Exhibit (d)(11)(ii)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of July 31, 2003, by and between The Equitable Life
Assurance Society of the United States, a New York stock life insurance
corporation (the "Manager"), and Evergreen Investment Management Company, LLC, a
limited liability company organized under the laws of the State of Delaware
("Adviser").
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Manager has entered into an Amended and Restated Investment
Management Agreement dated as of May 1, 2000 with EQ Advisors Trust ("Trust") an
investment company registered under the Investment Company Act of 1940, as
amended ("Investment Company Act");
WHEREAS, the Trust's shareholders are and will be primarily separate
accounts maintained by insurance companies for variable life insurance policies
and variable annuity contracts (the "policies") under which income, gains and
losses, whether or not realized, from assets allocated to such accounts are, in
accordance with the Policies, credited to or charged against such accounts
without regard to other income, gains, or losses of such insurance companies; as
well as other shareholders as permitted under Section 817(h) of the Internal
Revenue Code of 1986, as amended ("Code"), and the rules and regulations
thereunder with respect to the qualification of variable annuity contracts and
variable life insurance policies as insurance contracts under the Code;
WHEREAS, the EQ/Evergreen Omega Portfolio is a series of the Trust
("Portfolio");
WHEREAS, the Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Board of Trustees of the Trust and the Manager desire that the
Manager retain the Adviser to render investment advisory and other services to
the Portfolio in the manner and on the terms hereinafter set forth;
WHEREAS, the Manager has the authority under the Amended and Restated
Investment Management Agreement with the Trust to select advisers for each
Portfolio of the Trust; and
WHEREAS, the Adviser is willing to furnish such services to the Manager and
the Portfolio;
NOW, THEREFORE, the Manager and the Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as an investment adviser for
the Portfolio, subject to the supervision and oversight of the Manager and the
Trustees of the Trust, and in accordance with the terms and conditions of this
Agreement. The Adviser will be an independent contractor and will have no
authority to act for or represent the Trust or the Manager in any way or
otherwise be deemed an agent of the Trust or the Manager except as expressly
authorized in this Agreement or another writing by the Trust, the Manager and
the Adviser.
2. ACCEPTANCE OF APPOINTMENT
The Adviser accepts that appointment and agrees to render the services
herein set forth, for the compensation herein provided.
The assets of the Portfolio will be maintained in the custody of a
custodian (who shall be identified by the Manager in writing). The Adviser will
not have custody of any securities, cash or other assets of the Portfolio and
will not be liable for any loss resulting from any act or omission of the
custodian other than acts or omissions arising in reliance on instructions of
the Adviser.
3. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. As investment adviser to the Portfolio, the Adviser will coordinate the
investment and reinvestment of the assets of the Portfolio and determine the
composition of the assets of the Portfolio, subject always to the supervision
and control of the Manager and the Trustees of the Trust.
