treated as
annuity, endowment or life insurance contracts under applicable provisions of
the Code and that it will make every effort to
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maintain such treatment and that it will notify the Trust and the Distributors
immediately upon having a reasonable basis for believing that the EOC Contracts
have ceased to be so treated or that they might not be so treated in the future.
2.4. The Trust currently intends for one or more Classes, particularly
Class IB, to make payments to finance its distribution expenses pursuant to a
Plan adopted under Rule 12b-1 under the 1940 Act, although it may determine to
discontinue such practice in the future. To the extent that any Class of the
Trust finances its distribution expenses pursuant to a Plan adopted under Rule
12b-1, the Trust undertakes to have a Board, a majority of whose members are not
interested persons of the Trust or its Distributors or Manager, and to otherwise
comply with any then current SEC and SEC staff interpretations concerning Rule
12b-1 or any successor provision.
2.5. The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states,
except that the Trust represents that the investment objectives, policies, fees
and expenses of each of the Designated Portfolios and Classes thereof are and
shall at all times remain in compliance with the insurance laws of the State of
Colorado, and the Trust and the Distributors severally represent that their
respective operations are and shall at all times remain in compliance, in all
material respects, with the insurance laws of the State of Colorado to the
extent required to perform their respective obligations under this Agreement.
2.6. Each of the Distributors represents and warrants that: (a) it is a
member in good standing of the NASD; and (b) it is registered as a broker-dealer
with the SEC and all necessary states. Each Distributor further represents that
it will sell and distribute the Trust's shares in accordance with the laws of
the State of New York and all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, the 1940 Act, and all
applicable Rules of the NASD.
2.7. The Trust represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply, in all material respects, with the 1940 Act.
2.8. EQ Financial Consultants, Inc. represents and warrants that it, in
its capacity as the Manager, is and shall remain duly registered under all
applicable federal and state securities laws and that it, in its capacity as the
Manager shall perform its obligations for the Trust in compliance, in all
material respects, with any and all applicable federal and state securities
laws.
2.9. The Trust and each of the Distributors severally represent and
warrant that all of their trustees, directors, officers, employees, investment
managers and investment advisers, and other individuals/entities dealing with
the money and/or securities of the Trust are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Trust in an amount not less than the minimal coverage required by Rule
17g-(1) of the 1940 Act or such related provisions as may be promulgated from
time to time. The aforesaid fidelity bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.10. EOC represents and warrants that all of its directors, officers,
employees, and other
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individuals/entities dealing with the money and/or securities of the Trust are
covered by a blanket fidelity bond or similar coverage for the benefit of the
Trust. EOC further represents and warrants that said fidelity bond is issued by
a reputable bonding company, includes coverage for larceny and embezzlement, and
is in an amount not less than $5 million. EOC agrees to make all reasonable
efforts to see that this fidelity bond or another bond containing these
provisions is continuously in effect and agrees to notify the Trust and the
Distributors in the event that such coverage no longer applies.
ARTICLE III. Prospectuses and Proxy Statements; Voting
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3.1. The Trust or its Distributors shall provide EOC with as many
printed copies of the Trust's current prospectus and Statement of Additional
Information and any supplements thereto for the Designated Portfolios and
Classes thereof as EOC may reasonably request. If requested by EOC in lieu
thereof, the Trust or its Distributors shall provide camera-ready film
containing the Trust's prospectus and Statement of Additional Information and
any supplements thereto for the Designated Portfolios and Classes thereof, and
such other assistance as is reasonably necessary in order for EOC once each year
(or more frequently if the prospectus and/or Statement of Additional Information
for the Designated Portfolios and Classes thereof is amended during the year) to
have the prospectus for the Account, with respect to the EOC Contracts, and the
Trust's prospectus printed together in one document, and to have the Statement
of Additional Information for the Trust and the Statement of Additional
Information for the Account, with respect to the EOC Contracts, printed together
in one document. Alternatively, EOC may print the prospectus and/or Statement of
Additional Information for the Designated Portfolios and Classes thereof in
combination within the prospectuses and Statements of Additional Information for
other investment companies. To the extent that the foregoing Trust prospectuses,
Statements of Additional Information and any supplements thereto are with
respect to Class IB shares, or other Classes of shares subject to a Plan adopted
under Rule 12b-1 under the 1940 Act, the cost of preparing, printing, and
distributing such documents will be at the expense of such Class or Classes of
shares, with respect to prospective owners of EOC Contracts. In addition, with
respect to prospectuses and Statements of Additional Information for the
Designated Portfolios and Classes thereof provided by EOC to its existing owners
of EOC Contracts ("Contractowners") in order to update disclosure as required by
the 1933 Act and/or the 1940 Act, the cost of preparing, printing, mailing and
otherwise distributing such prospectuses and Statements of Additional
Information and any supplements thereto shall be borne by the Trust.
