EXHIBIT 9(d)
PARTICIPATION AGREEMENT
Among
EQ ADVISORS TRUST,
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES,
EQUITABLE DISTRIBUTORS, INC.,
and
EQ FINANCIAL CONSULTANTS, INC.
THIS AGREEMENT, made and entered into as of the 14th day of April,
1997 by and among THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a
New York stock life insurance company ("Equitable"), on its own behalf and on
behalf of each of its separate accounts set forth on Schedule A hereto, as
amended from time to time (each referred to as the "Account"), EQ Advisors
Trust, a business trust organized under the laws of the State of Delaware (the
"Trust"), and EQUITABLE DISTRIBUTORS, INC., a Delaware corporation, and EQ
FINANCIAL CONSULTANTS, INC., a Delaware corporation (collectively, the
"Distributors").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts of insurance companies that issue variable life insurance
policies, variable annuity contracts and certificates relating to such
policies or contracts (collectively, the "Variable Contracts") and which have
entered into participation agreements with the Trust and its Distributors (the
"Participating Insurance Companies"); and
WHEREAS, the beneficial interests in the Trust are divided into
series of shares, (each a "Portfolio"), each representing the interest in a
particular managed portfolio of securities and other assets, and each
Portfolio is divided or may be divided into one or more classes of shares,
i.e., currently the Class IA shares and the Class IB shares, or such other
classes of shares as may be created in the future (the "Classes"); and
WHEREAS, one or more Portfolios or Classes thereof may be made
available by the Trust to serve as funding vehicles for Participating
Insurance Companies and their separate accounts funding Variable Contracts;
and
WHEREAS, the Trust has filed an application to obtain an order from
the Securities and Exchange Commission (the "Commission" or the "SEC")
granting Participating Insurance Companies and their separate accounts funding
Variable Contracts exemptions from the provisions of Sections 9(a), 13(a),
15(a), and 15(b) of the Investment Company Act of 1940, as amended (the
-1-
"1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent
necessary to permit shares of the Trust and each of its Portfolios or Classes
to be sold to and held by insurance company separate accounts funding Variable
Contracts of both affiliated and unaffiliated life insurance companies (the
"Shared Funding Exemptive Order"); and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act, and shares of its Portfolios are registered under
the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, EQ Financial Consultants, Inc., in addition to being one of
the Distributors, is also the investment manager to the Trust (the "Manager")
and is duly registered with the SEC as an investment adviser under the
Investment Advisers Act of 1940, as amended, and is registered or exempt from
registration under all applicable state securities laws; and
WHEREAS, Equitable has registered or will register each of its
Accounts as a unit investment trust under the 1940 Act and has registered or
will register interests in each Account under the 1933 Act, other than those
exempt from such registration under applicable statutory provisions or
regulations; and
WHEREAS, each Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors
of Equitable or through properly delegated authority, and divided into
subaccounts, to set aside and invest assets attributable to the Variable
Contracts; and
WHEREAS, each of the Distributors is registered as a broker-dealer
with the SEC under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, Equitable intends to purchase shares in the Portfolios and one or
more Classes thereof, listed on Schedule B hereto as amended from time to time
(the "Designated Portfolios and Classes") on behalf of each Account, in order
to fund certain of the Variable Contracts, and each of the Distributors is
authorized to sell such shares to each Account at the net asset value
applicable to such Portfolios and the Classes thereof.
NOW, THEREFORE, in consideration of their mutual promises, Equitable,
the Trust and each of the Distributors agree as follows:
ARTICLE I. Sale of Trust Shares
1.1. Each of the Distributors agrees to sell to each Account those
shares of the Designated Portfolios and Classes for which it serves as the
Trust's principal underwriter and which each Account orders, executing such
orders on a daily basis at the net asset value per share next computed after
receipt by the Trust or its designee of the order for the shares of the
Designated Portfolios and Classes. For purposes of this Section 1.1, neither
Equitable nor any Account shall be considered the designee of the Trust for
receipt of such purchase orders and receipt by Equitable
-2-
or any Account shall not constitute receipt by the Trust for purposes of
calculating each Portfolio's net asset value per share.
1.2. The Trust agrees to make its shares of the Designated Portfolios
and Classes available for purchase by each Account at the applicable net asset
value per share on those days on which the Trust calculates the net asset
value per share of the Designated Portfolios and Classes pursuant to rules of
the SEC. The Trust shall use reasonable efforts to calculate the net asset
value per share of the Designated Portfolios and Classes on each day on which
the New York Stock Exchange is open for trading. Notwithstanding the
foregoing, the Board of Trustees of the Trust (the "Board") may refuse to sell
shares of any Designated Portfolio or Class to any person, or suspend or
terminate the offering of shares of any Portfolio or Class thereof, if such
action is required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of the Board acting in good faith and in light of
its fiduciary duties under federal and any applicable state laws, necessary in
the best interests of the shareholders of such Portfolio or Class thereof.
1.3. The Trust and each of the Distributors agree that shares of the
Designated Portfolios and Classes will be sold only to Participating Insurance
Companies and/or their separate accounts funding Variable Contracts or to
other persons or entities permitted under Section 817 of the Internal Revenue
Code of 1986, as amended (the "Code"), or regulations promulgated thereunder.
No shares of any Portfolio will be sold to the general public, except to the
extent permitted under the Code.
1.4. The Trust and each of the Distributors will not sell Trust
shares to any Participating Insurance Company or separate account funding
Variable Contracts unless an agreement containing provisions substantially the
same as Articles I, III, V, VII and Section 2.5 of Article II of this
Agreement is in effect to govern such sales.
