FORM OF INVESTMENT ADVISORY AGREEMENT
Exhibit (d)(49)
FORM OF INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of August 1, 2006, by and between AXA Equitable Life Insurance Company, a New York stock life insurance corporation (the “Manager”), and OppenheimerFunds, Inc., a corporation organized under the laws of the State of Colorado (“Adviser”).
WHEREAS, the Manager has entered into an Amended and Restated Investment Management Agreement dated May 1, 2000 with EQ Advisors Trust (“Trust”), an investment company registered under the Investment Company Act of 1940, as amended (“Investment Company Act”);
WHEREAS, the Board of Trustees of the Trust and the Manager have retained the Adviser to render investment advisory and other services to the Trust’s Portfolio(s) specified in Appendix A hereto, (each a “Portfolio” and collectively, the “Portfolios”), in the manner and on the terms hereinafter set forth;
WHEREAS, the Trust’s shareholders are and will be primarily separate accounts maintained by insurance companies for variable life insurance policies and variable annuity contracts (the “policies”) under which income, gains and losses, whether or not realized, from assets allocated to such accounts are, in accordance with the Policies, credited to or charged against such accounts without regard to other income, gains, or losses of such insurance companies; as well as other shareholders as permitted under Section 817(h) of the Internal Revenue Code of 1986, as amended (“Code”), and the rules and regulations thereunder with respect to the qualification of variable annuity contracts and variable life insurance policies as insurance contracts under the Code;
WHEREAS, the Manager is registered as an investment adviser under the Investment Advisers Act of 1940, as amended (“Advisers Act”) and is the investment manager to the Trust;
WHEREAS, the Adviser is registered as an investment adviser under the Advisers Act;
WHEREAS, the Manager has the authority under the Investment Management Agreement with the Trust to select advisers for each Portfolio of the Trust; and
WHEREAS, the Adviser is willing to furnish investment advisory and other services to the Manager and the Portfolios;
NOW, THEREFORE, the Manager and the Adviser agree as follows:
| 1. | APPOINTMENT OF ADVISER |
The Manager hereby appoints the Adviser to act as an investment adviser for the Portfolios, subject to the supervision and oversight of the Manager and the Trustees of the Trust, and in accordance with the terms and conditions of this Agreement. The Adviser will be an independent contractor and will have no authority to act for or represent the Trust or the Manager in any way or otherwise be deemed an agent of the Trust or the Manager except as expressly authorized in this Agreement or another writing by the Trust, the Manager and the Adviser.
| 2. | ACCEPTANCE OF APPOINTMENT |
The Adviser accepts that appointment and agrees to render the services herein set forth, for the compensation herein provided. The Adviser shall not be responsible for any services to the Portfolios, or bear any expenses, other than those expressly delineated herein.
The assets of the Portfolios will be maintained in the custody of a custodian (who shall be identified by the Manager in writing). The Adviser will not have custody of any securities, cash or other assets of the Portfolios and will not be liable for any loss resulting from any act or omission of the custodian other than acts or omissions arising in reliance on instructions of the Adviser.
| 3. | SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST |
A. As investment adviser to the Portfolios, the Adviser will coordinate the investment and reinvestment of the assets of the Portfolios and determine the composition of the assets of the Portfolios subject always to the supervision and control of the Manager and the Trustees of the Trust, to the extent the Manager’s direction is not inconsistent with that of the Trustees.
B. As part of the services it will provide hereunder, the Adviser will:
(i) obtain and evaluate, to the extent deemed necessary and advisable by the Adviser in its discretion, pertinent economic, statistical, financial, and other information affecting the economy generally and individual companies or industries, the securities of which are under consideration for inclusion in the Portfolios;
(ii) formulate and implement a continuous investment program for the Portfolios;
(iii) take whatever steps are necessary to implement the investment program for the Portfolios by arranging for the purchase and sale of securities and other investments, including issuing directives to the administrator of the Trust as necessary for the appropriate implementation of the investment program of the Portfolios
(iv) keep the Trustees of the Trust and the Manager informed in such format and frequency as may be mutually agreed upon of all material facts concerning the Adviser’s services hereunder and make periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Manager or the Trustees of the Trust;
(v) as reasonably requested by Manager or the Portfolios’ fund accounting agent, provide assistance in determining the fair value of securities and other investments/assets in the Portfolios that are not registered for public sale, not traded on any securities markets, or otherwise may be deemed illiquid for purposes of the Investment Company Act and for which market quotations are not readily available, provided, however, that the parties acknowledge that the Adviser is not the fund accounting agent for the Portfolio(s) and is not responsible for pricing determinations or calculations and any information provided pursuant to this provision by the Adviser will
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be provided according to the Adviser’s polices and procedures and for information purposes only. The Adviser will use reasonable efforts to assist the Manager or the Portfolios’ fund accounting agent to obtain a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in the Portfolios for which market prices are not readily available;
(vi) as reasonably requested by the Manager or the Manager’s agent, the Adviser may provide certain qualitative information on securities held in the Portfolios, including, but not limited to, liquidity determinations. Any qualitative determinations are provided according to the Advisers’ policies and procedures.