Furthermore, if in such case EOC or the Distributors are provided with
camera-ready film of such documents in lieu of printed documents, EOC or the
Distributors shall request reimbursement from the Trust for their printing,
mailing and other costs associated with such distribution.
EOC and the Distributors each agree to provide the Trust or its
designee with such information as may be reasonably requested by the Trust to
assure that the Trust's expenses or the expenses of any Class do not include the
cost of printing, mailing and otherwise distributing any prospectuses,
Statements of Additional Information or supplements thereto for the Designated
Portfolios and Classes thereof other than those actually distributed (a) to
existing Contractowners; or (b) under a Rule 12b-1 Plan for a particular Class
of shares to prospective Contractowners.
3.2 EOC may alter the form of the Trust's prospectus, Statement of
Additional Information, Annual and Semi-Annual Reports to shareholders, proxy
statements, and other Trust documents
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with the prior approval of the Trust. EOC shall bear all costs associated with
such alteration of form.
3.3. The Trust's prospectus for the Designated Portfolios and Classes
thereof shall state that the Statement of Additional Information for the
Designated Portfolios and Classes thereof is available from the Distributors or
EOC (or in the Trust's discretion, the prospectus shall state that such
Statement of Additional Information is available from the Trust).
3.4. The Trust, at its expense, shall provide EOC with copies of its
proxy statements, Annual and Semi-Annual Reports to shareholders, and other
communications to shareholders in such quantities as EOC shall reasonably
require for mailing or otherwise distributing such materials to Contractowners
and shall assume all expenses associated with mailing or otherwise distributing
those materials. In the alternative, the Trust shall reimburse EOC for its costs
in printing, mailing and distributing such materials to Contractowners.
3.5. If and to the extent required by law, EOC shall:
(a) solicit voting instructions from Contractowners;
(b) vote the Trust shares for the Designated Portfolios and
Classes in accordance with instructions received from Contractowners;
and
(c) vote Trust shares for the Designated Portfolios and
Classes for which no instructions have been received in a particular
Account in the same proportion as Trust shares for the Designated
Portfolios and Classes for which instructions have been received so
long as and to the extent that the SEC continues to interpret the 1940
Act to require pass-through voting privileges for Contractowners. EOC
reserves the right to vote Trust shares held in any Account in its own
right, to the extent permitted by law. Participating Insurance
Companies shall be responsible for assuring that each of their separate
accounts participating in the Trust calculates voting privileges in a
manner consistent with the standards adopted by the Board, which
standards will be provided to all other Participating Insurance
Companies.
3.6. The Trust will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Trust will comply with
Section 16(c) of the 1940 Act as well as with Sections 16(a) and, if and when
applicable, Section 16(b). Further, the Trust will act in accordance with the
SEC or SEC staff's written interpretation concerning the requirements of Section
16(a) with respect to periodic elections of Trustees and with whatever rules the
SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
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4.1. The Distributors shall furnish, or shall cause to be furnished, to
the Trust or its designee, the form of each piece of sales literature or other
promotional material in which the Trust, the Manager or the Distributors are
named prior to its first use. No such material shall be used if the Trust or its
designee reasonably objects to its use after the Trust's receipt of such
material.
