THE XXXXXX RIVER TRUST
SALES AGREEMENT
AGREEMENT, dated as of January 1, 1995, by and among Equico
Securities, Inc. ("Equico"), The Equitable Life Assurance Society of the United
States ("Equitable"), and Equitable's Separate Account A, Separate Account No.
301 and Separate Account No. 51 (each, a "Separate Account" and, collectively,
the "Separate Accounts").
W I T N E S S E T H:
WHEREAS, Equico is a principal underwriter of The Xxxxxx River Trust
(the "Trust"), a series mutual fund whose shareholders are separate accounts
("Eligible Separate Accounts") of insurance companies ("Participating Insurance
Companies"), pursuant to a Distribution Agreement ("Distribution Agreement");
WHEREAS, such Participating Insurance Companies issue, among other
products, variable life insurance and annuity products ("Variable Products")
whose net premiums, contributions or other considerations are allocated to
Eligible Separate Accounts for investment in the Trust, and shares of the Trust
are not sold except in connection with such Variable Products;
WHEREAS, the Trust is registered as an open-end investment company
under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the Board of Trustees of the Trust may, in its sole
discretion, determine that certain portfolios shall be available only to
certain types of Variable Products or to a single insurer and its affiliates;
WHEREAS, Insurer issues Variable Products, whose net premiums are
allocated to the Separate Account, and which are eligible for investment in the
Trust's portfolios;
WHEREAS, Broker-Dealer, an affiliate of Insurer, will distribute the
Variable Products, either directly or indirectly under selling agreements with
one or more affiliated or non-affiliated broker-dealers;
WHEREAS, Broker-Dealer and Equico are each registered as a
broker-dealer under the Securities Exchange Act of 1934 (the "1934 Act") and
each is a member of the National Association of Securities Dealers, Inc. (the
"NASD");
WHEREAS, Equico, Insurer and Broker-Dealer wish to define and describe
the conditions under which shares of the Trust will be made available for
investment by the Separate Account.
NOW, THEREFORE, Equico, Insurer, Broker-Dealer and the Separate
Account hereby agree as follows:
1. The Board of Trustees of the Trust has adopted a Policy on
Conflicts (the "Policy"). This Agreement shall be subject to the provisions of
the Policy, the terms of which shall be incorporated herein by reference, made
a part hereof and controlling. The Policy may be amended or superseded, without
prior
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notice, and this Agreement shall be deemed amended to the extent the Policy is
amended or superseded. Insurer, Broker-Dealer and the Separate Account each
represent and warrant that it will act in a manner consistent with such Policy
as so set forth and as it may be amended or superseded, so long as it owns any
Trust shares. This provision shall survive the termination of this Agreement.
2. Equico will make available to the Separate Account shares of the
Trust's portfolios in connection with Variable Products funded by the Separate
Account only as set forth on Schedule A hereto. Schedule A may be modified from
time to time by written agreement of the parties.
3. Purchases and redemptions of shares will be at net asset value for
the appropriate portfolio, computed as set forth in the most recent Trust
prospectus and Statement of Additional Information (respectively, "Trust
Prospectus" and "SAI") and any supplements thereto, and shall be submitted by
Insurer to the Trust's transfer agent pursuant to procedures and in accordance
with payment provisions adopted by the parties from time to time.
Trust shares may not be sold or transferred except to an Eligible
Separate Account and only in accordance with Schedule A.
4. (a) In good faith and as soon as practicable, Equico will provide,
at Trust expense, camera ready copy of the current Trust Prospectus and SAI and
any supplements thereto for distribution by Insurer with the prospectus for the
Variable Products, and camera ready copy of Trust proxy materials, annual and
semi-annual reports, and any supplements thereto. To the extent that the
foregoing documents are distributed by Insurer to existing owners of Variable
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Products, Equico will request reimbursement from the Trust for the printing and
mailing costs associated with such distribution, upon receipt from Insurer of
adequate documentation for presentation to the Trust. Equico will use its best
efforts to coordinate with Insurer and to provide notice of anticipated filings
or supplements. Insurer may alter the form of the Trust Prospectus, SAI, annual
and semi-annual reports, proxy statements or other Trust documents, with the
prior approval of the Trust's officers. Insurer shall bear all costs associated
with such alteration of form. Insurer is not authorized (i) to give any
information or make any representations concerning the Trust, its shares or
operations except those contained in the most recent Trust Prospectus and SAI
and any supplements thereto, or (ii) to use any description of the Trust in any
sales literature or advertising (including brochures, letters, illustrations
and other similar materials, whether transmitted directly to potential
purchasers of Variable Products or published in print or audio-visual media),
except in either case as Equico or officers of the Trust may authorize in
advance, which authorization will not be unreasonably withheld or delayed.
Insurer and Broker-Dealer shall indemnify and hold harmless Equico
from any and all losses, claims, damages or liabilities (or actions in respect
thereof) to which Equico may be subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or result
from negligent, improper, fraudulent or unauthorized acts or omissions by
Insurer or Broker-Dealer or their respective employees, agents or
representatives, including but not limited to improper solicitation of
applications for Variable Products.
(b) Equico will indemnify and hold harmless Insurer, Broker-Dealer
and the Separate Account against any losses, claims, damages or
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liabilities, to which Insurer or the Separate Account may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Trust Prospectus and/or
SAI or any supplements thereto, (ii) the omission or alleged omission to state
any material fact required to be stated in the Trust Prospectus and/or SAI or
any supplements thereto or necessary to make the statements therein not
misleading, or (iii) other misconduct or negligence of Equico in its capacity
as a distributor of the Trust; and will reimburse Insurer, Broker-Dealer or the
Separate Account for any legal or other expenses reasonably incurred by it in
connection with investigating or defending against such loss, claim, damage,
liability or action; provided, however, that Equico shall not be liable in any
such case to the extent that any 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 the Trust Prospectus and/or SAI or any
such supplement in good faith reliance upon and in conformity with written
information furnished by Insurer or Broker-Dealer specifically for use in the
preparation thereof.