1.5. The Trust agrees to redeem for cash or in-kind, at the request
of any Account or Equitable, any full or fractional shares of the Trust held
by the Account or Equitable. The Trust will execute such requests on a daily
basis at the net asset value per share of the Designated Portfolios and
Classes next computed after receipt by the Trust or its designee of the
request for redemption. For purposes of this Section 1.5, neither Equitable
nor any Account shall be considered the designee of the Trust for receipt of
requests for redemption, and receipt by Equitable or any Account shall not
constitute receipt by the Trust for purposes of calculating each Portfolio's
net asset value per share.
1.6. Equitable agrees that purchases and redemptions of shares of the
Designated Portfolios and Classes offered by a then-current prospectus of the
Trust shall be made in accordance with the provisions of such prospectus.
Equitable agrees that all net amounts available under the Variable Contracts
listed on Schedule A attached hereto and incorporated herein by this
reference, as such Schedule A may be amended from time to time hereafter by
mutual written agreement of all the parties hereto (the "Equitable
Contracts"), shall be invested in the Trust and in such other investment
companies or other investment vehicles advised by the Manager as may be
mutually agreed to in writing by the parties hereto, or in Equitable's general
account. In addition, amounts also may be invested in investment companies
other than the Trust if: (a) any such other investment company, or series
thereof, has investment objectives or policies that are, in the opinion of the
-3-
Manager, substantially different from the investment objectives and policies
of the Portfolios of the Trust in which the Accounts invest; or (b) Equitable
gives the Trust and the Distributors forty-five (45) days written notice of
its intention to make such other investment companies available as a funding
vehicle for the Equitable Contracts, and no written objection is received by
Equitable; or (c) any such other investment companies were available as a
funding vehicle for the Equitable Contracts prior to the date of this
Agreement and Equitable so informs the Trust and Distributors prior to their
signing this Agreement (a list of such other investment companies appears on
Schedule C to this Agreement); or (d) the Trust and the Distributors consent
to the use of any such other investment company.
1.7. Equitable shall pay for shares of Designated Portfolios and
Classes thereof purchased for the Accounts or its general account on the
business day on which an order to purchase Trust shares is made in accordance
with the provisions of Section 1.1 hereof. "Business Day" shall mean any day
on which the New York Stock Exchange is open for trading and on which the
Trust calculates its net asset value pursuant to the rules of the SEC. Payment
shall be in federal funds transmitted by wire. For purposes of Section 2.9 and
2.10, upon receipt by the Trust of the federal funds so wired, such funds
shall cease to be the responsibility of Equitable and shall become the
responsibility of the Trust.
1.8. Issuance and transfer of the shares of the Designated Portfolios
and Classes thereof will be by book entry only. Stock certificates will not be
issued to Equitable or any Account. Shares ordered from the Trust will be
recorded in an appropriate title for each Account or the appropriate
subaccount of each Account.
1.9. The Trust shall furnish same day notice (by wire or telephone,
followed by written confirmation) of any income dividends or capital gain
distributions payable on the shares of the Designated Portfolios and Classes
thereof. Equitable and each Account hereby elect to receive all such income
dividends and capital gain distributions as are payable on the shares of the
Designated Portfolios and Classes thereof in additional shares of the relevant
Designated Portfolios and Classes.
(Equitable and each Account reserve the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash.) The
Trust shall provide notification by the end of the next Business Day of the
number of shares so issued as payment of such dividends and distributions. The
Trust shall provide advance notice to Equitable and each Account of any date
on which the Trust reasonably expects to make a dividend distribution;
normally this notice will be given at least ten (10) days in advance of the
ex-dividend date.
1.10. The Trust shall make the net asset value per share for each
Designated Portfolio and Class thereof available to Equitable and each Account
or their designee on a daily basis as soon as reasonably practical after the
net asset value per share is calculated (normally by 6:30 p.m. New York time)
and shall use its best efforts to make such net asset value per share
available by 7:00 p.m. New York time.
ARTICLE II. Representations and Warranties
2.1. Equitable represents and warrants that: (a) the Equitable
Contracts will be issued and sold in compliance, in all material respects,
with all applicable federal and state laws; and (b) it
-4-
requires each Distributor to comply, in all material respects, with state
insurance suitability requirements. Equitable further represents and warrants
that: (a) it is an insurance company duly organized and in good standing under
applicable law; (b) it has legally and validly established each Account, prior
to any issuance or sale of interests therein, as a segregated asset account
under applicable insurance laws; (c) it has registered or, prior to any
issuance or sale of the Equitable Contracts, will register each Account as a
unit investment trust in accordance with the provisions of the 1940 Act to
serve as a segregated investment account for the Equitable Contracts, unless
such Accounts are exempt from such registration under applicable statutory
provisions or regulations; and (d) it has registered or, prior to the issuance
or sale of the Equitable Contracts, will register interests in the Accounts
under the 1933 Act, unless interests in such Accounts are exempt from such
registration under applicable statutory provisions or regulations.
2.2. The Trust, to the best of its knowledge, represents and warrants
that Trust shares sold pursuant to this Agreement shall be: (a) registered
under the 1933 Act; and (b) duly authorized for issuance; and (c) sold in
compliance with and all applicable federal securities laws. The Trust further
represents and warrants that it is and shall remain registered under the 1940
Act. The Trust shall amend the registration statement for its shares (the
"Registration Statement") under the 1933 Act and the 1940 Act from time to
time as required in order to effect the continuous offering of shares of the
Designated Portfolios and Classes. This requirement shall not, however, in any
manner limit the Trust's ability to cease offering shares in one or more of
the Designated Portfolios or Classes, provided such action complies with
applicable laws and regulations.