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4.2. EOC shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection with the
sale of the EOC Contracts other than the information or representations
contained in or accurately derived from the Registration Statements, prospectus
or Statement of Additional Information for the Trust, as such Registration
Statements, prospectus or Statement of Additional Information may be amended or
supplemented from time to time, or in reports or proxy statements for the Trust,
or in sales literature or other promotional material approved by the Trust or
its designee, except with the permission of the Trust or its designees.
4.3. The Trust or the Distributors, or their respective designees,
shall furnish, or shall cause to be furnished, to EOC or its designees, the form
of each piece of sales literature or other promotional material in which EOC is
named prior to its use. No such material shall be used if EOC or its designees
reasonably object to its use after receipt of such material.
4.4. The Trust and the Distributors shall not give any information or
make any representations on behalf of EOC or concerning EOC, each Account, or
the EOC Contracts other than the information or representations contained in or
accurately derived from a registration statement, prospectus or Statement of
Additional Information for the Accounts with respect to the EOC Contracts, as
such registration statement, prospectus or Statement of Additional Information
may be amended or supplemented from time to time, or in published reports for
each Account which are in the public domain or approved by EOC for distribution
to Contractowners, or in sales literature or other promotional material approved
by EOC or its designees, except with the permission of EOC.
4.5. The Trust shall provide to EOC at least one complete copy of all
Registration Statements, prospectuses, Statements of Additional Information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Trust or its shares, contemporaneously
with the filing of such document with the SEC, the NASD, or other regulatory
authorities.
4.6. EOC shall provide to the Trust at least one complete copy of all
registration statements, prospectuses, Statements of Additional Information,
reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the EOC
Contracts or any Account if such document also relates to the Trust,
contemporaneously with the filing of such document with the SEC, the NASD, or
other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Trust or any affiliate of the Trust: advertisements
(including materials published or designed for use in a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, electronic messages or
communications or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other
communications distributed or made generally available
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to some or all agents or employees, and registration statements, prospectuses,
Statements of Additional Information, shareholder reports, and proxy materials.
However, it is anticipated that materials provided solely: (a) internally to
EOC's or the Distributors' own employees or counsel; or (b) to certain
designated third parties and that are not designed to be provided or
communicated in any manner to the general public (e.g., training materials
provided to distributors or agents) will not be filed with the SEC, the NASD, or
any state securities or insurance regulatory authorities, although such
materials will be prepared in accordance with applicable laws.
ARTICLE V. Fees and Expenses
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5.1. The Trust and the Distributors shall pay no fee or other
compensation to EOC under this Agreement except for: (a) items covered in
Article III; or (b) pursuant to a Plan adopted by the Trust in accordance with
Rule 12b-1 under the 1940 Act to finance the distribution expenses of any Class.
Nevertheless, the Distributors may make payments to EOC or to any distributor
for the EOC Contracts in amounts agreed to by the Distributors in any writing,
and such payments by the Distributors (other than pursuant to a Rule 12b-1 Plan)
may be made out of existing fees otherwise payable to the Distributors, past
profits of the Distributors, or other resources available to the Distributors.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. Without limiting the foregoing, the Trust
shall see to it that all shares are registered and authorized for issuance prior
to their sale in accordance with applicable federal law, and shall bear all
expenses with respect to: registration and qualification of the Trust's shares;
preparation and filing of the Trust's Registration Statement, prospectus,
Statement of Additional Information, proxy materials, and reports; setting the
prospectus and Statement of Additional Information in type; setting in type,
printing, mailing or otherwise distributing proxy materials and Semi-Annual and
Annual Reports sent to Contractowners (including the costs of setting in type,
printing, mailing or otherwise distributing a prospectus that constitutes an
Annual Report) and if certain Classes of the Trust so elect and the Rule 12b-1
Plan so provides, the preparation, printing, mailing or otherwise distributing
of such materials to prospective owners of EOC Contracts; the preparation of all
statements and notices required by any federal or state law; and all taxes on
the issuance or transfer of the Trust's shares.
