Exhibit (d)(15)(ii)
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED 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 Xxxxx Capital Management,
Inc., a Maryland corporation (the "Adviser").
WHEREAS, EQ Advisors Trust ("Trust") is registered as an investment
company under the Investment Company Act of 1940, as amended ("Investment
Company Act");
WHEREAS, the Trust's shareholders are and will be separate accounts
maintained by insurance companies for variable life insurance policies and
variable annuity contracts under which income, gains, and losses, whether or not
realized, from assets allocated to such accounts are, in accordance with such
policies and contracts, credited to or charged against such accounts without
regard to other income, gains, or losses of such insurance companies;
WHEREAS, the Trust is and will continue to be a series fund having two
or more investment portfolios, each with its own investment objectives, policies
and restrictions;
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act"), and is the
investment manager to the Trust;
WHEREAS, the Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Investment Company Act prohibits any person from acting as
an investment adviser to a registered investment company except pursuant to a
written contract; and
WHEREAS, the Board of Trustees of the Trust and the Manager desire that
the Manager retain the Adviser and Xxxxxxx Asset Management Company, Inc.
("Xxxxxxx") to render investment advisory services to the portfolio to be known
as the Xxxxxxx Socially Responsible Portfolio ("Portfolio") in the manner and on
the terms hereinafter set forth;
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser for
the Portfolio, subject to the supervision and control 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. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. As investment adviser to the Portfolio, the Adviser, together
with Xxxxxxx, will manage 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. Without limiting the generality of the foregoing, Xxxxxxx shall allocate
responsibilities for specific tasks relating to the Portfolio between Xxxxxxx
and the Adviser. Xxxxxxx will provide the social screening services used in
selecting each investment for
the Portfolio and has the authority to deny the purchase by the Portfolio or
cause divestiture of any investments of the Portfolio if such investment, in the
sole opinion of Xxxxxxx, fails to pass the social screens established for the
Portfolio.
B. As part of the services it will provide hereunder, the Adviser
will:
(i) obtain and evaluate 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 the purchase and sale of
securities and other investments, including, as appropriate, the placing
of orders for such purchases and sales;
(iv) keep the Trustees of the Trust and the Manager fully
informed in writing on an ongoing basis of all material facts concerning
the investment and reinvestment of the assets in the Portfolio, the
Adviser and its personnel and operations, make regular and 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 attend meetings with the Manager and/or the
Trustees, as reasonably requested, to discuss the foregoing;
(v) provide assistance in determining the fair value of
certain portfolio securities when market quotations are not readily
available for the purpose of calculating the Portfolio's net asset value
in accordance with procedures and methods established by the Trustees of
the Trust;
(vi) provide any and all information, records and supporting
documentation about accounts the Adviser and Xxxxxxx manage together or
individually, if appropriate, that have investment objectives, policies,
and strategies substantially similar to those employed by the Adviser
and Xxxxxxx in managing the Portfolio which may be reasonably necessary,
under applicable laws, to allow the Portfolio or its agent to present
information concerning the Adviser's and Xxxxxxx'x 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 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 establish 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 Trust's Agreement and Declaration
of Trust, as the same may be hereafter modified and/or amended from time to time
("Trust Declaration"), the By-Laws of the
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Trust, as the same may be hereafter modified and/or amended from time to time
("By-Laws"), the currently effective Prospectus and Statement of Additional
Information of the Trust relating to the Portfolio filed with the Securities and
Exchange Commission ("SEC"), as the same may be hereafter modified, amended
and/or supplemented (the "Prospectus and SAI"), the Investment Company Act, with
the requirements applicable to both regulated investment companies and
segregated asset accounts under Subchapters M and L of the Internal Revenue Code
of 1986, as amended, all other applicable state and federal securities and other
laws, all regulations with respect to the foregoing, the policies and procedures
adopted from time to time by the Board of Trustees of the Trust and the written
instructions of the Manager. The Manager shall provide the Adviser with current
copies of the Trust Declaration, By-Laws, and Prospectus and SAI.
D. The Adviser, at its expense, will furnish: (i) all necessary
investment and management facilities and investment personnel, including
salaries, expenses and fees of any personnel required for it to faithfully
perform its duties under this Agreement; and (ii) administrative facilities,
including bookkeeping, clerical personnel and equipment necessary for the
efficient conduct of the investment affairs of the Portfolio (excluding that
necessary for the determination of net asset value and shareholder accounting
services).
E. The Adviser, together with Xxxxxxx, will select brokers and
dealers to effect all portfolio transactions subject to the conditions set forth
herein. The Adviser, or Xxxxxxx, 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 brokerage transactions
for the Portfolio in accordance with such policies or practices as may be
established by the Board of Trustees and 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 the most favorable price and best
execution available, considering all of the circumstances, and shall maintain
records adequate to demonstrate compliance with this requirement.
F. Subject to the appropriate policies and procedures approved by
the Board of Trustees, the Adviser, may, to the extent authorized by Section
28(e) of the Securities Exchange Act of 1934, cause the Portfolio to pay a
broker or dealer that provides brokerage or research services to the Manager,
the Adviser, Xxxxxxx 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 or Xxxxxxx'x overall
responsibilities to the Portfolio or its or their other advisory clients. To the
extent authorized by said 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 the most favorable price and best execution
available, the Manager or the Adviser may also consider sales of shares of the
Trust as a factor in the selection of brokers and dealers.
G. On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of the Portfolio as well as other clients of
the Adviser, the Adviser to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be purchased or sold to attempt to obtain a more favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the
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Adviser in the manner the Adviser considers to be the most equitable and
consistent with its fiduciary obligations to the Portfolio and to its other
clients.
H. 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 Securities Exchange Act of 1934, as amended, with
respect to the discretionary management of the assets of the Portfolio.
