<PAGE>
Registration Nos. 33-17217
811-07953
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 28, 1997.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933 [X]
Pre-Effective Amendment No. [ ]
Post-Effective Amendment No. 1 [X]
and/or
REGISTRATION STATEMENT UNDER THE
INVESTMENT COMPANY ACT OF 1940 [X]
Amendment No. 3 [X]
(Check appropriate box or boxes)
EQ ADVISORS TRUST
(formerly 787 Trust)
(Exact name of registrant as specified in charter)
1290 Avenue of the Americas
New York, New York 10104
(Address of principal executive offices)
Registrant's Telephone Number, including area code: (212) 554-1234
Peter D. Noris, Executive Vice President and
Chief Investment Officer
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
New York, New York 10104
(Name and address of agent for service)
Please send copies of all communications to:
Jane A. Kanter Mary P. Breen
Dechert Price & Rhoads Vice President & Associate General Counsel
1500 K Street, N.W. The Equitable Life Assurance Society of the
Suite 500 United States
Washington, D.C. 20005 1290 Avenue of the Americas
New York, New York 10104
It is proposed that this filing will become effective:
[X] immediately upon filing pursuant to paragraph (b)
[ ] on [date] pursuant to paragraph (b)
[ ] 60 days after filing pursuant to paragraph (a)
[ ] on [date] pursuant to paragraph (a) of Rule 485
[ ] 75 days after filing pursuant to paragraph (a)
Pursuant to the provisions of Rule 24f-2 under the Investment Company Act of
1940, an indefinite number of shares of beneficial interest is being registered
by this Registration Statement. Registrant's Rule 24f-2 Notice for its most
recent fiscal year will be filed on or before February 28, 1998.
<PAGE>
EQ ADVISORS TRUST
Contents of Registration Statement
This registration statement consists of the following papers and documents:
Cover Sheet
Contents of Registration Statement
Cross Reference Sheet
Part A - Prospectuses
Part B - Statement of Additional Information
Part C - Other Information
Signature Page
Exhibits
<PAGE>
EQ ADVISORS TRUST
CROSS REFERENCE SHEET
POST-EFFECTIVE AMENDMENT NO. 1
PART A. ITEM NO. AND CAPTIONS CAPTION IN PROSPECTUS
1. Cover Page Cover Page
2. Synopsis Not Applicable
3. Condensed Financial Information Not Applicable
4. General Description of Registrant The Trust; Description of the
Trust and Trust's Shares --
The Trust
5. Management of the Fund Management of the Trust
5A. Management's Discussion of Fund Not Applicable
Performance
6. Capital Stock and Other Securities Dividends, Distributions And Taxes
7. Purchase of Securities Being Offered Description of the Trust and
Trust's Shares -- Purchase and
Redemption of Shares
8. Redemption or Repurchase Description of the Trust and
Trust's Shares -- Purchase and
Redemption of Shares
9. Pending Legal Proceedings Not Applicable
PART B. ITEM NO. AND CAPTIONS CAPTION IN STATEMENT OF ADDITIONAL
INFORMATION
10. Cover Page Cover Page
11. Table of Contents Table of Contents
12. General Information and History General Information and History
13. Investment Objectives and Policies Description of Certain Securities
In Which the Portfolios May Invest;
Investment Restrictions
14. Management of the Fund Management of the Trust
15. Control Persons and Principal General Information and History
Holders of Securities
16. Investment Advisory and Other Investment Management and Other
Services Services
17. Brokerage Allocation and Other Brokerage Allocation
Practices
18. Capital Stock and Other Securities General Information and History
19. Purchase, Redemption, and Pricing Purchase and Pricing of Securities;
of Securities Being Offered Redemption of Shares
20. Tax Status Certain Tax Considerations
<PAGE>
21. Underwriters Investment Management and Other
Services
22. Calculation of Performance Data Not Applicable
23. Financial Statements Financial Statements
PART C Information required to be included in Part C is set forth under the
appropriate item, so numbered, in Part C of this Registration
Statement.
<PAGE>
PARTS A and B
Pursuant to Rule 411 under the Securities Act of 1933, as amended, and Rules
0-4 and 8b-23 under the Investment Company Act of 1940, as amended, the
information required to be included in Part A and Part B of this Registration
Statement is incorporated herein by reference to the Prospectus dated May 1,
1997 and the Statement of Additional Information dated May 1, 1997, as filed
in electronic format via EDGAR with the Securities and Exchange Commission on
May 12, 1997 (File Nos. 33-17217 and 811-07953). In addition, the Registrant's
Semi-Annual Report is incorporated herein by reference to the Semi-Annual
Report dated June 30, 1997, as filed in electronic format via EDGAR with the
Securities and Exchange Commission on August 25, 1997 (File No. 811-07953).
This Amendment does not delete, amend, or supersede any information contained
in the Registration Statement, except to the extent provided herein.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE PROSPECTUS DATED MAY 1, 1997
This Supplement updates certain information contained in the
above-dated Prospectus of the EQ Advisors Trust ("Trust") with
respect to EQ/Putnam Growth & Income Value Portfolio, EQ/Putnam
Investors Growth Portfolio, EQ/Putnam International Equity Portfolio,
MFS Research Portfolio, and MFS Emerging Growth Companies Portfolio
("Portfolios"). You may obtain an additional copy of the Prospectus,
free of charge, by writing to the Trust at 1290 Avenue of the
Americas, New York, New York 10104.
Information that relates only to the Portfolios, which is contained
in the section entitled "Financial Highlights" of the semi-annual
report of the Trust, should be considered to be part of the
Prospectus for purposes of including financial information concerning
the Portfolios in the Prospectus. Such information will be considered
to be inserted into page 2 of the Prospectus immediately prior to the
section entitled "The Trust."
The following information should be considered to be inserted into
page 2 of the Prospectus and replaces the last sentence in the last
paragraph of the section entitled "The Trust."
Inquiries regarding Class IA shares, which are not currently
available, should be addressed to Equitable, at 1290 Avenue
of the Americas, New York, New York 10104 or by calling
1-212-314-4300.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE PROSPECTUS DATED
MAY 1, 1997
This Supplement updates certain information contained in the
above-dated Prospectus of the EQ Advisors Trust ("Trust"). You may obtain an
additional copy of the Prospectus, free of charge, by writing to the Trust at
1290 Avenue of the Americas, New York, New York 10104.
The following information should be considered to be inserted into
page 2 of the Prospectus immediately prior to the section entitled "The
Trust."
FINANCIAL HIGHLIGHTS
The financial information in the table below for the period May 1,
1997** to June 30, 1997 is unaudited. The Trust's semi-annual report,
which contains other financial information, is incorporated by
reference into the Trust's Statement of Additional Information and is
available without charge upon request.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Net asset value, Net Net realized and Total from Net asset Total Net assets,
beginning of period Investment unrealized gain investment value, return(b) end of period
Income (loss) on operations end of (000's)
investments and period
foreign currency
transactions
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
EQ/Putnam $10.00 0.02 0.87 0.89 $10.89 8.90% $18,720
Growth
& Income
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam $10.00 0.01 1.08 1.09 $11.09 10.90% $8,937
Investors
Growth
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam $10.00 0.04 0.83 0.87 $10.87 8.70% $12,100
International
Equity
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS $10.00 0.01 1.00 1.01 $11.01 10.10% $16,702
Research
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS $10.00 0.01 1.22 1.23 $11.23 12.30% $15,400
Emerging
Growth
Companies
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
<PAGE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Ratio of expenses to Ratio of Ratio of net Ratio of net Portfolio Average Per share
average net assets expenses to investment investment turnover commission benefit
after waivers(a)(c) average net income to income to rate(a) rate paid to net
assets average net average net investment
before assets after assets before income
waivers (a)(c) waivers(a)(c) waivers (a)(c)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
EQ/Putnam 0.85% 5.07% 2.71% (1.51)% 37% $0.0233 $0.03
Growth
&
Income
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam 0.85% 7.35% 1.00% (5.50)% 83% $0.0259 $0.09
Investors
Growth
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam 1.20% 8.06% 3.69% (3.17)% 54% $0.0472 $0.08
International
Equity
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS 0.85% 5.99% 1.35% (3.79)% 45% $0.0388 $0.05
Research
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS 0.85% 5.71% 0.59% (4.27)% 426% $0.0474 $0.05
Emerging
Growth
Companies
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
** Commencement of Operations
(a) Annualized
(b) Total return calculated for a period of less than one year is not annualized
(c) For further information concerning fee waivers, see the section entitled
"Expense Limitation Agreements" of the Prospectus
The following information should be considered to be inserted into
page 2 of the Prospectus and replaces the last sentence in the last paragraph
of the section entitled "The Trust."
Inquiries regarding Class IA shares, which are not currently
available, should be addressed to Equitable, at 1290 Avenue of the
Americas, New York, New York 10104 or by calling 1-212-314-4300.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE PROSPECTUS DATED MAY 1, 1997
This Supplement updates certain information contained in the
above-dated Prospectus of the EQ Advisors Trust ("Trust") with
respect to EQ/Putnam Growth & Income Value Portfolio, EQ/Putnam
International Equity Portfolio, EQ/Putnam Investors Growth Portfolio,
MFS Research Portfolio, MFS Emerging Growth Companies Portfolio,
Merrill Lynch World Strategy Portfolio, and Merrill Lynch Basic Value
Equity Portfolio ("Portfolios"). You may obtain an additional copy of
the Prospectus, free of charge, by writing to the Trust at 1290
Avenue of the Americas, New York, New York 10104.
Information that relates only to the Portfolios, which is contained
in the section entitled "Financial Highlights" of the semi-annual
report of the Trust, should be considered to be part of the
Prospectus for purposes of including financial information concerning
the Portfolios in the Prospectus. Such information will be considered
to be inserted into page 2 of the Prospectus immediately prior to the
section entitled "The Trust."
The following information should be considered to be inserted into
page 2 of the Prospectus and replaces the last sentence in the last
paragraph of the section entitled "The Trust."
Inquiries regarding Class IA shares, which are not currently
available, should be addressed to Equitable, at 1290 Avenue
of the Americas, New York, New York 10104 or by calling
1-212-314-4300.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE PROSPECTUS DATED
MAY 1, 1997
This Supplement updates certain information contained in the
above-dated Prospectus of the EQ Advisors Trust ("Trust"). You may obtain an
additional copy of the Prospectus, free of charge, by writing to the Trust at
1290 Avenue of the Americas, New York, New York 10104.
The following information should be considered to be inserted into
page 2 of the Prospectus immediately prior to the section entitled "The
Trust."
FINANCIAL HIGHLIGHTS
The financial information in the table below for the period May 1,
1997** to June 30, 1997 is unaudited. The Trust's semi-annual report,
which contains other financial information, is incorporated by
reference into the Trust's Statement of Additional Information and is
available without charge upon request.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Net asset value, Net Net realized and Total from Net asset Total Net assets,
beginning of period Investment unrealized gain investment value, return(b) end of period
Income (loss) on operations end of (000's)
investments and period
foreign currency
transactions
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
EQ/Putnam $10.00 0.02 0.87 0.89 $10.89 8.90% $18,720
Growth
& Income
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam $10.00 0.04 0.83 0.87 $10.87 8.70% $12,100
International
Equity
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam $10.00 0.01 1.08 1.09 $11.09 10.90% $8,937
Investors
Growth
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS $10.00 0.01 1.00 1.01 $11.01 10.10% $16,702
Research
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS $10.00 0.01 1.22 1.23 $11.23 12.30% $15,400
Emerging
Growth
Companies
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill $10.00 0.04 0.88 0.92 $10.92 9.20% $6,488
Lynch
World
Strategy
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill $10.00 0.02 0.96 0.98 $10.98 9.80% $6,054
Lynch
Basic
Value
Equity
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
<PAGE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Ratio of expenses to Ratio of Ratio of net Ratio of net Portfolio Average Per share
average net assets expenses to investment investment turnover commission benefit
after waivers(a)(c) average net income to income to rate(a) rate paid to net
assets average net average net investment
before assets after assets before income
waivers(a)(c) waivers(a)(c) waivers (a)(c)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
EQ/Putnam 0.85% 5.07% 2.71% (1.51)% 37% $0.0233 $0.03
Growth
& Income
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam 1.20% 8.06% 3.69% (3.17)% 54% $0.0472 $0.08
International
Equity
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam 0.85% 7.35% 1.00% (5.50)% 83% $0.0259 $0.09
Investors
Growth
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS 0.85% 5.99% 1.35% (3.79)% 45% $0.0388 $0.05
Research
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS 0.85% 5.71% 0.59% (4.27)% 426% $0.0474 $0.05
Emerging
Growth
Companies
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill 1.20% 9.93% 2.79% (5.94)% 75% $0.0356 $0.14
Lynch
World
Strategy
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill 0.85% 7.97% 2.12% (5.01)% 49% $0.0570 $0.08
Lynch
Basic
Value
Equity
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
** Commencement of Operations
(a) Annualized
(b) Total return calculated for a period of less than one year is not annualized
(c) For further information concerning fee waivers, see the section entitled
"Expense Limitation Agreements" of the Prospectus
The following information should be considered to be inserted into
page 2 of the Prospectus and replaces the last sentence in the last paragraph
of the section entitled "The Trust."
Inquiries regarding Class IA shares, which are not currently
available, should be addressed to Equitable, at 1290 Avenue of the
Americas, New York, New York 10104 or by calling 1-212-314-4300.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE EQ ADVISORS TRUST PROSPECTUS
(ATTACHED TO THE MEMBERS RETIREMENT PROGRAM PROSPECTUS) BOTH DATED
MAY 1, 1997
This Supplement updates certain information contained in the
above-dated Prospectus of the EQ Advisors Trust ("Trust") with
respect to the T. Rowe Price Equity Income Portfolio, MFS Research
Portfolio, Warburg Pincus Small Company Value Portfolio, and Merrill
Lynch World Strategy Portfolio ("Portfolios"). You may obtain an
additional copy of the Prospectus, free of charge, by writing to the
Trust at 1290 Avenue of the Americas, New York, New York 10104.
Information that relates only to the Portfolios, which is contained
in the section entitled "Financial Highlights" of the semi-annual
report of the Trust, should be considered to be part of the
Prospectus for purposes of including financial information concerning
the Portfolios in the Prospectus. Such information will be considered
to be inserted into page 2 of the Prospectus immediately prior to the
section entitled "The Trust."
The following information should be considered to be inserted into
page 2 of the Prospectus and replaces the last sentence in the last
paragraph of the section entitled "The Trust."
Inquiries regarding Class IA shares, which are not currently
available, should be addressed to Equitable, at 1290 Avenue
of the Americas, New York, N.Y. 10104 or by calling
1-212-314-4300.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE EQ ADVISORS TRUST PROSPECTUS
(ATTACHED TO THE MEMBERS RETIREMENT PROGRAM PROSPECTUS) BOTH DATED
MAY 1, 1997
This Supplement updates certain information contained in the above-dated
Prospectus of the EQ Advisors Trust ("Trust"). You may obtain an additional
copy of the Prospectus, free of charge, by writing to the Trust at 1290 Avenue
of the Americas, New York, New York 10104.
The following information should be considered to be inserted into page 2 of
the Prospectus immediately prior to the section entitled "The Trust."
FINANCIAL HIGHLIGHTS
The financial information in the table below for the period May 1,
1997** to June 30, 1997 is unaudited. The Trust's semi-annual report,
which contains other financial information, is incorporated by
reference into the Trust's Statement of Additional Information and is
available without charge upon request.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Net asset value, Net Net realized and Total from Net Total Net assets,
beginning of period Investment unrealized gain investment asset return (b) end of period
Income (loss) on operations value, (000's)
investments and end of
foreign currency period
transactions
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
T. Rowe $10.00 0.02 0.85 0.87 $10.87 8.70% $15,889
Price
Equity
Income
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS $10.00 0.01 1.00 1.01 $11.01 10.10% $16,702
Research
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Warburg $10.00 0.01 1.22 1.23 $11.23 12.30% $16,029
Pincus
Small
Company
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill $10.00 0.04 0.88 0.92 $10.92 9.20% $6,488
Lynch
World
Strategy
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
<PAGE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Ratio of expenses to Ratio of Ratio of net Ratio of net Portfolio Average Per share
average net assets expenses to investment investment turnover commission benefit
after waivers (a)(c) average net income to income to rate (a) rate paid to net
assets average net average net investment
before assets after assets before income
waivers (a)(c) waivers (a)(c) waivers (a)(c)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
T. Rowe 0.85% 5.48% 3.20% (1.42)% 14% $0.0283 $0.03
Price
Equity
Income
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS 0.85% 5.99% 1.35% (3.79)% 45% $0.0388 $0.05
Research
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Warburg 1.00% 4.78% 2.03% (1.75)% 30% $0.0544 $0.02
Pincus
Small
Company
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill 1.20% 9.93% 2.79% (5.94)% 75% $0.0356 $0.14
Lynch
World
Strategy
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
**Commencement of Operations
(a) Annualized
(b) Total return calculated for a period of less than one year is not
annualized
(c) For further information concerning fee waivers, see the section entitled
"Expense Limitation Agreements" of the Prospectus
The following information should be considered to be inserted onto
page 2 of the Prospectus and replaces the last sentence in the last paragraph
of the section entitled "The Trust."
Inquiries regarding Class IA shares, which are not currently
available, should be addressed to Equitable, at 1290 Avenue of the
Americas, New York, New York 10104 or by calling 1-212-314-4300.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE PROSPECTUS DATED MAY 1, 1997
This Supplement updates certain information contained in the
above-dated Prospectus of the EQ Advisors Trust ("Trust") with
respect to T. Rowe Price International Stock Portfolio, T. Rowe Price
Equity Income Portfolio, EQ/Putnam Growth & Income Value Portfolio,
EQ/Putnam Balanced Portfolio, MFS Research Portfolio, MFS Emerging
Growth Companies Portfolio, Warburg Pincus Small Company Value
Portfolio, Merrill Lynch World Strategy Portfolio, and Merrill Lynch
Basic Value Equity Portfolio ("Portfolios"). You may obtain an
additional copy of the Prospectus, free of charge, by writing to the
Trust at 1290 Avenue of the Americas, New York, New York 10104. You
should be aware that the Morgan Stanley Emerging Markets Equity
Portfolio became available for investment on August 25, 1997.
Information that relates only to the Portfolios, which is contained
in the section entitled "Financial Highlights" of the semi-annual
report of the Trust, should be considered to be part of the
Prospectus for purposes of including financial information concerning
the Portfolios in the Prospectus. Such information will be considered
to be inserted into page 2 of the Prospectus immediately prior to the
section entitled "The Trust."
The following information should be considered to be inserted into
page 2 of the Prospectus and replaces the last sentence in the last
paragraph of the section entitled "The Trust."
Inquiries regarding Class IA shares, which are not currently
available, should be addressed to Equitable, at 1290 Avenue
of the Americas, New York, New York 10104 or by calling
1-212-314-4300.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE PROSPECTUS DATED MAY 1, 1997
This Supplement updates certain information contained in the
above-dated Prospectus of the EQ Advisors Trust ("Trust"). You may obtain an
additional copy of the Prospectus, free of charge, by writing to the Trust at
1290 Avenue of the Americas, New York, New York 10104. You should be aware
that the Morgan Stanley Emerging Markets Equity Portfolio became available for
investment on August 25, 1997.
The following information should be considered to be inserted into
page 2 of the Prospectus immediately prior to the section entitled "The
Trust."
FINANCIAL HIGHLIGHTS
The financial information in the table below for the period May 1,
1997** to June 30, 1997 is unaudited. The Trust's semi-annual report,
which contains other financial information, is incorporated by
reference into the Trust's Statement of Additional Information and is
available without charge upon request.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Net asset value, Net Net realized Total from Net Total Net assets,
beginning of period Investment and unrealized investment asset return end of
Income gain (loss) on operations value, (b) period
investments end of (000's)
and foreign period
currency
transactions
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
T. Rowe $10.00 0.02 0.72 0.74 $10.74 7.40% $20,200
Price
International
Stock
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
T. Rowe $10.00 0.02 0.85 0.87 $10.87 8.70% $15,889
Price
Equity
Income
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam $10.00 0.02 0.87 0.89 $10.89 8.90% $18,720
Growth &
Income
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam $10.00 0.05 0.59 0.64 $10.64 6.40% $7,051
Balanced
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS $10.00 0.01 1.00 1.01 $11.01 10.10% $16,702
Research
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS $10.00 0.01 1.22 1.23 $11.23 12.30% $15,400
Emerging
Growth
Companies
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Warburg $10.00 0.01 1.22 1.23 $11.23 12.30% $16,029
Pincus
Small
Company
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill $10.00 0.04 0.88 0.92 $10.92 9.20% $6,488
Lynch
World
Strategy
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill $10.00 0.02 0.96 0.98 $10.98 9.80% $6,054
Lynch
Basic
Value
Equity
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
<PAGE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Ratio of expenses Ratio of Ratio of net Ratio of net Portfolio Average Per share
to average net expenses to investment investment turnover commission benefit
assets after average net income to income to rate (a) rate paid to net
waivers (a) assets average net average net investment
before assets after assets before income
waivers (a) waivers (a) waivers (a)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
T. Rowe 1.20% 7.70% 1.28% (5.22)% 10% $0.0012 $0.08
Price
International
Stock
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
T. Rowe 0.85% 5.48% 3.20% (1.42)% 14% $0.0283 $0.03
Price
Equity
Income
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam 0.85% 5.07% 2.71% (1.51)% 37% $0.0233 $0.03
Growth &
Income
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
EQ/Putnam 0.90% 7.97% 3.76% (3.31)% 75% $0.0256 $0.10
Balanced
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS 0.85% 5.99% 1.35% (3.79)% 45% $0.0388 $0.05
Research
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
MFS 0.85% 5.71% 0.59% (4.27)% 426% $0.0474 $0.05
Emerging
Growth
Companies
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Warburg 1.00% 4.78% 2.03% (1.75)% 30% $0.0544 $0.02
Pincus
Small
Company
Value
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill 1.20% 9.93% 2.79% (5.94)% 75% $0.0356 $0.14
Lynch
World
Strategy
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
Merrill 0.85% 7.97% 2.12% (5.01)% 49% $0.0570 $0.08
Lynch
Basic
Value
Equity
Portfolio
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
** Commencement of Operations
(a) Annualized
(b) Total return calculated for a period of less than one year is not
annualized
The following information should be considered to be inserted onto
page 2 of the Prospectus and replaces the last sentence in the last paragraph
of the section entitled "The Trust."