ARTICLE VI. Diversification
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6.1. The Trust represents that: (a) it currently has elected to qualify
as a regulated investment company under Subchapter M of the Code; (b) it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision); (c) it will notify EOC immediately upon having
a reasonable basis for believing that it has ceased to so qualify or that it
might not so qualify in the future; and (d) it will seek to minimize any damages
and to rectify its failure to so qualify promptly. The Trust acknowledges that
any failure to qualify as a regulated investment company will eliminate the
ability of the Accounts to avail themselves of the "look through" provisions of
Section 817(h) of the Code and that, as a result, the EOC Contracts will almost
certainly fail to qualify as life insurance and annuity contracts under Section
817(h) of the Code.
6.2. The Trust further represents that it will at all times invest
money from the Accounts in
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such a manner as to assure that the EOC Contracts will be treated as variable
annuity or variable life insurance contracts under the Code and the regulations
issued thereunder. Without limiting the scope of the foregoing, the Trust
represents that it will at all times comply with Section 817(h) of the Code and
Treasury Regulation 1.817-5, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts, and any amendments or
other modifications to such Section or Regulations. In the event of a breach of
this Article VI by the Trust, the Trust warrants that it will take all
reasonable steps: (a) to immediately notify EOC of such breach; and (b) to
adequately diversify the Trust's assets so as to achieve compliance within the
grace period afforded by Regulation 1.817-5.
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ARTICLE VII. Potential Conflicts
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7.1. The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contractowners of all
variable annuity and variable life insurance separate accounts investing in the
Trust. A material irreconcilable conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority; or (b) a
change in applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; or (c) an administrative or judicial decision in any
relevant proceeding; or (d) the manner in which the investments of any
Designated Portfolio are being managed; or (e) a difference in voting
instructions given by owners of Variable Contracts; or (f) a decision by an
insurer to disregard the voting instructions of owners of Variable Contracts.
The Board shall promptly inform EOC if it determines that a material
irreconcilable conflict exists and the implications thereof.
7.2. EOC will report any potential or existing conflicts, of which it
is aware, to the Board. EOC will assist the Board in carrying out its
responsibilities under any Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an obligation by EOC to
inform the Board whenever the voting instructions of owners of Variable
Contracts are disregarded. EOC's responsibilities under this Section 7.2 will be
carried out with a view only to the interests of its Contractowners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested Trustees, that a material irreconcilable conflict exists, EOC
and other Participating Insurance Companies shall, at their expense and to the
extent reasonably practicable (as determined by a majority of the disinterested
Trustees), take whatever steps are necessary to remedy or eliminate the material
irreconcilable conflict, up to and including: (a) withdrawing the assets
allocable to some or all of the variable annuity and variable life insurance
separate accounts from the Trust or any Portfolio and reinvesting such assets in
a different investment medium, including (but not limited to) another Portfolio
of the Trust, or submitting the question of whether such withdrawal should be
implemented to a vote of all affected owners of Variable Contracts and, as
appropriate, withdrawing the assets of any appropriate group (i.e., owners of
variable annuity contracts or owners of variable life insurance contracts of one
or more Participating Insurance Companies) that votes in favor of such
withdrawal, or offering to the affected owners of Variable Contracts the option
of making such a change; and (b) establishing a new registered management
investment company or managed separate account. EOC's responsibilities under
this Section 7.3 will be carried out with a view only to the interests of
Contractowners.