B. As part of the services it will provide hereunder, the Adviser will:
(i) obtain and evaluate, to the extent deemed necessary and advisable
by the Adviser in its discretion, pertinent economic, statistical,
financial, and other information affecting the economy generally and
individual companies or industries, the securities of which are included in
the Portfolio or are under consideration for inclusion in the Portfolio;
(ii) formulate and implement a continuous investment program for the
Portfolio;
(iii) take whatever steps are necessary to implement the investment
program for the Portfolio by arranging for the purchase and sale of
securities and other investments, including issuing directives to the
administrator of the Trust as necessary for the appropriate implementation
of the investment program of the Portfolio;
(iv) keep the Trustees of the Trust and the Manager fully informed in
writing on an ongoing basis as agreed by the Manager and Adviser of all
material facts concerning the investment and reinvestment of the assets in
the Portfolio, the Adviser and its key investment personnel and operations,
make regular and periodic special written reports of such additional
information concerning the same as may reasonably be requested from time to
time by the Manager or the Trustees of the Trust and the Adviser will
attend meetings with the Manager and/or the Trustees, as reasonably
requested, to discuss the foregoing;
(v) in accordance with procedures and methods established by the
Trustees of the Trust, which may be amended from time to time, provide
assistance to the Manager and/or any pricing service designated by the
Manager with respect to determining the fair value of each security or
other investment/asset in the Portfolio for which market prices are not
readily available;
(vi) provide any and all material composite performance information,
records and supporting documentation about accounts the Adviser manages, if
appropriate, which
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are relevant to the Portfolio and that have investment objectives,
policies, and strategies substantially similar to those employed by the
Adviser in managing the Portfolio that may be reasonably necessary, under
applicable laws, to allow the Portfolio or its agent to present information
concerning Adviser's prior performance in the Trust's Prospectus and SAI
(as hereinafter defined) and any permissible reports and materials prepared
by the Portfolio or its agent; and
(vii) cooperate with and provide reasonable assistance to the Manager,
the Trust's administrator, the Trust's custodian and foreign custodians,
the Trust's transfer agent and pricing agents and all other agents and
representatives of the Trust and the Manager, keep all such persons fully
informed as to such matters as they may reasonably deem necessary to the
performance of their obligations to the Trust and the Manager, provide
prompt responses to reasonable requests made by such persons and maintain
any appropriate interfaces with each so as to promote the efficient
exchange of information.
C. In furnishing services hereunder, the Adviser shall be subject to, and
shall perform in accordance with the following: (i) the Trust's Agreement and
Declaration of Trust, as the same may be hereafter modified and/or amended from
time to time ("Trust Declaration"); (ii) the By-Laws of the Trust, as the same
may be hereafter modified and/or amended from time to time ("By-Laws"); (iii)
the currently effective Prospectus and Statement of Additional Information of
the Trust filed with the SEC and delivered to the Adviser, as the same may be
hereafter modified, amended and/or supplemented ("Prospectus and SAI"); (iv) the
Investment Company Act and the Advisers Act and the rules under each, and all
other federal and state laws or regulations applicable to the Trust and the
Portfolio; (v) the Trust's Compliance Manual and other policies and procedures
adopted from time to time by the Board of Trustees of the Trust; and (vi) the
written instructions of the Manager. The Manager undertakes to provide the
Adviser with copies or other written notice of any amendments, modifications or
supplements to any such above-mentioned document.
D. In furnishing services hereunder, the Adviser will not consult with any
other adviser to (i) any other Portfolio of the Trust or (ii) any other
investment company under common control with the Trust concerning transactions
of the Portfolio in securities or other assets. (This shall not be deemed to
prohibit the Adviser from consulting with any of its affiliated persons
concerning transactions in securities or other assets. This shall also not be
deemed to prohibit the Adviser from consulting with any of the other covered
advisers concerning compliance with paragraphs a and b of rule 12d3-1.)
E. The Adviser, at its expense, will furnish: (i) all necessary facilities
and personnel, including salaries, expenses and fees of any personnel required
for them to faithfully perform their duties under this Agreement; and (ii)
administrative facilities, including bookkeeping, and all equipment necessary
for the efficient conduct of the Adviser's duties under this Agreement.
F. The Adviser will select brokers and dealers to effect all portfolio
transactions subject to the conditions set forth herein. The Adviser will place
all necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions, if applicable. The Adviser is directed at all times to
seek to execute transactions for the Portfolio (i) in accordance with any
written policies, practices or procedures that may be established by the Board
of Trustees or the Manager from time to time and which have been provided to the
Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any
orders for the purchase or sale of investments for the Portfolio, in the name of
the Portfolio or its nominees, the Adviser shall use its best efforts to obtain
for the Portfolio "best execution", considering all of the circumstances, and
shall maintain
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records adequate to demonstrate compliance with this requirement. In no instance
will portfolio securities be purchased from or sold to the Adviser, or any
affiliated person thereof, except in accordance with the Investment Company Act,
the Advisers Act and the rules under each, and all other federal and state laws
or regulations applicable to the Trust and the Portfolio.