Inquiries regarding Class IA shares, which are not currently
available, should be addressed to Equitable, at 1290 Avenue of the
Americas, New York, New York 10104 or by calling 1-212-314-4300.
<PAGE>
EQ ADVISORS TRUST
SUPPLEMENT DATED AUGUST 28, 1997 TO THE STATEMENT OF
ADDITIONAL INFORMATION DATED MAY 1, 1997
This Supplement updates certain information contained in the above-dated
Statement of Additional Information ("SAI") of the EQ Advisors Trust ("Trust")
with respect to each of its series ("Portfolios"). You may obtain an
additional copy of the SAI, free of charge, by writing to the Trust at 1290
Avenue of the Americas, New York, New York 10104.
Information that relates only to the Portfolios, which is contained in the
semi-annual report of the Trust, should be considered to be part of the SAI
for purposes of including financial information concerning the Portfolios in
the SAI. Such information should be considered to be inserted into page 40 of
the SAI immediately following the section entitled "Financial Statements" in
place of the information that is currently contained therein.
<PAGE>
PART C: OTHER INFORMATION
Item 24. Financial Statements and Exhibits
(a) Financial Statements:
Part B - Statement of Additional Information
Statement of Assets and Liabilities at April 1, 1997 for EQ Advisors
Trust.
(b) Exhibits:
1(a). Agreement and Declaration of Trust.1
1(b). Amended and Restated Agreement and Declaration of Trust.2
1(c). Certificate of Trust.1
1(d). Certificate of Amendment.2
2. By-Laws of the Trust.1
3. Not applicable.
4. None other than Exhibit 1.
5(a). Investment Management Agreement between EQ Advisors Trust
and EQ Financial Consultants, Inc. dated April 14, 1997 and
Appendices A and B dated April 14, 1997.
5(b). Investment Advisory Agreement between EQ Financial
Consultants, Inc. and T. Rowe Price Associates, Inc. dated
April, 1997 and Appendix A dated April, 1997.
5(c). Investment Advisory Agreement between EQ Financial
Consultants, Inc. and Rowe Price-Fleming International, Inc.
dated April, 1997 and Appendix A dated April, 1997.
5(d). Investment Advisory Agreement between, EQ Financial
Consultants, Inc. and Putnam Investment Management, Inc.
dated April, 1997 and Appendix A dated April, 1997.
5(e). Investment Advisory Agreement between, EQ Financial
Consultants, Inc. and Massachusetts Financial Services
Company dated April, 1997 and Appendix A dated April, 1997.
5(f). Investment Advisory Agreement between EQ Financial
Consultants, Inc. and Morgan Stanley Asset Management Inc.
dated April, 1997 and Appendix A dated April, 1997.
5(g). Investment Advisory Agreement between EQ Financial
Consultants, Inc. and Warburg, Pincus Counsellors, Inc.
dated April, 1997 and Appendix A dated April, 1997.
5(h). Investment Advisory Agreement between EQ Financial
Consultants, Inc. and Merrill Lynch Asset Management, L.P.
dated April, 1997 and Appendix A dated April, 1997.
C-1
<PAGE>
6(a). Distribution Agreement between EQ Advisors Trust and EQ
Financial Consultants, Inc. with respect to the Class IA
shares dated April 14, 1997 and Schedule A dated April 14,
1997.
6(b). Distribution Agreement between EQ Advisors Trust and EQ
Financial Consultants, Inc. with respect to the Class IB
shares dated April 14, 1997 and Schedule A dated April 14,
1997.
6(c). Distribution Agreement between EQ Advisors Trust and
Equitable Distributors, Inc. with respect to the Class IA
shares dated April 14, 1997 and Schedule A dated April 14,
1997.
6(d). Distribution Agreement between EQ Advisors Trust and
Equitable Distributors, Inc. with respect to the Class IB
shares dated April 14, 1997 and Schedule A dated April 14,
1997.
7. Form of Deferred Compensation Plan.3
8. Custody Agreement between EQ Advisors Trust and North
American Insurance Securities Division of the Chase
Manhattan Bank dated April 17, 1997 and Appendix A dated
April 17, 1997.
9(a). Mutual Fund Services Agreement between EQ Advisors Trust and
Chase Global Funds Services Company dated April 25, 1997 and
Schedule A dated April 25, 1997.
9(b). Expense Limitation Agreement between EQ Advisors Trust and
EQ Financial Consultants, Inc. dated April 14, 1997 and
Schedule A dated April 14, 1997.
9(c). Organizational Expense Reimbursement Agreement between EQ
Advisors Trust, on behalf of each series of the Trust, and
EQ Financial Consultants, Inc. dated April 14, 1997.
9(d). Participation Agreement dated April 14, 1997 and Schedule B
dated April 14, 1997.
9(e). License Agreement Relating to Use of Name between Merrill
Lynch & Co., Inc., and EQ Advisors Trust dated April 28,
1997.
10. Opinion and Consent of Katten Muchin & Zavis regarding the
legality of the securities being registered.1
11. Consent of Price Waterhouse, LLP, Independent Public
Accountants.3
12. Not applicable.
13. Stock Subscription Agreement between the Trust, on behalf of
the T. Rowe Price Equity Income Portfolio, and Separate
Account FP.3
14. Not Applicable.
15. Distribution Plan Pursuant to Rule 12b-1 for the Trust's
Class IB shares.
16. Not Applicable.
C-2
<PAGE>
18. Plan Pursuant to Rule 18f-3 under the 1940 Act.
19. Not Applicable.
20. Power of Attorney.3
27. Financial Data Schedule.
- ---------------
1 Incorporated herein by reference to Registrant's Registration
Statement on Form N-1A filed on December 3, 1996 (File No.3317217).
2 Incorporated herein by reference to Registrant's Registration
Statement on Form N-1A filed on January 23, 1997 (File No. 33-17217).
3 Incorporated herein by reference to Registrant's Registration
Statement on Form N-1A filed on April 7, 1997 (File No. 33-17217).
Item 25. Persons Controlled by or under Common Control with Registrant
The Equitable Life Assurance Society of the United States
("Equitable") controls the Trust by virtue of its ownership of 100% of the
Trust's shares as of July 31, 1997. All EQ Advisors Trust shareholders are
required to solicit instructions from their respective contract owners as to
certain matters. EQ Advisors Trust may in the future offer its shares to
insurance companies unaffiliated with Equitable Life.
On July 22, 1992, Equitable Life converted from a New York mutual
life insurance company to a publicly-owned New York stock life insurance
company. At that time Equitable Life became a wholly-owned subsidiary of The
Equitable Companies Incorporated ("Holding Company"). The Holding Company
continues to own 100% of Equitable Life's common stock as well as
approximately 80.2% of the common stock of Donaldson, Lufkin & Jenrette, Inc.,
a registered broker-dealer.
AXA, a French insurance holding company, currently owns approximately
63.9% of the outstanding voting shares of common stock of The Equitable
Companies. As majority shareholder of the Equitable Companies, AXA is able to
exercise significant influence over the operations and capital structure of
The Equitable Companies, Equitable and their subsidiaries. AXA is the holding
company for an international group or insurance and related financial services
companies. AXA is the second largest insurance group in the world based on
worldwide revenues in 1996 and also the world's largest insurer-based
investment manager with over 8450 billion in assets under management. AXA is
also engaged in asset management, investment banking, securities trading and
other financial services activities principally in the United States, as well
as in Western Europe and the Asia Pacific area.
Item 26. Number of Holders of Securities
NUMBER OF RECORD HOLDERS
TITLE OF CLASS AS OF AUGUST 1, 1997
- ------------------------------ ----------------------
Class IA Shares of beneficial interest None
Class IB Shares of beneficial interest 1
C-3
<PAGE>
Item 27. Indemnification
Amended and Restated Agreement and Declaration of Trust ("Declaration
of Trust") and By-Laws.
Article VII, Section 2 of the Trust's Declaration of Trust of EQ
Advisors Trust ("Trust") states, in relevant part, that a "Trustee, when
acting in such capacity, shall not be personally liable to any Person, other
than the Trust or a Shareholder to the extent provided in this Article VII,
for any act, omission or obligation of the Trust, of such Trustee or of any
other Trustee. The Trustees shall not be responsible or liable in any event
for any neglect or wrongdoing of any officer, agent, employee, Manager, or
Principal Underwriter of the Trust. The Trust shall indemnify each Person who
is serving or has served at the Trust's request as a director, officer,
trustee, employee, or agent of another organization in which the Trust has any
interest as a shareholder, creditor, or otherwise to the extent and in the
manner provided in the By-Laws." Article VII, Section 4 of the Trust's
Declaration of Trust further states, in relevant part, that the "Trustees
shall be entitled and empowered to the fullest extent permitted by law to
purchase with Trust assets insurance for liability and for all expenses
reasonably incurred or paid or expected to be paid by a Trustee, officer,
employee, or agent of the Trust in connection with any claim, action, suit, or
proceeding in which he or she may become involved by virtue of his or her
capacity or former capacity as a Trustee of the Trust."
Article VI, Section 2 of the Trust's By-Laws states, in relevant
part, that "[s]ubject to the exceptions and limitations contained in Section 3
of this Article VI, every [Trustee, officer, employee or other agent of the
Trust] shall be indemnified by the Trust to the fullest extent permitted by
law against all liabilities and against all expenses reasonably incurred or
paid by him or her in connection with any proceeding in which he or she
becomes involved as a party or otherwise by virtue of his or her being or
having been an agent." Article VI, Section 3 of the Trust's By-Laws further
states, in relevant part, that "[n]o indemnification shall be provided
hereunder to [a Trustee, officer, employee or other agent of the Trust]: (a)
who shall have been adjudicated, by the court or other body before which the
proceeding was brought, to be liable to the Trust or its Shareholders by
reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his or her office
(collectively, "disabling conduct"); or (b) with respect to any proceeding
disposed of (whether by settlement, pursuant to a consent decree or otherwise)
without an adjudication by the court or other body before which the proceeding
was brought that such [Trustee, officer, employee or other agent of the Trust]
was liable to the Trust or its Shareholders by reason of disabling conduct,
unless there has been a determination that such [Trustee, officer, employee or
other agent of the Trust] did not engage in disabling conduct: (i) by the
court or other body before which the proceeding was brought; (ii) by at least
a majority of those Trustees who are neither Interested Persons of the Trust
nor are parties to the proceeding based upon a review of readily available
facts (as opposed to a full trial-type inquiry); or (iii) by written opinion
of independent legal counsel based upon a review of readily available facts
(as opposed to a full trial-type inquiry); provided, however, that
indemnification shall be provided hereunder to [a Trustee, officer, employee
or other agent of the Trust] with respect to any proceeding in the event of
(1) a final decision on the merits by the court or other body before which the
proceeding was brought that the [Trustee, officer, employee or other agent of
the Trust] was not liable by reason of disabling conduct, or (2) the dismissal
of the proceeding by the court or other body before which it was brought for
insufficiency of evidence of any disabling conduct with which such [Trustee,
officer, employee or other agent of the Trust] has been charged." Article VI,
Section 4 of the Trust's By-Laws also states that the "rights of
indemnification herein provided (i) may be insured against by policies
maintained by the Trust on behalf of any [Trustee, officer, employee or other
agent of the Trust], (ii) shall be severable, (iii) shall not be exclusive of
or affect any other rights to which any [Trustee, officer, employee or other
agent of the Trust] may now or hereafter be entitled and (iv) shall inure to
the benefit of [such party's] heirs, executors and administrators."
C-4
<PAGE>
UNDERTAKING
Insofar as indemnification for liability arising under the Securities
Act of 1933 (the "Act") may be permitted to trustees, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a trustee, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
Item 28. Business and Other Connections of the Manager and Advisers
The description of EQ Financial Consultants, Inc. under the caption of
"Management of the Trust" in the Prospectus and under the caption "Investment
Management and Other Services" in the Statement of Additional Information
constituting Parts A and B, respectively, of this Registration Statement are
incorporated by reference herein.
The information as to the directors and officers of EQ Financial Consultants,
Inc. is set forth in EQ Financial Consultants, Inc.'s Form ADV filed with the
Securities and Exchange Commission on July 1, 1996 (File No.
801-14065) and amended through the date hereof, is incorporated by reference.
The information as to the directors and officers of T. Rowe Price Associates,
Inc., is set forth in T. Rowe Price Associates, Inc.'s Form ADV filed with the
Securities and Exchange Commission on March 29, 1996 (File No.
801-00856) and amended through the date hereof, is incorporated by reference.
The information as to the directors and officers of Rowe Price-Fleming
International, Inc. is set forth in Rowe Price-Fleming International, Inc.'s
Form ADV filed with the Securities and Exchange Commission on March 29, 1996
(File No. 801-14713) and amended through the date hereof, is incorporated by
reference.
The information as to the directors and officers of Putnam Investment
Management, Inc. is set forth in Putnam Investment Management, Inc.'s Form ADV
filed with the Securities and Exchange Commission on April 2, 1996 (File No.
801-07974) and amended through the date hereof, is incorporated by reference.
The information as to the directors and officers of Massachusetts Financial
Services Company is set forth in Massachusetts Financial Services Company's
Form ADV filed with the Securities and Exchange Commission on May 23, 1996
(File No. 801-17352) and amended through the date hereof, is incorporated by
reference.
The information as to the directors and officers of Morgan Stanley Asset
Management Inc. is set forth in Morgan Stanley Asset Management Inc.'s Form
ADV filed with the Securities and Exchange Commission on July 8, 1996 (File
No. 801-15757) and amended through the date hereof, is incorporated by
reference.
The information as to the directors and officers of Warburg, Pincus
Counsellors, Inc. is set forth in Warburg, Pincus Counsellors, Inc.'s Form ADV
filed with the Securities and Exchange Commission on April 4, 1996 (File No.
801-07321) and amended through the date hereof, is incorporated by reference.
C-5
<PAGE>
The information as to the directors and officers of Merrill Lynch Asset
Management, L.P. is set forth in Merrill Lynch Asset Management, L.P.'s Form
ADV filed with the Securities and Exchange Commission on November 18, 1996
(File No. 801-11583) and amended through the date hereof, is incorporated by
reference.
Item 29. Principal Underwriters
(a) EQ Financial Consultants, Inc. is a principal underwriter of the
Trust's Class IA shares and Class IB shares, and Equitable Distributors, Inc.
is also a principal underwriter of the Trust's Class IA shares and Class IB
shares. EQ Financial Consultants Inc. also serves as the principal underwriter
for the following entities: the Class IA shares of The Hudson River Trust;
Separate Accounts A and No. 301 of Equitable; and Separate Accounts I and FP
of Equitable. Equitable Distributors, Inc. serves as the principal underwriter
for the Class IB shares of The Hudson River Trust and Separate Account Nos. 45
and 49 of Equitable.
(b) Set forth below is certain information regarding the directors
and officers of EQ Financial Consultants, Inc., and of Equitable Distributors,
Inc., the principal underwriters of the Trust's Class IA and Class IB shares.
The business address of the persons whose names are preceded by a single
asterisk is EQ Advisors Trust, 1290 Avenue of the Americas, New York, New York
10104. The business address of the persons whose names are preceded by a
double asterisk is 1755 Broadway, 3rd Floor, New York, New York 10019. Mr.
Laughlin's business address is 1345 Avenue of the Americas, 39th Floor, New
York, New York 10105. Mr. Kornweiss's business address is 4251 Crums Mill
Road, Harrisburg, PA 17112. Mr. Witte's business address is 135 West Fiftieth
Street, 4th Floor, New York, New York 10020. The business address of
Mr. Brakovich, Mr. Shepherdson and Mr. Meserve is 660 Newport Center Drive,
Suite 350, Newport Beach, CA 92660. The business address of Mr. Hayes and
Mr. Bullen is 200 Plaza Drive, Secaucus, New Jersey 07096.
C-6
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
NAME AND PRINCIPAL WITH POSITIONS AND OFFICES WITH EQ POSITIONS AND OFFICES REGISTRANT
BUSINESS ADDRESS FINANCIAL CONSULTANTS, INC. (EQ ADVISORS TRUST)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
DIRECTORS
* Derry E. Bishop Director
* Harvey Blitz Director Chief Financial Officer and
Vice President
Michael J. Laughlin Director
* Michael S. Martin Director Vice President
** Michael F. McNelis Director
* Richard V. Silver Director
* Mark R. Wut Director
- ---------------------------------------------------------------------------------------------------------------------
OFFICERS
* Michael S. Martin Chairman of the Board and Chief Vice President
Executive Officer
** Michael F. McNelis President and Chief Operating
Officer
* Derry E. Bishop Executive Vice President
* Harvey Blitz Executive Vice President Chief Financial Officer and
Vice President
** Martin J. Telles Executive Vice President and Chief Vice President
Marketing Officer
* Fred A. Folco Executive Vice President
* Thomas J. Duddy, Jr. Executive Vice President
* William J. Green Executive Vice President
* A. Frank Beaz Executive Vice President
Edward J. Hayes Executive Vice President
* Peter D. Noris Executive Vice President President
Dennis D. Witte Executive Vice President
** Robert McKenna Senior Vice President and Chief
Financial Officer
** Theresa A. Nurge-Alws Senior Vice President
** Ronald Boswell First Vice President
** Donna M. Dazzo First Vice President
* Robin K. Murray First Vice President
* Michael Brzozowski Vice President and Compliance
Director
* Mary P. Breen Vice President and Counsel Vice President and
Secretary
** Amy Franceschini Vice President
** Linda Funigiello Vice President
** James Furlong Vice President
Peter R. Kornweiss Vice President
** Frank Lupo Vice President
** Rosemary Magee Vice President
** T.S. Narayanan Vice President
** James R. Anderson Vice President
* Raymond T.Barry Vice President
** Laura A. Pellegrini Vice President
* Mary E. Cantwell Assistant Vice President
* Janet E. Hannon Secretary
* Linda J. Galasso Assistant Secretary
- ---------------------------------------------------------------------------------------------------------------------
C-7
<PAGE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
POSITIONS AND OFFICES WITH POSITIONS AND OFFICES WITH
NAME AND PRINCIPAL BUSINESS ADDRESS EQUITABLE DISTRIBUTORS, INC. REGISTRANT
(EQ ADVISORS TRUST)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
DIRECTORS
Greg Brakovich Director
* Jerome S. Golden Director
* William T. McCaffrey Director Trustee
James A. Shepherdson, III Director
- ---------------------------------------------------------------------------------------------------------------------
OFFICERS
* Jerome S. Golden Chairman of the Board
Greg Brakovich Co-President and Co-Chief
Executive Officer and
Managing Director
James A. Shepherdson, III Co-President and Co-Chief
Executive Officer and Managing
Director
Dennis D. Witte Senior Vice President
Philip D. Meserve Managing Director
Thomas D. Bullen Chief Financial Officer
* Michael Brzozowski Chief Compliance Officer
* Mary P. Breen Vice President and Counsel Vice President and
Secretary
* Ronald R. Quist Treasurer
* Janet Hannon Secretary
* Linda J. Galasso Assistant Secretary
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(c) Inapplicable.
Item 30. Location of Accounts and Records
Books or other documents required to be maintained by Section 31(a)
of the Investment Company Act of 1940, and the Rules promulgated thereunder,
are maintained as follows:
(a) With respect to Rules 31a-1(a); 31a-1(b)(1); (2)(a) and (b); (3);
(6); (8); (12); and 31a-1(d), the required books and records are
maintained at the offices of Registrant's Custodian:
1211 Avenue of the Americas
New York, New York 10036
(b) With respect to Rules 31a-1(a); 31a-1(b)(1), (4); (2)(C) and (D);
(4); (5); (6); (8); (9); (10); (11) and 31a-1(f), the required books
and records are currently maintained at the offices of the
Registrant's Administrator:
73 Tremont Street
Boston, Massachusetts 02108
C-8
<PAGE>
(c) With respect to Rules 31a-1(b)(5), (6), (9) and (10) and 31a-1(f),
the required books and records are maintained at the principal
offices of the Registrant's Manager or Advisers:
EQ Financial Consultants, Inc. T. Rowe Price Associates, Inc.
1755 Broadway, 3rd Floor 100 East Pratt St.
New York, New York 10019 Baltimore, MD 21202
Rowe Price-Fleming International, Inc. Putnam Investment Management, Inc.