2.3. Equitable represents that the Equitable Contracts are currently
treated as annuity, endowment or life insurance contracts under applicable
provisions of the Code and that it will make every effort to maintain such
treatment and that it will notify the Trust and the Distributors immediately
upon having a reasonable basis for believing that the Equitable Contracts have
ceased to be so treated or that they might not be so treated in the future.
2.4. The Trust currently intends for one or more Classes,
particularly Class IB, to make payments to finance its distribution expenses
pursuant to a Plan adopted under Rule 12b-1 under the 1940 Act, although it
may determine to discontinue such practice in the future. To the extent that
any Class of the Trust finances its distribution expenses pursuant to a Plan
adopted under Rule 12b-1, the Trust undertakes to have a Board, a majority of
whose members are not interested persons of the Trust or its Distributors or
Manager, and to otherwise comply with any then current SEC and SEC staff
interpretations concerning Rule 12b-1 or any successor provision.
2.5. The Trust makes no representation as to whether any aspect of
its operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or regulations of the
various states, except that the Trust represents that the investment
objectives, policies, fees and expenses of each of the Designated Portfolios
and Classes thereof are and shall at all times remain in compliance with the
insurance laws of the State of New York, and the Trust and the Distributors
severally represent that their respective operations are and shall at all
times remain in compliance, in all material respects, with the insurance laws
of the State of New York to the extent required to perform their respective
obligations under this Agreement.
2.6. Each of the Distributors represents and warrants that: (a) it is
a member in good
-5-
standing of the NASD; and (b) it is registered as a broker-dealer with the SEC
and all necessary states. Each Distributor further represents that it will
sell and distribute the Trust's shares in accordance with the laws of the
State of New York and all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, the 1940 Act, and all
applicable Rules of the NASD.
2.7. The Trust represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply, in all material respects, with the 1940 Act.
2.8. EQ Financial Consultants, Inc. represents and warrants that it,
in its capacity as the Manager, is and shall remain duly registered under all
applicable federal and state securities laws and that it, in its capacity as
the Manager shall perform its obligations for the Trust in compliance, in all
material respects, with any and all applicable federal and state securities
laws.
2.9. The Trust and each of the Distributors severally represent and
warrant that all of their trustees, directors, officers, employees, investment
managers and investment advisers, and other individuals/entities dealing with
the money and/or securities of the Trust are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit
of the Trust in an amount not less than the minimal coverage required by Rule
17g-(1) of the 1940 Act or such related provisions as may be promulgated from
time to time. The aforesaid fidelity bond shall include coverage for larceny
and embezzlement and shall be issued by a reputable bonding company.
2.10. Equitable represents and warrants that all of its directors,
officers, employees, and other individuals/entities dealing with the money
and/or securities of the Trust are covered by a blanket fidelity bond or
similar coverage for the benefit of the Trust. Equitable further represents
and warrants that said fidelity bond is issued by a reputable bonding company,
includes coverage for larceny and embezzlement, and is in an amount not less
than $5 million. Equitable agrees to make all reasonable efforts to see that
this fidelity bond or another bond containing these provisions is continuously
in effect and agrees to notify the Trust and the Distributors in the event
that such coverage no longer applies.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Trust or its Distributors shall provide Equitable with as
many printed copies of the Trust's current prospectus and Statement of
Additional Information and any supplements thereto for the Designated
Portfolios and Classes thereof as Equitable may reasonably request. If
requested by Equitable in lieu thereof, the Trust or its Distributors shall
provide camera-ready film containing the Trust's prospectus and Statement of
Additional Information and any supplements thereto for the Designated
Portfolios and Classes thereof, and such other assistance as is reasonably
necessary in order for Equitable once each year (or more frequently if the
prospectus and/or Statement of Additional Information for the Designated
Portfolios and Classes thereof is amended during the year) to have the
prospectus for the Account, with respect to the Equitable Contracts, and the
Trust's prospectus printed together in one document, and to have the Statement
of Additional Information for the Trust and the Statement of Additional
Information for the Account, with respect to the Equitable Contracts, printed
together in one document. Alternatively, Equitable may print
-6-
the prospectus and/or Statement of Additional Information for the Designated
Portfolios and Classes thereof in combination within the prospectuses and
Statements of Additional Information for other investment companies. To the
extent that the foregoing Trust prospectuses, Statements of Additional
Information and any supplements thereto are with respect to Class IB shares,
or other Classes of shares subject to a Plan adopted under Rule 12b-1 under
the 1940 Act, the cost of preparing, printing, and distributing such documents
will be at the expense of such Class or Classes of shares, with respect to
prospective owners of Equitable Contracts. In addition, with respect to
prospectuses and Statements of Additional Information for the Designated
Portfolios and Classes thereof provided by Equitable to its existing owners of
Equitable Contracts ("Contractowners") in order to update disclosure as
required by the 1933 Act and/or the 1940 Act, the cost of preparing, printing,
mailing and otherwise distributing such prospectuses and Statements of
Additional Information and any supplements thereto shall be borne by the
Trust. Furthermore, if in such case Equitable or the Distributors are provided
with camera-ready film of such documents in lieu of printed documents,
Equitable or the Distributors shall request reimbursement from the Trust for
their printing, mailing and other costs associated with such distribution.
Equitable and the Distributors each agree to provide the Trust or its
designee with such information as may be reasonably requested by the Trust to
assure that the Trust's expenses or the expenses of any Class do not include
the cost of printing, mailing and otherwise distributing any prospectuses,
Statements of Additional Information or supplements thereto for the Designated
Portfolios and Classes thereof other than those actually distributed (a) to
existing Contractowners; or (b) under a Rule 12b-1 Plan for a particular Class
of shares to prospective Contractowners.