G. Subject to the appropriate policies and procedures approved by the Board
of Trustees, Adviser may, to the extent authorized by Section 28(e) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") cause the Portfolio
to pay a broker or dealer that provides brokerage or research services to the
Manager, the Adviser and the Portfolio an amount of commission for effecting a
Portfolio transaction in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Adviser
determines, in good faith, that such amount of commission is reasonable in
relationship to the value of such brokerage or research services provided viewed
in terms of that particular transaction or the Adviser's overall
responsibilities to the Portfolio or its other advisory clients. To the extent
authorized by Section 28(e) and the Trust's Board of Trustees, the Adviser shall
not be deemed to have acted unlawfully or to have breached any duty created by
this Agreement or otherwise solely by reason of such action. In addition,
subject to seeking "best execution", the Manager or the Adviser may also
consider sales of shares of the Trust as a factor in the selection of brokers
and dealers. Subject to seeking best execution, the Board of Trustees or the
Manager may direct the Adviser to effect transactions in portfolio securities
through broker-dealers in a manner that will help generate resources to: (i) pay
the cost of certain expenses that the Trust is required to pay or for which the
Trust is required to arrange payment; or (ii) recognize broker-dealers for the
sale of Portfolio shares.
H. On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of the Portfolio as well as other clients of the
Adviser, the Adviser to the extent permitted by applicable laws and regulations,
may, but shall be under no obligation to, aggregate the securities to be
purchased or sold to attempt to obtain a more favorable price or lower brokerage
commissions and efficient execution. Allocation of the securities so purchased
or sold, as well as the expenses incurred in the transaction, will be made by
the Adviser in the manner which the Adviser considers to be the most equitable
and consistent with its fiduciary obligations to the Portfolio and to its other
clients over time. The Manager agrees that Adviser and its affiliates may give
advice and take action in the performance of their duties with respect to any of
their other clients that may differ from advice given, or the timing or nature
of actions taken, with respect to the Portfolio. The Manager also acknowledges
that Adviser and its affiliates are fiduciaries to other entities, some of which
have the same or similar investment objectives (and will hold the same or
similar investments) as the Portfolio, and that Adviser will carry out its
duties hereunder together with its duties under such relationships. Nothing in
this Agreement shall be deemed to confer upon Adviser any obligation to purchase
or to sell or to recommend for purchase or sale for the Portfolio any investment
that Adviser, its affiliates, officers or employees may purchase or sell for its
or their own account or for the account of any client, if in the sole and
absolute discretion of Adviser it is for any reason impractical or undesirable
to take such action or make such recommendation for the Portfolio.
I. The Adviser will maintain all accounts, books and records with respect
to the Portfolio as are required of an investment adviser of a registered
investment company pursuant to the Investment Company Act and Advisers Act and
the rules thereunder and shall file with the SEC all forms pursuant to Section
13 of the Exchange Act, with respect to its duties as are set forth herein.
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J. The Adviser will, unless and until otherwise directed by the Manager or
the Board of Trustees, exercise all rights of security holders with respect to
securities held by the Portfolio, including but not limited to: voting proxies;
at the discretion of the Adviser and in accordance with the Adviser's applicable
policies and procedures; converting, tendering, exchanging or redeeming
securities; acting as a claimant in class action litigation (including
litigation with respect to securities previously held); and exercising rights in
the context of a bankruptcy or other reorganization.
4. COMPENSATION OF ADVISER
The Manager will pay the Adviser an advisory fee with respect to the
Portfolio as specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on or about the fifth day of each month; however, this advisory
fee will be calculated daily for the Portfolio based on the net assets of the
Portfolio on each day and accrued on a daily basis.