100 East Pratt Street One Post Office Square
Baltimore, MD 21202 Boston, MA 02109
Massachusetts Financial Services Company Merrill Lynch Asset Management, L.P.
500 Boylston Street 800 Scudders Mill Road
Boston, MA 02116 Plainsboro, New Jersey 08543-9011
Warburg, Pincus Counsellors, Inc. Morgan Stanley Asset Management Inc.
466 Lexington Avenue 1221 Avenue of the Americas
New York, New York 10017-3147 New York, New York 10020
Item 31. Management Services: None.
Item 32. Undertakings
(a) Inapplicable.
(b) The Registrant hereby undertakes to file a post-effective
amendment, including financial statements which need not
be audited, within four to six months from the later of
the commencement of operations of the Morgan Stanley
Emerging Markets Equity Portfolio or the effective date
of Post-Effective Amendment No. 1 to the Registrant's
1933 Act Registation Statement.
(c) Inapplicable.
C-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, and
the Investment Company Act of 1940, as amended, the Registrant certifies that
this filing meets all of the requirements for effectiveness pursuant to Rule
485(b) under the Securities Act of 1933 and the Registrant has duly caused
this Post-Effective Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
New York, and the State of New York on the 28th day of August, 1997.
EQ ADVISORS TRUST
By: /s/ Peter D. Noris
--------------------------
Peter D. Noris
President
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Peter D. Noris President and Trustee August 28, 1997
- --------------------------------
Peter D. Noris
* Trustee August 28, 1997
- --------------------------------
William T. McCaffrey
* Trustee August 28, 1997
- --------------------------------
Jettie M. Edwards
* Trustee August 28, 1997
- --------------------------------
William M. Kearns, Jr.
* Trustee August 28, 1997
- --------------------------------
Christopher P.A. Komisarjevsky
* Trustee August 28, 1997
- --------------------------------
Harvey Rosenthal
* Chief Financial Officer August 28, 1997
- --------------------------------
Harvey Blitz
* By: /s/ Peter D. Noris
--------------------------
Peter D. Noris
(Attorney-in-Fact)
</TABLE>
<PAGE>
EXHIBIT LIST
EXHIBIT
NUMBER DESCRIPTION
5(a). Investment Management Agreement between EQ Advisors Trust and EQ
Financial Consultants, Inc. dated April 14, 1997 and Appendices A
and B dated April 14, 1997.
5(b). Investment Advisory Agreement between EQ Financial Consultants,
Inc. and T. Rowe Price Associates, Inc. dated April, 1997 and
Appendix A dated April, 1997.
5(c). Investment Advisory Agreement between EQ Financial Consultants,
Inc. and Rowe Price-Fleming International, Inc. dated April, 1997
and Appendix A dated April, 1997.
5(d). Investment Advisory Agreement between, EQ Financial Consultants,
Inc. and Putnam Investment Management, Inc. dated April, 1997 and
Appendix A dated April, 1997.
5(e). Investment Advisory Agreement between, EQ Financial Consultants,
Inc. and Massachusetts Financial Services Company dated April,
1997 and Appendix A dated April, 1997.
5(f). Investment Advisory Agreement between EQ Financial Consultants,
Inc. and Morgan Stanley Asset Management Inc. dated April, 1997
and Appendix A dated April, 1997.
5(g). Investment Advisory Agreement between EQ Financial Consultants,
Inc. and Warburg, Pincus Counsellors, Inc. dated April, 1997 and
Appendix A dated April, 1997.
5(h). Investment Advisory Agreement between EQ Financial Consultants,
Inc. and Merrill Lynch Asset Management, L.P. dated April, 1997
and Appendix A dated April, 1997.
6(a). Distribution Agreement between EQ Advisors Trust and EQ Financial
Consultants, Inc. with respect to the Class IA shares dated April
14, 1997 and Schedule A dated April 14, 1997.
6(b). Distribution Agreement between EQ Advisors Trust and EQ Financial
Consultants, Inc. with respect to the Class IB shares dated April
14, 1997 and Schedule A dated April 14, 1997.
6(c). Distribution Agreement between EQ Advisors Trust and Equitable
Distributors, Inc. with respect to the Class IA shares dated
April 14, 1997 and Schedule A dated April 14, 1997.
6(d). Distribution Agreement between EQ Advisors Trust and Equitable
Distributors, Inc. with respect to the Class IB shares dated
April 14, 1997 and Schedule A dated April 14, 1997.
8. Custody Agreement between EQ Advisors Trust and North American
Insurance Securities Division of the Chase Manhattan Bank
dated April 17, 1997 and Appendix A dated April 17, 1997.
9(a). Mutual Fund Services Agreement between EQ Advisors Trust and
Chase Global Funds Services Company dated April 25, 1997 and
Schedule A dated April 25, 1997.
9(b). Expense Limitation Agreement between EQ Advisors Trust and EQ
Financial Consultants, Inc. dated April 14, 1997 and Schedule A
dated April 14, 1997.
<PAGE>
9(c). Organizational Expense Reimbursement Agreement between EQ
Advisors Trust, on behalf of each series of the Trust, and
EQ Financial Consultants, Inc. dated April 14, 1997
9(d). Participation Agreement dated April 14, 1997 and Schedule B dated
April 14, 1997.
9(e). License Agreement Relating to Use of Name between Merrill Lynch &
Co., Inc., and EQ Advisors Trust. dated April 28, 1997.
15. Distribution Plan Pursuant to Rule 12b-1 for the Trust's Class 1B
shares.
18. Plan Pursuant to Rule 18f-3 under the 1940 Act.
27. Financial Data Schedule.
<PAGE>
EXHIBIT 5(a)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT, dated as of April 14, 1997, between the EQ Advisors Trust,
a Delaware business trust (the "Trust"), and EQ Financial Consultants, Inc., a
Delaware corporation ("EQ Financial" or the "Manager").
WHEREAS, the Trust is registered as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act");
WHEREAS, EQ Financial is registered as an investment adviser under
the Investment Advisers Act of 1940, as amended (the "Advisers 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 (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;
WHEREAS, the Trust is and will continue to be a series fund having
two or more investment portfolios, each with its own investment objectives,
investment policies and restrictions;
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 (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust wishes to appoint EQ
Financial as the investment manager of the Trust;
NOW, THEREFORE, the Trust and EQ Financial agree as follows:
1. APPOINTMENT OF MANAGER
The Trust hereby appoints EQ Financial as the investment manager for
each of the portfolios of the Trust specified in Appendix A to this Agreement,
as such Appendix A may be amended by the Manager and the Trust from time to
time (the "Portfolios"), subject to the supervision of the Trustees of the
Trust and in the manner and under the terms and conditions set forth in this
Agreement. The Manager accepts such appointment and agrees to render the
services and to assume the obligations set forth in this Agreement commencing
on its effective date. The Manager will be an independent contractor and will
have no authority to act for or represent the Trust in any way or otherwise be
deemed an agent unless expressly authorized in this Agreement or another
writing by the Trust and Manager.
2. DUTIES OF THE MANAGER
A. Subject to the general supervision of the Trustees of the Trust
and under the terms and conditions set forth in this Agreement, the Trust
acknowledges and agrees that it is contemplated that the Manager will, at its
own expense, select and contract with investment advisers ("Advisers") to
manage the investment operations and composition of each and every
<PAGE>
Portfolio of the Trust, including the purchase, retention, and disposition of
the investments, securities and cash contained in each Portfolio, in
accordance with each Portfolio's investment objectives, policies and
restrictions as stated in the Trust's Amended and Restated Agreement and
Declaration of Trust, By-Laws, and such Portfolio's Prospectus and Statement
of Additional Information ("SAI"), as is from time to time in effect;
provided, that any contract with an Adviser (an "Advisory Agreement") shall be
in compliance with and approved as required by the Investment Company Act or
in accordance with exemptive relief granted by the Securities and Exchange
Commission ("SEC") under the Investment Company Act.
B. Subject always to the direction and control of the Trustees of the
Trust, the Manager will have (i) overall supervisory responsibility for the
general management and investment of each Portfolio's assets, and (ii) full
investment discretion to make all determinations with respect to the
investment of a Portfolio's assets not then managed by an Adviser. In
connection with its responsibilities set forth under (i) above, the Trust
acknowledges and agrees that the Manager will select a person to act as
Adviser to render investment advice to each of the Portfolios. In addition,
the Manager will monitor compliance of each Adviser with the investment
objectives, policies and restrictions of any Portfolio or Portfolios under the
management of such Adviser, and review and report to the Trustees of the Trust
on the performance of such Adviser. The Manager will furnish, or cause the
appropriate Adviser(s) to furnish, to the Trust such statistical information,
with respect to the investments that a Portfolio may hold or contemplate
purchasing, as the Trust may reasonably request. On the Manager's own
initiative, the Manager will apprise, or cause the appropriate Adviser(s) to
apprise, the Trust of important developments materially affecting each
Portfolio and will furnish the Trust, from time to time, with such information
as may be appropriate for this purpose. Further, the Manager agrees to
furnish, or cause the appropriate Adviser(s) to furnish, to the Trustees of
the Trust such periodic and special reports as the Trustees of the Trust may
reasonably request. In addition, the Manager agrees to cause the appropriate
Adviser(s) to furnish to third-party data reporting services all currently
available standardized performance information and other customary data.
C. The Manager will also furnish to the Trust, at its own expense and
without renumeration from or other cost to the Trust, the following:
(i) Office Space. The Manager will provide office space in
the offices of the Manager or in such other place as may be agreed
upon by the parties hereto from time to time, and all necessary
office facilities and equipment;
(ii) Personnel. The Manager will provide necessary executive
and other personnel, including personnel for the performance of
clerical and other office functions, exclusive of those functions:
(a) related to and to be performed under the Trust's contract or
contracts for administration, custodial, accounting, bookkeeping,
transfer, and dividend disbursing agency or similar services by the
entity selected to perform such services; and (b) related to the
investment advisory services to be provided by any Adviser pursuant
to an Advisory Agreement; and
(iii) Preparation of Prospectus and Other Documents. The
Manager will provide other information and services, other than
services of outside counsel or independent accountants or investment
advisory services to be provided by any Adviser under an
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Advisory Agreement, required in connection with the preparation of
all registration statements and Prospectuses, Prospectus supplements,
SAIs, all annual, semiannual, and periodic reports to shareholders of
the Trust, regulatory authorities, or others, and all notices and
proxy solicitation materials, furnished to shareholders of the Trust
or regulatory authorities, and all tax returns.
D. Limitations on Liability. The Manager will exercise its best
judgment in rendering its services to the Trust, and the Trust agrees, as an
inducement to the Manager's undertaking to do so, that the Manager will not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Trust in connection with the matters to which this Agreement relates, but
will be liable only for willful misconduct, bad faith, gross negligence,
reckless disregard of its duties or its failure to exercise due care in
rendering its services to the Trust specified in this Agreement. Any person,
even though an officer, director, employee or agent of the Manager, who may be
or become an officer, Trustee, employee or agent of the Trust, shall be
deemed, when rendering services to the Trust or when acting on any business of
the Trust, to be rendering such services to or to be acting solely for the
Trust and not as an officer, director, employee or agent, or one under the
control or direction of the Manager, even though paid by it.
E. Section 11 of the Securities Exchange Act of 1934, as amended. The
Trust hereby agrees that any entity or person associated with the Manager that
is a member of a national securities exchange is authorized to effect any
transaction on such exchange for the account of a Portfolio to the extent and
as permitted by Section 11(a)(1)(H) of the Securities Exchange Act of 1934, as
amended.
3. ALLOCATION OF EXPENSES
A. Expenses Paid by the Manager:
(i) Salaries, Expenses and Fees of Certain Persons. The
Manager (or its affiliates) shall pay all salaries, expenses, and
fees of the Trustees and officers of the Trust who are affiliated
with the Manager or its affiliates; and
(ii) Assumption of Trust Expenses. The payment or assumption
by the Manager of any expense of the Trust that the Manager is not
required by this Agreement to pay or assume shall not obligate the
Manager to pay or assume the same or any similar expense of the Trust
on any subsequent occasion.
B. Expenses Paid by the Trust: The Trust will pay all expenses of its
organization, operations, and business not specifically assumed or agreed to
be paid by the Manager, as provided in this Agreement, or by an Adviser, as
provided in an Advisory Agreement. Without limiting the generality of the
foregoing, the Trust shall pay or arrange for the payment of the following:
(i) Preparing, Printing and Mailing of Certain Documents.
The costs of preparing, setting in type, printing and mailing of
Prospectuses, Prospectus supplements, SAIs, annual, semiannual and
periodic reports, and notices and proxy solicitation materials
required to be furnished to shareholders of the Trust or regulatory
authorities, and all tax
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<PAGE>
returns;
(ii) Officers and Trustees. Compensation of the officers and
Trustees of the Trust who are not affiliated with the Manager or its
affiliates;
(iii) Registration Fees and Expenses. All legal and other
fees and expenses incurred in connection with the affairs of the
Trust, including those incurred with respect to registering its
shares with regulatory authorities and all fees and expenses incurred
in connection with the preparation, setting in type, printing, and
filing with necessary regulatory authorities of any registration
statement and Prospectus, and any amendments or supplements that may
be made from time to time, including registration, filing and other
fees in connection with requirements of regulatory authorities;
(iv) Custodian and Accounting Services. All expenses of the
transfer, receipt, safekeeping, servicing and accounting for the
Trust's cash, securities, and other property, including all charges
of depositories, custodians, and other agents, if any;
(v) Independent Legal and Accounting Fees and Expenses. The
charges for the services and expenses of the independent accountants
and legal counsel retained by the Trust;
(vi) Transfer Agent. The charges and expenses of maintaining
shareholder accounts, including all charges of transfer, bookkeeping,
and dividend disbursing agents appointed by the Trust;
(vii) Brokerage Commissions. All brokers' commissions and
issue and transfer taxes chargeable to the Trust in connection with
securities transactions to which the Trust is a party;
(viii) Taxes. All taxes and corporate fees payable by or
with respect to the Trust to federal, state, or other governmental
agencies;
(ix) Trade Association Fees. Any membership fees, dues or
expenses incurred in connection with the Trust's membership in any
trade association or similar organizations;
(x) Bonding and Insurance. All insurance premiums for
fidelity and other coverage;
(xi) Shareholder and Board Meetings. All expenses incidental
to holding shareholders and Trustees meetings, including the printing
of notices and proxy materials and proxy solicitation fees and
expenses;
(xii) Pricing. All expenses of pricing of the net asset
value per share of each Portfolio, including the cost of any
equipment or services to obtain price quotations; and
(xiii) Nonrecurring and Extraordinary Expenses. Such
extraordinary expenses, such as indemnification payments or damages
awarded in litigation or settlements made.
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4. COMPENSATION OF MANAGER
For its services performed hereunder, the Trust will pay the Manager
with respect to each Portfolio the compensation specified in Appendix B to
this Agreement. Such compensation shall be paid to the Manager by the Trust on
the first day of each month; however, the Trust will calculate this charge on
the daily average value of the Trust's assets and accrue it on a daily basis.
5. NON-EXCLUSIVITY
The services of the Manager to the Trust are not to be deemed to be
exclusive, and the Manager shall be free to render investment management,
advisory or other services to others (including other investment companies)
and to engage in other activities so long as the services provided hereunder
by the Manager are not impaired. It is understood and agreed that the
directors, officers and employees of the Manager 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 Manager may enter into arrangements with its parent or other
persons affiliated or unaffiliated with the Manager for the provision of
certain personnel and facilities to the Manager to enable the Manager to
fulfill its duties and obligations under this Agreement.
7. REGULATION
The Manager 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.
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 Manager 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
Manager free from any claim or retention of rights therein. The Manager 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
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<PAGE>
federal or state regulatory authorities.
9. DURATION OF AGREEMENT
This Agreement shall become effective on the later of the date of its
execution by all parties and the date of the meeting of the shareholders of
the Trust, which may for these purposes be the sole initial shareholder of the
Trust, at which meeting this Agreement is approved by the vote of a majority
of the outstanding voting securities (as defined in the Investment Company
Act) of the Portfolios. The Agreement will 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 either by the Trustees
of the Trust or by the vote of a majority of the outstanding voting securities
of the Trust, provided that in either event such continuance shall also be
approved by the vote of a majority of the Trustees of the Trust who are not
"interested persons" ("Independent Trustees") of any party to this Agreement,
cast in person at a meeting called for the purpose of voting on such approval.
The required shareholder approval of the Agreement or of any continuance of
the Agreement shall be effective with respect to any Portfolio if a majority
of the "outstanding voting securities" of the series (as defined in Rule
18f-2(h) under the Investment Company Act) of shares of that Portfolio votes
to approve the Agreement or its continuance, notwithstanding that the
Agreement or its continuance may not have been approved by a majority of the
outstanding voting securities of (a) any other Portfolio affected by the
Agreement or (b) all the Portfolios of the Trust.
If the shareholders of any Portfolio fail to approve the Agreement or
any continuance of the Agreement, the Manager will continue to act as
investment manager with respect to such Portfolio pending the required
approval of the Agreement or its continuance or of a new contract with the
Manager or a different investment manager or other definitive action;
provided, that the compensation received by the Manager in respect of such
Portfolio during such period will be no more than its actual costs incurred in
furnishing investment advisory and management services to such Portfolio or
the amount it would have received under the Agreement in respect of such
Portfolio, whichever is less.
10. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of
any penalty, by the Trustees, including a majority of the Independent Trustees
of the Trust, by the vote of a majority of the outstanding voting securities
of the Trust, or with respect to any Portfolio by the vote of a majority of
the outstanding voting securities of such Portfolio, on sixty (60) days'
written notice to the Manager, or by the Manager on sixty (60) days' written
notice to the Trust. This Agreement will automatically terminate, without
payment of any penalty, in the event if its assignment.
11. PROVISION OF CERTAIN INFORMATION BY MANAGER
The Manager will promptly notify the Trust in writing of the
occurrence of any of the following events:
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A. the Manager fails to be registered as an investment adviser under
the Advisers Act or under the laws of any jurisdiction in which the Manager is
required to be registered as an investment adviser in order to perform its
obligations under this Agreement;
B. the Manager 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
Manager or the portfolio manager of any Portfolio changes or there is
otherwise an actual change in control or management of the Manager.
12. 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 each of the Portfolios affected by the
amendment (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 of the Trust 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 any Portfolio if a
majority of the outstanding voting securities of the series of shares of that
Portfolio vote to approve the amendment, notwithstanding that the amendment
may not have been approved by a majority of the outstanding voting securities
of (a) any other Portfolio affected by the amendment or (b) all the Portfolios
of the Trust.
13. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties.
14. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
15. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the last known business address of the Trust or Manager
in person or by registered mail or a private mail or delivery service
providing the sender with notice of receipt. Notice shall be deemed given on
the date delivered or mailed in accordance with this section.
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<PAGE>
16. FORCE MAJEURE
The Manager shall not be liable for delays or errors occurring by
reason of circumstances beyond its control, including but not limited to acts
of civil or military authority, national emergencies, work stoppages, fire,
flood, catastrophe, acts of God, insurrection, war, riot, or failure of
communication or power supply. In the event of equipment breakdowns beyond its
control, the Manager shall take reasonable steps to minimize service
interruptions but shall have no liability with respect thereto.
17. 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.
18. INTERPRETATION
Nothing herein contained shall be deemed to require the Trust to take
any action contrary to its Agreement and Declaration of Trust or By-Laws, or
any applicable statutory or regulatory requirements to which it is subject or
by which it is bound, or to relieve or deprive the Trustees of their
responsibility for and control of the conduct of the affairs of the Trust.
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<PAGE>
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.
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.
EQ ADVISORS TRUST
By: /s/
--------------------------------------
Peter D. Noris
President and Trustee
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
--------------------------------------
Peter D. Noris
Executive Vice President
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APPENDIX A
Portfolios
----------
T. Rowe Price International Stock Portfolio
T. Rowe Price Equity Income Portfolio
EQ/Putnam Growth & Income Value Portfolio
EQ/Putnam International Equity Portfolio
EQ/Putnam Investors Growth Portfolio
EQ/Putnam Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Morgan Stanley Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Merrill Lynch World Strategy Portfolio
Merrill Lynch Basic Value Equity Portfolio
Date: April 14, 1997
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APPENDIX B
The Trust shall pay the Manager, at the end of each calendar month,
compensation computed daily at an annual rate equal to the following:
<TABLE>
<CAPTION>
Portfolio Management Fee
- --------- --------------
<S> <C>
T. Rowe Price International Stock Portfolio .75% of the Portfolio's average daily net
assets.
T. Rowe Price Equity Income Portfolio .55% of the Portfolio's average daily net
assets.
EQ/Putnam Growth & Income Value Portfolio .55% of the Portfolio's average daily net
assets.
EQ/Putnam International Equity Portfolio .70% of the Portfolio's average daily net
assets.
EQ/Putnam Investors Growth Portfolio .55% of the Portfolio's average daily net
assets.
EQ/Putnam Balanced Portfolio .55% of the Portfolio's average daily net
assets.
MFS Research Portfolio .55% of the Portfolio's average daily net
assets.
MFS Emerging Growth Companies Portfolio .55% of the Portfolio's average daily net
assets.
Morgan Stanley Emerging Markets Equity 1.15% of the Portfolio's average daily
Portfolio net assets.
Warburg Pincus Small Company Value .65% of the Portfolio's average daily net
Portfolio assets.