(vii) if applicable, provide any and all material composite performance information about accounts the Adviser manage, if appropriate, which are relevant to the Portfolios and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the portfolio that may be reasonably necessary, under applicable laws, to allow the Portfolios or their agent to present information concerning Adviser’s prior performance in the Trust’s Prospectus and SAI (as herein defined) and any permissible reports and materials prepared by the Portfolios or their agent (it being understood that the use of any such performance information is solely the discretion of the Portfolios, which is responsible for the use of any such performance information);
(viii) cooperate with and provide reasonable assistance to the Manager, the Trust’s administrator, the Trust’s custodian and foreign custodians, the Trust’s transfer agent and pricing agents and all other agents and representatives of the Trust and the Manager, keep all such persons fully informed as to such matters as they have apprised the Adviser in writing that may reasonably deem necessary to the performance of their obligations to the Trust and the Manager, provide prompt responses to reasonable requests made by such persons and, as mutually agreed upon, maintain any appropriate interfaces with each so as to promote the efficient exchange of information;
(ix) execute account documentation, agreements, contracts and other documents as the Adviser shall be requested by brokers, dealers, counterparties, and other persons to execute in connection with its management of the assets of the Portfolios, provided that this Agreement constitutes the express agreement and consent of the Manager and/or the Trust’s Board of Trustees to execute such documentation, agreements, contracts and other documents. In such respect, and only for this limited purpose, the Adviser shall act as the Manager’s and/or the Trust’s agent and attorney-in-fact;
(x) as mutually agreed upon, the Adviser will make available its officers and employees to meet with the Portfolios’ Board of Trustees at the Portfolios’ principal place of business upon sufficient written notice. The Adviser, upon consultation with and the approval of the Manager, will select which of its officers and employees will meet with the Portfolio’s Board;
(xi) the Adviser makes no representation or warranty, express or implied, that any level of performance or investment results will be achieved by the Portfolios, whether on a relative or absolute basis;
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C. In furnishing services hereunder, the Adviser shall make its best effort to perform in accordance with the following, unless otherwise specified in this Agreement: (i) the Trust’s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Trust Declaration”); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and Statement of Additional Information of the Trust filed with the SEC and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented (“Prospectus and SAI”); (iv) the Investment Company Act and the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Portfolios; (v) the Trust’s Compliance Manual and other policies and procedures adopted from time to time by the Board of Trustees of the Trust; and (vi) the written instructions of the Manager. Prior to commencement of the Adviser’s services hereunder, the Manager shall provide the Adviser with current copies of the Trust Declaration, By-Laws, Prospectus, SAI, Compliance Manual and other relevant policies and procedures that are adopted by the Board of Trustees. The Manager undertakes to provide the Adviser with copies or other written notice of any amendments, modifications or supplements to any such above-mentioned document. In performing its obligations under this Agreement, the Adviser may rely upon information provided to it by the Portfolios or on behalf of the Portfolios, the Trust, the Manager, the Portfolios’ custodian or other agent and will not independently verify the accuracy or completeness of such information. The Adviser shall not be liable for any loss, claim or damage related to such reliance. Notwithstanding the foregoing, the Adviser shall have no responsibility to monitor compliance with limitations or restrictions for which information from the Manager or its authorized agent is necessary to enable the Adviser to monitor compliance with such limitation or restrictions, unless such information is provided to the Adviser in writing.
D. The Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for them to faithfully perform their duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser’s duties under this Agreement.
