DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of January 1, 1998 by and between THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES for itself ("Equitable
Life") and as depositor on behalf of the Equitable Life separate accounts more
particularly described herein (the "Separate Accounts") and EQUITABLE
DISTRIBUTORS, INC. (the "Distributor").
W I T N E S S E T H :
WHEREAS, Equitable Life is a life insurance company which offers or may
hereafter offer a number of products, including without limitation, fixed and
variable annuities, fixed and variable life insurance, long-term care coverage
and the like;
WHEREAS, the net consideration from the sale of such products may be
allocated for investment in whole or in part to Equitable Life's general account
and/or one or more of the Separate Accounts;
WHEREAS, the Separate Accounts are separate accounts established and
maintained by Equitable Life pursuant to the laws of the State of New York under
which income, gains and losses, whether or not realized, from assets allocated
to the Separate Accounts, are credited to or charged against the Separate
Accounts without regard to other income, gains or losses of Equitable Life;
WHEREAS, the Separate Accounts for which registration is required, are
registered as investment companies under the Investment Company Act of 1940
("1940 Act"), and units of interest in the Separate Accounts are registered
under the Securities Act of 1933 ("1933 Act");
WHEREAS, certain general account and/or separate account interests,
such as MVA interests, are registered under the 1933 Act;
WHEREAS, the Distributor, a wholly-owned subsidiary of Equitable Life,
is a broker-dealer registered under the Securities Exchange Act of 1934 ("1934
Act") and is a member of the National Association of Securities Dealers, Inc.
("NASD");
WHEREAS, pursuant to a Distribution Agreement dated as of October 1,
1996 among Equitable Life, certain Separate Accounts and the Distributor (the
"Distribution Agreement"), Equitable Life and such Separate Accounts retained
the Distributor as a principal underwriter and distributor of certain products,
and the Distributor agreed to act in such capacity pursuant thereto;
WHEREAS, growth in the sales of Equitable Life products distributed by
the Distributor pursuant to the Distribution Agreement has enabled the parties
to improve the efficiency of
underwriting and distribution procedures and to realize economies of scale of
mutual benefit to the parties hereto, and the parties desire to revise the fee
schedule to reflect the same;
WHEREAS, the Distribution Agreement only provided for the distribution
of certain products and the parties anticipate increasing the relationship
between them to provide for the distribution of additional products not covered
under the Distribution Agreement;
WHEREAS, the Distribution Agreement may be terminated subsequent to
October 1, 1997 by any party thereto on sixty (60) days prior written notice,
and the parties desire to establish a minimum term for the distribution
arrangement between them of not less than one year from and after the date
hereof;
NOW, THEREFORE, the parties hereto hereby agree that the Distribution
Agreement is terminated and of no further force or effect as of December 31,
1997 and that hereafter the distribution arrangements between the parties shall
be as follows:
ARTICLE I
Distribution Responsibilities
ss.1.1 Equitable Life authorizes the Distributor to act, and the
Distributor agrees to serve, as a principal underwriter and distributor of the
Equitable Life products listed on Schedule I attached hereto (the "Products")
for and on behalf of Equitable and, if applicable, the Separate Accounts listed
on Schedule I with respect to such Products in all states and other
jurisdictions in which the Products may legally be sold. During the term of this
Agreement the Distributor agrees in turn that during such same period it will
act exclusively for Equitable Life and will not underwrite or distribute or
contract to underwrite or distribute any other financial services products
without the prior written consent of Equitable Life in each instance.
ss.1.2 The Distributor represents that it is a broker-dealer duly
registered under the 1934 Act and is a member in good standing of the NASD and,
to the extent necessary to perform the activities contemplated hereunder, is
duly registered, or otherwise qualified, under the securities laws of every
state and other jurisdiction in which the Products are available for sale, and
the Distributor agrees to maintain such status.