I. 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; 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.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser for its services as specified in this
Agreement an advisory fee with respect to the Portfolio at the following annual
rate: 0.25% of the average daily net assets of the Portfolio up to and including
$150 million; 0.20% of the average daily net assets of the Portfolio in excess
of $150 million and up to and including $300 million; and 0.175% of the average
daily net assets of the Portfolio in excess of $300 million; provided, however,
that no advisory fee will be payable by the Manager to the Adviser until the
sooner of either (i) the end of the first year of operations of the Portfolio
(following its public offering) or (ii) the end of the business day (ad defined
in the Prospectus and SAI) during which the average daily net assets of the
portfolio exceeds $20 million. The advisory fee due and payable hereunder on
account of any day shall be calculated by multiplying the net asset value of the
Portfolio at the close of the immediately preceding business day (as defined in
the Prospectus and SAI) by the applicable annual rate specified above and
dividing the result by the number of days in the year. The advisory fee due and
payable hereunder on account of the days in any month quarter shall be due and
payable within ten (10) business days following the end of such calendar month.
4. LIABILITY AND INDEMNIFICATION
(a) Except as may otherwise be provided by the Investment Company
Act or any other federal securities law, the Adviser shall not 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 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
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, the
"Manager Indemnitees") against any and all losses, claims, damages, liabilities
or litigation (including reasonable legal and other expenses) to which any of
the Manager Indemnities 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 (a) 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 (b) any untrue statement of a material
fact contained in the
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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 an Adviser Indemnitee (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, the "Adviser Indemnitees") against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses) to which any of the Adviser Indemnities 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 (a) any
willful misconduct, bad faith, reckless disregard or gross negligence of the
Manager in the performance of any of its duties or obligations hereunder or (b)
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 which 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
an Adviser Indemnitee for use therein.
5. NON-EXCLUSIVITY
The services of the Adviser to 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 (including other investment companies) 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, including other investment companies.
6. SUPPLEMENTAL ARRANGEMENTS
The Adviser may from time to time employ or associate with itself any
person it believes to be particularly fitted to assist it in providing the
services to be performed by the Adviser hereunder, provided that no such person
shall perform any services with respect to the Portfolio which 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.
7. 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
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which any such body by reason of this Agreement may request or require pursuant
to applicable laws and regulations.
8. RECORDS
The records relating to the services provided under this Agreement shall
be the property of the Trust and shall be under its control; however, the Trust
shall furnish to the Adviser such records and permit it to retain such records
(either in original or in duplicate form) as it shall reasonably require in
order to carry out its duties. In the event of the termination of this
Agreement, such records shall promptly be returned to the Trust by the Adviser
free from any claim or retention of rights therein. The Manager and the Adviser
shall keep confidential any information obtained in connection with its duties
hereunder and disclose such information only if the Trust has authorized such
disclosure or if such disclosure is expressly required or requested by
applicable federal or state regulatory authorities.
9. DURATION OF AGREEMENT
This Agreement shall become effective with respect to the Portfolio on
the date of its execution. 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 Trustees who are not "interested persons" (as defined in
the Investment Company Act) ("Independent Trustees") of any party to this
Agreement cast in person at a meeting called for the purpose of voting on such
approval.
10. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Trustees, including a majority of the Independent
Trustees, by the vote of a majority of the outstanding voting securities of the
Portfolio, on sixty (60) days' written notice to the Manager and the Adviser, or
by the Manager or Adviser on sixty (60) days' written notice to the Trust and
the other party. This Agreement will automatically terminate, without the
payment of any penalty, (i) in the event of its assignment (as defined in the
Investment Company Act), (ii) in the event the Investment Management Agreement
between the Manager and the Trust is assigned or terminates for any other
reason, or (iii) in the event that the Investment Advisory Agreement, dated as
of the date hereof, between the Manager and Xxxxxxx is terminated for any
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.
11. PROVISION OF CERTAIN INFORMATION BY ADVISER
The Adviser will promptly notify the Manager in writing of the
occurrence of any of the following events:
A. the Adviser fails to be registered as investment adviser under
the Advisers Act or under the laws of any jurisdiction in which the Adviser is
required to be registered as an investment adviser in order to perform its
obligations under this Agreement;
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B. the Adviser 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 Trust;
and/or
C. the chief executive officer or controlling stockholder of the
Adviser or the portfolio managers of the Portfolio changes or there is otherwise
an actual change in control or management of the Adviser.
12. USE OF ADVISER'S NAME
The Manager will not use the Adviser's name (or that of any affiliate)
in Trust literature without prior review and approval by the Adviser, which may
not be unreasonably withheld or delayed.
13. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the
rules or regulations thereunder or pursuant to any 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)
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.
14. ASSIGNMENT
No assignment (as that term is defined in the Investment Company Act)
shall be made by the Adviser without the prior written consent of the Trust and
the Manager. Notwithstanding the foregoing, no assignment shall be deemed to
result from any changes in the directors, officers or employees of the Adviser
except as may be provided to the contrary in the Investment Company Act. The
Adviser agrees that it will notify the Trust and the Manager of from any changes
in the directors, officers or employees of the Adviser within a reasonable time
thereafter.
15. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio.
16. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
17. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the last known business address of each applicable party
in person or by registered mail or a private mail or delivery service providing
the sender with notice of receipt. The specific person
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to whom notice shall be provided for each party will be specified in writing to
the other party. Notice shall be deemed given on the date delivered or mailed in
accordance with this paragraph.
18. 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.
19. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of Delaware, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
20. INTERPETATION
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 XXXXX CAPITAL MANAGEMENT, INC.
SOCIETY OF THE UNITED STATES
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Executive Vice President President
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