SALES AGREEMENT
AGREEMENT, dated as of July 22, 1992, by and among Equitable Variable Life
Insurance Company ("Equitable Variable"), The Equitable Life Assurance
Society of the United States ("Equitable"), and Equitable's Separate Account
No. 301 (the "Separate Account").
W I T N E S S E T H:
WHEREAS, Equitable Variable is a principal underwriter of the 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
dated as of July 22, 1992 ("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;
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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, Equitable issues Variable Products, whose net premiums are
allocated to the Separate Account, and which are eligible for investment in
the Trust's portfolios;
WHEREAS, Equitable will distribute the Variable Products, either directly
or indirectly through one or more affiliated or nonaffiliated broker-dealers
with whom Equitable has selling agreements;
WHEREAS, Equitable and Equitable Variable 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, Equitable Variable and Equitable wish to define and describe the
conditions under which shares of the Trust will be made available for
investment by the Separate Account.
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NOW THEREFORE, Equitable Variable, Equitable 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 notice, and this Agreement shall be deemed amended to the extent the
Policy is amended or superseded. Equitable 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. Equitable Variable 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
Equitable to the
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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, Equitable Variable will
provide at Trust expense camera ready copy of the current Prospectus and SAI
and any supplements thereto for printing and distribution by Equitable with
the prospectus for the Variable Products. Equitable Variable will also provide
camera ready copy of Trust proxy materials and semi-annual reports, and any
supplements thereto. Equitable Variable will use its best efforts to coordinate
with Equitable and to provide notice of anticipated filings or supplements.
Equitable may alter the form of the prospectus, SAI, semi-annual reports, proxy
statements or other Trust documents, with the prior approval of the Trust's
officers. Equitable shall bear all costs associated with such alteration of
form. Equitable 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
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Products or published in print or audio-visual media), except in either case
as Equitable Variable of officers of the Trust may authorize in advance,
which authorization will not be unreasonably withheld or delayed.
Equitable shall indemnify and hold harmless Equitable Variable from any
and all losses, claims, damages or liabilities (or actions in respect
thereof) to which Equitable Variable 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 Equitable, its employees, agents or representatives, including
but not limited to improper solicitation of applications for Variable
Products.
(b) Equitable Variable will indemnify and hold harmless Equitable and the
Separate Account against any losses, claims, damages or liabilities, to which
Equitable 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 try
supplements thereto or necessary to make the statements therein not
misleading, or (iii) other misconduct or negligence of
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Equitable Variable in its capacity as a distributor of the Trust; and will
reimburse Equitable 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 Equitable Variable 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 Equitable specifically for use in the preparation thereof.
Equitable Variable shall not indemnify Equitable 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 Equitable Variable may furnish to Equitable and, if
requested by the applicant from Equitable or required by applicable law, the
Trust SAI and any supplements thereto and, as required by applicable law, the
Trust's annual and semi-annual reports, other required reports and proxy
statements.
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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 Equitable Variable is notified that the Distribution Agreement will
be terminated and that it shall cease to be the principal underwriter of the
Trust, Equitable Variable 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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Equitable shall, 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.
Equitable Variable shall immediately notify Equitable 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. Equitable and Equitable Variable shall submit to all regulatory and
administrative bodies having jurisdiction over the operations of Equitable,
Equitable Variable 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.
Equitable Variable shall keep confidential any information about
Equitable's Variable Products or policyowners obtained pursuant to this
Agreement and shall disclose such information only if Equitable has
authorized such disclosure, or
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if such disclosure is required by state or federal regulatory bodies, as
authorized by applicable law. Equitable Variable will notify Equitable of
disclosures required by regulatory bodies as soon as possible.
Equitable Variable agrees that all records and other data pertaining to
the Variable Products are the exclusive property of Equitable and that any
such records and other data, whether maintained in written or electronic
format, shall be furnished to Equitable by Equitable Variable upon
termination of this Agreement for any reason whatsoever. This shall not
preclude Equitable Variable from keeping copies of such data or records for
its own files subject to the provisions of this paragraph.
9. Equitable retains the ultimate right of control over, and
responsibility for, marketing the Variable Products.
10. Equitable Variable represents that neither Equitable Variable 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
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(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 any
provision of federal or state securities laws involving fraud, deceit or
knowing misrepresentation.
11. Equitable Variable and Equitable 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.
IN WITNESS WHEROF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
EQUITABLE VARIABLE LIFE
INSURANCE COMPANY
Attest:
By:
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THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
Attest:
By:
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SEPARATE ACCOUNT NO. 301
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
as depositor
Attest:
By:
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SCHEDULE A
All Xxxxxx River Trust Portfolios are available to the Separate Account
for premiums and conributions associated with all variable products funded by
the Separate Account.
0335i
08/24/92