ss.1.3 The Distributor shall at all times function as and be deemed to
be an independent contractor and will be under no obligation to effectuate any
particular number of sales of Products or to promote or make sales, except to
the extent the Distributor deems advisable. The Distributor shall be fully
responsible for carrying out all compliance and supervisory obligations in
connection with its distribution of the Products, to the extent the same are
securities, as required by the NASD Conduct Rules ("NASD Rules") and by federal
and any applicable state or foreign securities laws. The Distributor shall
assume full responsibility for the oversight of securities activities of any
person associated with the Distributor, as defined in Section 3(a)(18) of the
1934 Act, and engaged directly or indirectly in the distribution of the Products
("Associated Persons"), and shall have the authority to require that
disciplinary action be taken with respect to the Associated Persons. The
Distributor shall be fully responsible for any and all
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compensation due and payable to any persons distributing the Products and/or
soliciting applications therefor directly or indirectly by reason of the
authorization granted to Distributor herein.
ss.1.4 The Distributor is hereby authorized to enter into written
agreements ("Sales Agreements") with (a) broker-dealers ("Third Party Broker
Dealers") to solicit applications for the sale of Products which are exclusively
securities, (b) with general agents ("Third Party General Agents") to solicit
applications for Products that are exclusively insurance products and (c) with
Third Party Broker Dealers and their affiliated Third Party General Agents to
jointly solicit applications for the sale of Products that are both securities
and insurance products. A Third Party Broker Dealer may also be a Third Party
General Agent. Where state law does not provide for or require general agents,
the Distributor may contract with individual insurance agents affiliated with
the Third Party Broker Dealer to act as designated insurance principals in place
of a Third Party General Agent, and all references herein to Third Party General
Agents shall also apply to such designated insurance principals. All Sales
Agreements for any Product shall be in the standard form thereof as to such
Product approved in advance by Equitable Life with such nonmaterial changes
thereto as the other parties thereto may require. The Distributor shall not
enter into any other form of Sales Agreement without the prior approval of
Equitable Life in each case. All compensation arrangements in any Sales
Agreement with Third Party Broker Dealers and/or Third Party General Agents
shall be approved in advance by Equitable Life. The Distributor shall not modify
or amend any compensation arrangement in any Sales Agreement or offer any
commission specials, promotions, bonuses or other cash or non-cash compensation
incentives, without in each case first obtaining the prior consent of Equitable
Life thereto.
ss.1.5 The Sales Agreements shall require that each party thereto which
is a Third Party Broker Dealer shall assume full responsibility for continued
compliance by itself and its associated persons (as defined in Section 3(a)(18)
of the 0000 Xxx) with the NASD Rules and applicable federal and state securities
and insurance laws. Each Third Party Broker Dealer and its registered
representatives ("Registered Representatives") soliciting applications for the
Products shall be duly and appropriately licensed, registered and otherwise
qualified for the sale of the Products under the NASD Rules and federal and
state securities and insurance laws applicable to the offer and sale of the
Products. The Distributor shall have full responsibility for the supervision of
all Third Party Broker Dealers and shall assume, and indemnify and hold
Equitable Life harmless from and against, all liability for the acts and
omissions of any Third Party Broker Dealer or its Registered Representatives.
ss.1.6 The Distributor is authorized to recommend the appointment of
Third Party General Agents and Qualified Agents (as hereinafter defined) of such
Third Party General Agent as agents of Equitable Life for the sale of particular
Products. As used herein a "Qualified Agent" shall mean an insurance agent of a
Third Party General Agent who is licensed to sell products such as the Products
it is being appointed to sell in all states and other jurisdictions in which
such agent intends to sell such Products and, if such Products are both
securities and insurance products, is also a Registered Representative of the
Third Party Broker Dealer affiliated with such Third Party General, an
"Appointed Equitable Agent" shall mean a Qualified Agent who has been appointed
as an agent of Equitable Life for the sale of particular Products, and a "Sales
Representative" shall mean a Registered Representative or Appointed Equitable
Agent, as the case may be. Each Sales Agreement with a Third Party General Agent
shall
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obligate such party to apply for and maintain proper insurance licenses for
itself and each of its Appointed Equitable Agents in all states and other
jurisdictions in which applications for Products are to be solicited by such
agent. Equitable Life will appoint Qualified Agents recommended by the
Distributor as Appointed Equitable Agents in all states and other jurisdictions
in which such agent proposes to solicit applications for Products, provided that
Equitable Life reserves the right to refuse to appoint any Third Party General
Agent or individual agent recommended by the Distributor which Equitable Life
determines in its sole discretion to be unsatisfactory for appointment and,
following written notice to the Distributor, to terminate any such appointment
thereafter.