E. The Adviser will select brokers and dealers, including “affiliated” (as that term is defined in the Investment Company Act) broker-dealers, to effect all Portfolio transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. In placing any orders for the purchase or sale of investments for the Portfolios, in the name of the Portfolio or its nominees, the Adviser shall, subject to Section 3.F. below, use its best efforts to obtain for the Portfolios “best execution”, considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Portfolios. The abilities of a broker-dealer to obtain best execution of particular portfolio transaction(s) will be judged by the Adviser on the basis of all relevant factors and considerations including, insofar as feasible: the execution capabilities required by the transaction or transactions; the ability and willingness of the broker-dealer to facilitate the Portfolio’s portfolio transactions by participating therein for its own account; the importance to the Portfolio of speed, efficiency or confidentiality; the broker-dealer’s apparent familiarity with sources from or to whom particular securities might be purchased or sold; as well as any other matters relevant to the selection of a broker-dealer for particular and related transactions of the Portfolio.
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The Adviser shall have no duty or obligation to seek advance competitive bidding for the most favorable commission rate applicable to any particular portfolio transaction or to select any broker-dealer on the basis of its purported or “posted” commission rate but will, to the best of its ability, endeavor to be aware of the current level of the charges of eligible broker-dealers and to minimize the expenses incurred by the Portfolio for effecting its portfolio transactions to the extent consistent with the interests of the Portfolio. The Adviser may effect the purchase and sale of securities (which are otherwise publicly traded) in private transactions on such terms and conditions as are customary in such transactions, may use a broker to effect said transactions, and may enter into a contract in which the broker acts either as principal or as agent.
F. The Adviser may, to the extent authorized by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”) cause the Portfolio to pay a broker or dealer that provides brokerage or research services to the Manager, the Adviser and the Portfolio an amount of commission for effecting a Portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Adviser determines, in good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or the Adviser’s overall responsibilities to the Portfolio or its other advisory clients or the advisory clients of its affiliates. In reaching such determinations, the Adviser will not be required to place or attempt to place a specific dollar value on the brokerage and/or research services provided or being provided by such broker-dealer. To the extent authorized by Section 28(e) and the Trust’s Board of Trustees, the Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action.
G. On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Portfolio as well as other clients of the Adviser, the Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to the Portfolio and to its other clients over time. The Manager agrees that Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Portfolio. The Manager also acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Portfolio, and that Adviser will carry out its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Portfolio any investment that Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Portfolio.
H. With respect to its duties as are set forth herein, the Adviser will maintain all accounts, books and records with respect to the Portfolios as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC forms 13D, 13F and 13G pursuant to Section 13 of the Exchange Act. The Adviser shall not otherwise be responsible for the preparation or filing of any report required with respect to the Portfolios. The Adviser will, unless and until
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otherwise directed in writing by the Manager or the Board of Trustees, and subject to the receipt of all necessary materials, vote proxies with respect to the Portfolios’ securities and exercise voluntary rights in corporate actions or otherwise in accordance with the Adviser’s proxy voting guidelines, as amended from time to time, which shall be provided to the Trust and the Manager. Regulatory reporting of such voting activity is the responsibility of the Manager, and any costs incurred relating to materials for such regulatory reporting are the responsibility of the Manager and/or the Portfolios. In addition, absent specific written instructions to the contrary provided to the Adviser by the Manager, and subject to the receipt of all necessary materials, the Adviser shall respond to all voluntary corporate actions involving the Portfolios’ investments. The Adviser will not process class action settlements on behalf of the Portfolios.
I. The Manager and the Adviser acknowledge that the Adviser is not the compliance agent for the Portfolios or the Manager, and does not have access to the Portfolios’ books and records necessary to perform certain compliance testing. To the extent that the Adviser has agreed to perform the services specified in this agreement in accordance with the Portfolio’s registration statement and charter documents, written instructions of the Manager and any policies adopted by the Portfolios’ Board of Trustees applicable to the Portfolio (collectively, the “Charter Requirements”), and in accordance with applicable law (including Subchapters M and L of the Code, the 1940 Act and the Advisers Act (“Applicable Law”)), the Adviser shall perform such services based upon its books and records with respect to the Portfolios, and shall not be held responsible under this Agreement so long as it performs such services in accordance with this Agreement, the Charter Requirements and Applicable Law based upon such books and records. The Adviser shall have no responsibility to monitor certain limitations or restrictions for which the Adviser has not been provided sufficient information in accordance with this Agreement or otherwise. All such monitoring shall be the responsibility of the Manager.