5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company Act or any
other federal securities law, neither the Adviser nor any of its officers,
members or employees (its "Affiliates") shall be liable for any losses, claims,
damages, liabilities or litigation (including legal and other expenses) incurred
or suffered by the Manager or the Trust as a result of any error of judgment or
mistake of law by the Adviser or its Affiliates with respect to the Portfolio,
except that nothing in this Agreement shall operate or purport to operate in any
way to exculpate, waive or limit the liability of the Adviser or its Affiliates
for, and the Adviser shall indemnify and hold harmless the Trust, the Manager,
all affiliated persons thereof (within the meaning of Section 2(a)(3) of the
Investment Company Act) and all controlling persons (as described in Section 15
of the Securities Act of 1933, as amended ("1933 Act")) (collectively, "Manager
Indemnitees") against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which any of the
Manager Indemnitees may become subject under the 1933 Act, the Investment
Company Act, the Advisers Act, or under any other statute, or common law or
otherwise arising out of or based on (i) any willful misconduct, bad faith,
reckless disregard or gross negligence of the Adviser in the performance of any
of its duties or obligations hereunder or (ii) any untrue statement of a
material fact contained in the Prospectus and SAI, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to the Portfolio
or the omission to state therein a material fact known to the Adviser which was
required to be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon information
furnished to the Manager or the Trust by the Adviser Indemnitees (as defined
below) for use therein.
B. Except as may otherwise be provided by the Investment Company Act or any
other federal securities law, the Manager and the Trust shall not be liable for
any losses, claims, damages, liabilities or litigation (including legal and
other expenses) incurred or suffered by the Adviser as a result of any error of
judgment or mistake of law by the Manager with respect to the Portfolio, except
that nothing in this Agreement shall operate or purport to operate in any way to
exculpate, waive or limit the liability of the Manager for, and the Manager
shall indemnify and hold harmless the Adviser, all affiliated persons thereof
(within the meaning of Section 2(a)(3) of the Investment Company Act) and all
controlling persons (as described in Section 15 of the 1933 Act) (collectively,
"Adviser Indemnitees") against any and all losses, claims, damages, liabilities
or litigation (including reasonable legal and other expenses) to which any of
the Adviser Indemnitees may become subject under the 1933 Act, the Investment
Company Act, the Advisers Act, or under any other statute, at common law or
otherwise arising out of or based on (i) any
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willful misconduct, bad faith, reckless disregard or gross negligence of the
Manager in the performance of any of its duties or obligations hereunder or (ii)
any untrue statement of a material fact contained in the Prospectus and SAI,
proxy materials, reports, advertisements, sales literature, or other materials
pertaining to the Portfolio or the omission to state therein a material fact
known to the Manager that was required to be stated therein or necessary to make
the statements therein not misleading, unless such statement or omission was
made in reliance upon information furnished to the Manager or the Trust by the
Adviser Indemnitees.
6. REPRESENTATIONS OF MANAGER
The Manager represents, warrants and agrees that:
A. The Manager has been duly authorized by the Board of Trustees of the
Trust to delegate to the Adviser the provision of investment services to the
Portfolio as contemplated hereby.
B. The Manager has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Adviser with a copy of such code of ethics.
C. The Manager is currently in compliance and shall at all times continue
to comply with the requirements imposed upon the Manager by applicable law and
regulations.
D. The Manager (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) to the best or its knowledge, has met and
will seek to continue to meet for so long as this Agreement is in effect, any
other applicable federal or state requirements, or the applicable requirements
of any regulatory or industry self-regulatory agency necessary to be met in
order to perform the services contemplated by this Agreement; and (v) will
promptly notify Adviser of the occurrence of any event that would disqualify
Manager from serving as investment manager of an investment company pursuant to
Section 9(a) of the Investment Company Act or otherwise. The Manager will also
promptly notify the Adviser if it is served or otherwise receives notice of any
action, suit, proceeding, inquiry or investigation, at law or in equity, before
or by any court, public board or body, involving the affairs of the Portfolio,
provided, however, that routine regulatory examinations shall not be required to
be reported by this provision.