ss.1.7 The parties hereto recognize that Appointed Equitable Agents
will be acting as insurance agents of Equitable Life and that the obligations
and rights of the Distributor to supervise such persons shall be limited to the
extent specifically described herein or required under applicable federal or
state securities laws or NASD Rules. No Sales Representative shall be considered
an agent or employee of the Distributor. Further, it is intended by the parties
hereto that all Sales Representative are and shall continue to be considered to
have a common law independent contractor relationship with Equitable Life and
not to be common law employees of Equitable Life, unless any contract between
Equitable Life and any person selling Products specifically provides otherwise.
ss.1.8 The Distributor shall take reasonable steps to ensure that no
Sales Representative shall recommend the purchase of a Product to any applicant
in the absence of reasonable grounds to believe that the purchase of the Product
is suitable for such applicant. While not limited to the following, a
determination of suitability shall be based on information furnished to the
Sales Representative after reasonable inquiry of such applicant (and any other
information known about the applicant) concerning the applicant's insurance and
investment objectives and financial situation and needs, including the
likelihood (depending upon the nature of the Product) that the applicant will
make sufficient payments or retain the Product for a sufficient period of time
to derive the benefits of the Product.
ss.1.9 The Distributor shall not use, develop or distribute, nor permit
any other person, including, without limitation, any Third Party Broker Dealer,
Third Party General Agent or Sales Representative to use, develop or distribute,
any promotional, sales, marketing and advertising materials relating to
Products, including, without limitation, advertisements, sales brochures,
circulars, research reports, market letters, form letters, seminar texts,
proposals, illustrations, or other materials and communications (collectively,
"Sales Materials") which have not been approved in advance by Equitable Life.
The Distributor agrees that it will make timely filings, as required, with the
NASD and all other securities regulators of all Sales Materials and obtain such
approvals as may be necessary. Equitable Life will be responsible for filing all
Sales Materials, as necessary, with insurance regulatory authorities and
obtaining any required approvals. The Distributor shall not make, nor shall it
permit any other person including, without limitation, any Third Party Broker
Dealer, Third Party General Agent or Sales Representative to make, any
warranties or representations with respect to the Products or communicate any
information regarding Equitable Life, the Products, any Separate Account, any
MVA interests or the funding media as to any Product which is not contained in
Sales Materials approved by Equitable Life, as
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provided in this Agreement, or included in any registration statements with
respect to such Product effective under the 1933 Act at the time of such
warranty, representation or communication.
ss.1.10 The Distributor shall not possess or exercise any authority on
behalf of Equitable Life other than that expressly conferred pursuant to this
Agreement. In particular, and without limiting the foregoing, the Distributor
shall not, nor shall it permit any Third Party Broker Dealer, Third Party
General Agent or Sales Representative to, (i) modify or amend any Product in any
respect or make, alter or discharge any contract or policy or other contract
entered into pursuant to any such contract or policy; (ii) waive any contract or
policy provision; (iii) extend the time for payment of any premiums; (iv)
receive any monies in payment of premiums in respect of any contract or policy
(except for the sole purpose of forwarding the same to Equitable Life); (v) make
any representations concerning any of the terms, rates, charges or provisions of
any contract or policy except as expressly authorized in writing by Equitable
Life, (vi) agree to any private labeling of any Product or sell or distribute
any Product under any name other than Equitable Life, (vii) enter into any
reinsurance or coinsurance agreement or undertaking, or (viii) issue, modify or
amend any regulations or procedures concerning the Products or the sale or
distribution of the Products, without in each case first obtaining the prior
consent of Equitable Life thereto.