| 4. | COMPENSATION OF ADVISER |
The Manager will pay the Adviser an advisory fee with respect to each Portfolio as specified in Appendix A to this Agreement. Payments shall be made to the Adviser on or about the fifth day of each month; however, this advisory fee will be calculated daily for the Portfolio based on the net assets of the Portfolio on each day and accrued on a daily basis.
| 5. | LIABILITY AND INDEMNIFICATION |
A. Except as may otherwise be provided by the Investment Company Act or any other federal securities law, neither the Adviser nor any of its officers, members or employees (its “Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Manager or the Trust as a result of any error of judgment or mistake of law by the Adviser or its Affiliates with respect to the Portfolio, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Adviser or its Affiliates for, and the Adviser shall indemnify and hold harmless the Trust, the Manager, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Manager Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Manager Indemnitees may become subject under the 1933 Act, the Investment Company Act, the Advisers Act, or under any other statute, at common law or otherwise arising out of or based on (i) any willful misconduct, bad faith, reckless disregard or gross negligence of the Adviser in the performance of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact contained in the Prospectus and SAI, proxy materials,
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reports, advertisements, sales literature, or other materials pertaining to the Portfolio or the omission to state therein a material fact known to the Adviser which was required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon and conformity with information furnished to the Manager or the Trust by the Adviser Indemnitees (as defined below) for use therein.
B. Except as may otherwise be provided by the Investment Company Act or any other federal securities law, the Manager and the Trust shall not be liable for any losses, claims, damages, liabilities or litigation (including legal and other expenses) incurred or suffered by the Adviser as a result of any error of judgment or mistake of law by the Manager with respect to the Portfolio, except that nothing in this Agreement shall operate or purport to operate in any way to exculpate, waive or limit the liability of the Manager for, and the Manager shall indemnify and hold harmless the Adviser, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of the 1933 Act) (collectively, “Adviser Indemnitees”) against any and all losses, claims, damages, liabilities or litigation (including reasonable legal and other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, the Investment Company Act, the Advisers Act, or under any other statute, at common law or otherwise arising out of or based on (i) any willful misconduct, bad faith, reckless disregard or gross negligence of the Manager in the performance of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales literature, or other materials pertaining to the Portfolio or the omission to state therein a material fact known to the Manager that was required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the Manager or the Trust.
| 6. | REPRESENTATIONS OF MANAGER |
The Manager represents, warrants and agrees that:
A. The Manager has been duly authorized by the Board of Trustees of the Trust to delegate to the Adviser the provision of investment services to the Portfolios as contemplated hereby.
B. The Manager has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the Investment Company Act and will provide the Adviser with a copy of such code of ethics.
C. The Manager is currently in compliance and shall at all times continue to comply with the requirements imposed upon the Manager by applicable law and regulations.
D. The Manager (i) is registered as an investment adviser under the Advisers Act and will continue to be so registered for so long as this Agreement remains in effect; (ii) is not prohibited by the Investment Company Act, the Advisers Act or other law, regulation or order from performing the services contemplated by this Agreement; (iii) to the best or its knowledge, has met and will seek to continue to meet for so long as this Agreement is in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency necessary to be met in order to perform the services contemplated by this Agreement; and (v) will promptly notify Adviser of the occurrence of any event that would disqualify Manager from serving as investment manager of an investment company pursuant to Section 9(a) of the Investment Company Act or otherwise. The Manager will also promptly notify the Adviser if it is served or otherwise receives notice of any action, suit,
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proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, involving the affairs of the Portfolios, provided, however, that routine regulatory examinations shall not be required to be reported by this provision.
| 7. | REPRESENTATIONS OF ADVISER |
The Adviser represents, warrants and agrees as follows:
A. The Adviser (i) is registered as an investment adviser under the Advisers Act and will continue to be so registered for so long as this Agreement remains in effect; (ii) is not prohibited by the Investment Company Act, the Advisers Act or other law, regulation or order from performing the services contemplated by this Agreement; (iii) has met and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency necessary to be met in order to perform the services contemplated by this Agreement; (iv) has the authority to enter into and perform the services contemplated by this Agreement; and (v) will promptly notify Manager of the occurrence of any event that would disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the Investment Company Act or otherwise. The Adviser will also promptly notify the Portfolio and the Manager if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, in which the Portfolio has been named as a party, provided however, that routine regulatory examinations shall not be required to be reported by this provision.