Merrill Lynch World Strategy Portfolio .70% of the Portfolio's average daily net
assets.
Merrill Lynch Basic Value Equity Portfolio .55% of the Portfolio's average daily net
assets.
</TABLE>
Date: April 14, 1997
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EXHIBIT 5(b)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of April __, 1997, by and between EQ Financial
Consultants, Inc., a Delaware corporation ("EQ Financial" or the "Manager"),
and T. Rowe Price Associates, Inc., a Maryland corporation (the "Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an
investment company under the Investment Company Act of 1940, as amended (the
"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 (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;
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, EQ Financial 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 (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and EQ Financial desire
to retain the Adviser to render investment advisory services to the portfolio
specified in Appendix A hereto ("Portfolio") in the manner and on the terms
hereinafter set forth.
NOW, THEREFORE, EQ Financial and Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser
for the Portfolio and to manage the investment and reinvestment of the assets
of the Portfolio, subject to the supervision of the Trustees of the Trust and
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
Manager in any way or otherwise be deemed an agent of the Trust or Manager
except as expressly authorized in this Agreement or another writing by the
Trust, Manager and the Adviser.
<PAGE>
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser 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 direction and control of the Trustees of the
Trust and the Manager and in accordance with the provisions of the Trust's
registration statement, as amended from time to time. In fulfilling its
obligations to manage the investment and reinvestment of the assets of the
Portfolio, 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 (a) consistent with the investment objectives,
policies and restrictions of the Portfolio as stated in the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and Statement of Additional
Information ("SAI") as amended from time to time, and (b) in
compliance with the requirements applicable to both regulated
investment companies and segregated asset accounts under Subchapters
M and Section 817(h) of the Internal Revenue Code of 1986, as
amended, and any rules, regulations, written interpretations or other
written guidance promulgated thereunder;
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio by the purchase and sale of
securities and other investments authorized under the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and SAI, including the placing of
orders for such purchases and sales;
(iv) regularly report to the Trustees of the Trust and the
Manager with respect to the implementation of the investment program
and, in addition, provide such statistical information and special
reports concerning the Portfolio and/or important developments
materially affecting the investments held, or contemplated to be
purchased, by the Portfolio, as may reasonably be requested by the
Manager or the Trustees of the Trust, including attendance at Board
of Trustees Meetings, as reasonably requested, to present such
information and reports to the Board;
(v) provide limited pricing assistance regarding the fair
value of certain portfolio securities for which market quotations are
not readily available; and
(vi) establish appropriate interfaces with the Trust's
administrator and Manager as shall be mutually agreeable in order to
provide such administrator and Manager with all necessary information
reasonably requested by the administrator and Manager.
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<PAGE>
B. 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).
C. 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 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 currently effective Prospectus and
SAI, as amended from time to time. In placing 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 best execution available, considering all of the circumstances, and shall
maintain records adequate to demonstrate compliance with this requirement.
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 and the
Adviser 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 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 Adviser may also consider
sales of shares of the Trust as a factor in the selection of brokers and
dealers.
D. 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 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.
E. The Adviser will maintain all accounts, books and records with
respect to the
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<PAGE>
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.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to the Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on the first day of each month; however, this advisory fee will
be calculated on the daily average value of the Portfolio's assets and accrued
on a daily basis.
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its directors, officers, or employees
shall be liable to the Manager for any loss suffered by the Manager resulting
from its acts or omissions as Adviser to the Portfolio, except for losses to
the Manager or the Trust resulting from willful misconduct, bad faith, or
gross negligence in the performance of, or from reckless disregard of, the
duties of the Adviser or any of its directors, officers or employees. The
Adviser, its directors, officers or employees shall not be liable to the
Manager or the Trust for any loss suffered as a consequence of any action or
inaction of other service providers to the Trust in failing to observe the
instructions of the Adviser, provided such action or inaction of such other
service providers to the Trust is not a result of the willful misconduct, bad
faith or gross negligence in the performance of, or from reckless disregard
of, the duties of the Adviser under this Agreement.
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 so long as the services provided hereunder
by the Adviser are not impaired. 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 enter into arrangements with other persons affiliated
with the Adviser for the provision of certain personnel and facilities to the
Adviser to better enable it to fulfill its duties and obligations under this
Agreement.
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<PAGE>
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 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 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 later of the date of its execution or the date of the commencement of
operations of the Portfolio. This Agreement will continue in effect for a
period more than two years 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, in the event of its assignment (as defined
in the Investment Company Act) or in the event the
5
<PAGE>
Investment Management Agreement between the Manager and the Trust is assigned
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.
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 an 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;
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 manager of the Portfolio changes or there is
otherwise an actual change in control or management of the Adviser.
12. PROVISION OF CERTAIN INFORMATION BY MANAGER
The Manager will promptly provide to the Adviser a copy of the
Trust's Agreement and Declaration of Trust and By-Laws, the Portfolio's
currently effective Prospectus and Statement of Additional Information, and
any written policies and procedures approved by the Board of Trustees that
apply to the Portfolio, as well as any amendments to any of the foregoing.
13. USE OF ADVISER'S NAME
It is understood that the name "T. Rowe Price Associates, Inc." and
"Rowe Price-Fleming International, Inc." or any derivative thereof or logo
associated with such names is the valuable property of the Adviser and its
affiliates and that the Trust and/or the Portfolio have the right to use such
name (or derivative or logo) in offering materials of the Trust with the
approval of the Adviser and for so long as the Adviser is a portfolio manager
to the Trust and/or the Portfolio. Upon termination of this Agreement, the
Trust shall forthwith cease to use such name (or derivative or logo).
6
<PAGE>
14. 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 Securities and Exchange Commission ("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.
15. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio listed in Appendix A.
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 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.
7
<PAGE>
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.
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 under seal by their duly authorized officers as of the date first
mentioned above.
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
---------------------------------
Peter D. Noris
Executive Vice President
T. ROWE PRICE ASSOCIATES, INC.
By: /s/
---------------------------------
Name:
Title:
8
<PAGE>
APPENDIX A
The Manager shall pay the Adviser, at the end of each calendar month,
compensation computed daily at an annual rate equal to the following:
Portfolio Advisory Fee
- --------- ------------
T. Rowe Price Equity Income Portfolio .40% of the Portfolio's average
daily net assets.
Dated: April __, 1997
9
<PAGE>
EXHIBIT 5(c)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of April __, 1997, by and between EQ Financial
Consultants, Inc., a Delaware corporation ("EQ Financial" or the "Manager"),
and Rowe Price-Fleming International, Inc., a Maryland corporation (the
"Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an
investment company under the Investment Company Act of 1940, as amended (the
"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 (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;
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, EQ Financial 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 (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and EQ Financial desire
to retain the Adviser to render investment advisory services to the portfolio
specified in Appendix A hereto ("Portfolio") in the manner and on the terms
hereinafter set forth.
NOW, THEREFORE, EQ Financial and Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser
for the Portfolio and to manage the investment and reinvestment of the assets
of the Portfolio, subject to the supervision of the Trustees of the Trust and
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
Manager in any way or otherwise be deemed an agent of the Trust or Manager
except as expressly authorized in this Agreement or another writing by the
Trust, Manager and the Adviser.
<PAGE>
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser 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 direction and control of the Trustees of the
Trust and the Manager and in accordance with the provisions of the Trust's
registration statement, as amended from time to time. In fulfilling its
obligations to manage the investment and reinvestment of the assets of the
Portfolio, 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 (a) consistent with the investment objectives,
policies and restrictions of the Portfolio as stated in the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and Statement of Additional
Information ("SAI") as amended from time to time, and (b) in
compliance with the requirements applicable to both regulated
investment companies and segregated asset accounts under Subchapters
M and Section 817(h) of the Internal Revenue Code of 1986, as
amended, and any rules, regulations, written interpretations or other
written guidance promulgated thereunder;
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio by the purchase and sale of
securities and other investments authorized under the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and SAI, including the placing of
orders for such purchases and sales;
(iv) regularly report to the Trustees of the Trust and the
Manager with respect to the implementation of the investment program
and, in addition, provide such statistical information and special
reports concerning the Portfolio and/or important developments
materially affecting the investments held, or contemplated to be
purchased, by the Portfolio, as may reasonably be requested by the
Manager or the Trustees of the Trust, including attendance at Board
of Trustees Meetings, as reasonably requested, to present such
information and reports to the Board;
(v) provide limited pricing assistance regarding the fair
value of certain portfolio securities for which market quotations are
not readily available; and
(vi) establish appropriate interfaces with the Trust's
administrator and Manager as shall be mutually agreeable in order to
provide such administrator and Manager with all necessary information
reasonably requested by the administrator and Manager.
B. 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)
2
<PAGE>
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).
C. 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 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 currently effective Prospectus and
SAI, as amended from time to time. In placing 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 best execution available, considering all of the circumstances, and shall
maintain records adequate to demonstrate compliance with this requirement.
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 and the
Adviser 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 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 Adviser may also consider
sales of shares of the Trust as a factor in the selection of brokers and
dealers.
D. 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 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.
E. 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.
3
<PAGE>
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to the Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on the first day of each month; however, this advisory fee will
be calculated on the daily average value of the Portfolio's assets and accrued
on a daily basis.
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its directors, officers, or employees
shall be liable to the Manager for any loss suffered by the Manager resulting
from its acts or omissions as Adviser to the Portfolio, except for losses to
the Manager or the Trust resulting from willful misconduct, bad faith, or
gross negligence in the performance of, or from reckless disregard of, the
duties of the Adviser or any of its directors, officers or employees. The
Adviser, its directors, officers or employees shall not be liable to the
Manager or the Trust for any loss suffered as a consequence of any action or
inaction of other service providers to the Trust in failing to observe the
instructions of the Adviser, provided such action or inaction of such other
service providers to the Trust is not a result of the willful misconduct, bad
faith or gross negligence in the performance of, or from reckless disregard
of, the duties of the Adviser under this Agreement.
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 so long as the services provided hereunder
by the Adviser are not impaired. 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 enter into arrangements with other persons affiliated
with the Adviser for the provision of certain personnel and facilities to the
Adviser to better enable it to fulfill its duties and obligations under this
Agreement.
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 which any such body by reason of this
Agreement may request or require pursuant to applicable laws and
4
<PAGE>
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 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 later of the date of its execution or the date of the commencement of
operations of the Portfolio. This Agreement will continue in effect for a
period more than two years 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, in the event of its assignment (as defined
in the Investment Company Act) or in the event the Investment Management
Agreement between the Manager and the Trust is assigned 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.
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:
5
<PAGE>
A. the Adviser fails to be registered as an 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;
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 manager of the Portfolio changes or there is
otherwise an actual change in control or management of the Adviser.
12. PROVISION OF CERTAIN INFORMATION BY MANAGER
The Manager will promptly provide to the Adviser a copy of the
Trust's Agreement and Declaration of Trust and By-Laws, the Portfolio's
currently effective Prospectus and Statement of Additional Information, and
any written policies and procedures approved by the Board of Trustees that
apply to the Portfolio, as well as any amendments to any of the foregoing.
13. USE OF ADVISER'S NAME
It is understood that the name "T. Rowe Price Associates, Inc." and
"Rowe Price-Fleming International, Inc." or any derivative thereof or logo
associated with such names is the valuable property of the Adviser and its
affiliates and that the Trust and/or the Portfolio have the right to use such
name (or derivative or logo) in offering materials of the Trust with the
approval of the Adviser and for so long as the Adviser is a portfolio manager
to the Trust and/or the Portfolio. Upon termination of this Agreement, the
Trust shall forthwith cease to use such name (or derivative or logo).
14. 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 Securities and Exchange Commission ("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.
6
<PAGE>
15. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio listed in Appendix A.
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 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.
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
7
<PAGE>
order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed under seal by their duly authorized officers as of the date first
mentioned above.
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
---------------------------------
Peter D. Noris
Executive Vice President
ROWE PRICE-FLEMING INTERNATIONAL, INC.
By: /s/
---------------------------------
Name:
Title:
8
<PAGE>
APPENDIX A
The Manager shall pay the Adviser, at the end of each calendar month,
compensation computed at an annual rate equal to the following:
<TABLE>
<CAPTION>
Portfolio Advisory Fee
- --------- ------------
<S> <C>
T. Rowe Price International Stock Portfolio .75% of the Portfolio's average daily net assets
up to and including $20 million; .60% of the
Portfolio's average daily net assets over $20
million and up to and including $50 million;
and .50% of the Portfolio's average daily net
assets in excess of $50 million.
When the Portfolio's average daily net assets
reach $200 million, the fee is a flat 50/100 of 1%
on all assets.
</TABLE>
Dated: April __, 1997
9
<PAGE>
EXHIBIT 5(d)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of April __, 1997 by and between EQ Financial
Consultants, Inc., a Delaware corporation ("EQ Financial" or the "Manager"),
and Putnam Investment Management, Inc., a Massachusetts corporation (the
"Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an
investment company under the Investment Company Act of 1940, as amended (the
"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 (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;
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, EQ Financial 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 (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and EQ Financial desire
to retain the Adviser to render investment advisory services to the portfolios
specified in Appendix A hereto (each a "Portfolio" and collectively, the
"Portfolios") in the manner and on the terms hereinafter set forth.
NOW, THEREFORE, EQ Financial and Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser
for each Portfolio and to manage the investment and reinvestment of the assets
of each Portfolio, subject to the supervision of the Trustees of the Trust and
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
Manager in any way or otherwise be deemed an agent of the Trust or Manager
except as expressly authorized in this Agreement or another writing by the
Trust, Manager and the Adviser.
<PAGE>
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser will manage the investment and reinvestment of the
assets of each Portfolio and determine the composition of the assets of each
Portfolio, subject always to the direction and control of the Trustees of the
Trust and the Manager and in accordance with the provisions of the Trust's
registration statement, as amended from time to time, and delivered to the
Adviser. In fulfilling its obligations to manage the investment and
reinvestment of the assets of each Portfolio, the Adviser will:
(i) obtain and evaluate such 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, as the Adviser deems advisable;
(ii) formulate and implement a continuous investment program
for the Portfolio consistent with the investment objectives, policies
and restrictions of the Portfolio as stated in the Trust's Agreement
and Declaration of Trust, By-Laws, and such Portfolio's currently
effective Prospectus and Statement of Additional Information ("SAI")
as amended from time to time and such documents are delivered to the
Adviser, and use its best efforts to manage the Portfolio in
compliance with the requirements applicable to registered investment
companies under applicable laws and those requirements applicable to
both regulated investment companies and segregated asset accounts
under Subchapters L and M of the Internal Revenue Code of 1986, as
amended. The Manager acknowledges and agrees that the Adviser's
compliance with its obligations under this Agreement will be based,
in part, on information reasonably requested by the Adviser to be
provided by the Manager or the Trust's administrator as to each
Portfolio, including but not limited to, portfolio security lot level
realized and unrealized gain/loss allocation. The Manager agrees to
provide or to cause to be provided to the Adviser all such
information on a timely basis.
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio by the purchase and sale of
securities and other investments authorized under the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and SAI (as such documents are
delivered to the Adviser), including the placing of orders for such
purchases and sales;
(iv) regularly report to the Trustees of the Trust and the
Manager with respect to the implementation of the investment program
and, in addition, provide such statistical information and special
reports concerning the Portfolio and/or important developments
materially affecting the investments held, or contemplated to be
purchased, by the Portfolio, as may reasonably be requested by the
Manager or the Trustees of the Trust, including attendance at Board
of Trustees Meetings, as reasonably requested, to present such
information and reports to the Board;
2
<PAGE>
(v) provide determinations of 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; and
(vi) establish appropriate interfaces with the Trust's
administrator and Manager in order to provide such administrator and Manager
with all necessary information requested by the administrator and Manager.
B. 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 and
customary for the management of each Portfolio's portfolio securities. The
Adviser shall otherwise not have any responsibility for the administrative
affairs of each Portfolio, including any responsibility for the determination
of net asset value and shareholder accounting services.
C. 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 brokerage transactions for each Portfolio in
accordance with such policies or practices as may be established by the Board
of Trustees and described in the Trust's currently effective Prospectus and
SAI, as amended from time to time and as delivered to the Adviser. In placing
orders for the purchase or sale of investments for each Portfolio, in the name
of such Portfolio or its nominees, the Adviser shall use its best efforts to
obtain for such 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.
Subject to any appropriate policies and procedures of the Board of
Trustees brought to the attention of the Adviser, the Adviser may, to the
extent authorized by Section 28(e) of the Securities Exchange Act of 1934, as
amended, cause the Portfolio to pay a broker or dealer that provides brokerage
or research services to the Manager, the Adviser, and each 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 each Portfolio or its 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 may instruct the Adviser from time to
time to select particular brokers or dealers to effect portfolio transactions
in consideration of the sale of shares of the Trust by such brokers or
dealers.
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D. On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of a 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 Adviser in the manner the
Adviser considers to be the most equitable and consistent with its fiduciary
obligations to each Portfolio and to its other clients.
E. The Adviser will maintain all accounts, books and records with
respect to each 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.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to each Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on the first day of each month; however, this advisory fee will
be calculated on the daily average value of each Portfolio's assets and
accrued on a daily basis.
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its directors, officers, or employees
shall be liable to the Manager, the Portfolios or the Trust for any loss
suffered by the Manager, the Portfolios or the Trust resulting from its acts
or omissions as Adviser to the Portfolios, except for losses to the Manager,
the Portfolios or the Trust resulting from willful misconduct, bad faith, or
gross negligence in the performance of, or from reckless disregard of, the
duties of the Adviser or any of its directors, officers or employees. The
Adviser, its directors, officers or employees shall not be liable to the
Manager, the Portfolios or the Trust for any loss suffered as a consequence of
any action or inaction of other service providers to the Trust in failing to
observe the instructions of the Adviser, provided such action or inaction of
such other service providers to the Trust is not a result of the willful
misconduct, bad faith or gross negligence in the performance of, or from
reckless disregard of, the duties of the Adviser under this Agreement.
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5. NON-EXCLUSIVITY
The services of the Adviser to each 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 so long as the services provided
hereunder by the Adviser are not impaired. 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 enter into arrangements with other persons affiliated
with the Adviser for the provision of certain personnel and facilities to the
Adviser to better enable it to fulfill its duties and obligations under this
Agreement.
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 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. The Adviser may retain copies of all
such records. In the event of the termination of this Agreement, such records
(or copies thereof) shall promptly be returned to the Trust by the Adviser
free from any claim or retention of rights therein. The Adviser shall keep
confidential any information concerning the Manager, the Trust or other
service providers to the Trust 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 each Portfolio on the
later of the date
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<PAGE>
of its execution or the date of the commencement of operations of each
Portfolio. This Agreement will continue in effect for a period more than two
years 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 a
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, in the event of its assignment (as defined in the
Investment Company Act) or in the event the Investment Management Agreement
between the Manager and the Trust is assigned 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.
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 an 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;
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 manager of a Portfolio changes or there is otherwise
an actual change in control or management of the Adviser.
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12. USE OF ADVISER'S NAME
The Manager covenants as follows:
A. It will (and will cause its affiliates to) use the name "Putnam
Investment Management," "Putnam Investments," "Putnam" or any derivation
thereof only for so long as this Agreement remains in effect. At such times as
this Agreement is no longer in effect, the Manager will, and will cause the
Trust to, cease suing any such name or any other name indicating that the
Portfolio is advised by or otherwise connected to the Adviser. The Manager
acknowledges that the Trust has adopted the names "EQ Putnam Growth & Income
Portfolio," "EQ Putnam International Equity Portfolio," "EQ Putnam Investors
Growth Portfolio" and "EQ Putnam Balanced Portfolio" through permission of the
Adviser and agrees that the Adviser reserves the right to grant the
non-exclusive right to use the names set forth above in the first sentence of
this subsection 12.A. or any similar name to another corporation or other
entity, including but not limited to any investment company which the Adviser
or any subsidiary or affiliate therefor is the investment adviser or manager.
B. It will not, and will cause its affiliates to not, refer to the
Adviser or any affiliate in any prospectus, proxy statement or sales
literature except with the written permission of the Adviser.
C. It will not (and will cause its affiliates to not) engage in
marketing programs (written or otherwise) directed toward Putnam Capital
Manager ("PCM") variable annuity contracts which solicit transfers from PCM to
the Manager's products or those of its affiliates. The Manager will not (and
will cause its affiliates to not) create or use marketing materials which
provide direct comparisons between PCM and the Manager's products or those of
any of its affiliates. The Manager will not (and will cause its affiliates to
not) reimburse voluntarily, or enter into any contracts or policy after the
date hereof providing for the reimbursement of, any deferred sales charges to
encourage the transfer of assets from PCM to the Manager's products or those
of any affiliate.
D. It will not permit the Portfolios to be used as a funding vehicle
for variable annuity or life insurance contracts other than those issued by
The Equitable Life Assurance Society of the United States or any affiliate
thereof ("Equitable") or, with the consent of the Adviser, variable annuity or
life insurance contracts utilized by officers, directors, or employees of
Equitable.
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 Securities and Exchange Commission ("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
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(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 a Portfolio if a majority of the outstanding voting securities
of such 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. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio listed in Appendix A.
15. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
16. 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 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.
17. 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.
18. 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.
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<PAGE>
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 under seal by their duly authorized officers as of the date first
mentioned above.
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
---------------------------------
Peter D. Noris
Executive Vice President
PUTNAM INVESTMENT MANAGEMENT, INC.