7.4. If a material irreconcilable conflict were ever to arise because
of a decision by EOC to disregard Contractowner voting instructions and that
decision represents a minority position or would preclude a majority vote, EOC
may be required, at the Trust's election, to withdraw the affected Account's (or
subaccount's) investment in the Trust and terminate this Agreement with respect
to such Account (or subaccount); provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested members
of the Board. No charge or penalty shall be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place
-11-
within six (6) months after the Trust gives written notice that this provision
is being implemented and, until the end of that six (6) month period, the
Distributors and Trust shall continue to accept and implement orders by EOC for
the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because a
particular state insurance regulator's decision applicable to EOC conflicts with
the majority of other state regulators, then EOC shall withdraw the affected
Account's (or subaccount's) investment in the Trust and terminate this Agreement
with respect to such Account (or subaccount) within six (6) months after the
Board informs EOC in writing that it has determined that such decision has
created a material irreconcilable conflict; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six (6) month
period, the Distributors and Trust shall continue to accept and implement orders
by EOC for the purchase (and redemption) of shares of the Trust.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict, but in
no event will the Trust be required to establish a new funding medium for the
EOC Contracts. EOC shall not be required by Section 7.3 to establish a new
funding medium for the EOC Contracts if an offer to do so has been declined by
vote of a majority of Contractowners materially adversely affected by the
material irreconcilable conflict. In the event that the Board determines that
any proposed action does not adequately remedy any material irreconcilable
conflict, then EOC will withdraw the Account's (or subaccount's) investment in
the Trust and terminate this Agreement within six (6) months after the Board
informs EOC in writing of the foregoing determination; provided, however, that
such withdrawal and termination shall be limited to the extent required by any
such material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then: (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and
7.5 of this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted; and (c) this Agreement shall be otherwise
amended by the Trust, without the need for any consent of the other parties, as
required by such change in law.
-12-
ARTICLE VIII. Indemnification
---------------
8.1. Indemnification By EOC
----------------------
8.1(a). EOC agrees to indemnify and hold harmless the Trust, each
member of the Board, the Distributors, and the directors and officers and each
person, if any, who controls any such person within the meaning of Section 15 of
the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of EOC), investigation of
claims or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Trust's shares or the EOC Contracts or interests in the
Accounts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the
registration statement, prospectus, or Statement of Additional
Information for the EOC Contracts or contained in the EOC Contracts or
sales literature for the EOC Contracts (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall
not apply as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon and in
conformity with information furnished to EOC by or on behalf of the
Trust for use in the registration statement, prospectus, or Statement
of Additional Information for the EOC Contracts or in the EOC Contracts
or sales literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the EOC Contracts or Trust shares;
or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the Registration Statement, prospectus or Statement of Additional
Information, or sales literature of the Trust not supplied by EOC or
persons under its control) or wrongful conduct of EOC or persons under
its control, with respect to the sale or distribution of the EOC
Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement,
prospectus, or Statement of Additional Information, or sales literature
of the Trust or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance upon
information furnished to the Trust by or on behalf of EOC; or
(iv) arise as a result of any failure by EOC to provide the
services and furnish the materials required to be provided or furnished
by it under the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by EOC in this Agreement or arise
out of or result from any other material breach of this Agreement by
EOC;
-13-
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). EOC shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities, or litigation incurred
or assessed against an Indemnified Party as such may arise from such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations or duties under this Agreement or to the
Trust, whichever is applicable.
8.1(c). EOC shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified EOC in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify EOC of any such claim shall not relieve EOC from
any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties, EOC shall be
entitled to participate, at its own expense, in the defense of such action. EOC
also shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action. After notice from EOC to such
party of EOC's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
EOC will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation.
8.1(d). The Indemnified Parties shall promptly notify EOC of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Trust's shares or the EOC Contracts or the operation
of the Trust.
8.2. Indemnification by the Distributors
-----------------------------------
8.2(a). Each of the Distributors agrees to indemnify and hold harmless
EOC, and the Trust and each of their directors and officers and each person, if
any, who controls EOC within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Distributors), investigation of
claims or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Trust's shares or the EOC Contracts or interests in the
Accounts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, prospectus or Statement of Additional
Information, or sales literature of the Trust (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the
-14-
statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such statement
or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Distributors
or Trust by or on behalf of EOC for use in the Registration Statement,
prospectus, or Statement of Additional Information for the Trust, or in
sales literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the EOC Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the registration statement, prospectus or Statement of Additional
Information, or sales literature for the EOC Contracts not supplied by
the Distributors or persons under their control) or wrongful conduct of
the Distributors or persons under their control, with respect to the
sale or distribution of the EOC Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or Statement of Additional Information or sales literature
covering the EOC Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to EOC by or
on behalf of the Distributors or the Trust; or
(iv) arise as a result of any failure by the Distributors or
the Trust to provide the services and furnish the materials required to
be provided or furnished by the Distributors or the Trust under the
terms of this Agreement (including a failure, whether unintentional or
in good faith or otherwise, to comply with the diversification or other
qualification requirements specified in Article VI of this Agreement);
or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributors in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Distributors;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2(b). Each of the Distributors shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities, or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to EOC or any Account, whichever is applicable.