3.2 Equitable may alter the form of the Trust's prospectus, Statement
of Additional Information, Annual and Semi-Annual Reports to shareholders,
proxy statements, and other Trust documents with the prior approval of the
Trust. Equitable shall bear all costs associated with such alteration of form.
3.3. The Trust's prospectus for the Designated Portfolios and Classes
thereof shall state that the Statement of Additional Information for the
Designated Portfolios and Classes thereof is available from the Distributors
or Equitable (or in the Trust's discretion, the prospectus shall state that
such Statement of Additional Information is available from the Trust).
3.4. The Trust, at its expense, shall provide Equitable with copies
of its proxy statements, Annual and Semi-Annual Reports to shareholders, and
other communications to shareholders in such quantities as Equitable shall
reasonably require for mailing or otherwise distributing such materials to
Contractowners and shall assume all expenses associated with mailing or
otherwise distributing those materials. In the alternative, the Trust shall
reimburse Equitable for its costs in printing, mailing and distributing such
materials to Contractowners.
3.5. If and to the extent required by law, Equitable shall:
(a) solicit voting instructions from Contractowners;
(b) vote the Trust shares for the Designated Portfolios and
Classes in accordance with instructions received from Contractowners;
and
-7-
(c) vote Trust shares for the Designated Portfolios and
Classes for which no instructions have been received in a particular
Account in the same proportion as Trust shares for the Designated
Portfolios and Classes for which instructions have been received so
long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for
Contractowners. Equitable reserves the right to vote Trust shares
held in any Account in its own right, to the extent permitted by law.
Participating Insurance Companies shall be responsible for assuring
that each of their separate accounts participating in the Trust
calculates voting privileges in a manner consistent with the
standards adopted by the Board, which standards will be provided to
all other Participating Insurance Companies.
3.6. The Trust will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Trust will comply with
Section 16(c) of the 1940 Act as well as with Sections 16(a) and, if and when
applicable, Section 16(b). Further, the Trust will act in accordance with the
SEC or SEC staff's written interpretation concerning the requirements of
Section 16(a) with respect to periodic elections of Trustees and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. The Distributors shall furnish, or shall cause to be furnished,
to the Trust or its designee, the form of each piece of sales literature or
other promotional material in which the Trust, the Manager or the Distributors
are named prior to its first use. No such material shall be used if the Trust
or its designee reasonably objects to its use after the Trust's receipt of
such material.
4.2. Equitable shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust
in connection with the sale of the Equitable Contracts other than the
information or representations contained in or accurately derived from the
Registration Statements, prospectus or Statement of Additional Information for
the Trust, as such Registration Statements, prospectus or Statement of
Additional Information may be amended or supplemented from time to time, or in
reports or proxy statements for the Trust, or in sales literature or other
promotional material approved by the Trust or its designee, except with the
permission of the Trust or its designees.
4.3. The Trust or the Distributors, or their respective designees,
shall furnish, or shall cause to be furnished, to Equitable or its designees,
the form of each piece of sales literature or other promotional material in
which Equitable is named prior to its use. No such material shall be used if
Equitable or its designees reasonably object to its use after receipt of such
material.
4.4. The Trust and the Distributors shall not give any information or
make any representations on behalf of Equitable or concerning Equitable, each
Account, or the Equitable Contracts other than the information or
representations contained in or accurately derived from a registration
statement, prospectus or Statement of Additional Information for the Accounts
with respect to the Equitable Contracts, as such registration statement,
prospectus or Statement of
-8-
Additional Information may be amended or supplemented from time to time, or in
published reports for each Account which are in the public domain or approved
by Equitable for distribution to Contractowners, or in sales literature or
other promotional material approved by Equitable or its designees, except with
the permission of Equitable.
4.5. The Trust shall provide to Equitable at least one complete copy
of all Registration Statements, prospectuses, Statements of Additional
Information, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and
all amendments to any of the above, that relate to the Trust or its shares,
contemporaneously with the filing of such document with the SEC, the NASD, or
other regulatory authorities.
4.6. Equitable shall provide to the Trust at least one complete copy
of all registration statements, prospectuses, Statements of Additional
Information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to the
Equitable Contracts or any Account if such document also relates to the Trust,
contemporaneously with the filing of such document with the SEC, the NASD, or
other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Trust or any affiliate of the Trust:
advertisements (including materials published or designed for use in a
newspaper, magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, electronic
messages or communications or other public media), sales literature (i.e., any
written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training materials or
other communications distributed or made generally available to some or all
agents or employees, and registration statements, prospectuses, Statements of
Additional Information, shareholder reports, and proxy materials. However, it
is anticipated that materials provided solely: (a) internally to Equitable's
or the Distributors' own employees or counsel; or (b) to certain designated
third parties and that are not designed to be provided or communicated in any
manner to the general public (e.g., training materials provided to
distributors or agents) will not be filed with the SEC, the NASD, or any state
securities or insurance regulatory authorities, although such materials will
be prepared in accordance with applicable laws.
ARTICLE V. Fees and Expenses
5.1. The Trust and the Distributors shall pay no fee or other
compensation to Equitable under this Agreement except for: (a) items covered
in Article III; or (b) pursuant to a Plan adopted by the Trust in accordance
with Rule 12b-1 under the 1940 Act to finance the distribution expenses of any
Class. Nevertheless, the Distributors may make payments to Equitable or to any
distributor for the Equitable Contracts in amounts agreed to by the
Distributors in any writing, and such payments by the Distributors (other than
pursuant to a Rule 12b-1 Plan) may be made out of existing fees otherwise
payable to the Distributors, past profits of the Distributors, or other
resources available to the Distributors.