By: /s/
---------------------------------
Name:
Title:
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<PAGE>
APPENDIX A
The Manager shall pay the Adviser, at the end of each calendar month,
compensation computed daily at an annual rate equal to the following:
<TABLE>
<CAPTION>
Portfolio Advisory Fee
- --------- ------------
<S> <C>
EQ/Putnam Growth & Income Value Portfolio .50% of the Portfolio's average daily net assets
up to and including $150 million; .45% of the
Portfolio's average daily net assets over $150
million and up to and including $300 million;
and .35% of the Portfolio's average daily net
assets in excess of $300 million.
EQ/Putnam International Equity Portfolio .65% of the Portfolio's average daily net assets
up to and including $150 million; .55% of the
Portfolio's average daily net assets over $150
million and up to and including $300 million;
and .45% of the Portfolio's average daily net
assets in excess of $300 million.
EQ/Putnam Investors Growth Portfolio .50% of the Portfolio's average daily net assets
up to and including $150 million; .45% of the
Portfolio's average daily net assets over $150
million and up to and including $300 million;
and .35% of the Portfolio's average daily net
assets in excess of $300 million.
EQ/Putnam Balanced Portfolio .50% of the Portfolio's average daily net assets
up to and including $150 million; .45% of the
Portfolio's average daily net assets over $150
million and up to and including $300 million;
and .35% of the Portfolio's average daily net
assets in excess of $300 million.
</TABLE>
Dated: April __, 1997
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<PAGE>
EXHIBIT 5(e)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of April __, 1997, by and between EQ Financial
Consultants, Inc., a Delaware corporation ("EQ Financial" or the "Manager"),
and Massachusetts Financial Services Company, a Delaware corporation (the
"Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an
investment company under the Investment Company Act of 1940, as amended (the
"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 (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;
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, EQ Financial 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 (the "Agreement"); and
WHEREAS, the Board of Directors of the Trust and EQ Financial desire
to retain the Adviser to render investment advisory services to the portfolios
specified from time to time in Appendix A hereto (each a "Portfolio" and
collectively the "Portfolios") in the manner and on the terms hereinafter set
forth (each reference to a Portfolio shall be deemed to be a reference to each
Portfolio).
NOW, THEREFORE, EQ Financial and Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser
for the Portfolios and to manage the investment and reinvestment of the assets
of the Portfolios, subject to the supervision of the Trustees of the Trust and
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
Manager in any way or otherwise be deemed an agent of the Trust or Manager
except as expressly authorized in this Agreement or another writing by the
Trust, Manager and the Adviser.
<PAGE>
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser will manage the investment and reinvestment of the
assets of each Portfolio and determine the composition of the assets of each
Portfolio, subject always to the direction and control of the Trustees of the
Trust and the Manager and in accordance with the provisions of each
Portfolio's currently effective prospectus and statement of additional
information (collectively, "Prospectus") contained in the Trust's registration
statement, as amended from time to time. In fulfilling its obligations to
manage the investment and reinvestment of the assets of each Portfolio, 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 (a) consistent with the investment objectives,
policies and restrictions of the Portfolio as stated in the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
Prospectus as amended from time to time, and (b) in compliance with
the requirements applicable to registered investment companies under
applicable laws and those 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 ("Code");
(iii) take whatever steps that are reasonably necessary to
implement the investment program for the Portfolio by the purchase
and sale of securities and other investments authorized under the
Trust's Agreement and Declaration of Trust, By-Laws, and such
Portfolio's Prospectus, including the placing of orders for such
purchases and sales;
(iv) regularly report to the Trustees of the Trust and the
Manager with respect to the implementation of the investment program
and, in addition, provide such statistical information and special
reports concerning the Portfolio and/or important developments
materially affecting the investments held, or contemplated to be
purchased, by the Portfolio, as may reasonably be requested by the
Manager or the Trustees of the Trust and agreed to by the Adviser,
including attendance at Board of Trustees Meetings, as reasonably
requested, to present such information and reports to the Board;
(v) provide reasonable assistance to the Portfolio's pricing
agent in the pricing of internally priced securities (i.e.,
securities for which market quotations are not readily available)
with respect to the Portfolio;
(vi) provide any and all information, records and supporting
documentation
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about accounts the Adviser manages that have investment objectives,
policies, and strategies substantially similar to those employed by
the Adviser 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 prior performance in
the Prospectus and the SAI of the Portfolio and any permissible
reports and materials prepared by the Portfolio or its agent;
(vii) establish appropriate interfaces with the Trust's
administrator and Manager in order to provide such administrator and
Manager with information as reasonably requested by the administrator
and Manager; and
(viii) execute account documentation, agreements, contracts
and other documents as the Adviser shall be requested by brokers,
dealers, counterparties and other persons to execute in connection
with its management of the assets of the Portfolio, provided that the
Adviser receives the express agreement and consent of the Manager
and/or the Trust's Board of Trustees to execute such documentation,
agreements, contracts and other documents. In such respect, and only
for this limited purpose, the Adviser shall act as the Manager's
and/or the Trust's agent and attorney-in-fact.
B. 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 required for it to
faithfully and fully perform its duties and obligations under this Agreement
(excluding that necessary for the determination of net asset value and
shareholder accounting services).
C. 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 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 currently effective Prospectus as amended
from time to time. In placing orders for the purchase or sale of investments
for a 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.
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 a 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
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<PAGE>
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 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 and in compliance with the NASD's Conduct Rules, the
Adviser may also consider sales of shares of the Trust as a factor in the
selection of brokers and dealers.
D. 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 Adviser in the manner the
Adviser considers to be the most equitable and consistent with its fiduciary
obligations to each Portfolio and to its other clients.
E. With respect to the provision of services by the Adviser
hereunder, the Adviser will maintain all accounts, books and records with
respect to each 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.
F. The Adviser and the Manager acknowledge that the Adviser is not
the compliance agent for each Portfolio or for the Manager, and does not have
access to all of each Portfolio's books and records necessary to perform
certain compliance testing. To the extent that the Adviser has agreed to
perform the services specified in this Section 2 in accordance with the
Trust's registration statement, the Trust's Agreement and Declaration of Trust
and By-Laws, the Portfolio's Prospectus and any policies adopted by the
Trust's Board of Trustees applicable to the Portfolio (collectively, the
"Charter Requirements"), and in accordance with applicable law (including
Sub-chapters M and L of the Code, the Investment Company Act and the Advisers
Act (Applicable Law")), the Adviser shall perform such services based upon its
books and records with respect to each Portfolio (as specified in Section 2.E.
hereof), which comprise a portion of each Portfolio's books and records, and
upon information and written instructions received from the Trust, the Manager
or the Trust's administrator, and shall not be held responsible under this
Agreement so long as it performs such services in accordance with this
Agreement, the Charter Requirements and Applicable Law based upon such books
and records and such information and instructions provided by the Trust, the
Manager or the Trust's administrator. The Manager shall promptly provide the
Adviser with copies of the Trust's registration statement, the Trust's
Agreement and Declaration of Trust and By-Laws, the Portfolio's currently
effective Prospectus and any written policies or procedures adopted by the
Trust's Board of Trustees applicable to the Portfolio and any amendments or
revisions thereto.
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<PAGE>
G. Unless the Manager gives the Adviser written instructions to the
contrary, the Adviser shall use its good faith judgment in a manner which it
reasonably believes best serves the interests of the Portfolio's shareholders
to vote or abstain from voting all proxies solicited by or with respect to the
issuers of securities in which assets of the Portfolio may be invested.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to each Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on the first day of each month; however, this advisory fee will
be calculated on the daily average value of each Portfolio's assets and
accrued on a daily basis. Compensation for any partial period shall be pro
rated based on the services provided during such period.
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its directors, officers, employees or
agents shall be liable to the Manager or the Trust for any loss or expense
suffered by the Manager or the Trust resulting from its acts or omissions as
Adviser to a Portfolio, except for losses or expenses to the Manager or the
Trust resulting from willful misconduct, bad faith, or gross negligence in the
performance of, or from reckless disregard of, the duties of the Adviser or
any of its directors, officers, employees or agents. The Adviser, its
directors, officers, employees or agents shall not be liable to the Manager or
the Trust for any loss or expense suffered as a consequence of any action or
inaction of other service providers to the Trust in failing to observe the
instructions of the Adviser, provided such action or inaction of such other
service providers to the Trust is not a result of the willful misconduct, bad
faith or gross negligence in the performance of, or from reckless disregard
of, the duties of the Adviser under this Agreement.
5. NON-EXCLUSIVITY
The services of the Adviser to each 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.
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<PAGE>
6. SUPPLEMENTAL ARRANGEMENTS
The Adviser may enter into arrangements with other persons affiliated
with the Adviser for the provision of certain personnel and facilities to the
Adviser to better enable it to fulfill its duties and obligations under this
Agreement.
7. REGULATION
The Manager and Adviser shall cooperate with each other in providing
information, reports and other materials to regulatory and administrative
bodies having proper jurisdiction over the Portfolios, the Manager and the
Adviser in connection with the services provided pursuant to this Agreement;
provided, however, that this agreement to cooperate does not apply to the
provision of information, reports and other materials which either the Manager
or the Adviser reasonably believes the regulatory or administrative body does
not have the authority to request or is the privileged or confidential
information of the Manager or Adviser.
8. RECORDS
The records relating to the services provided under this Agreement
required to be established and maintained by an investment adviser under
applicable law or those required by the Manager or the Board of Trustees for
the Adviser to prepare and provide shall be the property of the Trust and
shall be under its control; however, the Trust shall permit the Adviser 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
Adviser shall keep confidential any information concerning the Manager or any
of its affiliates (and their officers, directors or employees) that it obtains
in connection with the Adviser's duties hereunder and shall 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 each Portfolio
on the later of the date of its execution or the date of the commencement of
operations of the Portfolio. This Agreement will continue in effect for a
period more than two years 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.
6
<PAGE>
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 a
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, in the event of its assignment (as defined in the
Investment Company Act) or in the event the Investment Management Agreement
between the Manager and the Trust is assigned 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.
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 an 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;
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 controlling stockholder of the Adviser or the portfolio
manager of a Portfolio changes or there is otherwise an actual change in
control or management of the Adviser.
12. PROVISION OF CERTAIN INFORMATION BY THE MANAGER
The Manager will promptly notify the Adviser in writing of the
occurrence of any of the following events.
A. the Manager fails to be registered as an investment adviser under
the Advisers Act or under the laws of any jurisdiction in which the Manager is
required to be registered as an investment adviser in order to perform its
obligations under this Agreement;
7
<PAGE>
B. the Manager 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 controlling stockholder of the Manager or there is otherwise
an actual change in control or management of the Manager.
13. REPRESENTATIONS AND WARRANTIES
A. Manager represents and warrants that:
(i) The Manager is registered as an investment adviser
under the Advisers Act;
(ii) The Manager is a corporation duly organized and
validly existing under the laws of the State of
Delaware with the power to own and possess its assets
and carry on its business as it is now being
conducted;
(iii) The execution, delivery and performance by the
Manager of this Agreement are within the Manager's
powers and have been duly authorized by all necessary
action on the part of its directors, and no action by
or in respect of, or filing with, any governmental
body, agency or official is required on the part of
the Manager for the execution, delivery and
performance of this Agreement by the parties hereto,
and the execution, delivery and performance of this
Agreement by the parties hereto does not contravene
or constitute a default under: (a) any provision of
applicable law, rule or regulation; (b) the Manager's
Articles of Incorporation or By-Laws; or (c) any
agreement, judgment, injunction, order, decree or
other instruments binding upon the Manager;
(iv) This Agreement is a valid and binding Agreement of
the Manager;
(v) The Manager has provided the Adviser with a copy of
its Form ADV as most recently filed with the
Securities and Exchange Commission ("SEC") and the
Manager further represents that it will, within a
reasonable time after filing any amendment to its
Form ADV with the SEC furnish a copy of such
amendments to the Adviser. The information contained
in the Manager's Form ADV is accurate and complete in
all material respects and does not omit to state any
material fact necessary in order to make the
statements made, in light of the circumstances under
this they were made, not misleading; and
(vi) The Manager acknowledges that it received a copy of
the Adviser's current
8
<PAGE>
Form ADV, at least 48 hours prior to the execution
of this Agreement and has delivered a copy of the
same to the Trust.
B. Advisers represents and warrants that:
(i) The Adviser is registered as an investment adviser
under the Advisers Act;
(ii) The Adviser is a corporation duly organized and
validly existing under the laws of the State of
Delaware with the power to own and possess its assets
and carry on its business as it is now being
conducted;
(iii) The execution, delivery and performance by the
Adviser of this Agreement are within the Adviser's
powers and have been duly authorized by all necessary
action on the part of its directors, and no action by
or in respect of, or filing with, any governmental
body, agency or official is required on the part of
the Adviser for the execution, delivery and
performance of this Agreement by the parties hereto,
and the execution, delivery and performance of this
Agreement by the parties hereto does not contravene
or constitute a default under: (a) any provision of
applicable law, rule or regulation; (b) the Adviser's
Articles of Incorporation or By-Laws; or (c) any
agreement, judgment, injunction, order, decree or
other instruments binding upon the Adviser;
(iv) This Agreement is a valid and binding Agreement of
the Adviser;
(v) The Adviser has provided the Manager with a copy of
its Form ADV as most recently filed with the SEC and
will, promptly after filing any amendment to its Form
ADV with the SEC, furnish a copy of such amendments
to the Manager. The information contained in the
Adviser's Form ADV is accurate and complete in all
material respects and does not omit to state any
material fact necessary in order to make the
statements made, in light of the circumstances under
which they were made, not misleading; and
(vi) The Adviser acknowledges that it received a copy of
the Manager's current Form ADV, at least 48 hours
prior to the execution of this Agreement and has
delivered a copy of the same to the Trust.
14. USE OF ADVISER'S NAME
The Manager will not use, and will not permit the Trust to use, the
Adviser's name (or that of any affiliate) or any derivative thereof or logo
associated therewith in Trust literature without
9
<PAGE>
prior review and approval by the Adviser.
15. 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 a 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 a Portfolio
if a majority of the outstanding voting securities of each 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. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio(s) listed in Appendix A.
17. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
18. 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 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.
10
<PAGE>
19. 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.
20. 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.
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 under seal by their duly authorized officers as of the date first
mentioned above.
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
-----------------------------------
Peter D. Noris
Executive Vice President
MASSACHUSETTS FINANCIAL SERVICE
COMPANY
By: /s/
-----------------------------------
Name:
Title:
11
<PAGE>
APPENDIX A
Portfolio Advisory Fee
MFS Emerging Growth .40% of the Portfolio's average daily net assets
Companies Portfolio up to and including $150 million; .375% of the
Portfolio's average daily net assets over $150
million and up to and including $300 million;
and .35% of the Portfolio's average daily
net assets in excess of $300 million.
MFS Research Portfolio .40% of the Portfolio's average daily net assets up
to and including $150 million; .375% of the
Portfolio's average daily net assets over $150
million and up to and including $300 million; and
.35% of the Portfolio's average daily net assets
in excess of $300 million.
Dated: April __, 1997
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<PAGE>
EXHIBIT 5(f)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of April __, by and between EQ Financial
Consultants, Inc., a Delaware corporation ("EQ Financial" or the "Manager"),
and Morgan Stanley Asset Management Inc., a Delaware corporation (the
"Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an
investment company under the Investment Company Act of 1940, as amended (the
"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 (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;
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, EQ Financial 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 (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and EQ Financial desire
to retain the Adviser to render investment advisory services to the portfolio
specified in Schedule A hereto ("Portfolio") in the manner and on the terms
hereinafter set forth.
NOW, THEREFORE, EQ Financial and Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser
for the Portfolio and to manage the investment and reinvestment of the assets
of the Portfolio, subject to the supervision of the Trustees of the Trust and
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
Manager in any way or otherwise be deemed an agent of the Trust or Manager
except as expressly authorized in this Agreement or another writing by the
Trust, Manager and the Adviser.
<PAGE>
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser 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 direction and control of the Trustees of the
Trust and the Manager and in accordance with the provisions of the Trust's
registration statement, as amended from time to time. In fulfilling its
obligations to manage the investment and reinvestment of the assets of the
Portfolio, 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 (a) consistent with the investment objectives,
policies and restrictions of the Portfolio as stated in the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and Statement of Additional
Information ("SAI") as amended from time to time, and (b) in
compliance 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, and
requirements applicable to registered investment companies under
other applicable laws;
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio by the purchase and sale of
securities and other investments authorized under the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and SAI, including the placing of
orders for such purchases and sales;
(iv) regularly report to the Trustees of the Trust and the
Manager with respect to the implementation of the investment program
and, in addition, provide such statistical information and special
reports concerning the Portfolio and/or important developments
materially affecting the investments held, or contemplated to be
purchased, by the Portfolio, as may reasonably be requested by the
Manager or the Trustees of the Trust, including attendance at Board
of Trustees Meetings, as reasonably requested, to present such
information and reports to the Board;
(v) provide determinations of 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 manages that have investment
objectives, policies, and strategies
2
<PAGE>
substantially similar to those employed by the Adviser 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 prior performance in the Prospectus and the
SAI of the Portfolio and any permissible reports and materials
prepared by the Portfolio or its agent; provided, however, Adviser
shall not be required to provide the name or identity of any client
(other than a registered investment company) with respect to such
information, records and supporting documentation, nor shall Adviser
be required to provide any information which is considered by it to
be confidential; and
(vii) establish appropriate interfaces with the Trust's
administrator and Manager in order to provide such administrator and
Manager with all necessary information reasonably requested by the
administrator and Manager.
B. 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 fully and in
good faith 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).
C. 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 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 currently effective Prospectus and
SAI, as amended from time to time. In placing 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.
In accordance with Section 11(a) of the Securities Exchange Act of
1934, as amended ("1934 Act") and subject to any other applicable laws and
regulations, including Section 17(e) of the Investment Company Act and Rule
17e-1 thereunder, the Adviser may engage affiliates and broker-dealers to
effect portfolio transaction in securities for the Portfolio.
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 1934 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
3
<PAGE>
transaction or the Adviser's overall responsibilities to the Portfolio or its
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 Adviser may also consider
sales of shares of the Trust as a factor in the selection of brokers and
dealers.
D. 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 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.
E. 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.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to the Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on the first day of each month; however, this advisory fee will
be calculated on the daily average value of the Portfolio's assets and accrued
on a daily basis.
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its affiliates, directors, officers,
or employees nor anyone who controls the Adviser (or any of its affiliates,
directors, officers, or employees) within the meaning of Section 15 of the
Securities Act of 1933, as amended ("1933 Act"), shall be liable to the
Manager for any loss suffered by the Manager resulting from its acts or
omissions as Adviser to the Portfolio, except for losses to the Manager or the
Trust resulting from willful misconduct, bad faith, or gross negligence in the
performance of, or from reckless disregard of, the duties of the Adviser or
any of its affiliates, directors, officers or employees. The Adviser, its
affiliates, directors, officers or employees and anyone who controls the
Adviser (and any of its affiliates, directors, officers and employees) within
the meaning of Section 15 of the 1933 Act shall not be liable to the Manager
or the Trust for any loss suffered as a consequence of any action or inaction
of other service providers to the Trust in failing to observe the instructions
4
<PAGE>
of the Adviser, provided such action or inaction of such other service
providers to the Trust is not a result of the willful misconduct, bad faith or
gross negligence in the performance of, or from reckless disregard of, the
duties of the Adviser under this Agreement.
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 enter into arrangements with other persons affiliated
with the Adviser for the provision of certain personnel and facilities to the
Adviser to better enable it to fulfill its duties and obligations under this
Agreement.
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 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 the Adviser is
required by applicable law or regulatory authorities to retain as well as
those records that the Adviser 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. In such event, the Adviser will be permitted to
retain duplicates of such records as are required by the Adviser to be
retained under applicable law or by regulatory authorities. 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
5
<PAGE>
such disclosure is required or requested by applicable federal or state
regulatory authorities or self regulatory organization of which the Adviser or
its affiliates may be a member.
9. DURATION OF AGREEMENT
This Agreement shall become effective with respect to the Portfolio
on September 2, 1997 or such other earlier date as may be agreed upon by the
Manager and the Adviser. This Agreement will continue in effect for a period
more than two years 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, in the event of its assignment (as defined
in the Investment Company Act) or in the event the Investment Management
Agreement between the Manager and the Trust is assigned 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.
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 an 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;
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
6
<PAGE>
C. the chief executive officer or controlling stockholder of the
Adviser or the portfolio manager 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, including the name "Morgan Stanley") in Trust promotional or sales
related materials prepared by or on behalf of the Manager or the Trust without
prior review and approval by the Adviser, which may not be unreasonably
withheld or delayed. The Manager and the Trust agree that if this Agreement is
terminated and the Adviser or an affiliate of the Adviser shall no longer be
the adviser to the Portfolio, the Trust will change the name of the Portfolio
to delete any reference to "Morgan Stanley."
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 Securities and Exchange Commission ("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. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio listed in Appendix A.
15. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
7
<PAGE>
16. 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 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.
17. 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.
18. 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.
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
8
<PAGE>
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 under seal by their duly authorized officers as of the date first
mentioned above.
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
------------------------------------
Peter D. Noris
Executive Vice President
MORGAN STANLEY ASSET MANAGEMENT INC.