8.2(c). Each of the Distributors shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Distributors in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated
-15-
agent), but failure to notify the Distributors of any such claim shall not
relieve the Distributors from any liability which they may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought against
the Indemnified Parties, the Distributors will be entitled to participate, at
their own expense, in the defense thereof. Each of the Distributors also shall
be entitled to assume the defense thereof, with counsel reasonably satisfactory
to the party named in the action. After notice from the Distributors to such
party of the Distributors' election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributors will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
8.2(d). EOC agrees promptly to notify the Distributors of the
commencement of any material litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the EOC
Contracts or the operation of each Account.
8.3. Indemnification By the Trust
----------------------------
8.3(a). The Trust agrees to indemnify and hold harmless EOC and each of
its directors and officers and each person, if any, who controls EOC within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 8.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Trust), investigation of claims or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements result
from the gross negligence, bad faith or willful misconduct of the Board or any
member thereof, are related to the operations of the Trust and:
(i) arise as a result of any failure by the Trust to provide
the services and furnish the materials required to be provided or
furnished by it under the terms of this Agreement (including a failure
to comply with the diversification and other qualification requirements
specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Trust;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations and duties under this
Agreement or to EOC, the Trust, the Distributors, or each Account, whichever is
applicable.
8.3(c). The Trust shall not be liable under this indemnification
provision with respect to
-16-
any claim made against an Indemnified Party unless such Indemnified Party shall
have notified the Trust in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but failure
to notify the Trust of any such claim shall not relieve the Trust from any
liability which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In case any
such action is brought against the Indemnified Parties, the Trust will be
entitled to participate, at its own expense, in the defense thereof. The Trust
also shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action. After notice from the Trust to
such party of the Trust's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Trust will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
8.3(d). EOC and the Distributors each agree promptly to notify the
Trust of the commencement of any material litigation or proceedings against it
or any of its respective officers or directors in connection with this
Agreement, the issuance or sale of the EOC Contracts, with respect to the
operation of any Account, or the sale or acquisition of shares of the Trust.
ARTICLE IX. Applicable Law
--------------
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934, and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules, and regulations as the SEC
may grant (including, but not limited to, any Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
-----------
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party, with or without cause, upon six
(6) months' advance written notice delivered to the other
parties; or
(b) termination by EOC upon thirty (30) days' written notice to
the Trust and the Distributors with respect to any Designated
Portfolio or Class thereof based upon EOC's determination that
shares of such Designated Portfolio or Class thereof are not
reasonably available to meet the requirements of the EOC
Contracts or are not consistent with EOC's obligations to
Contractowners; or
(c) termination by EOC upon thirty (30) days' written notice to
the Trust and the Distributors with respect to any Designated
Portfolio or Class thereof in the event any of the Designated
Portfolio's shares or any shares with respect to any Class are
not registered, issued or sold in accordance with applicable
federal and/or state law
-17-
or such law precludes the use of such shares as the underlying
investment media of the EOC Contracts issued or to be issued
by EOC; or
(d) termination by EOC by written notice to the Trust and the
Distributors with respect to any Designated Portfolio or Class
thereof in the event that such Designated Portfolio or Class
thereof ceases to qualify as a regulated investment company
under Subchapter M of the Code or any other failure under
Section 817 of the Code, or under any successor or similar
provision of either, or if EOC reasonably believes that the
Trust may fail to so qualify; or
(e) termination by either the Trust or the Distributors by written
notice to EOC, if the Trust or the Distributors shall
determine, in their sole judgment exercised in good faith,
that EOC and/or its affiliated companies have suffered a
material adverse change in their business, operations,
financial condition, or prospects since the date of this
Agreement or are the subject of material adverse publicity;
but no termination shall be effective under this subsection
(e) until EOC has been afforded a reasonable opportunity to
respond to a statement by the Trust or the Distributors
concerning the reason for notice of termination hereunder; or
(f) termination by EOC by written notice to the Trust and the
Distributors, if EOC shall determine, in its sole judgment
exercised in good faith, that either the Trust or the
Distributors has suffered a material adverse change in its
business, operations, financial condition, or prospects since
the date of this Agreement or is the subject of material
adverse publicity; but no termination shall be effective under
this subsection (f) until the Trust or the Distributors have
been afforded a reasonable opportunity to respond to a
statement by EOC concerning the reason for notice of
termination hereunder.