ss.1.11 The Distributor shall be responsible for maintaining all
records with respect to Sales Representatives and for furnishing periodic
reports to Equitable Life as to the sale of Products made pursuant to Sales
Agreements entered into pursuant to this Agreement.
ss.1.12 Anything in this Agreement to the contrary notwithstanding,
Equitable Life shall retain the ultimate right of control over, and the
responsibility for, the issuance, servicing and marketing of the Products,
including the right to review and approve all advertising concerning the
Products, to suspend sales of the Products in any jurisdiction or jurisdictions,
to appoint and discharge its agents authorized to sell the Products, and to
refuse to sell a Product to any applicant for any reason whatsoever.
ARTICLE II
Recordkeeping Responsibility for the Products
ss.2.1 The Distributor and Equitable Life shall each cause to be
maintained and preserved such accounts, books and other documents as are
required of each of them by the 1934 Act and 1940 Act and any other applicable
laws and regulations. In particular, without limiting the foregoing, the
Distributor shall cause all the books and records in connection with the offer
and sale of the Products to be maintained and preserved in conformity with the
requirements of Rules 17a-3 and 17a-4 under the 1934 Act and as may otherwise be
required under the NASD Rules and federal and applicable state securities laws,
to the extent that such requirements are applicable to the Products.
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ss.2.2 The Distributor and Equitable Life shall each submit to all
regulators and administrative bodies having jurisdiction over the sales of the
Products, present or future, any information, reports or other material that any
such body may request or require pursuant to applicable laws or regulations. In
particular, without limiting the foregoing, Equitable Life agrees that any books
and records which it maintains which are required to be maintained by the
Distributor under Rule 17a-3 or 17a-4 of the 1934 Act shall be subject to
inspection by the Securities and Exchange Commission ("SEC") in accordance with
Section 17(a) of the 0000 Xxx.
ss.2.3 The Distributor and Equitable Life each agree and understand
that all documents, reports, records, books, files and other materials required
under applicable NASD regulations and federal and state securities laws relative
to the sale of Products shall be the property of the Distributor, with the
exception of any books and records maintained by Equitable Life which relate to
sales compensation and which shall be the joint property of Equitable Life and
the Distributor. If, however, such documents, reports, records, books, files and
other materials which are the property of the Distributor are required by
applicable regulation or law to be maintained also by Equitable Life, such
material shall be the joint property of the Distributor and Equitable Life. All
other documents, reports, records, books, files and other materials maintained
relative to this Agreement shall be the property of Equitable Life. Upon the
termination of this Agreement, all such material shall be returned to the
applicable party.
ss.2.4 The Distributor and Equitable Life, from time to time during the
term of this Agreement, shall allocate among themselves, subject to a right of
further delegation, the administrative responsibility for maintaining and
preserving the books, records and accounts kept in connection with the Products;
provided, however, in the case of books, records and accounts kept pursuant to a
requirement of applicable law or regulation, the ultimate responsibility for
maintaining and preserving such books, records and accounts shall be that of the
party which is required to maintain or preserve such books, records and accounts
under the applicable law or regulation, and such books, records and accounts
shall be maintained and preserved under the supervision of that party. The
Distributor and Equitable Life shall cause each other to be furnished with such
reports as each may reasonably request for the purpose of meeting its respective
reporting and recordkeeping requirements under such regulations and laws and
under the insurance laws of the State of New York and any other applicable
states or jurisdictions.
ARTICLE III
Sale Procedures
ss.3.1 Equitable Life represents and warrants that all Products and
units of interest therein, if any, which must be registered under the 1933 Act
have been so registered, that all Separate Accounts listed on Schedule I hereto
are registered under the 1940 Act, that the Products which are insurance
products are qualified to be sold under the insurance laws and that the Products
which are securities are qualified to be sold under the applicable securities
laws of all states and other jurisdictions in which the Products are authorized
for sale. Equitable Life further represents and warrants that it is a life
insurance company duly organized under the laws of the State of New York and in
good standing and authorized to conduct business under the laws of each state in
which the Products are offered and sold.