B. The Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the Investment Company Act and will provide the Manager and the Board with a copy of such code of ethics, together with evidence of its adoption. When the Adviser has completed its internal review at the end of the last calendar quarter of each year that this Agreement is in effect, and as otherwise requested, an officer of the Adviser shall certify to the Manager that the Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Adviser’s code of ethics with respect to the Portfolios or, if such a material violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of the Manager, the Adviser shall permit the Manager, its employees or its agents to examine the reports required to be made to the Adviser by Rule 17j-1(c)(1) and all other records relevant to the Adviser’s code of ethics, provided such examination is made at the Adviser’s office on reasonable notice during regular business hours.
C. The Adviser has provided the Trust and the Manager with a copy of its Form ADV, which as of the date of this Agreement is its Form ADV as most recently filed with the Securities and Exchange Commission and will furnish a copy of all amendments to Form ADV, Part II to the Trust and the Manager at least annually. Such amendments shall reflect all changes as required by the Advisers Act.
D. The Adviser will notify the Trust and the Manager of any assignment of this Agreement or change of control of the Adviser, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolios or senior management of the Adviser, in each case prior to or promptly after, such change. Such notice may be made via email.
E. The Adviser agrees to maintain an appropriate level of errors and omissions or professional liability insurance coverage.
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F. The Adviser agrees that neither it, nor any of its affiliates, will knowingly in any way refer directly or indirectly to its relationship with the Trust, the Portfolios, the Manager or any of their respective affiliates in offering, marketing or other promotional materials without the express written consent of the Manager, except as required by rule, regulation or upon the request of a governmental authority. However, the Adviser may use the performance of the Portfolio in its composite performance.
G. the Portfolios’ prospectus will indicate that the Portfolio might not be fully invested in accordance with its objective for up to 30 days after inception;
H. the Manager has adopted and enforces its policies to identify and prevent investors in the Portfolios from market timing the purchase and sale of the Portfolio’s shares or engaging in arbitrage activity to the detriment of long-term investors in the Portfolios;
I. the Manager represents that any commission recapture or directed brokerage programs in place for the Portfolios are voluntary, and that the Adviser is not required to trade for the Portfolios in accordance with those programs.
| 8. | NON-EXCLUSIVITY |
The services of the Adviser to the Manager, the Portfolios and the Trust are not to be deemed to be exclusive, and the Adviser shall be free to render investment advisory or other services to others and to engage in other activities. It is understood and agreed that the directors, officers, affiliates and employees of the Adviser are not prohibited from engaging in any other business activity or from rendering services to any other person, or from serving as partners, officers, directors, trustees, or employees of any other firm or corporation.
| 9. | SUPPLEMENTAL ARRANGEMENTS |
The Adviser may from time to time employ or associate itself with any person it believes to be particularly suited to assist it in providing the services to be performed by such Adviser hereunder, provided that no such person shall perform any services with respect to the Portfolio that would constitute an assignment or require a written advisory agreement pursuant to the Investment Company Act. Any compensation payable to such persons shall be the sole responsibility of the Adviser, and neither the Manager nor the Trust shall have any obligations with respect thereto or otherwise arising under the Agreement.
In this regard, the Adviser may obtain investment information, research or assistance from any other person, firm or corporation to supplement, update or otherwise improve its investment management services.
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| 10. | REGULATION |
The Adviser shall submit to all regulatory and administrative bodies having jurisdiction over the services provided pursuant to this Agreement any information, reports, or other material which any such body by reason of this Agreement may request or require pursuant to applicable laws and regulations.
| 11. | RECORDS |
The records relating to the services provided under this Agreement shall be the property of the Trust and shall be under its control; however, the Trust shall furnish to the Adviser such records and permit it to retain such records (either in original or in duplicate form) as it shall reasonably require in order to carry out its duties. In the event of the termination of this Agreement, such records shall promptly be returned to the Trust by the Adviser free from any claim or retention of rights therein, provided that the Adviser may retain any such records that are required by law or regulation. The Manager and the Adviser shall keep confidential any information obtained in connection with its duties hereunder and disclose such information only if the Trust has authorized such disclosure or if such disclosure is expressly required or requested by applicable federal or state regulatory authorities or otherwise required by law.