-9-
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. Without limiting the foregoing, the
Trust shall see to it that all shares are registered and authorized for
issuance prior to their sale in accordance with applicable federal law, and
shall bear all expenses with respect to: registration and qualification of the
Trust's shares; preparation and filing of the Trust's Registration Statement,
prospectus, Statement of Additional Information, proxy materials, and reports;
setting the prospectus and Statement of Additional Information in type;
setting in type, printing, mailing or otherwise distributing proxy materials
and Semi-Annual and Annual Reports sent to Contractowners (including the costs
of setting in type, printing, mailing or otherwise distributing a prospectus
that constitutes an Annual Report) and if certain Classes of the Trust so
elect and the Rule 12b-1 Plan so provides, the preparation, printing, mailing
or otherwise distributing of such materials to prospective owners of Equitable
Contracts; the preparation of all statements and notices required by any
federal or state law; and all taxes on the issuance or transfer of the Trust's
shares.
ARTICLE VI. Diversification
6.1. The Trust represents that: (a) it currently has elected to
qualify as a regulated investment company under Subchapter M of the Code; (b)
it will make every effort to maintain such qualification (under Subchapter M
or any successor or similar provision); (c) it will notify Equitable
immediately upon having a reasonable basis for believing that it has ceased to
so qualify or that it might not so qualify in the future; and (d) it will seek
to minimize any damages and to rectify its failure to so qualify promptly. The
Trust acknowledges that any failure to qualify as a regulated investment
company will eliminate the ability of the Accounts to avail themselves of the
"look through" provisions of Section 817(h) of the Code and that, as a result,
the Equitable Contracts will almost certainly fail to qualify as life
insurance and annuity contracts under Section 817(h) of the Code.
6.2. The Trust further represents that it will at all times invest
money from the Accounts in such a manner as to assure that the Equitable
Contracts will be treated as variable annuity or variable life insurance
contracts under the Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Trust represents that it will at all
times comply with Section 817(h) of the Code and Treasury Regulation 1.817-5,
relating to the diversification requirements for variable annuity, endowment,
or life insurance contracts, and any amendments or other modifications to such
Section or Regulations. In the event of a breach of this Article VI by the
Trust, the Trust warrants that it will take all reasonable steps: (a) to
immediately notify Equitable of such breach; and (b) to adequately diversify
the Trust's assets so as to achieve compliance within the grace period
afforded by Regulation 1.817-5.
-10-
ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Trust for the existence of any
material irreconcilable conflict between the interests of the contractowners
of all variable annuity and variable life insurance separate accounts
investing in the Trust. A material irreconcilable conflict may arise for a
variety of reasons, including: (a) an action by any state insurance regulatory
authority; or (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance, tax,
or securities regulatory authorities; or (c) an administrative or judicial
decision in any relevant proceeding; or (d) the manner in which the
investments of any Designated Portfolio are being managed; or (e) a difference
in voting instructions given by owners of Variable Contracts; or (f) a
decision by an insurer to disregard the voting instructions of owners of
Variable Contracts. The Board shall promptly inform Equitable if it determines
that a material irreconcilable conflict exists and the implications thereof.
7.2. Equitable will report any potential or existing conflicts, of
which it is aware, to the Board. Equitable will assist the Board in carrying
out its responsibilities under any Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board to
consider any issues raised. This includes, but is not limited to, an
obligation by Equitable to inform the Board whenever the voting instructions
of owners of Variable Contracts are disregarded. Equitable's responsibilities
under this Section 7.2 will be carried out with a view only to the interests
of its Contractowners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested Trustees, that a material irreconcilable conflict exists,
Equitable and other Participating Insurance Companies shall, at their expense
and to the extent reasonably practicable (as determined by a majority of the
disinterested Trustees), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, up to and including: (a)
withdrawing the assets allocable to some or all of the variable annuity and
variable life insurance separate accounts from the Trust or any Portfolio and
reinvesting such assets in a different investment medium, including (but not
limited to) another Portfolio of the Trust, or submitting the question of
whether such withdrawal should be implemented to a vote of all affected owners
of Variable Contracts and, as appropriate, withdrawing the assets of any
appropriate group (i.e., owners of variable annuity contracts or owners of
variable life insurance contracts of one or more Participating Insurance
Companies) that votes in favor of such withdrawal, or offering to the affected
owners of Variable Contracts the option of making such a change; and (b)
establishing a new registered management investment company or managed
separate account. Equitable's responsibilities under this Section 7.3 will be
carried out with a view only to the interests of Contractowners.
7.4. If a material irreconcilable conflict were ever to arise because
of a decision by Equitable to disregard Contractowner voting instructions and
that decision represents a minority position or would preclude a majority
vote, Equitable may be required, at the Trust's election, to withdraw the
affected Account's (or subaccount's) investment in the Trust and terminate
this Agreement with respect to such Account (or subaccount); provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested members of the Board. No charge or
-11-
penalty shall be imposed as a result of such withdrawal. Any such withdrawal
and termination must take place within six (6) months after the Trust gives
written notice that this provision is being implemented and, until the end of
that six (6) month period, the Distributors and Trust shall continue to accept
and implement orders by Equitable for the purchase (and redemption) of shares
of the Trust.