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ss.3.2 The Sales Agreements will obligate Third Party Broker Dealers,
Third Party General Agents and Sales Representatives to use only the currently
effective prospectuses, statements of additional information ("SAIs") and other
authorized materials in soliciting the sale of the Products.
ss.3.3 The Sales Agreements shall provide that all applications for the
Products shall be made on application forms supplied by Equitable Life or in a
form otherwise satisfactory to Equitable Life, and shall be forwarded directly
to Equitable Life, together with any other required documentation and all
premiums and other sums at the address indicated on such application or to such
other address as Equitable Life may, from time to time, designate in writing.
Checks, money orders or electronic transmissions of funds in payment on any
Product shall be drawn to the order of "The Equitable Life Assurance Society of
the United States". All applications for Products shall be subject to acceptance
or rejection by Equitable Life at its discretion. . Any applications, other
documents or payments received by the Distributor shall be immediately remitted
by the Distributor to Equitable Life. All matters relating to the review and
acceptance of applications and the negotiation and issuance of the Products
shall be solely within Equitable Life's control.
ss.3.4 All money payable in connection with the Products, whether as
purchase payments or otherwise, and whether paid by, or on behalf of any
applicant or Product owner, is the property of Equitable Life. If such money is
not transmitted directly by a Third Party Broker Dealer or the Third Party
General Agent to Equitable Life in accordance with the administrative procedures
of Equitable Life and is received by the Distributor, it shall be transmitted
promptly by the Distributor in accordance with the administrative procedures of
Equitable Life without any deduction or offset for any reason, including by
example but not limitation, any deduction or offset for compensation claimed by
the Distributor or payable to the Third Party Broker Dealers or Third Party
General Agents, without the prior written consent of Equitable. No payments
shall be accepted by the Distributor in connection with the Products.
ss.3.5 Subject to ss.4.2 below, Equitable Life shall provide to the
Distributor copies of such prospectuses, statements of additional information,
financial statements sales materials and other documents in such numbers as the
Distributor shall reasonably request for use in connection with the solicitation
of applications for the Products.
ss.3.6 Unless otherwise agreed in writing by Equitable Life, neither
the Distributor, the Third Party Broker Dealers, the Third Party General Agents
nor the Sales Representatives shall have any interest in any premiums, surrender
charges, deductions or other fees payable to Equitable Life.
ARTICLE IV
Compensation and Expenses
ss.4.1 Equitable Life shall pay the Distributor as full compensation
for its services under this Agreement the fees with respect to each Product
provided Schedule II annexed hereto. In no
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event, however, shall any compensation paid hereunder exceed the compensation
paid in the relevant market for comparable services.
ss.4.2 The Distributor shall pay all costs and expenses incurred by it
in the performance of its services hereunder, including without limitation, sums
due and payable to Third Party Broker Dealers and/or Third Party General Agents
under the Sales Agreements, without reimbursement or contribution by Equitable
Life or any Separate Account, except that (a) unless otherwise provided in
Schedule 1 to the contrary, Equitable Life will reimburse the Distributor for
sums due and payable to Third Party Broker Dealers and/or Third Party General
Agents under the Sales Agreements, (b) the costs of printing the prospectuses,
statements of additional information and sales material used in connection with
the solicitation of applications for the Products pursuant to the Sales
Agreements shall be borne by Equitable Life or the Distributor, or shall be paid
in part by each of them, as Equitable Life and the Distributor shall from time
to time mutually agree and (c) appointment and similar fees with respect to
Appointed Equitable Agents, including without limitation initial appointment
fees, renewal appointment fees, transfer fees and termination fees, shall be
shall be borne by Equitable Life or the Distributor, or shall be paid in part by
each of them, as Equitable Life and the Distributor shall from time to time
mutually agree.
ARTICLE V
Complaints and Regulatory Proceedings
ss.5.1 The Distributor and Equitable Life agree to cooperate fully in
insurance regulatory investigations or proceedings or judicial proceedings
arising in connection with the offering, sale or distribution of the Products.