By: /s/
------------------------------------
Name:
Title:
9
<PAGE>
APPENDIX A
<TABLE>
<CAPTION>
Portfolio Advisory Fee
- --------- ------------
<S> <C>
Morgan Stanley Emerging Markets Equity Portfolio 1.15% of the Portfolio's average daily
net assets up to and including
$100 million; .90% of the
Portfolio's average daily net
assets over $100 million and
up to and including $150
million; .80% of the
Portfolio's average daily net
assets over $150 million and
up to and including $200
million; .60% of the
Portfolio's average daily net
assets over $200 million and
up to and including $500
million; and .40% of the
Portfolio's average daily net
assets in excess of $500
million.
</TABLE>
Dated: April __, 1997
10
<PAGE>
EXHIBIT 5(g)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of April __, 1997, by and between EQ Financial
Consultants, Inc., a Delaware corporation ("EQ Financial" or the "Manager"),
and Warburg Pincus Counsellors, Inc., a Delaware corporation (the "Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an
investment company under the Investment Company Act of 1940, as amended (the
"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 (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;
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, EQ Financial 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 (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and EQ Financial desire
to retain the Adviser to render investment advisory services to the portfolio
specified in Schedule A hereto ("Portfolio") in the manner and on the terms
hereinafter set forth.
NOW, THEREFORE, EQ Financial and Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser
for the Portfolio and to manage the investment and reinvestment of the assets
of the Portfolio, subject to the supervision of the Trustees of the Trust and
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
Manager in any way or otherwise be deemed an agent of the Trust or Manager
except as expressly authorized in this Agreement or another writing by the
Trust, Manager and the Adviser. Notwithstanding the foregoing, the Adviser may
execute account documentation, agreements, contracts and other documents as
the Adviser may be requested by brokers, dealers, counterparts and other
persons in connection with the Adviser's management of the assets of the
Portfolio, provided that the Adviser
<PAGE>
receives the express agreement and consent of the Manager and/or the Trust's
Board of Trustees to execute such documentation, agreements, contracts and
other documents. In such respect, and only for this limited purpose, the
Adviser shall act as the Manager and/or the Trust's agent and
attorney-in-fact.
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser 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 direction and control of the Trustees of the
Trust and the Manager and in accordance with the provisions of the Trust's
registration statement, as amended from time to time. In fulfilling its
obligations to manage the investment and reinvestment of the assets of the
Portfolio, 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 (a) consistent with the investment objectives,
policies and restrictions of the Portfolio as stated in the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and Statement of Additional
Information ("SAI") as amended from time to time, and (b) in
compliance 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, and
requirements applicable to registered investment companies under
applicable laws;
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio by the purchase and sale of
securities and other investments authorized under the Trust's
Agreement and Declaration of Trust, By-Laws, and such Portfolio's
currently effective Prospectus and SAI, including the placing of
orders for such purchases and sales;
(iv) regularly report to the Trustees of the Trust and the
Manager with respect to the implementation of the investment program
and, in addition, provide such statistical information and special
reports concerning the Portfolio and/or important developments
materially affecting the investments held, or contemplated to be
purchased, by the Portfolio, as may reasonably be requested by the
Manager or the Trustees of the Trust, including attendance at Board
of Trustees Meetings, as reasonably requested, to present such
information and reports to the Board; and
2
<PAGE>
(v) provide determinations of 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 manages that have investment
objectives, policies, and strategies substantially similar to those
employed by the Adviser 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 prior
performance in the Prospectus and the SAI of the Portfolio and any
permissible reports and materials prepared by the Portfolio or its
agent; and
(vii) establish appropriate interfaces with the Trust's
administrator and Manager in order to provide such administrator and
Manager with all necessary information requested by the administrator
and Manager.
B. To facilitate the Adviser's fulfillment of its obligations under
this Agreement, the Manager and the Trust will undertake the following:
(i) the Manager agrees promptly to provide the Adviser with
all amendments or supplements to the Registration Statement, the
Trust's Agreement and Declaration of Trust, and By-Laws;
(ii) the Trust and the Manager each agrees, on an ongoing
basis, to notify the Adviser expressly in writing of each change in
the fundamental and nonfundamental investment policies of the
Portfolio;
(iii) the Manager agrees to provide or cause to be provided
to the Adviser with such assistance as may be reasonably requested by
the Adviser in connection with its activities pertaining to the
Portfolio under this Agreement, including, without limitation,
information concerning the Portfolio, its available funds, or funds
that may reasonably become available for investment, and information
as to the general condition of the Portfolio's affairs;
(iv) the Manager agrees to provide or cause to be provided
to the Adviser on an ongoing basis, such information as is reasonably
requested by the Adviser for performance by the Adviser of its
obligations under this Agreement, and the Adviser shall not be in
breach of any term of this Agreement or be deemed to have acted
negligently if the Manager fails to provide or cause to be provided
such requested information and the Adviser relies on the information
most recently furnished to the Adviser; and
3
<PAGE>
(v) the Manager will promptly provide the Adviser with any
guidelines and procedures applicable to the Adviser or the Portfolio
adopted form time to time by the Board of Trustees of the Trust and
agrees to promptly provide the Adviser copies of all amendments
thereto.
C. 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). The Adviser shall not be obligated to pay any expenses of or for
the Portfolio not expressly assumed by the Adviser pursuant to this Section 2.
D. 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 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 currently effective Prospectus and
SAI, as amended from time to time. In placing 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 such records as are required of an
investment adviser under applicable law.
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, or 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 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 Adviser
may also consider sales of shares of the Trust as a factor in the selection of
brokers and dealers.
E. 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
4
<PAGE>
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 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.
F. 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.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to the Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on the first day of each month; however, this advisory fee will
be calculated on the daily average value of the Portfolio's assets and accrued
on a daily basis.
4. LIABILITY OF ADVISER
Neither the Adviser nor any of its directors, officers, or employees
shall be liable to the Manager, the Trust or any shareholder thereof or any
service provider to any Portfolio for any loss suffered by the Manager, the
Trust or any shareholder thereof or any service provided to any Portfolio
resulting from its acts or omissions as Adviser to the Portfolio, except for
losses resulting from willful misconduct, bad faith, or gross negligence in
the performance of, or from reckless disregard of, the duties of the Adviser
or any of its directors, officers or employees. The Adviser, its directors,
officers or employees shall not be liable to the Manager or the Trust for any
loss suffered as a consequence of any action or inaction of other service
providers to the Trust, provided such action or inaction of such other service
providers to any Portfolio is not a result of the willful misconduct, bad
faith or gross negligence in the performance of, or from reckless disregard
of, the duties of the Adviser under this Agreement.
5
<PAGE>
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. Furthermore, the Trust and the Manager recognize that the Adviser
may give advice, and take action, with respect to its other clients that may
differ from the advice given, or the time or nature of action taken, with
respect to the Portfolio.
6. SUPPLEMENTAL ARRANGEMENTS
The Adviser may enter into arrangements with other persons affiliated
with the Adviser for the provision of certain personnel and facilities to the
Adviser to better enable it to fulfill its duties and obligations under this
Agreement.
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 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 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
6
<PAGE>
This Agreement shall become effective with respect to the Portfolio
on the later of the date of its execution or the date of the commencement of
operations of the Portfolio. This Agreement will continue in effect for a
period more than two years 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.
7
<PAGE>
10. INDEMNIFICATIONS
A. The Manager shall indemnify the Adviser and its controlling
persons, officers, directors, employees, agents, legal representatives and
persons controlled by it (which shall not include the Trust or any Portfolio)
(collectively, "Adviser Related Persons") to the fullest extent permitted by
law against any and all loss, damage, judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees (collectively
"Losses"), incurred by the Adviser or Adviser Related Persons arising from or
in connection with this Agreement or the performance by the Adviser or Adviser
Related Persons of its or their duties hereunder so long as such Losses arise
out of the Manager's gross negligence, willful misconduct or bad faith, in
performing its responsibilities hereunder or under its agreements with the
Trust or the gross negligence, willful misconduct or bad faith of any
companies affiliated with the Manager that provide services to the Trust,
including, without limitation, such Losses arising under any applicable law or
that may be based upon any untrue statement of a material fact contained in
the Trust's registration statement, or any amendment thereof or any supplement
thereto, or the omission to state therein a material fact known or which
should have been known and 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 written information furnished to the Manager or the
Trust by the Adviser or an Adviser Related Person specifically for inclusion
in the registration statement or any amendment or supplement thereto, except
to the extent any such Losses referred to in this paragraph A (i.e., paragraph
A.) result from willful misfeasance, bad faith, gross negligence or reckless
disregard on the part of the Adviser or an Adviser Related Person in the
performance of any of its duties under, or in connection with, this Agreement.
B. The Adviser shall indemnify the Manager and its controlling
persons, officers, directors, employees, agents, legal representatives and
persons controlled by it (which shall not include the Trust or any Portfolio)
(collectively, "Manager Related Persons") to the fullest extent permitted by
law against any and all Losses incurred by the Manager or Manager Related
Persons arising from or in connection with this Agreement or the performance
by the Manager or Manager Related Persons of its or their duties hereunder so
long as such Losses arise out of the Adviser's gross negligence, willful
misconduct or bad faith in performing its responsibilities hereunder,
including, without limitation, such Losses arising under any applicable law or
that may be based upon any untrue statement of a material fact contained in
the Trust's registration statement, or any amendment thereof or any supplement
thereto or the omission to state therein a material fact known or which should
have been known and was required to be stated therein or necessary to make the
statements therein not misleading, provided that such statement or omission
was made in reliance upon written information furnished by the Adviser or
Adviser Related Person to the Manager or the Trust, except to the extent any
such Losses referred to in this paragraph B (i.e., paragraph B.) result from
willful misfeasance, bad faith, gross negligence or reckless disregard on the
part of the Manager or a Manager Related Person in the performance of any of
its duties under, or in connection with, this Agreement.
C. The indemnifications provided in this Section 10 shall survive the
termination of this
8
<PAGE>
Agreement.
11. 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, in the event of its assignment (as defined
in the Investment Company Act) or in the event the Investment Management
Agreement between the Manager and the Trust is assigned 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.
12. 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 an 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;
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 manager of the Portfolio changes or there is a change
in actual control or management of the Adviser.
13. USE OF ADVISER'S NAME
Neither the Trust nor the Manager or any affiliate or agent thereof
shall make reference to or use the name, and any derivative thereof or logo
associated with that name, of the Adviser or any of its affiliates in any
advertising or promotional materials without the prior approval of the
Adviser, which approval shall not be unreasonably withheld or delayed. Upon
termination of this Agreement, the Manager and the Trust shall forthwith cease
to use such name (or derivative or logo) as soon as reasonably practicable.
9
<PAGE>
14. 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 Securities and Exchange Commission ("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.
15. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio listed in Appendix A.
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 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.
10
<PAGE>
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.
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 under seal by their duly authorized officers as of the date first
mentioned above.
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
---------------------------------
Peter D. Noris
Executive Vice President
WARBURG PINCUS COUNSELLORS, INC.
By: /s/
---------------------------------
Name:
Title:
11
<PAGE>
APPENDIX A
Portfolio Advisory Fee
- --------- ------------
Warburg Pincus Small .50% of the Portfolio's
Company Value Portfolio average daily assets
Dated: April __, 1997
12
<PAGE>
EXHIBIT 5(h)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, dated as of April ___, 1997 by and between EQ Financial
Consultants, Inc., a Delaware corporation ("EQ Financial" or the "Manager"),
and Merrill Lynch Asset Management, L.P., a Delaware limited partnership (the
"Adviser").
WHEREAS, EQ Advisors Trust (the "Trust") is registered as an open-end
management investment company under the Investment Company Act of 1940, as
amended (the "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 (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;
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, EQ Financial 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 (the "Agreement"); and
WHEREAS, the Board of Trustees of the Trust and EQ Financial desire
to retain the Adviser to render investment advisory services to each portfolio
specified in Schedule A hereto (each "Portfolio") in the manner and on the
terms hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and covenants
hereinafter contained, EQ Financial and Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as investment adviser
to the Portfolio and to furnish the investment advisory services described
below, subject to the supervision of the Trustees of the Trust and 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
Manager in any way or otherwise be deemed an agent of the Trust or Manager
except as expressly authorized in this Agreement or another writing by the
Trust, Manager and the Adviser.
<PAGE>
2. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. The Adviser 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 direction and control of the Trustees of the
Trust and the Manager and in accordance with the provisions of the Trust's
registration statement, as amended from time to time. In fulfilling its
obligations to manage the investment and reinvestment of the assets of the
Portfolio, the Adviser will:
(i) furnish investment research and advice and formulate and
implement a continuous investment program for each Portfolio (a)
consistent with the investment objectives, policies and restrictions
of each Portfolio as stated in the Trust's Agreement and Declaration
of Trust, By-Laws, and such Portfolio's currently effective
Prospectus and Statement of Additional Information ("SAI") as amended
from time to time and provided to
the Adviser pursuant to Section 2.B of this Agreement, and (b) in
compliance 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;
(ii) take whatever steps are necessary to implement the
investment program for each Portfolio by the purchase, sale and
exchange of securities and other investments, including cash,
authorized under the Trust's Agreement and Declaration of Trust,
By-Laws, and such Portfolio's currently effective Prospectus and SAI
and provided to the Adviser pursuant to Section 2.B of this
Agreement, including the placing of orders for such purchases, sales
and exchanges for the account of the Trust on behalf of each
Portfolio with such brokers and dealers as the Manager or the Adviser
shall have selected; to this end, the Adviser is expressly authorized
as the agent of the Trust on behalf of each Portfolio to give
instructions to the Custodian of the Trust as to deliveries of
securities and payments of cash for the account of the Trust on
behalf of such Portfolio;
(iii) regularly report to the Trustees of the Trust and the
Manager with respect to the implementation of the investment program
and, in addition, will provide such statistical information and
special reports concerning each Portfolio and/or important
developments materially affecting the investments held, or
contemplated to be purchased, by each Portfolio, as may reasonably be
requested by the Manager or the Trustees of the Trust, and will
attend Board of Trustees' Meetings, as reasonably requested, to
present such information and reports to the Board;
(iv) provide determinations of 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; and
(v) establish appropriate interfaces with the Trust's
administrator and Manager in order to provide such administrator and
Manager with all information reasonably requested by the
administrator and Manager necessary to the provision of the Adviser's
services hereunder to the Portfolio.
2
<PAGE>
B. To facilitate the Adviser's fulfillment of its obligations under
this Agreement, the Manager will undertake the following:
(i) the Manager agrees promptly to provide the Adviser with
all amendments or supplements to each Portfolio's Prospectus, SAI,
the Trust's registration statement on Form N-1A ("Registration
Statement"), the Trust's Agreement and Declaration of Trust, and
ByLaws;
(ii) the Manager agrees, on an ongoing basis, to notify the
Adviser expressly in writing of each change in the fundamental and
nonfundamental investment policies of each Portfolio;
(iii) the Manager agrees to provide or cause to be provided
to the Adviser with such assistance as may be reasonably requested by
the Adviser in connection with its activities pertaining to each
Portfolio under this Agreement, including, without limitation,
information as to the general condition of the Portfolio's affairs;
and
(iv) the Manager will promptly provide the Adviser with any
guidelines and procedures applicable to the Adviser or each Portfolio
adopted from time to time by the Board of Trustees of the Trust and
agrees to promptly provide the Adviser copies of all amendments
thereto.
C. The Adviser, at its expense, will furnish: all necessary
investment and management facilities, overhead expenses and investment
personnel, including salaries, expenses and fees of any personnel required for
it to faithfully perform its duties under this Agreement.
D. 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. The Adviser
is directed at all times to seek to execute brokerage transactions for each
Portfolio in accordance with such policies or practices as may be established
by the Board of Trustees and described in the Trust's currently effective
Prospectus and SAI, as amended from time to time and provided to the Adviser
pursuant to Section 2.B of this Agreement, including in particular policies
and procedures in accordance with Section 17(e) and Rule 17e-1 under the
Investment Company Act. In placing orders for the purchase or sale of
investments for each Portfolio, in the name of the Trust on behalf of the
Portfolio or its nominees, the Adviser shall use its best efforts to obtain
for the Portfolio the most favorable net price and best execution available,
considering all of the circumstances, and shall maintain records adequate to
demonstrate compliance with this requirement.
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 and Exchange Act of 1934, cause each 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
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<PAGE>
terms of that particular transaction or the Adviser's overall responsibilities
to the Portfolio or its 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 net price and best execution available, the
Adviser may also consider sales of shares of the Trust as a factor in the
selection of brokers and dealers.
E. 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 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.
F. The Adviser will maintain all accounts, books and records
generated by it 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.
G. The Adviser will, unless and until otherwise directed by the
Manager or the Board of Trustees, vote proxies with respect to each
Portfolio's securities, and exercise rights in corporate actions or otherwise.
3. COMPENSATION OF ADVISER
The Manager will pay the Adviser, with respect to each Portfolio, the
compensation specified in Appendix A to this Agreement. Payments shall be made
to the Adviser on the first day of each month for the preceding month or
portion thereof; however, this advisory fee will be calculated on the average
daily value of each Portfolio's assets, as calculated in accordance with the
computation of net asset value included in the Trust's Registration Statement,
and accrued on a daily basis. In the event the calculation of any Portfolio's
net asset value is suspended, the net asset value used for any day will be
that for the last business day prior to such suspension until net asset value
calculations are resumed.
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4. LIABILITY OF ADVISER
Neither the Adviser nor any of its directors, officers, or employees
shall be liable to the Manager or the Trust for any loss suffered by the
Manager or the Trust resulting from its acts or omissions as Adviser to a
Portfolio, except for losses to the Manager or the Trust resulting from
willful misconduct, bad faith, or gross negligence in the performance of, or
from reckless disregard of, the duties hereunder of the Adviser or any of its
directors, officers or employees. The Adviser, its directors, officers or
employees shall not be liable to the Manager or the Trust for any loss
suffered as a consequence of any action or inaction of other service providers
to the Trust in failing to observe the instructions of the Adviser, unless
such action or inaction of such other service providers to the Trust is a
result of the willful misconduct, bad faith or gross negligence in the
performance of, or from reckless disregard of, the duties of the Adviser, its
directors, officers or employees under this Agreement.
5. INDEMNIFICATIONS
A. The Manager shall indemnify the Adviser and its controlling
persons, officers, directors, employees, agents, legal representatives and
persons controlled by it (which shall not include the Trust or any Portfolio)
(collectively, "Adviser Related Persons") to the fullest extent permitted by
law against any and all loss, damage, judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees (collectively
"Losses"), incurred by the Adviser or Adviser Related Persons arising from or
in connection with this Agreement or the performance by the Adviser or Adviser
Related Persons of its or their duties hereunder so long as such Losses arise
out of the Manager's gross negligence, willful misconduct or bad faith, in
performing its responsibilities hereunder or under its agreements with the
Trust or the gross negligence, willful misconduct or bad faith of any
companies affiliated with the Manager that provide services to the Trust,
including, without limitation, such Losses arising under any applicable law or
that may be based upon any untrue statement of a material fact contained in
the Trust's Registration Statement, or any amendment thereof or any supplement
thereto, or the omission to state therein a material fact known or which
should have been known and was required to be stated therein or necessary to
make the statements therein not misleading, unless such statement or omission
was made in reasonable reliance upon written information furnished to the
Manager or the Trust by the Adviser or an Adviser Related Person specifically
for inclusion in the Registration Statement or any amendment or supplement
thereto, except to the extent any such Losses referred to in this paragraph
(i.e., paragraph A.) result from willful misfeasance, bad faith, gross
negligence or reckless disregard on the part of the Adviser or an Adviser
Related Person in the performance of any of its duties under, or in connection
with, this Agreement.
B. The Adviser shall indemnify the Manager and its controlling
persons, officers, directors, employees, agents, legal representatives and
persons controlled by it (which shall not include the Trust or any Portfolio)
(collectively, "Manager Related Persons") to the fullest extent permitted by
law against any and all Losses incurred by the Manager or Manager Related
Persons arising from or in connection with this Agreement or the performance
by the Manager or Manager Related Persons of its or their duties hereunder so
long as such Losses arise out of the Adviser's gross negligence, willful
misconduct or bad faith in performing its responsibilities hereunder,
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<PAGE>
including, without limitation, such Losses arising under any applicable law or
that may be based upon any untrue statement of a material fact contained in
the Trust's Registration Statement, or any amendment thereof or any supplement
thereto or the omission to state therein a material fact known or which should
have been known and was required to be stated therein or necessary to make the
statements therein not misleading, in any case only to the extent that such
statement or omission was made in reasonable reliance upon written information
furnished by the Adviser or Adviser Related Person to the Manager or the Trust
specifically for inclusion in the Registration Statement or any amendment or
supplement thereto, except to the extent any such Losses referred to in this
paragraph (i.e., paragraph B.) result from willful misfeasance, bad faith,
gross negligence or reckless disregard on the part of the Manager or a Manager
Related Person in the performance of any of its duties under, or in connection
with, this Agreement.
C. The indemnifications provided in this Section 10 shall survive the
termination of this Agreement.
6. 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.
7. SUPPLEMENTAL ARRANGEMENTS
The Adviser may enter into arrangements with other persons affiliated
with the Adviser for the provision of certain personnel and facilities to the
Adviser to better enable it to fulfill its duties and obligations under this
Agreement. As used in this Agreement, any reference to the "Adviser" refers
also to such affiliate.
8. 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.
9. RECORDS
The records relating to the services provided under this Agreement
shall be the property of
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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 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.