10.2. Notwithstanding any termination of this Agreement, the Trust and
the Distributors shall, at the option of EOC, continue to make available
additional shares of the Trust pursuant to the terms and conditions of this
Agreement, for all EOC Contracts in effect on the effective date of termination
of this Agreement (hereinafter referred to as "Existing EOC Contracts").
Specifically, without limitation, the owners of the Existing EOC Contracts shall
be permitted to reallocate investments in the Trust, redeem investments in the
Trust, and/or invest in the Trust upon the making of additional purchase
payments under the Existing EOC Contracts. The parties agree that this Section
10.2 shall not apply to any terminations under Article VII and the effect of
such Article VII terminations shall be governed by Article VII of this
Agreement.
10.3. EOC shall not redeem Trust shares attributable to the EOC
Contracts (as opposed to Trust shares attributable to EOC's assets held in any
Account) except: (a) as necessary to implement Contractowner initiated or
approved transactions; or (b) as required by federal and/or state laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"); or (c) as
permitted pursuant to Section 26(b) of the 1940 Act or otherwise pursuant to an
order of the SEC that permits EOC to redeem Trust shares attributable to EOC
Contracts. Upon request, EOC shall promptly furnish to the Trust and the
Distributors the opinion of counsel for EOC (which counsel shall be reasonably
satisfactory to the Trust and the Distributors) to the effect that any
redemption pursuant to clause (b) above is a
-18-
Legally Required Redemption or any redemption pursuant to clause (b) is
permitted without first obtaining an order of the SEC pursuant to Section 26(b)
or any other provision of the 1940 Act. Furthermore, except in cases where
permitted under the terms of the EOC Contracts, and as may be in the best
interests of Contractowners, as determined by EOC, EOC shall not prevent
Contractowners from allocating payments to a Designated Portfolio or Class
thereof that was otherwise available under the EOC Contracts without first
giving the Trust or the Distributors ninety (90) days' notice of its intention
to do so.
10.4. Notwithstanding any termination of this Agreement for any reason,
the terms and conditions of the following provisions of this Agreement shall
remain in effect with respect to any Existing Contract, for so long as any
assets invested in the Trust are attributable to such Existing Contract:
Sections 1.3 to 1.10 of Article I (governing the pricing and redemption of
shares); Article II (Representations and Warranties); Sections 3.1 through 3.4
and 3.6 of Article III (Prospectuses and Proxy Statements, and Voting); Articles
IV through IX (Sales Material and Information; Fees and Expenses;
Diversification; Potential Conflicts; Indemnification; and Applicable Law);
Article XI (Notices); and Sections 12.1, 12.2, and 12.5 through 12.8 of Article
XII (Miscellaneous). Further, notwithstanding any termination of this Agreement
for any reason, the terms and conditions of the following provisions of this
Agreement shall remain in effect with regard to EOC Contracts whose assets were
previously invested in the Trust: Article II (Representations and Warranties),
Article VI (Diversification) and Article VII (Indemnification).