The Distributor and Equitable Life further agree to cooperate fully in any
securities regulatory investigation or proceeding or judicial proceeding with
respect to Equitable Life, the Distributor, their respective affiliates and
agents or representatives, to the extent that such investigation or proceeding
is in connection with the Products.
ss.5.2 Without limiting the generality of Section 5.1, the Distributor
and Equitable Life agree that:
(A) Each will promptly notify the other of any customer
complaint or notice of any regulatory investigation or proceeding or judicial
proceeding received by either of them or any agent or representative thereof
which may affect Equitable Life's issuance of the Products and/or the
Distributor.
(B) Each will promptly notify the other of any customer
complaint or notice of any regulatory investigation or proceeding received by it
or any of its affiliates with respect to any Product or the sale thereof.
(C) In the case of a substantive customer complaint, the
Distributor and Equitable Life will cooperate in investigating such complaint
and any response to such complaint which either of them has prepared will be
sent to the other for approval not less than five (5) business days prior to its
transmittal to the customer or regulatory authority, except that if a more
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prompt response is required, the proposed response shall be communicated by
telephone or facsimile transmission.
ARTICLE VI
Indemnification
ss.6.1 Equitable Life agrees to indemnify and hold harmless the
Distributor and its officers, directors, employees, agents and representatives
against any losses, claims, damages or liabilities, joint or several, to which
the Distributor or its affiliates or such officer or director may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact,
required to be stated therein or necessary to make the statements therein not
misleading, contained in
(A) any registration statement relating the Products or any
interests offered under the Products, or any amendment thereof, or
(B) any document executed by Equitable Life specifically for
the purpose of qualifying the Products for sale under the securities laws of any
jurisdiction. Equitable Life will reimburse the Distributor and each such
officer, director, employee, agent and/or representative for any legal or other
expenses reasonably incurred by the Distributor or such officer, director,
employee, agent and/or representative in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that Equitable Life will not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information (including, without limitation,
negative responses to inquiries) furnished to Equitable Life by or on behalf of
the Distributor specifically for use in the preparation of any such registration
statement or any amendment thereof or any such qualification document or any
amendment thereof.
ss.6.2 The Distributor agrees to indemnify and hold harmless Equitable
Life, its directors, each of its officers who has signed a registration
statement relating to a Product, each person, if any, who controls Equitable
Life within the meaning of the 1933 Act or the 1934 Act, and the Separate
Accounts against any losses, claims, damages or liabilities to which Equitable
Life and any such director, officer employee, agent and/or representative or
controlling person may become subject, under the 1933 Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(A) Any untrue statement or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, contained in (i) any
registration statement relating to a Product or any interest offered under the
Product or any amendment thereof, or (ii) any qualification document relating to
the Product or interest offered under the Product or any amendment thereof, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission
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or alleged omission was made in reliance upon and in conformity with information
(including without limitation, negative responses to inquiries) furnished to
Equitable Life by the Distributor specifically for use in the preparation of
such registration statement, qualification document or amendment thereof; or
(B) Any unauthorized use of sales materials or any verbal or
written misrepresentations or any unlawful sales practices concerning the
Products by the Distributor or otherwise attributable to a failure by the
Distributor to discharge properly its responsibilities under this Agreement; or
(C) Claims by officers, directors, employees, agents or
representatives or employees of the Distributor for commissions, service fees,
expense allowances or other compensation or remuneration of any type.
The Distributor will reimburse Equitable Life and any director, officer,
employee, agent, representative or controlling person for any legal or other
expenses reasonably incurred by Equitable Life, such director, officer,
employee, agent and/or representative or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which the
Distributor may otherwise have.