| 12. | CONFIDENTIALITY |
The Trust and Manager will keep confidential any confidential records or confidential information with respect to Adviser obtained pursuant to this Agreement. The Trust and Manager will not disclose such confidential records or confidential information unless Adviser has authorized such disclosure, or unless such disclosure is required by applicable federal or state law or regulations or regulatory authorities having the requisite authority.
| 13. | DURATION OF AGREEMENT |
This Agreement shall become effective upon the date first above written, provided that this Agreement shall not take effect unless it has first been approved: (i) by a vote of a majority of those trustees of the Trust who are not “interested persons” (as defined in the Investment Company Act) (“Independent Trustees”) of any party to this Agreement, cast in person at a meeting called for the purpose of voting on such approval, and (ii) by vote of a majority of the Portfolio’s outstanding securities. This Agreement will continue in effect for a period more than two years from the date of its execution only so long as such continuance is specifically approved at least annually by the Board of Trustees provided that in such event such continuance shall also be approved by the vote of a majority of the Independent Trustees of any party to this Agreement cast in person at a meeting called for the purpose of voting on such approval.
| 14. | TERMINATION OF AGREEMENT |
This Agreement may be terminated at any time, without the payment of any penalty, by the Board of Trustees, including a majority of the Independent Trustees, by the vote of a majority of the outstanding voting securities of the Portfolio, on sixty (60) days’ written notice to the Manager and the Adviser, or by the Manager or Adviser on sixty (60) days’ written notice to the Trust and the other party. This Agreement will automatically terminate, without the payment of any penalty, (i) in the event of its assignment (as defined in the Investment Company Act), or (ii) in the event the Investment Management Agreement between the Manager and the Trust is assigned or terminates for any other reason. This Agreement will also terminate upon written
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notice to the other party that the other party is in material breach of this Agreement, unless the other party in material breach of this Agreement cures such breach to the reasonable satisfaction of the party alleging the breach within thirty (30) days after written notice.
| 15. | USE OF ADVISER’S NAME |
The parties agree that the name of the Adviser, the name “Main Street”, the names of any affiliates of the Adviser and any derivative or logo or trademark or service xxxx or trade name are the valuable property of the Adviser and its affiliates. The Manager and the Trust shall have the right to use such name(s), derivatives, logos, trademarks or service marks or trade names only with the prior written approval of the Adviser, which approval shall not be unreasonably withheld or delayed so long as this Agreement is in effect.
Upon termination of this Agreement, the Manager and the Trust shall forthwith cease to use such name(s), derivatives, logos, trademarks or service marks or trade names. The Manager and the Trust agree that they will review with the Adviser any advertisement, sales literature, or notice prior to its use that makes reference to the Adviser or its affiliates or any such name(s), derivatives, logos, trademarks, service marks or trade names so that the Adviser may review the context in which it is referred to, it being agreed that the Adviser shall have no responsibility to ensure the adequacy of the form or content of such materials for purposes of the Investment Company Act or other applicable laws and regulations. If the Manager or the Trust makes any unauthorized use of the Adviser’s names, derivatives, logos, trademarks or service marks or trade names, the parties acknowledge that the Adviser shall suffer irreparable harm for which monetary damages may be inadequate and thus, the Adviser shall be entitled to injunctive relief, as well as any other remedy available under law.
| 16. | AMENDMENTS TO THE AGREEMENT |
Except to the extent permitted by the Investment Company Act or the rules or regulations thereunder or pursuant to exemptive relief granted by the SEC, this Agreement may be amended by the parties only if such amendment, if material, is specifically approved by the vote of a majority of the outstanding voting securities of the Portfolio (unless such approval is not required by Section 15 of the Investment Company Act as interpreted by the SEC or its staff or unless the SEC has granted an exemption from such approval requirement) and by the vote of a majority of the Independent Trustees cast in person at a meeting called for the purpose of voting on such approval. The required shareholder approval shall be effective with respect to the Portfolio if a majority of the outstanding voting securities of the Portfolio vote to approve the amendment, notwithstanding that the amendment may not have been approved by a majority of the outstanding voting securities of any other Portfolio affected by the amendment or all the Portfolios of the Trust.
| 17. | ASSIGNMENT |
Any assignment (as that term is defined in the Investment Company Act) of the Agreement made by the Adviser without the prior written consent of the Trust and the Manager and shall result in the automatic termination of this Agreement, as provided in Section 13 hereof. Notwithstanding the foregoing, no assignment shall be deemed to result from any changes in the directors, officers or employees of such Adviser except as may be provided to the contrary in the Investment Company Act or the rules or regulations thereunder. The Adviser agrees that it will notify the Trust and the Manager of any changes in key employees within a reasonable time thereafter.