ARTICLE XI. Notices
-------
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
-19-
If to the Trust:
EQ Advisors Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
If to EOC:
The Equitable of Colorado, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
If to the Distributors:
Equitable Distributors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
EQ Financial Consultants, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. XxXxxxx
ARTICLE XII. Miscellaneous
-------------
12.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board (or its members), officers, agents, or shareholders shall
assume any personal liability for obligations entered into on behalf of the
Trust.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the Contractowners and all information reasonably identified as confidential
in writing by any other party hereto and, except as permitted by this Agreement,
shall not disclose, disseminate, or utilize such names and addresses and other
confidential information until such time as it may come into the public domain
without the express written consent of the affected party. Without limiting the
foregoing, no party hereto shall disclose any information that such party has
been advised is proprietary, except such information that such party is required
to disclose by any appropriate governmental authority (including without
limitation the SEC, the NASD, and state securities or insurance regulators).
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
-20-
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule, or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.7. The rights, remedies, and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies, and
obligations, at law or in equity, to which the parties hereto are entitled under
federal and state laws.
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Distributors may assign this Agreement or
any rights or obligations hereunder to any affiliate of or company under common
control with the Distributors (but in such event the Distributors shall continue
to be liable under Article VIII of this Agreement for any indemnification due to
EOC, and the assignee shall also be liable), if such assignee is duly licensed
and registered to perform the obligations of the Distributors under this
Agreement.
12.9. EOC shall furnish, or shall cause to be furnished, to the Trust
or its designee upon request copies of the following reports:
(a) EOC's annual statements (prepared under statutory accounting
principles) and annual reports (prepared under generally accepted accounting
principles ("GAAP"), if any), as soon as practical and in any event within
ninety (90) days after the end of each fiscal year;
(b) any material financial statement, proxy statement, notice, or
report of EOC sent to policyholders, as soon as practical after the delivery
thereof to stockholders;
(c) any registration statement (without exhibits) and financial reports
of EOC filed with the SEC or any state insurance regulator, as soon as practical
after the filing thereof; and
(d) any other report submitted to EOC by independent accountants in
connection with any annual, interim, or special audit made by them of the books
of EOC, as soon as practical after the receipt thereof; but nothing in this
subsection shall require EOC to disclose any information that is privileged or
which, if disclosed, would put EOC at a competitive disadvantage or is both: (a)
confidential; and (b) not material to EOC's financial condition.
12.10 At the request of any party to this Agreement, each other party
will make available to the requesting party's independent auditors and/or
representatives of the appropriate regulatory agencies, all records, data, and
access to operating procedures that may be reasonably requested in
-21-
connection with compliance and regulatory requirements related to this Agreement
or any party's obligations under this Agreement.
12.11 Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified below.
EQ ADVISORS TRUST
By: _____________________________
Name: Xxxxx X. Xxxxx
Title: President and Trustee
EOC
By: _____________________________
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Chief Investment Officer
EOC DISTRIBUTORS, INC.
By: _____________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
EQ FINANCIAL CONSULTANTS, INC.
By: _____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
and Chief Executive Officer
-22-
SCHEDULE A
ACCOUNTS AND ASSOCIATED VARIABLE INSURANCE CONTRACTS
Name of Account
---------------
------------------------------------
EOC Contracts
Funded By Account
-----------------
-------------------------------------
SCHEDULE B
DESIGNATED PORTFOLIOS AND CLASSES
Portfolios of
EQ Advisors Trust
-----------------
X. Xxxx Price International Stock Portfolio:
Class IB Shares
X. Xxxx Price Equity Income Portfolio:
Class IB Shares
EQ/Xxxxxx Growth & Income Value Portfolio:
Class IB Shares
EQ/Xxxxxx International Equity Portfolio:
Class IB Shares
EQ/Xxxxxx Investors Growth Portfolio:
Class IB Shares
EQ/Xxxxxx Balanced Portfolio:
Class IB Shares
MFS Research Portfolio:
Class IB Shares
MFS Emerging Growth Companies Portfolio:
Class IB Shares
Xxxxxx Xxxxxxx Emerging Markets Equity Portfolio:
Class IB Shares
Warburg Pincus Small Company Value Portfolio:
Class IB Shares
Xxxxxxx Xxxxx World Strategy Portfolio:
Class IB Shares
Xxxxxxx Xxxxx Basic Value Equity Portfolio:
Class IB Shares
-2-
SCHEDULE C
LIST OF OTHER INVESTMENT COMPANIES