ss.6.3 Promptly after receipt by a party entitled to indemnification
("Indemnified Party") under this Article VI of notice of the commencement of any
action, if a claim in respect thereof is to be made against any person obligated
to provide indemnification under this Article VI ("Indemnifying Party"), such
Indemnified Party will notify the Indemnifying Party in writing of the
commencement thereof, but the omission so to notify the Indemnifying Party will
not relieve it from any liability under this Article VI, except to the extent
that the omission results in a failure of actual notice to the Indemnifying
Party and such Indemnifying Party is damaged solely as a result of the failure
to give such notice. In case any such action is brought against any Indemnified
Party, and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party will be entitled to participate therein, and, to the extent
that it may wish to assume the defense thereof, with separate counsel
satisfactory to the Indemnified Party. Such participation shall not relieve such
Indemnifying Party of the obligation to reimburse the Indemnified Party for
reasonable legal and other expenses incurred by such Indemnified Party in
defending itself, except for such expenses incurred after the Indemnifying Party
has deposited funds sufficient to effect the settlement, with prejudice, of the
claim in respect of which indemnity is sought. Any such Indemnifying Party shall
not be liable to any such Indemnified Party on account of any settlement of any
claim or action effected without the consent of such Indemnifying Party.
ss.6.4 The indemnity agreements contained in this Article VI shall
remain operative and in full force and effect, regardless of:
(A) any investigation made by or on behalf of the Distributor
or any officer or director thereof or by or on behalf of Equitable Life or any
officer or director thereof;
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(B) delivery of any Products and payments therefor; and
(C) any termination of this Agreement.
A successor by law of the Distributor or of any other party to this Agreement,
as the case may be, shall be entitled to the benefits of the indemnity
agreements contained in this Article VI.
ARTICLE VII
Term of Agreement
ss.7.1 This Agreement shall become effective as of the date first above
written and shall continue in full force and effect from year to year
thereafter, until terminated as herein provided.
ss.7.2 This Agreement may be terminated by any party hereto on not less
than sixty (60) days' prior written notice to the other parties or by an
agreement in writing signed by all of the parties hereto. Unless otherwise
agreed by the parties hereto, this Agreement shall automatically be terminated
in the event of its assignment.
ss.7.3 Upon termination of this Agreement, all authorizations, rights,
and obligations shall cease except as expressly provided to the contrary herein
and except for the obligations of the parties to settle accounts hereunder,
including the settlement of monies due in connection with Products in effect at
the time of termination or issued pursuant to applications received by Equitable
Life prior to termination, and the agreements contained in Articles V and VI.
ARTICLE VIII
Miscellaneous
ss.8.1 None of the parties hereto shall be liable to the other for any
action taken or omitted by it, or any of its officers, agents or employees, in
performing their respective responsibilities under this Agreement in good faith
and without negligence, willful misfeasance or reckless disregard of such
responsibilities.
ss.8.2 The Distributor will execute such papers and do such acts and
things as shall from time to time be reasonably requested by Equitable Life for
the purpose of (a) maintaining the registration of the interests under the
Contracts under the 1933 Act and the Separate Accounts under the 1940 Act, and
(b) qualifying and maintaining qualification of the Contracts for sale under the
applicable laws of any state.
ss.8.3 All notices under this Agreement shall be given in writing and
addressed as follows:
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if to the Distributor, to:
Equitable Distributors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
if to Equitable Life; to:
The Equitable Life Assurance Society of the United States
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Distribution Officer
or to such other address as such party may hereafter specify in writing. Each
such notice shall be either hand delivered or transmitted by certified United
States mail, return receipt requested, and shall be effective upon delivery.
ss.8.4 If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
ss.8.5 This Agreement constitutes the entire agreement between the
parties hereto and may be amended only in a written instrument executed by all
parties hereto.
ss.8.6 This Agreement shall be subject to the provisions of the 1934
Act and, to the extent applicable, the 1940 Act and the rules, regulations and
rulings thereunder and of the NASD, from time to time in effect, including such
exemptions from the 1940 Act as the SEC may grant, and the terms hereof shall be
interpreted and construed in accordance therewith.
ss.8.7 This Agreement shall be interpreted in accordance with the laws
of the State of New York.
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ss.8.8 This Agreement may be executed in two or more counterparts, each
of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
amended and restated as of January 1, 1998 and to be signed by their respective
officials thereunto duly authorized, as of said date.
THE EQUITABLE LIFE ASSURANCE EQUITABLE DISTRIBUTORS, INC.