7.5. If a material irreconcilable conflict were ever to arise because
a particular state insurance regulator's decision applicable to Equitable
conflicts with the majority of other state regulators, then Equitable shall
withdraw the affected Account's (or subaccount's) investment in the Trust and
terminate this Agreement with respect to such Account (or subaccount) within
six (6) months after the Board informs Equitable in writing that it has
determined that such decision has created a material irreconcilable conflict;
provided, however, that such withdrawal and termination shall be limited to
the extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested members of the Board. Until the
end of the foregoing six (6) month period, the Distributors and Trust shall
continue to accept and implement orders by Equitable for the purchase (and
redemption) of shares of the Trust.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict, but
in no event will the Trust be required to establish a new funding medium for
the Equitable Contracts. Equitable shall not be required by Section 7.3 to
establish a new funding medium for the Equitable Contracts if an offer to do
so has been declined by vote of a majority of Contractowners materially
adversely affected by the material irreconcilable conflict. In the event that
the Board determines that any proposed action does not adequately remedy any
material irreconcilable conflict, then Equitable will withdraw the Account's
(or subaccount's) investment in the Trust and terminate this Agreement within
six (6) months after the Board informs Equitable in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall
be limited to the extent required by any such material irreconcilable conflict
as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Shared Funding Exemptive Order) on
terms and conditions materially different from those contained in the Shared
Funding Exemptive Order, then: (a) the Trust and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may be necessary
to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted,
to the extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3,
7.4, and 7.5 of this Agreement shall continue in effect only to the extent
that terms and conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted; and (c) this Agreement
shall be otherwise amended by the Trust, without the need for any consent of
the other parties, as required by such change in law.
-12-
ARTICLE VIII. Indemnification
8.1. Indemnification By Equitable
8.1(a). Equitable agrees to indemnify and hold harmless the Trust,
each member of the Board, the Distributors, and the directors and officers and
each person, if any, who controls any such person within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
Equitable), investigation of claims or litigation (including legal and other
expenses), to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Trust's shares or
the Equitable Contracts or interests in the Accounts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the
registration statement, prospectus, or Statement of Additional
Information for the Equitable Contracts or contained in the Equitable
Contracts or sales literature for the Equitable Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished to
Equitable by or on behalf of the Trust for use in the registration
statement, prospectus, or Statement of Additional Information for the
Equitable Contracts or in the Equitable Contracts or sales literature
(or any amendment or supplement) or otherwise for use in connection
with the sale of the Equitable Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained
in the Registration Statement, prospectus or Statement of Additional
Information, or sales literature of the Trust not supplied by
Equitable or persons under its control) or wrongful conduct of
Equitable or persons under its control, with respect to the sale or
distribution of the Equitable Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement,
prospectus, or Statement of Additional Information, or sales
literature of the Trust or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading if such a statement or omission was
made in reliance upon information furnished to the Trust by or on
behalf of Equitable; or
(iv) arise as a result of any failure by Equitable to
provide the services and furnish the materials required to be
provided or furnished by it under the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or
-13-
warranty made by Equitable in this Agreement or arise out of or
result from any other material breach of this Agreement by Equitable;
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). Equitable shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations or duties under
this Agreement or to the Trust, whichever is applicable.
8.1(c). Equitable shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified Equitable in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify Equitable of
any such claim shall not relieve Equitable from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, Equitable shall be entitled to
participate, at its own expense, in the defense of such action. Equitable also
shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action. After notice from Equitable to
such party of Equitable's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and Equitable will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs of investigation.
8.1(d). The Indemnified Parties shall promptly notify Equitable of
the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Trust's shares or the Equitable Contracts or
the operation of the Trust.
8.2. Indemnification by the Distributors
8.2(a). Each of the Distributors agrees to indemnify and hold
harmless Equitable, and the Trust and each of their directors and officers and
each person, if any, who controls Equitable within the meaning of Section 15
of the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Distributors), investigation of claims or litigation (including legal and
other expenses) to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Trust's shares or
the Equitable Contracts or interests in the Accounts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, prospectus or Statement of
-14-
Additional Information, or sales literature of the Trust (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished to the
Distributors or Trust by or on behalf of Equitable for use in the
Registration Statement, prospectus, or Statement of Additional
Information for the Trust, or in sales literature (or any amendment
or supplement) or otherwise for use in connection with the sale of
the Equitable Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained
in the registration statement, prospectus or Statement of Additional
Information, or sales literature for the Equitable Contracts not
supplied by the Distributors or persons under their control) or
wrongful conduct of the Distributors or persons under their control,
with respect to the sale or distribution of the Equitable Contracts
or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or Statement of Additional Information or sales
literature covering the Equitable Contracts, or any amendment thereof
or supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
to Equitable by or on behalf of the Distributors or the Trust; or
(iv) arise as a result of any failure by the Distributors or
the Trust to provide the services and furnish the materials required
to be provided or furnished by the Distributors or the Trust under
the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with the
diversification or other qualification requirements specified in
Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributors in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Distributors;
as limited by and in accordance with the provisions of Sections 8.2(b)
and 8.2(c) hereof.
8.2(b). Each of the Distributors shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities, or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith,
or gross negligence in the performance of such Indemnified Party's duties or
by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to Equitable or any Account, whichever is
applicable.
8.2(c). Each of the Distributors shall not be liable under this
indemnification provision with
-15-
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Distributors in writing within a reasonable time
after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or
after such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Distributors of any such claim
shall not relieve the Distributors from any liability which they may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Distributors will be entitled to
participate, at their own expense, in the defense thereof. Each of the
Distributors also shall be entitled to assume the defense thereof, with
counsel reasonably satisfactory to the party named in the action. After notice
from the Distributors to such party of the Distributors' election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Distributors will not be liable
to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation.
8.2(d). Equitable agrees promptly to notify the Distributors of the
commencement of any material litigation or proceedings against it or any of
its officers or directors in connection with the issuance or sale of the
Equitable Contracts or the operation of each Account.