10. DURATION OF AGREEMENT
This Agreement shall become effective with respect to the Portfolio
on the later of the date of its execution or the date of the commencement of
operations of the Portfolio. This Agreement will continue in effect for a
period more than two years from the date first set forth above only so long as
such continuance is specifically approved at least annually by the Board of
Trustees or majority of outstanding voting securities, 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.
11. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of
any penalty, by the Manager at the direction of 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, in
the event of its assignment (as defined in the Investment Company Act) or in
the event the Investment Management Agreement between the Manager and the
Trust is assigned 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.
12. 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 an 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 Adviser as they
relate to the Adviser's responsibilities under this Agreement; and/or
C. the portfolio manager or managers of either Portfolio change or
there occurs any actual change in control or management of the Adviser. In
addition, the Adviser is a limited partnership whose general partner is
Princeton Services, Inc. and whose limited partner is Merrill Lynch & Co.,
Inc. The Adviser will notify the Manager and the Trust of any change in the
membership of the partnership within a reasonable time after such change.
13. 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.
14. 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 Securities and Exchange Commission ("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 the Trust has
obtained an exemption from the voting requirements of Section 15) 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.
15. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio listed in Appendix A.
16. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
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<PAGE>
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 to whom
notice shall be provided with respect to the Adviser shall be Philip L.
Kirstein, Esq., General Counsel, and with respect to the Manager shall be
Peter D. Noris, unless another person is 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.
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.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed under seal by their duly authorized officers as of the date first
mentioned above.
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
-----------------------------------
Name: Peter D. Noris
Title: Executive Vice President
MERRILL LYNCH ASSET MANAGEMENT, L.P.
By: /s/
-----------------------------------
Name:
Title:
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APPENDIX A
<TABLE>
<CAPTION>
Portfolio Advisory Fee
- --------- ------------
<S> <C>
Merrill Lynch Basic Value Equity Portfolio .40% of the Portfolio's average daily net assets
up to and including $100 million; .375% of the
Portfolio's average daily net assets over $100
million and up to and including $300 million;
and .35% of the Portfolio's average daily net
assets in excess of $300 million.
Merrill Lynch World Strategy Portfolio .50% of the Portfolio's average daily net assets
up to and including $100 million; .45% of the
Portfolio's average daily net assets over $100
million and up to and including $300 million;
and .35% of the Portfolio's average daily net
assets in excess of $300 million.
</TABLE>
Dated: April __, 1997
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<PAGE>
EXHIBIT 6(a)
DISTRIBUTION AGREEMENT
CLASS IA SHARES
EQ FINANCIAL CONSULTANTS, INC.
AGREEMENT, dated as of April 14, 1997 by and between EQ Advisors
Trust (the "Trust") and EQ Financial Consultants, Inc. ("EQ Financial").
W I T N E S S E T H:
WHEREAS, the Trust is a Delaware business trust whose shareholders
are and will be separate accounts in unit investment trust form ("Eligible
Separate Accounts") of insurance companies ("Participating Insurance
Companies"); and
WHEREAS, such Participating Insurance Companies issue, among other
products, variable insurance and annuity products ("Variable Products") whose
net premiums, contributions or other considerations may be allocated to
Eligible Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's Class IA shares will not be sold except in
connection with such Variable Products or directly to tax-qualified pension
and retirement plans ("Qualified Plans") outside the separate account context;
and
WHEREAS, the Trust is registered as an open-end investment company
under the Investment Company Act of 1940 ("Investment Company Act"); and
WHEREAS, the Investment Company Act prohibits any principal
underwriter for a registered open-end management investment company from
offering for sale, selling, or delivering after sale any security of which
such company is the issuer, except pursuant to a written contract with such
investment company, and EQ Financial will be a distributor for sale of the
Class IA shares issued by the Trust; and
WHEREAS, EQ Financial is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, ("Securities Exchange Act") and
is a member of the National Association of Securities Dealers, Inc. ("NASD").
NOW THEREFORE, the Trust and EQ Financial agree as follows:
Section 1. The Trust has adopted a form of Participation Agreement,
which was approved by the Board of Trustees of the Trust. This Agreement shall
be subject to the provisions of the form of Participation Agreement, the terms
of which are incorporated herein by reference, made a part hereof and
controlling. The form of Participation Agreement may be amended or superseded,
without prior notice, and this Agreement shall be deemed amended to the extent
the form of Participation Agreement is amended or superseded. EQ Financial
represents and warrants that it will act in a manner consistent with such form
of Participation Agreement as it is currently set forth and as it may be
amended or superseded, so long as EQ Financial serves as the principal
underwriter of the Class IA shares of the Trust.
<PAGE>
Section 2. EQ Financial is hereby authorized, from time to time, to
enter into separate written agreements ("Sales Agreements" or, individually, a
"Sales Agreement"), on terms and conditions not inconsistent with this
Agreement, with Participating Insurance Companies which have Eligible Separate
Accounts and which agree to participate in the distribution of the Trust's
Class IA shares, directly or through affiliated broker dealers by means of
distribution of Variable Products and to use their best efforts to solicit
applications for Variable Products. EQ Financial may not enter into any Sales
Agreement with any Participating Insurance Company that is more favorable than
that maintained with any other Participating Insurance Company and Eligible
Separate Account, except that not all Portfolios of the Trust need be made
available for investment by all Participating Insurance Companies, Eligible
Separate Accounts or Variable Products. The Board of Trustees of the Trust
may, in its sole discretion, determine that certain Portfolios and classes of
shares of the Trust shall be available only to certain types of Variable
Products or to a single Participating Insurance Company and its affiliates.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly
and appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company
shall, when required by law, be both registered as a broker-dealer under the
Securities Exchange Act and a member of the NASD. Each such Participating
Insurance Company shall agree to comply with all laws and regulations, whether
federal or state, and whether relating to insurance, securities or other
general areas, including but not limited to the recordkeeping and sales
supervision requirements of such laws and regulations.
Section 4. The Trust's shares are divided into series or Portfolios,
each representing a different portfolio of investments. Each Portfolio is
further divided into Class IA and Class IB shares. The Trust's Portfolios and
any restrictions on availability for Class IA shares relating thereto are set
forth in Schedule A hereto, which may be amended from time to time.
Purchases and redemptions of the Trust's Class IA shares of each
Portfolio shall be at the net asset value therefor, computed as set forth in
the most recent relevant Prospectus and Statement of Additional Information
relating to the Trust's Class IA contained in its Registration Statement on
Form N-1A, or any amendments thereto (respectively, "Trust Prospectus" and
"SAI"), and any supplements thereto and shall be submitted by the
Participating Insurance Company to the Trust's transfer agent pursuant to
procedures and in accordance with payment provisions adopted by EQ Financial
and the Trust from time to time. The Trust's Class IA shares may not be sold
or transferred, except to an Eligible Separate Account or Qualified Plan,
without the prior approval of the Trust's Board of Trustees.
Section 5. The Trust shall not pay any compensation to EQ Financial
for services as a distributor hereunder, nor shall the Trust reimburse EQ
Financial for any expenses related to such
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<PAGE>
services. EQ Financial may, but need not, pay or charge Participating
Insurance Companies pursuant to Sales Agreements, as described in Section 2
hereof.
Section 6. The Trust represents to EQ Financial that the Trust
Prospectus and SAI, as of their respective effective dates, contain all
statements and information which are required to be stated therein by the
Securities Act of 1933, as amended ("Securities Act"), and in all respects
conform to the requirements thereof, and neither the Trust Prospectus nor the
SAI include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the foregoing
representations shall not apply to information contained in or omitted from
the Trust Prospectus and SAI in reliance upon, and in conformity with, written
information furnished by EQ Financial specifically for use in the preparation
thereof.
In this connection, EQ Financial acknowledges that the day-to-day
operations of the Trust, including without limitation, investment management,
securities brokerage allocation, cash control, accounting, recordkeeping and
other administrative, marketing and regulatory compliance functions, are
carried on and may in the future be carried on by The Equitable Life Assurance
Society of the United States ("Equitable"), affiliates of Equitable, and other
parties unaffiliated with Equitable on behalf of the Trust (collectively, the
"Preparing Parties"), under various agreements and arrangements, and that such
activities in large measure provide the basis upon which statements and
information are included or omitted from the Trust Prospectus and SAI. EQ
Financial further acknowledges that because of the foregoing arrangements, the
preparation of the Trust Prospectus and SAI is substantially in the control of
the Preparing Parties, subject to the broad supervisory authority and
responsibility of the Trust's Board of Trustees, and that, essentially, the
only Trust Prospectus or SAI information not independently known to, or
prepared by, the Preparing Parties is personal information as to each
Trustee's full name, age, background, business experience and other personal
information that may require disclosures under securities laws and for which
the Preparing Parties necessarily must rely on each such Trustee to produce.
Section 7. The Trust will periodically prepare Prospectuses (and, if
applicable, SAIs) and any supplements thereto, proxy materials and annual and
semi-annual reports (collectively, the "Documents") and shall, in accordance
with the form of Participation Agreement, provide sufficient copies of such
Documents or shall make camera ready copy available to EQ Financial for
reproduction by EQ Financial or the Participating Insurance Companies. With
respect to Documents provided to existing owners of Variable Products, the
cost of preparing, printing, mailing or otherwise distributing such Documents
shall be borne by the Trust. With respect to the Trust's Class IA shares, the
Trust shall not pay the cost of printing, mailing or otherwise distributing
such Documents except as specified in this Section 7. The Trust will use its
best efforts to provide notice to EQ Financial of anticipated filings or
supplements. EQ Financial or the Participating Insurance Companies may alter
the form of some or all of the Documents, with the prior approval of the
Trust's officers and legal counsel. Any preparation costs associated with
altering the form of the Documents will be borne by EQ Financial or the
Participating Insurance Companies, not the Trust.
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<PAGE>
Section 8. EQ Financial and officers of the Trust may, from time to
time, authorize descriptions of the Trust for use in sales literature or
advertising by the Participating Insurance Companies (including brochures,
letters, illustrations and other similar materials, whether transmitted
directly to potential applicants or published in print or audio-visual media),
which authorization will not be unreasonably withheld or delayed.
Section 9. EQ Financial shall furnish to the Trust, at least
quarterly, reports as to the sales of the Trust's Class IA shares made
pursuant to this Agreement. These reports may be combined with any similar
report prepared by EQ Financial or any of the Preparing Parties.
Section 10. EQ Financial shall submit to all regulatory and
administrative bodies having jurisdiction over the operations of EQ Financial,
the Trust, or any Participating Insurance Company, 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.
Section 11. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Exchange Act and the Securities Act and
the rules, regulations, and rulings thereunder and of the NASD, from time to
time in effect, including such exemptions 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, (a) the term "assigned" shall not
include any transaction exempted from section 15(b)(2) of the Investment
Company Act and (b) the vote of the persons having voting rights in respect of
the Trust referred to in Section 12 shall be the affirmative votes of the
lesser of (i) the holders of more than 50% of all votes in respect of Class IA
shares entitled to be cast in respect of the Trust or (ii) the holders of at
least 67% of the votes in respect of Class IA shares which are present at a
meeting of such persons if the holders of more than 50% of all votes in
respect of Class IA shares entitled to be cast in respect of the Trust are
present or represented by proxy at such meeting, in either case voted in
accordance with the provisions contained in the form of Participation
Agreement or any policies on conflicts adopted by the Trust's Board of
Trustees.
Section 12. This Agreement shall continue in effect only so long as
such continuance is specifically approved at least annually by a majority of
the Trustees of the Trust who are not interested persons of the Trust or EQ
Financial ("Independent Trustees") and by (a) persons having voting rights in
respect of the Trust, by the vote stated in Section 11, voted in accordance
with the provisions contained in the form of Participation Agreement or any
policies on conflicts adopted by the Board of Trustees of the Trust, or (b)
the Board of Trustees of the Trust. This Agreement may be terminated at any
time, without penalty, by a majority of the Independent Trustees or by persons
having voting rights in respect of the Trust by the vote stated in Section 11.
Section 13. This Agreement shall terminate automatically if it shall
be assigned.
Section 14. The Trust shall indemnify and hold harmless EQ Financial
from any and all
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<PAGE>
losses, claims, damages or liabilities (or actions in respect thereof) to
which EQ Financial 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 the Trust
or its officers, trustees, agents or representatives, other than acts or
omissions caused directly or indirectly by EQ Financial.
EQ Financial will indemnify and hold harmless the Trust, its
officers, trustees, agents and representatives against any losses, claims,
damages or liabilities, to which the Trust its officers, trustees, agents and
representatives may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Trust Prospectus and/or SAI or any supplements thereto; (ii)
the omission or alleged omission to state any material fact required to be
stated in the Trust Prospectus and/or SAI or any supplements thereto or
necessary to make the statements therein not misleading; or (iii) other
misconduct or negligence of EQ Financial in its capacity as a principal
underwriter of the Trust's Class IA shares and will reimburse the Trust, its
officers, Trustees, agents and representatives for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that EQ Financial shall not be liable in any such instance 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 supplement in
good faith reliance upon and in conformity with written information furnished
by the Preparing Parties specifically for use in the preparation of the Trust
Prospectus and/or SAI.
Section 15. A copy of the Amended and Restated Agreement and
Declaration of Trust of the Trust is on file with the Secretary of State of
Delaware and notice is given hereby that this Agreement is executed on behalf
of the Trustees of the Trust as trustees and not individually, and that the
obligations of or arising out of this Agreement are not binding upon any of
the Trustees or shareholders individually but are binding only upon the assets
and property of each Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EQ ADVISORS TRUST
By: /s/
----------------------------------
Peter D. Noris
President and Trustee
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
----------------------------------
Michael S. Martin
Chairman of the Board and
Chief Executive Officer
5
<PAGE>
SCHEDULE A
Portfolios of
EQ Advisors Trust
T. Rowe Price International Stock Portfolio
T. Rowe Price Equity Income Portfolio
EQ/Putnam Growth & Income Value Portfolio
EQ/Putnam International Equity Portfolio
EQ/Putnam Investors Growth Portfolio
EQ/Putnam Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Morgan Stanley Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Merrill Lynch World Strategy Portfolio
Merrill Lynch Basic Value Equity Portfolio
7
<PAGE>
EXHIBIT 6(b)
DISTRIBUTION AGREEMENT
CLASS IB SHARES
EQ FINANCIAL CONSULTANTS, INC.
AGREEMENT, dated as of April 14, 1997 by and between EQ Advisors
Trust (the "Trust") and EQ Financial Consultants, Inc. ("EQ Financial").
W I T N E S S E T H:
WHEREAS, the Trust is a Delaware business trust whose shareholders
are and will be separate accounts in unit investment trust form ("Eligible
Separate Accounts") of insurance companies ("Participating Insurance
Companies"); and
WHEREAS, such Participating Insurance Companies issue, among other
products, variable insurance and annuity products ("Variable Products") whose
net premiums, contributions or other consideration may be allocated to
Eligible Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's Class IB shares will not be sold except in
connection with such Variable Products or directly to tax-qualified pension
and retirement plans ("Qualified Plans") outside the separate account context;
and
WHEREAS, the Trust has adopted a Distribution Plan with respect to
its Class IB shares pursuant to Rule 12b-1 under the Investment Company Act of
1940, as amended ("Investment Company Act"); and
WHEREAS, the Trust desires that EQ Financial undertake marketing
activities with respect to the Class IB shares of the Trust's constituent
series or investment portfolios ("Portfolios") and to compensate EQ Financial
for services rendered and expenses borne in connection therewith; and
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act; and
WHEREAS, the Investment Company Act prohibits any principal
underwriter for a registered open-end management investment company from
offering for sale, selling, or delivering after sale any security of which
such investment company is the issuer, except pursuant to a written contract
with such investment company, and EQ Financial will be a distributor for sale
of the Class IB shares issued by the Trust; and
WHEREAS, EQ Financial is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, ("Securities Exchange Act"), and
is a member of the National Association of Securities Dealers, Inc. ("NASD").
NOW THEREFORE, the Trust and EQ Financial agree as follows:
<PAGE>
Section 1. The Trust has adopted a form of Participation Agreement,
which was approved by the Board of Trustees of the Trust. This Agreement shall
be subject to the provisions of the form of Participation Agreement, the terms
of which are incorporated herein by reference, made a part hereof and
controlling. The form of Participation Agreement may be amended or superseded,
without prior notice, and this Agreement shall be deemed amended to the extent
the form of Participation Agreement is amended or superseded. EQ Financial
represents and warrants that it will act in a manner consistent with the form
of Participation Agreement as it is currently set forth and as it may be
amended or superseded, so long as EQ Financial serves as the principal
underwriter of the Class IB shares of the Trust.
Section 2. EQ Financial on behalf of the Trust is hereby authorized,
from time to time, to enter into separate written agreements ("Sales
Agreements" or, individually, a "Sales Agreement"), on terms and conditions
not inconsistent with this Agreement, with Participating Insurance Companies
that have Eligible Separate Accounts and that agree to participate in the
distribution of the Trust's Class IB shares, directly or through their
affiliated broker-dealers, by means of the distribution of Variable Products
and to use their best efforts to solicit applications for Variable Products.
EQ Financial may not enter into any Sales Agreement with any Participating
Insurance Company that is more favorable than that maintained with any other
Participating Insurance Company and Eligible Separate Account, except that not
all Portfolios of the Trust need be made available for investment by all
Participating Insurance Companies, Eligible Separate Accounts or Variable
Products. The Board of Trustees of the Trust may, in its sole discretion,
determine that certain Portfolios and classes of shares of the Trust shall be
available only to certain types of Variable Products or to a single
Participating Insurance Company and its affiliates.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly
and appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company
shall, when required by law, be both registered as a broker-dealer under the
Securities Exchange Act and a member of the NASD. Each such Participating
Insurance Company shall agree to comply with all laws and regulations,
whether federal or state, and whether relating to insurance, securities or
other general areas, including but not limited to the recordkeeping and sales
supervision requirements of such laws and regulations.
Section 4. The Trust's shares are divided into series or Portfolios,
each representing a different portfolio of investments. Each Portfolio is
further divided into Class IA and Class IB shares. The Trust's Portfolios and
any restrictions on availability for Class IB shares relating thereto are set
forth in Schedule A hereto, which may be amended from time to time.
Purchases and redemptions of the Trust's Class IB shares of each
Portfolio shall be at the net asset value therefor, computed as set forth in
the most recent relevant Prospectus and Statement of Additional Information
relating to the Trust's Class IB shares contained in its Registration
2
<PAGE>
Statement on Form N-1A or any amendments thereto (respectively, "Trust
Prospectus" and "SAI"), and any supplements thereto and shall be submitted by
the Participating Insurance Company to the Trust's transfer agent pursuant to
procedures and in accordance with payment provisions adopted by EQ Financial
and the Trust from time to time. The Trust's Class IB shares may not be sold
or transferred, except to an Eligible Separate Account or Qualified Plan,
without the prior approval of the Trust's Board of Trustees.
Section 5. As compensation to EQ Financial for services rendered and
expenses borne as a distributor hereunder, each Portfolio shall pay EQ
Financial a monthly fee (payable on or before the fifth (5th) business day of
the following month) at a rate equal to 0.25% per annum of the average daily
net assets of the Portfolio attributable to Class IB shares with respect to
which EQ Financial provides services and/or assumes expenses under the Class
IB Distribution Plan. EQ Financial may, but need not, pay or charge
Participating Insurance Companies pursuant to Sales Agreements, as described
in Section 2 hereof.
Section 6. The Trust represents to EQ Financial that the Trust
Prospectus and SAI, as of their respective effective dates, contain (or will
contain) all statements and information which are required to be stated
therein by the Securities Act of 1933, as amended ("Securities Act"), and in
all respects conform to the requirements thereof, and neither the Trust
Prospectus nor the SAI include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that the foregoing
representations shall not apply to information contained in or omitted from
the Trust Prospectus and SAI in reliance upon, and in conformity with, written
information furnished by EQ Financial specifically for use in the preparation
thereof.
In this connection, EQ Financial acknowledges that the day-to-day
operations of the Trust, including without limitation, investment management,
securities brokerage allocation, cash control, accounting, recordkeeping and
other administrative, marketing and regulatory compliance functions, are
carried on and may in the future be carried on by The Equitable Life Assurance
Society of the United States ("Equitable"), affiliates of Equitable, and other
parties unaffiliated with Equitable on behalf of the Trust (collectively, the
"Preparing Parties"), under various agreements and arrangements, and that such
activities in large measure provide the basis upon which statements and
information are included or omitted from the Trust Prospectus and SAI. EQ
Financial further acknowledges that because of the foregoing arrangements, the
preparation of the Trust Prospectus and SAI is substantially in the control of
the Preparing Parties, subject to the broad supervisory authority and
responsibility of the Trust's Board of Trustees, and that, essentially, the
only Trust Prospectus or SAI information not independently known to, or
prepared by, the Preparing Parties is personal information as to each
Trustee's full name, age, background, business experience and other personal
information that may require disclosures under securities laws and for which
the Preparing Parties necessarily must rely on each such Trustee to produce.