7. REPRESENTATIONS OF ADVISER
The Adviser represents, warrants and agrees as follows:
A. The Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) has met and will seek to continue to meet
for so long as this Agreement remains in effect, any other applicable federal or
state requirements, or the applicable requirements of any regulatory or industry
self-regulatory agency necessary to be met in order to perform the services
contemplated by this Agreement; (iv) has the authority to enter into and perform
the services contemplated by this Agreement; and (v) will promptly notify
Manager of the occurrence of any event that would disqualify the Adviser from
serving as an investment adviser of an investment company pursuant to Section
9(a) of the Investment Company Act or otherwise. The
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Adviser will also promptly notify the Portfolio and the Manager if it is served
or otherwise receives notice of any action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board or
body, involving the affairs of the Portfolio, provided, however, that routine
regulatory examinations shall not be required to be reported by this provision.
B. The Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Manager and the Board with a copy of such code of ethics, together with evidence
of its adoption. Within forty-five days of the end of the last calendar quarter
of each year that this Agreement is in effect, and as otherwise requested, the
president, Chief Operating Officer or a vice-president of the Adviser shall
certify to the Manager that the Adviser has complied with the requirements of
Rule 17j-1 during the previous year and that there has been no material
violation of the Adviser's code of ethics or, if such a material violation has
occurred, that appropriate action was taken in response to such violation. Upon
the written request of the Manager, the Adviser shall permit the Manager, its
employees or its agents to examine the reports required to be made to the
Adviser by Rule 17j-1(c)(1) and all other records relevant to the Adviser's code
of ethics.
C. The Adviser has provided the Trust and the Manager with a copy of its
Form ADV, which as of the date of this Agreement is its Form ADV as most
recently filed with the Securities and Exchange Commission and promptly will
furnish a copy of all amendments to the Trust and the Manager at least annually.
Such amendments shall reflect all changes in the Adviser's organizational
structure, professional staff or other significant developments affecting the
Adviser, as required by the Advisers Act.
D. The Adviser will notify the Trust and the Manager of any assignment of
this Agreement or change of control of the Adviser, as applicable, and any
changes in the key personnel who are either the portfolio manager(s) of the
Portfolio or senior management of the Adviser, in each case prior to or promptly
after, such change. The Adviser agrees to bear all reasonable expenses of the
Trust, if any, arising out of an assignment or change in control.
E. The Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage.
F. The Adviser agrees that neither it, nor any of its affiliates, will
knowingly in any way refer directly or indirectly to its relationship with the
Trust, the Portfolio, the Manager or any of their respective affiliates in
offering, marketing or other promotional materials without the express written
consent of the Manager, except as required by rule, regulation or upon the
request of a governmental authority or in representative client lists prepared
by the Adviser. However, the Adviser may use the performance of the Portfolio in
its composite performance.
8. NON-EXCLUSIVITY
The services of the Adviser to the Manager, the Portfolio and the Trust are
not to be deemed to be exclusive, and the Adviser shall be free to render
investment advisory or other services to others and to engage in other
activities. It is understood and agreed that the directors, officers, and
employees of the Adviser are not prohibited from engaging in any other business
activity or from rendering services to any other person, or from serving as
partners, officers, directors, trustees, or employees of any other firm or
corporation.
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9. SUPPLEMENTAL ARRANGEMENTS
The Adviser may from time to time employ or associate itself with any
person it believes to be particularly suited to assist it in providing the
services to be performed by such Adviser hereunder, provided that no such person
shall perform any services with respect to the Portfolio that would constitute
an assignment or require a written advisory agreement pursuant to the Investment
Company Act. Any compensation payable to such persons shall be the sole
responsibility of the Adviser, and neither the Manager nor the Trust shall have
any obligations with respect thereto or otherwise arising under the Agreement.