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| 18. | ENTIRE AGREEMENT |
This Agreement contains the entire understanding and agreement of the parties with respect to the Portfolio.
| 19. | HEADINGS |
The headings in the sections of this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.
| 20. | NOTICES |
All notices required to be given pursuant to this Agreement shall be delivered or mailed to the address listed below of each applicable party in person or by registered or certified mail or a private mail or delivery service providing the sender with notice of receipt. Notice shall be deemed given on the date delivered or mailed in accordance with this paragraph.
| For: | AXA Equitable Life Insurance Company |
Xxxxxxxx Xxxxx, Vice President and Associate General Counsel
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
| For: | EQ Advisors Trust |
Xxxxxxxx Xxxxx, Vice President and Secretary
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
| For: | OppenheimerFunds, Inc. |
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxx
With a copy to:
Attention – OFI Legal, Xxxxx Xxxxxxxxxx
At the same address
| 21. | SEVERABILITY |
Should any portion of this Agreement for any reason be held to be void in law or in equity, the Agreement shall be construed, insofar as is possible, as if such portion had never been contained herein.
| 22. | TRUST AND SHAREHOLDER LIABILITY |
The Manager and Adviser are hereby expressly put on notice of the limitation of shareholder liability as set forth in the Agreement and Declaration of Trust of the Trust and agree that obligations assumed by the Trust pursuant to this Agreement shall be limited in all cases to the Trust and its assets, and if the liability relates to one or more series, the obligations hereunder shall be limited to the respective assets of the Portfolio. The Manager and Adviser further agree that they shall not seek satisfaction of any such obligation from the shareholders or any individual shareholder of the Portfolio, nor from the Trustees or any individual Trustee of the Trust.
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| 23. | GOVERNING LAW |
The provisions of this Agreement shall be construed and interpreted in accordance with the laws of the State of New York, or any of the applicable provisions of the Investment Company Act. To the extent that the laws of the State of New York, or any of the provisions in this Agreement, conflict with applicable provisions of the Investment Company Act, the latter shall control.
| 24. | INTERPRETATION |
Any question of interpretation of any term or provision of this Agreement having a counterpart in or otherwise derived from a term or provision of the Investment Company Act shall be resolved by reference to such term or provision of the Investment Company Act and to interpretations thereof, if any, by the United States courts or, in the absence of any controlling decision of any such court, by rules, regulations or orders of the SEC validly issued pursuant to the Investment Company Act. Specifically, the terms “vote of a majority of the outstanding voting securities,” “interested persons,” “assignment,” and “affiliated persons,” as used herein shall have the meanings assigned to them by Section 2(a) of the Investment Company Act. In addition, where the effect of a requirement of the Investment Company Act reflected in any provision of this Agreement is relaxed by a rule, regulation or order of the SEC, whether of special or of general application, such provision shall be deemed to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the date first mentioned above.
| AXA EQUITABLE LIFE INSURANCE COMPANY | OPPENHEIMERFUNDS, INC. | |||||||
| By: |
|
By: |
| |||||
| Xxxxxx X. Xxxxx | [NAME] | |||||||
| Senior Vice President | [TITLE] | |||||||
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APPENDIX A
TO
| Portfolios |
Annual Advisory Fee Rate* | |
| EQ/Xxxxxxxxxxx Global Portfolio | 0.45% of the Portfolio’s average daily net assets up to and including $50 million; 0.40% of the Portfolio’s average daily net assets over $50 million | |
| XX/Xxxxxxxxxxx Xxxx Xxxxxx Opportunity Portfolio | 0.40% of the Portfolio’s average daily net assets up to and including $50 million; 0.35% of the Portfolio’s average daily net assets over $50 million | |
| EQ/Xxxxxxxxxxx Main Street Small Cap Portfolio | 0.45% of the Portfolio’s average daily net assets up to and including $50 million; 0.40% of the Portfolio’s average daily net assets over $50 million | |
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