8.3. Indemnification By the Trust
8.3(a). The Trust agrees to indemnify and hold harmless Equitable and
each of its directors and officers and each person, if any, who controls
Equitable within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Trust), investigation of claims or litigation
(including legal and other expenses) to which the Indemnified Parties may
become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions
in respect thereof) or settlements result from the gross negligence, bad faith
or willful misconduct of the Board or any member thereof, are related to the
operations of the Trust and:
(i) arise as a result of any failure by the Trust to provide
the services and furnish the materials required to be provided or
furnished by it under the terms of this Agreement (including a
failure to comply with the diversification and other qualification
requirements specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or
arise out of or result from any other material breach of this
Agreement by the Trust;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
-16-
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations and duties under
this Agreement or to Equitable, the Trust, the Distributors, or each Account,
whichever is applicable.
8.3(c). The Trust shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Trust of
any such claim shall not relieve the Trust from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Trust will be entitled to
participate, at its own expense, in the defense thereof. The Trust also shall
be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action. After notice from the Trust to
such party of the Trust's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Trust will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs of investigation.
8.3(d). Equitable and the Distributors each agree promptly to notify
the Trust of the commencement of any material litigation or proceedings
against it or any of its respective officers or directors in connection with
this Agreement, the issuance or sale of the Equitable Contracts, with respect
to the operation of any Account, or the sale or acquisition of shares of the
Trust.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934, and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules, and regulations as the
SEC may grant (including, but not limited to, any Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until
the first to occur of:
(a) termination by any party, with or without cause, upon six
(6) months' advance written notice delivered to the other
parties; or
(b) termination by Equitable upon thirty (30) days' written
notice to the Trust and the Distributors with respect to any
Designated Portfolio or Class thereof based upon Equitable's
determination that shares of such Designated Portfolio or
Class thereof are not reasonably available to meet the
requirements of the Equitable Contracts or
-17-
are not consistent with Equitable's obligations to
Contractowners; or
(c) termination by Equitable upon thirty (30) days' written
notice to the Trust and the Distributors with respect to any
Designated Portfolio or Class thereof in the event any of
the Designated Portfolio's shares or any shares with respect
to any Class are not registered, issued or sold in
accordance with applicable federal and/or state law or such
law precludes the use of such shares as the underlying
investment media of the Equitable Contracts issued or to be
issued by Equitable; or
(d) termination by Equitable by written notice to the Trust and
the Distributors with respect to any Designated Portfolio or
Class thereof in the event that such Designated Portfolio or
Class thereof ceases to qualify as a regulated investment
company under Subchapter M of the Code or any other failure
under Section 817 of the Code, or under any successor or
similar provision of either, or if Equitable reasonably
believes that the Trust may fail to so qualify; or
(e) termination by either the Trust or the Distributors by
written notice to Equitable, if the Trust or the
Distributors shall determine, in their sole judgment
exercised in good faith, that Equitable and/or its
affiliated companies have suffered a material adverse change
in their business, operations, financial condition, or
prospects since the date of this Agreement or are the
subject of material adverse publicity; but no termination
shall be effective under this subsection (e) until Equitable
has been afforded a reasonable opportunity to respond to a
statement by the Trust or the Distributors concerning the
reason for notice of termination hereunder; or
(f) termination by Equitable by written notice to the Trust and
the Distributors, if Equitable shall determine, in its sole
judgment exercised in good faith, that either the Trust or
the Distributors has suffered a material adverse change in
its business, operations, financial condition, or prospects
since the date of this Agreement or is the subject of
material adverse publicity; but no termination shall be
effective under this subsection (f) until the Trust or the
Distributors have been afforded a reasonable opportunity to
respond to a statement by Equitable concerning the reason
for notice of termination hereunder.
10.2. Notwithstanding any termination of this Agreement, the Trust
and the Distributors shall, at the option of Equitable, continue to make
available additional shares of the Trust pursuant to the terms and conditions
of this Agreement, for all Equitable Contracts in effect on the effective date
of termination of this Agreement (hereinafter referred to as "Existing
Equitable Contracts"). Specifically, without limitation, the owners of the
Existing Equitable Contracts shall be permitted to reallocate investments in
the Trust, redeem investments in the Trust, and/or invest in the Trust upon
the making of additional purchase payments under the Existing Equitable
Contracts. The parties agree that this Section 10.2 shall not apply to any
terminations under Article VII and the effect of such Article VII terminations
shall be governed by Article VII of this Agreement.
10.3. Equitable shall not redeem Trust shares attributable to the
Equitable Contracts (as opposed to Trust shares attributable to Equitable's
assets held in any Account) except: (a) as
-18-
necessary to implement Contractowner initiated or approved transactions; or
(b) as required by federal and/or state laws or regulations or judicial or
other legal precedent of general application (hereinafter referred to as a
"Legally Required Redemption"); or (c) as permitted pursuant to Section 26(b)
of the 1940 Act or otherwise pursuant to an order of the SEC that permits
Equitable to redeem Trust shares attributable to Equitable Contracts. Upon
request, Equitable shall promptly furnish to the Trust and the Distributors
the opinion of counsel for Equitable (which counsel shall be reasonably
satisfactory to the Trust and the Distributors) to the effect that any
redemption pursuant to clause (b) above is a Legally Required Redemption or
any redemption pursuant to clause (b) is permitted without first obtaining an
order of the SEC pursuant to Section 26(b) or any other provision of the 1940
Act. Furthermore, except in cases where permitted under the terms of the
Equitable Contracts, and as may be in the best interests of Contractowners, as
determined by Equitable, Equitable shall not prevent Contractowners from
allocating payments to a Designated Portfolio or Class thereof that was
otherwise available under the Equitable Contracts without first giving the
Trust or the Distributors ninety (90) days' notice of its intention to do so.