Equico shall not indemnify Insurer, Broker-Dealer or the Separate
Account for any action where an applicant for the Variable Products or a
policyholder was not furnished or sent or given, at or prior to written
confirmation of the sale of the Variable Products and at such later times as
required by state or federal securities laws, a copy of the prospectus relating
to the Variable Products together with the Trust Prospectus, any supplements to
the Trust Prospectus Equico may furnish to Insurer and, if requested by the
applicant from Insurer or required by applicable law, the Trust SAI and any
supplements
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thereto and, as required by applicable law, the Trust's annual and semi-annual
reports, other required reports and proxy statements.
5. This Agreement shall terminate automatically if it shall be
assigned. The Agreement shall also terminate automatically if the Distribution
Agreement shall terminate.
6. If Equico is notified that the Distribution Agreement will be
terminated and that it shall cease to be the principal underwriter of the
Trust, Equico shall immediately notify the other parties in writing of such
termination, and this Agreement shall continue in effect until the effective
date of the termination of the Distribution Agreement. This Agreement may be
terminated by any party at any time on one hundred eighty days' written notice
to the other parties, without the payment of any penalty.
7. This Agreement shall be subject to the provisions of the 1940 Act,
the 1934 Act and the Securities Act of 1933 and the rules, regulations, and
rulings thereunder and of the NASD, from time to time in effect, including such
exemptions from the 1940 Act and no-action positions as the Securities and
Exchange Commission or its staff may grant, and the terms hereof shall be
interpreted and construed in accordance therewith. Without limiting the
generality of the foregoing, the term "assigned" shall not include any
transaction exempt from section 15(b)(2) of the Investment Company Act by order
of the Securities and Exchange Commission or any transaction as to which the
staff of the Securities and Exchange Commission has taken a no-action position.
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Insurer and Broker-Dealer shall each, in connection with its
obligations hereunder, comply with all laws and regulations applicable thereto,
whether federal or state, and whether relating to insurance, securities or
other general areas, including but not limited to the record keeping and sales
supervision requirements of such laws and regulations.
Equico shall immediately notify Insurer and Broker-Dealer of the
issuance by any regulatory body of any stop order with respect to the Trust
Prospectus or SAI or the initiation of any proceeding for that purpose or for
any other purpose relating to the registration or an offering of shares of the
Trust and of any other action or circumstances that may prevent the lawful
offer or sale of shares of the Trust in any state or jurisdiction.
8. Insurer, Broker-Dealer and Equico shall submit to all regulatory
and administrative bodies having jurisdiction over the operations of Insurer,
Broker-Dealer, Equico or the Trust, present or future, any information, reports
or other material which any such body by reason of this Agreement may request
or require as authorized by applicable laws or regulations.
Equico shall keep confidential any information about Insurer's
Variable Products or policy owners obtained pursuant to this Agreement and
shall disclose such information only if Insurer or Broker-Dealer has authorized
such disclosure, or if such disclosure is required by state or federal
regulatory bodies, as authorized by applicable law. Equico will notify Insurer
and Broker-Dealer of disclosures required by regulatory bodies as soon as
possible.
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Equico agrees that all records and other data pertaining to the
Variable Products are the exclusive property of Insurer and that any such
records and other data, whether maintained in written or electronic format,
shall be furnished to Insurer by Equico upon termination of this Agreement for
any reason whatsoever. This shall not preclude Equico from keeping copies of
such data or records for its own files subject to the provisions of this
paragraph.
9. Insurer retains the ultimate right of control over, and
responsibility for marketing the Variable Products.
10. Equico represents that neither Equico nor any person employed in
any material connection with respect to the services provided pursuant to this
Agreement:
(a) Within the last 10 years has been convicted of any felony
or misdemeanor arising out of conduct involving embezzlement, fraudulent
conversion, or misappropriation of funds or securities, or involving violations
of Sections 1341, 1342, or 1343 of Xxxxx 00, Xxxxxx Xxxxxx Code; or
(b) Within the last 10 years has been found by any state
regulatory authority to have violated or has acknowledged violation of any
provision of any state insurance law involving fraud, deceit or knowing
misrepresentation; or
(c) Within the last 10 years has been found by any federal or
state regulatory authorities to have violated or have acknowledged violation of
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any provision of federal or state securities laws involving fraud, deceit or
knowing misrepresentation.
11. Equico, Broker-Dealer and Insurer each represent that no
commission or other fee shall be charged or paid to any person or entity in
connection with the sale or purchase of the Trust's shares to or from the
Separate Account, other than regular salary or wages.
12. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written. The effective date
of this Agreement shall be the date first above written.
EQUICO SECURITIES, INC.
Attest:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. XxXxxxx
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THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
Attest:
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx, Xx.
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SEPARATE ACCOUNT A,
SEPARATE ACCOUNT 301 and
SEPARATE ACCOUNT NO. 51
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
as depositor of each Separate Account
Attest:
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx, Xx.
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FFQ_1DOC/20006
1GG_1.DOC/23920
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SCHEDULE A
All portfolios of The Xxxxxx River Trust are available to the Separate
Accounts for premiums, contributions and other considerations associated with
all variable products funded by the Separate Accounts.
FFQ_1DOC/20006
1GG_1.DOC/23920
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