10. REGULATION
The Adviser shall submit to all regulatory and administrative bodies having
jurisdiction over the services provided pursuant to this Agreement any
information, reports, or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations.
11. RECORDS
The records relating to the services provided under this Agreement shall be
the property of the Trust and shall be under its control; however, the Trust
shall furnish to the Adviser such records and permit it to retain such records
(either in original or in duplicate form) as it shall reasonably require in
order to carry out its business. In the event of the termination of this
Agreement, such other records shall promptly be returned to the Trust by the
Adviser free from any claim or retention of rights therein, provided that the
Adviser may retain any such records that are required by law or regulation. The
Manager and the Adviser shall keep confidential any information obtained in
connection with its duties hereunder and disclose such information only (i) if
the Trust has authorized such disclosure; (ii) to affiliates of the Adviser; or
(iii) if such disclosure is expressly required or requested by applicable
federal or state regulatory authorities, or otherwise required by law.
12. DURATION OF AGREEMENT
This Agreement shall become effective upon the date first above written,
provided that this Agreement shall not take effect unless it has first been
approved: (i) by a vote of a majority of those trustees of the Trust who are not
"interested persons" (as defined in the Investment Company Act) of any party to
this Agreement ("Independent Trustees"), cast in person at a meeting called for
the purpose of voting on such approval, and (ii) by vote of a majority of the
Portfolio's outstanding securities. This Agreement shall continue in effect for
a period more than one year from the date of its execution only so long as such
continuance is specifically approved at least annually by the Board of Trustees
provided that in such event such continuance shall also be approved by the vote
of a majority of the Independent Trustees cast in person at a meeting called for
the purpose of voting on such approval.
13. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Trustees, including a majority of the Independent
Trustees, by the vote of a majority of the outstanding voting securities of the
Portfolio, on sixty (60) days' written notice to the Manager and the Adviser, or
by the Manager or Adviser on sixty (60) days' written notice to the Trust and
the other party. This Agreement will automatically terminate, without the
payment of
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any penalty, (i) in the event of its assignment (as defined in the Investment
Company Act), or (ii) in the event the Investment Management Agreement between
the Manager and the Trust is assigned (as defined in the Investment Company Act)
or terminates for any other reason. This Agreement will also terminate upon
written notice to the other party that the other party is in material breach of
this Agreement, unless the other party in material breach of this Agreement
cures such breach to the reasonable satisfaction of the party alleging the
breach within thirty (30) days after written notice.
14. USE OF ADVISER'S NAME
The parties agree that the name of the Adviser, the names of any affiliates
of the Adviser and any derivative or logo or trademark or service xxxx or trade
name are the valuable property of the Adviser and its affiliates. The Manager
and the Trust shall have the right to use such name(s), derivatives, logos,
trademarks or service marks or trade names only with the prior written approval
of the Adviser, which approval shall not be unreasonably withheld or delayed so
long as this Agreement is in effect.
Upon termination of this Agreement, the Manager and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. The Manager and the Trust agree that they will review with
the Adviser any advertisement, sales literature, or notice prior to its use that
makes reference to the Adviser or its affiliates or any such name(s),
derivatives, logos, trademarks, service marks or trade names so that the Adviser
may review the context in which it is referred to, it being agreed that the
Adviser shall have no responsibility to ensure the adequacy of the form or
content of such materials for purposes of the Investment Company Act or other
applicable laws and regulations. If the Manager or the Trust makes any
unauthorized use of the Adviser's names, derivatives, logos, trademarks or
service marks or trade names, the parties acknowledge that the Adviser shall
suffer irreparable harm for which monetary damages may be inadequate and thus,
the Adviser shall be entitled to injunctive relief, as well as any other remedy
available under law.
15. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules
or regulations thereunder or pursuant to exemptive relief granted by the SEC,
this Agreement may be amended by the parties only if such amendment, if
material, is specifically approved by the vote of a majority of the outstanding
voting securities of the Portfolio (unless such approval is not required by
Section 15 of the Investment Company Act as interpreted by the SEC or its staff
or unless the SEC has granted an exemption from such approval requirement) and
by the vote of a majority of the Independent Trustees cast in person at a
meeting called for the purpose of voting on such approval. The required
shareholder approval shall be effective with respect to the Portfolio if a
majority of the outstanding voting securities of the Portfolio vote to approve
the amendment, notwithstanding that the amendment may not have been approved by
a majority of the outstanding voting securities of any other Portfolio affected
by the amendment or all the Portfolios of the Trust.
16. ASSIGNMENT
Any assignment (as that term is defined in the Investment Company Act) of
the Agreement made by the Adviser without the prior written consent of the Trust
and the Manager shall result in the automatic termination of this Agreement, as
provided in Section 13 hereof. Notwithstanding the foregoing, no assignment
shall be deemed to result from any changes in the
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directors, officers or employees of such Adviser except as may be provided to
the contrary in the Investment Company Act or the rules or regulations
thereunder. The Adviser agrees that it will notify the Trust and the Manager of
any changes in its key employees that relate to the Portfolio within a
reasonable time thereafter.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio.
18. HEADINGS
The headings in the sections of this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
19. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the address listed below of each applicable party in
person or by registered or certified mail or a private mail or delivery service
providing the sender with notice of receipt or such other address as specified
in a notice duly given to the other parties. Notice shall be deemed given on the
date delivered or mailed in accordance with this paragraph.
For: The Equitable Life Assurance Society of the United States
Xxxxxxxx Xxxxx, Vice President and Counsel
1290 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: EQ Advisors Trust
Xxxxxxxx Xxxxx, Vice President and Secretary
1290 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For: Evergreen Investment Management Company, LLC
Xxx Xxxx, Managing Director Sub-Advisory Relationships
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
20. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void in
law or in equity, the Agreement shall be construed, insofar as is possible, as
if such portion had never been contained herein.
21. TRUST AND SHAREHOLDER LIABILITY
The Manager and Adviser are hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Agreement and
Declaration of Trust of the Trust and agree that obligations assumed by the
Trust pursuant to this Agreement shall be limited in all cases to the Trust and
its assets, and if the liability relates to one or more series, the obligations
hereunder shall be limited to
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the respective assets of the Portfolio. The Manager and Adviser further agree
that they shall not seek satisfaction of any such obligation from the
shareholders or any individual shareholder of the Portfolio, nor from the
Trustees or any individual Trustee of the Trust.
22. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of New York, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
23. INTERPRETATION
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
Investment Company Act shall be resolved by reference to such term or provision
of the Investment Company Act and to interpretations thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued pursuant to the
Investment Company Act. Specifically, the terms "vote of a majority of the
outstanding voting securities," "interested persons," "assignment," and
"affiliated persons," as used herein shall have the meanings assigned to them by
Section 2(a) of the Investment Company Act. In addition, where the effect of a
requirement of the Investment Company Act reflected in any provision of this
Agreement is relaxed by a rule, regulation or order of the SEC, whether of
special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
THE EQUITABLE LIFE ASSURANCE EVERGREEN INVESTMENT MANAGEMENT
SOCIETY OF THE UNITED STATES COMPANY, LLC
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X'Xxxxx
--------------------------- ---------------------------
Xxxxx X. Xxxxx Xxxxxxx X'Xxxxx
Executive Vice President President, Institutional
11
APPENDIX A
TO
INVESTMENT ADVISORY AGREEMENT
WITH
EVERGREEN INVESTMENT MANAGEMENT COMPANY, LLC
Portfolio Annual Advisory Fee
--------- -------------------
EQ/Evergreen Omega Portfolio 0.55% of the Portfolio's average daily net assets
12