10.4. Notwithstanding any termination of this Agreement for any
reason, the terms and conditions of the following provisions of this Agreement
shall remain in effect with respect to any Existing Contract, for so long as
any assets invested in the Trust are attributable to such Existing Contract:
Sections 1.3 to 1.10 of Article I (governing the pricing and redemption of
shares); Article II (Representations and Warranties); Sections 3.1 through 3.4
and 3.6 of Article III (Prospectuses and Proxy Statements, and Voting);
Articles IV through IX (Sales Material and Information; Fees and Expenses;
Diversification; Potential Conflicts; Indemnification; and Applicable Law);
Article XI (Notices); and Sections 12.1, 12.2, and 12.5 through 12.8 of
Article XII (Miscellaneous). Further, notwithstanding any termination of this
Agreement for any reason, the terms and conditions of the following provisions
of this Agreement shall remain in effect with regard to Equitable Contracts
whose assets were previously invested in the Trust: Article II
(Representations and Warranties), Article VI (Diversification) and Article VII
(Indemnification).
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in
writing to the other party.
-19-
If to the Trust:
EQ Advisors Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
If to Equitable:
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
If to the Distributors:
Equitable Distributors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
EQ Financial Consultants, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. XxXxxxx
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board (or its members), officers, agents, or shareholders shall
assume any personal liability for obligations entered into on behalf of the
Trust.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the Contractowners and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate, or utilize such names and
addresses and other confidential information until such time as it may come
into the public domain without the express written consent of the affected
party. Without limiting the foregoing, no party hereto shall disclose any
information that such party has been advised is proprietary, except such
information that such party is required to disclose by any appropriate
governmental authority (including without limitation the SEC, the NASD, and
state securities or insurance regulators).
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or
-20-
effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule, or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
the NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
12.7. The rights, remedies, and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies,
and obligations, at law or in equity, to which the parties hereto are entitled
under federal and state laws.
12.8. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Distributors may assign this
Agreement or any rights or obligations hereunder to any affiliate of or
company under common control with the Distributors (but in such event the
Distributors shall continue to be liable under Article VIII of this Agreement
for any indemnification due to Equitable, and the assignee shall also be
liable), if such assignee is duly licensed and registered to perform the
obligations of the Distributors under this Agreement.
12.9. Equitable shall furnish, or shall cause to be furnished, to the
Trust or its designee upon request copies of the following reports:
(a) Equitable's annual statements (prepared under statutory
accounting principles) and annual reports (prepared under generally accepted
accounting principles ("GAAP"), if any), as soon as practical and in any event
within ninety (90) days after the end of each fiscal year;
(b) any material financial statement, proxy statement, notice, or
report of Equitable sent to policyholders, as soon as practical after the
delivery thereof to stockholders;
(c) any registration statement (without exhibits) and financial
reports of Equitable filed with the SEC or any state insurance regulator, as
soon as practical after the filing thereof; and
(d) any other report submitted to Equitable by independent
accountants in connection with any annual, interim, or special audit made by
them of the books of Equitable, as soon as practical after the receipt
thereof; but nothing in this subsection shall require Equitable to disclose
any information that is privileged or which, if disclosed, would put Equitable
at a competitive disadvantage or is both: (a) confidential; and (b) not
material to Equitable's financial condition.
12.10 At the request of any party to this Agreement, each other party
will make available
-21-
to the requesting party's independent auditors and/or representatives of the
appropriate regulatory agencies, all records, data, and access to operating
procedures that may be reasonably requested in connection with compliance and
regulatory requirements related to this Agreement or any party's obligations
under this Agreement.
12.11 Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum
jointly selected by the relevant parties (but if applicable law requires some
other forum, then such other forum) in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified below.
EQ ADVISORS TRUST
By: /s/
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President and Trustee
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By: /s/
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Chief Investment Officer
EQUITABLE DISTRIBUTORS, INC.
By: /s/
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
and Chief Executive Officer
-22-
SCHEDULE A
ACCOUNTS AND ASSOCIATED VARIABLE INSURANCE CONTRACTS
Name of Account
---------------
------------------------------------
Equitable Contracts
Funded By Account
-----------------
-------------------------------------
SCHEDULE B
DESIGNATED PORTFOLIOS AND CLASSES
Portfolios of
EQ Advisors Trust
-----------------
X. Xxxx Price International Stock Portfolio:
Class IA Shares
Class IB Shares
X. Xxxx Price Equity Income Portfolio:
Class IA Shares
Class IB Shares
EQ/Xxxxxx Growth & Income Value Portfolio:
Class IA Shares
Class IB Shares
EQ/Xxxxxx International Equity Portfolio:
Class IA Shares
Class IB Shares
EQ/Xxxxxx Investors Growth Portfolio:
Class IA Shares
Class IB Shares
EQ/Xxxxxx Balanced Portfolio:
Class IA Shares
Class IB Shares
MFS Research Portfolio:
Class IA Shares
Class IB Shares
MFS Emerging Growth Companies Portfolio:
Class IA Shares
Class IB Shares
Xxxxxx Xxxxxxx Emerging Markets Equity Portfolio:
Class IA Shares
Class IB Shares
Warburg Pincus Small Company Value Portfolio:
Class IA Shares
Class IB Shares
Xxxxxxx Xxxxx World Strategy Portfolio:
Class IA Shares
Class IB Shares
Xxxxxxx Xxxxx Basic Value Equity Portfolio:
Class IA Shares
Class IB Shares
-2-
SCHEDULE C
LIST OF OTHER INVESTMENT COMPANIES