SOCIETY OF THE UNITED STATES,
for itself and as depositor on
behalf of each of the Separate
Accounts from time to time
listed on Schedule I hereof. By:___/s/ Xxxxx X. Xxxxxxxxxxx, III
-------------------------
Xxxxx X. Xxxxxxxxxxx, III
Co-President and Co-Chief
By:___/s/ Xxxx Xxxxxx Executive Officer
-------------------------------
Xxxx Xxxxxx
Senior Executive Vice President
and Chief Distribution Officer By:___/s/ Xxxx Xxxxxxxxx
-------------------------
Xxxx Xxxxxxxxx
Co-President and Co-Chief
Executive Officer
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SCHEDULE I
PRODUCTS
PART 1 - Separate Account No. 49 Products
------ --------------------------------
The Distributor shall distribute the following Products allocated to
Separate Account No. 49 and/or MVA interests:
Accumulator (Non-Qualified)
Accumulator (XXX)
Accumulator (QP)
Accumulator Select (Non-Qualified)
Accumulator Select (XXX)
Accumulator Select (QP)
PART 2 - Separate Account No. 45 Products
------ --------------------------------
Prior to, but not after, May 1, 1998, the Distributor shall distribute
the following Products allocated to Separate Account No. 45 and/or general
account MVA interests:
Accumulator (Non-Qualified)
Accumulator (XXX)
Accumulator (QP)
PART 3 - MVA Interest Products
------ ---------------------
The Distributor shall distribute the following MVA interest Products:
Assured Growth Plan
Income Manager Payout Annuity (Non-Qualified)
Income Manager Payout Annuity (XXX)
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SCHEDULE II
COMPENSATION
Equitable Life will pay the Distributor, as full and complete
compensation for its services under this Agreement, the following fees ("Fees"),
calculated on the basis of total premiums, contributions or other considerations
("Total Annual Premiums") received by Equitable Life in any calendar year or
portion thereof during the term hereof from the sale by Equitable Life of the
Products (other than the sale of Separate Account No. 45 Products) distributed
by the Distributor pursuant to this Agreement as follows:
(a) 2.65% of the first Total Annual Premiums collected up to $350
Million;
(b) 2.25% of the next $350 Million of Total Annual Premiums collected
(that is, to the extent Total Annual Premiums exceed $350 Million but
not $700 Million);
(b) 2.15% of the next $350 Million of Total Annual Premiums collected
(that is, to the extent Total Annual Premiums exceed $700 Million but
not $1,050 Million);
(c) 2.00% of the next $350 Million of Total Annual Premiums collected
(that s, to the extent Total Annual Premiums exceed $1,050 Million but
not $1,400 Million);
(d) 1.75% of all additional Total Annual Premiums collected (that is,
to the extent Total Annual Premiums exceed $1,400 Million).
Fees shall be due and payable by Equitable Life to the Distributor
monthly at the end of each calendar month in an amount equal to the difference
between (1) the total amount of all Fees due and payable for the calendar year
in question calculated as above provided through and including the last day of
such calendar month and (2) all Fees previously paid to the Distributor on
account of such calendar year. Each payment made will be accompanied by a
statement setting forth in reasonable detail information identifying the Total
Annual Premiums collected by Equitable Life through the end of the month in
question and the amounts of all Fees paid on account of the preceding calendar
months in the year in question. Equitable Life will maintain appropriate
documentation supporting the calculation of Fees due and payable hereunder which
shall be available to the Distributor upon request. For the purposes of the
above formula, the amount of Total Annual Premiums collected shall be reduced by
the amount of Premiums returned in the year in question because of declinations,
free look, cancellations and, if within twelve months of orginal issuance,
recisions.
In addition to the Fees due and payable hereunder, Equitable Life
hereby assumes and agrees to pay all the obligations of the Distributor under
Article VII of that certain Sales Agreement dated as of April 27, 1995 by and
among the Distributor, Equico Securities, Inc., Equisource of New York, Inc. at
al., as modified and amended, to pay compensation and other sums, if any, due
and payable first accruing on or subsequent to January 1, 1998.
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