Section 7. The Trust will periodically prepare Prospectuses (and, if
applicable, SAIs) and any supplements thereto, proxy materials and semi-annual
reports (collectively, the "Documents")
3
<PAGE>
and shall, in accordance with the form of Participation Agreement, provide
sufficient copies of such Documents or shall make camera ready copy available
to EQ Financial for reproduction by EQ Financial or the Participating
Insurance Companies. To the extent that the foregoing Documents are with
respect to Class IB shares, the cost of preparing, printing, mailing and
otherwise distributing such Documents will be at the expense of such Class IB
shares with respect to prospective owners of Variable Products. In addition,
with respect to Documents provided to existing owners of Variable Products,
the cost of preparing, printing, mailing and otherwise distributing such
Documents shall be borne by the Trust. The Trust will use its best efforts to
provide notice to EQ Financial of anticipated filings or supplements. EQ
Financial or the Participating Insurance Companies may alter the form of some
or all of the Documents, with the prior approval of the Trust's officers and
legal counsel. Any preparation costs associated with altering the form of the
Documents will be borne by EQ Financial or the Participating Insurance
Companies, not the Trust.
Section 8. EQ Financial and officers of the Trust may, from time to
time, authorize descriptions of the Trust for use in sales literature or
advertising by the Participating Insurance Companies (including brochures,
letters, illustrations and other similar materials, whether transmitted
directly to potential applicants or published in print or audio-visual media),
which authorization will not be unreasonably withheld or delayed.
Section 9. EQ Financial shall furnish to the Trust, at least
quarterly, reports as to the sales of the Trust's Class IB shares made
pursuant to this Agreement. These reports may be combined with any similar
report prepared by EQ Financial or any of the Preparing Parties.
Section 10. EQ Financial shall submit to all regulatory and
administrative bodies having jurisdiction over the operations of EQ Financial,
the Trust, or any Participating Insurance Company, 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.
Section 11. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Exchange Act and the 1933 Act and the
rules, regulations, and rulings thereunder and of the NASD, from time to time
in effect, including such exemptions 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, (a) the term "assigned" shall not include any
transaction exempted from section 15(b)(2) of the Investment Company Act and
(b) the vote of the persons having voting rights in respect of the Trust
referred to in Section 12 shall be the affirmative votes of the lesser of (i)
the holders of more than 50% of all votes in respect of Class IB shares
entitled to be cast in respect of the Trust or (ii) the holders of at least
67% of the votes in respect of Class IB shares which are present at a meeting
of such persons if the holders of more than 50% of all votes in respect of
Class IB shares entitled to be cast in respect of the Trust are present or
represented by proxy at such meeting, in either case voted in accordance with
the provisions contained in the form of Participation Agreement or any
policies on conflicts adopted by the Board of Trustees.
4
<PAGE>
Section 12. This Agreement shall continue in effect only so long as
such continuance is specifically approved at least annually by a majority of
the Trustees of the Trust who are not interested persons of the Trust or EQ
Financial and who have no direct or indirect financial interest in the
distribution plan pursuant to which this Agreement has been authorized (or any
agreement thereunder) (the "Independent Trustees") by (a) persons having
voting rights in respect of the Trust, by the vote stated in Section 11, voted
in accordance with the provisions contained in the form of Participation
Agreement or any policies on conflicts adopted by the Board of Trustees, or
(b) the Board of Trustees of the Trust. This Agreement may be terminated at
any time, without penalty, by a majority of the Independent Trustees or by
persons having voting rights in respect of the Trust by the vote stated in
Section 11.
Section 13. This Agreement shall terminate automatically if it shall
be assigned.
Section 14. The Trust shall indemnify and hold harmless EQ Financial
from any and all losses, claims, damages or liabilities (or actions in respect
thereof) to which EQ Financial 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 the
Trust or its officers, trustees, agents or representatives, other than acts or
omissions caused directly or indirectly by EQ Financial.
EQ Financial will indemnify and hold harmless the Trust, its
officers, trustees, agents and representatives against any losses, claims,
damages or liabilities, to which the Trust its officers, trustees, agents and
representatives may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Trust Prospectus and/or SAI or any supplements thereto; (ii)
the omission or alleged omission to state any material fact required to be
stated in the Trust Prospectus and/or SAI or any supplements thereto or
necessary to make the statements therein not misleading; or (iii) other
misconduct or negligence of EQ Financial in its capacity as a principal
underwriter of the Trust's Class IB shares and will reimburse the Trust, its
officers, Trustees, agents and representatives for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that EQ Financial shall not be liable in any such instance 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 supplement in
good faith reliance upon and in conformity with written information furnished
by the Preparing Parties specifically for use in the preparation of the Trust
Prospectus and/or SAI.
Section 15. A copy of the Amended and Restated Agreement and
Declaration of Trust of the Trust is on file with the Secretary of State of
Delaware and notice is given hereby that this Agreement is executed on behalf
of the Trustees of the Trust as trustees and not individually, and that the
obligations of or arising out of this Agreement are not binding upon any of
the Trustees or
5
<PAGE>
shareholders individually but are binding only upon the assets and property
of each Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EQ ADVISORS TRUST
By: /s/
------------------------------------
Peter D. Noris
President and Trustee
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
------------------------------------
Michael S. Martin
Chairman of the Board and
Chief Executive Officer
6
<PAGE>
SCHEDULE A
Portfolios of
EQ Advisors Trust
-----------------
T. Rowe Price International Stock Portfolio
T. Rowe Price Equity Income Portfolio
EQ/Putnam Growth & Income Value Portfolio
EQ/Putnam International Equity Portfolio
EQ/Putnam Investors Growth Portfolio
EQ/Putnam Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Morgan Stanley Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Merrill Lynch World Strategy Portfolio
Merrill Lynch Basic Value Equity Portfolio
7
<PAGE>
EXHIBIT 6(c)
DISTRIBUTION AGREEMENT
CLASS IA SHARES
EQUITABLE DISTRIBUTORS, INC.
AGREEMENT, dated as of April 14, 1997 by and between EQ Advisors
Trust (the "Trust") and Equitable Distributors, Inc. ("EDI").
W I T N E S S E T H:
WHEREAS, the Trust is a Delaware business trust whose shareholders
are and will be separate accounts in unit investment trust form ("Eligible
Separate Accounts") of insurance companies ("Participating Insurance
Companies"); and
WHEREAS, such Participating Insurance Companies issue, among other
products, variable insurance and annuity products ("Variable Products") whose
net premiums, contributions or other considerations may be allocated to
Eligible Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's Class IA shares will not be sold except in
connection with such Variable Products or directly to tax-qualified pension
and retirement plans ("Qualified Plans") outside the separate account context;
and
WHEREAS, the Trust desires that EDI undertake marketing activities
with respect to the Class IA Shares of the Trust's constituent series or
investment portfolios ("Portfolios") Portfolios; and
WHEREAS, the Trust is registered as an open-end investment company
under the Investment Company Act of 1940 ("Investment Company Act"); and
WHEREAS, the Investment Company Act prohibits any principal
underwriter for a registered open-end management investment company from
offering for sale, selling, or delivering after sale any security of which
such company is the issuer, except pursuant to a written contract with such
investment company, and EDI will be a distributor for sale of the Class IA
shares issued by the Trust; and
WHEREAS, EDI is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended, ("Securities Exchange Act") and is a member
of the National Association of Securities Dealers, Inc. ("NASD").
NOW THEREFORE, the Trust and EDI agree as follows:
Section 1. The Trust has adopted a form of Participation Agreement,
which was approved by the Board of Trustees of the Trust. This Agreement shall
be subject to the provisions of the form of Participation Agreement, the terms
of which are incorporated herein by reference, made a part hereof and
controlling. The form of Participation Agreement may be amended or superseded,
without prior notice, and this Agreement shall be deemed amended to the extent
the form of Participation Agreement is amended or superseded. EDI represents
and warrants that it will act in
<PAGE>
a manner consistent with such form of Participation Agreement as it is
currently set forth and as it may be amended or superseded, so long as EDI
serves as the principal underwriter of the Class IA shares and Class IB shares
of the Trust (collectively, "Shares").
Section 2. EDI is hereby authorized, from time to time, to enter into
separate written agreements ("Sales Agreements" or, individually, a "Sales
Agreement"), on terms and conditions not inconsistent with this Agreement,
with Participating Insurance Companies which have Eligible Separate Accounts
and which agree to participate in the distribution of the Trust's Class IA
shares, directly or through affiliated broker dealers by means of distribution
of Variable Products and to use their best efforts to solicit applications for
Variable Products. EDI may not enter into any Sales Agreement with any
Participating Insurance Company that is more favorable than that maintained
with any other Participating Insurance Company and Eligible Separate Account,
except that not all Portfolios of the Trust need be made available for
investment by all Participating Insurance Companies, Eligible Separate
Accounts or Variable Products. The Board of Trustees of the Trust may, in its
sole discretion, determine that certain Portfolios and classes of shares of
the Trust shall be available only to certain types of Variable Products or to
a single Participating Insurance Company and its affiliates.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly
and appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company
shall, when required by law, be both registered as a broker-dealer under the
Securities Exchange Act and a member of the NASD. Each such Participating
Insurance Company shall agree to comply with all laws and regulations, whether
federal or state, and whether relating to insurance, securities or other
general areas, including but not limited to the recordkeeping and sales
supervision requirements of such laws and regulations.
Section 4. The Trust's shares are divided into series or Portfolios,
each representing a different portfolio of investments. Each Portfolio is
further divided into Class IA and Class IB shares. The Trust's Portfolios and
any restrictions on availability for Class IA shares relating thereto are set
forth in Schedule A hereto, which may be amended from time to time.
Purchases and redemptions of the Trust's Class IA shares of each
Portfolio shall be at the net asset value therefor, computed as set forth in
the most recent relevant Prospectus and Statement of Additional Information
relating to the Trust's Class IA contained in its Registration Statement on
Form N-1A, or any amendments thereto (respectively, "Trust Prospectus" and
"SAI"), and any supplements thereto and shall be submitted by the
Participating Insurance Company to the Trust's transfer agent pursuant to
procedures and in accordance with payment provisions adopted by EDI and the
Trust from time to time. The Trust's Class IA shares may not be sold or
transferred, except to an Eligible Separate Account or Qualified Plan, without
the prior approval of the Trust's Board of Trustees.
Section 5. The Trust shall not pay any compensation to EDI for
services as a distributor
-2-
<PAGE>
hereunder, nor shall the Trust reimburse EDI for any expenses related to such
services. EDI may, but need not, pay or charge Participating Insurance
Companies pursuant to Sales Agreements, as described in Section 2 hereof.
Section 6. The Trust represents to EDI that the Trust Prospectus and
SAI, as of their respective effective dates, contain all statements and
information which are required to be stated therein by the Securities Act of
1933, as amended ("Securities Act"), and in all respects conform to the
requirements thereof, and neither the Trust Prospectus nor the SAI include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the foregoing representations shall not
apply to information contained in or omitted from the Trust Prospectus and SAI
in reliance upon, and in conformity with, written information furnished by EDI
specifically for use in the preparation thereof.
In this connection, EDI acknowledges that the day-to-day operations
of the Trust, including without limitation, investment management, securities
brokerage allocation, cash control, accounting, recordkeeping and other
administrative, marketing and regulatory compliance functions, are carried on
and may in the future be carried on by The Equitable Life Assurance Society of
the United States ("Equitable"), affiliates of Equitable, and other parties
unaffiliated with Equitable on behalf of the Trust (collectively, the
"Preparing Parties"), under various agreements and arrangements, and that such
activities in large measure provide the basis upon which statements and
information are included or omitted from the Trust Prospectus and SAI. EDI
further acknowledges that because of the foregoing arrangements, the
preparation of the Trust Prospectus and SAI is substantially in the control of
the Preparing Parties, subject to the broad supervisory authority and
responsibility of the Trust's Board of Trustees, and that, essentially, the
only Trust Prospectus or SAI information not independently known to, or
prepared by, the Preparing Parties is personal information as to each
Trustee's full name, age, background, business experience and other personal
information that may require disclosures under securities laws and for which
the Preparing Parties necessarily must rely on each such Trustee to produce.
Section 7. The Trust will periodically prepare Prospectuses (and, if
applicable, SAIs) and any supplements thereto, proxy materials and annual and
semi-annual reports (collectively, the "Documents") and shall, in accordance
with the form of Participation Agreement, provide sufficient copies of such
Documents or shall make camera ready copy available to EDI for reproduction by
EDI or the Participating Insurance Companies. With respect to Documents
provided to existing owners of Variable Products, the cost of preparing,
printing, mailing or otherwise distributing such Documents shall be borne by
the Trust. With respect to the Trust's Class IA shares, the Trust shall not
pay the cost of printing, mailing or otherwise distributing such Documents
except as specified in this Section 7. The Trust will use its best efforts to
provide notice to EDI of anticipated filings or supplements. EDI or the
Participating Insurance Companies may alter the form of some or all of the
Documents, with the prior approval of the Trust's officers and legal counsel.
Any preparation costs associated with altering the form of the Documents will
be borne by EDI or the Participating Insurance Companies, not the Trust.
Section 8. EDI and officers of the Trust may, from time to time,
authorize descriptions of
-3-
<PAGE>
the Trust for use in sales literature or advertising by the Participating
Insurance Companies (including brochures, letters, illustrations and other
similar materials, whether transmitted directly to potential applicants or
published in print or audio-visual media), which authorization will not be
unreasonably withheld or delayed.
Section 9. EDI shall furnish to the Trust, at least quarterly,
reports as to the sales of Trust's Class IA shares made pursuant to this
Agreement. These reports may be combined with any similar report prepared by
EDI or any of the Preparing Parties.
Section 10. EDI shall submit to all regulatory and administrative
bodies having jurisdiction over the operations of EDI, the Trust, or any
Participating Insurance Company, 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.
Section 11. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Exchange Act and the Securities Act and
the rules, regulations, and rulings thereunder and of the NASD, from time to
time in effect, including such exemptions 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, (a) the term "assigned" shall not
include any transaction exempted from section 15(b)(2) of the Investment
Company Act and (b) the vote of the persons having voting rights in respect of
the Trust referred to in Section 12 shall be the affirmative votes of the
lesser of (i) the holders of more than 50% of all votes in respect of Class IA
shares entitled to be cast in respect of the Trust or (ii) the holders of at
least 67% of the votes in respect of Class IA shares which are present at a
meeting of such persons if the holders of more than 50% of all votes in
respect of Class IA shares entitled to be cast in respect of the Trust are
present or represented by proxy at such meeting, in either case voted in
accordance with the provisions contained in the form of Participation
Agreement or any policies on conflicts adopted by the Trust's Board of
Trustees.
Section 12. This Agreement shall continue in effect only so long as
such continuance is specifically approved at least annually by a majority of
the Trustees of the Trust who are not interested persons of the Trust or EDI
("Independent Trustees") and by (a) persons having voting rights in respect of
the Trust, by the vote stated in Section 11, voted in accordance with the
provisions contained in the form of Participation Agreement or any policies on
conflicts adopted by the Board of Trustees of the Trust, or (b) the Board of
Trustees of the Trust. This Agreement may be terminated at any time, without
penalty, by a majority of the Independent Trustees or by persons having voting
rights in respect of the Trust by the vote stated in Section 11.
Section 13. This Agreement shall terminate automatically if it shall
be assigned.
Section 14. The Trust shall indemnify and hold harmless EDI from any
and all losses, claims, damages or liabilities (or actions in respect thereof)
to which EDI 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 the Trust
or its officers, trustees, agents or representatives, other than acts or
omissions caused directly or indirectly by
-4-
<PAGE>
EDI.
EDI will indemnify and hold harmless the Trust, its officers,
trustees, agents and representatives against any losses, claims, damages or
liabilities, to which the Trust its officers, trustees, agents and
representatives may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Trust Prospectus and/or SAI or any supplements thereto; (ii)
the omission or alleged omission to state any material fact required to be
stated in the Trust Prospectus and/or SAI or any supplements thereto or
necessary to make the statements therein not misleading; or (iii) other
misconduct or negligence of EDI in its capacity as a principal underwriter of
the Trust's Class IA shares and will reimburse the Trust, its officers,
Trustees, agents and representatives for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that EDI shall not be liable in any such instance 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 supplement in good faith
reliance upon and in conformity with written information furnished by the
Preparing Parties specifically for use in the preparation of the Trust
Prospectus and/or SAI.
Section 15. A copy of the Amended and Restated Agreement and
Declaration of Trust of the Trust is on file with the Secretary of State of
Delaware and notice is given hereby that this Agreement is executed on behalf
of the trustees of the Trust as trustees and not individually, and that the
obligations of or arising out of this Agreement are not binding upon any of
the trustees or shareholders individually but are binding only upon the assets
and property of each Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EQ ADVISORS TRUST
By: /s/
-----------------------------------
Peter D. Noris
President and Trustee
EQUITABLE DISTRIBUTORS, INC.
By: /s/
-----------------------------------
Jerome S. Golden
Chairman of the Board
-5-
<PAGE>
SCHEDULE A
Portfolios of
EQ Advisors Trust
-----------------
T. Rowe Price International Stock Portfolio
T. Rowe Price Equity Income Portfolio
EQ/Putnam Growth & Income Value Portfolio
EQ/Putnam International Equity Portfolio
EQ/Putnam Investors Growth Portfolio
EQ/Putnam Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Morgan Stanley Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Merrill Lynch World Strategy Portfolio
Merrill Lynch Basic Value Equity Portfolio
-6-
<PAGE>
EXHIBIT 6(d)
DISTRIBUTION AGREEMENT
CLASS IB SHARES
EQUITABLE DISTRIBUTORS, INC.
AGREEMENT, dated as of April 14, 1997 by and between EQ Advisors
Trust (the "Trust") and Equitable Distributors, Inc. ("EDI").
W I T N E S S E T H:
WHEREAS, the Trust is a Delaware business trust whose shareholders
are and will be separate accounts in unit investment trust form ("Eligible
Separate Accounts") of insurance companies ("Participating Insurance
Companies"); and
WHEREAS, such Participating Insurance Companies issue, among other
products, variable insurance and annuity products ("Variable Products") whose
net premiums, contributions or other consideration may be allocated to
Eligible Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's Class IB shares will not be sold except in
connection with such Variable Products or directly to tax-qualified pension
and retirement plans ("Qualified Plans") outside the separate account context;
and
WHEREAS, the Trust has adopted a Distribution Plan with respect to
its Class IB shares pursuant to Rule 12b-1 under the Investment Company Act of
1940, as amended ("Investment Company Act"); and
WHEREAS, the Trust desires that EDI undertake marketing activities
with respect to the Class IB shares of the Trust's constituent series or
investment portfolios ("Portfolios") and to compensate EDI for services
rendered and expenses borne in connection therewith; and
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act; and
WHEREAS, the Investment Company Act prohibits any principal
underwriter for a registered open-end management investment company from
offering for sale, selling, or delivering after sale any security of which
such investment company is the issuer, except pursuant to a written contract
with such investment company, and EDI will be a distributor for sale of the
Class IB shares issued by the Trust; and
WHEREAS, EDI is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended, ("Securities Exchange Act"), and is a member
of the National Association of Securities Dealers., Inc. ("NASD").
NOW THEREFORE, the Trust and EDI agree as follows:
<PAGE>
Section 1. The Trust has adopted a form of Participation Agreement,
which was approved by the Board of Trustees of the Trust. This Agreement shall
be subject to the provisions of the form of Participation Agreement, the terms
of which are incorporated herein by reference, made a part hereof and
controlling. The form of Participation Agreement may be amended or superseded,
without prior notice, and this Agreement shall be deemed amended to the extent
the form of Participation Agreement is amended or superseded. EDI represents
and warrants that it will act in a manner consistent with the form of
Participation Agreement as it is currently set forth and as it may be amended
or superseded, so long as EDI serves as the principal underwriter of the Class
IA shares and Class IB shares of the Trust (collectively, the "Shares").
Section 2. EDI on behalf of the Trust is hereby authorized, from time
to time, to enter into separate written agreements ("Sales Agreements" or,
individually, a "Sales Agreement"), on terms and conditions not inconsistent
with this Agreement, with Participating Insurance Companies that have Eligible
Separate Accounts and that agree to participate in the distribution of the
Trust's Class IB shares, directly or through their affiliated broker-dealers,
by means of the distribution of Variable Products and to use their best
efforts to solicit applications for Variable Products. EDI may not enter into
any Sales Agreement with any Participating Insurance Company that is more
favorable than that maintained with any other Participating Insurance Company
and Eligible Separate Account, except that not all Portfolios of the Trust
need be made available for investment by all Participating Insurance
Companies, Eligible Separate Accounts or Variable Products. The Board of
Trustees of the Trust may, in its sole discretion, determine that certain
Portfolios and classes of shares of the Trust shall be available only to
certain types of Variable Products or to a single Participating Insurance
Company and its affiliates.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly
and appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company
shall, when required by law, be both registered as a broker-dealer under the
Securities Exchange Act and a member of the NASD. Each such Participating
Insurance Company shall agree to comply with all laws and regulations,
whether federal or state, and whether relating to insurance, securities or
other general areas, including but not limited to the recordkeeping and sales
supervision requirements of such laws and regulations.
Section 4. The Trust's shares are divided into series or Portfolios,
each representing a different portfolio of investments. Each Portfolio is
further divided into Class IA and Class IB shares. The Trust's Portfolios and
any restrictions on availability for Class IB shares relating thereto are set
forth in Schedule A hereto, which may be amended from time to time.
Purchases and redemptions of the Trust's Class IB shares of each
Portfolio shall be at the net asset value therefor, computed as set forth in
the most recent relevant Prospectus and Statement of Additional Information
relating to the Trust's Class IB shares contained in its Registration
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<PAGE>
Statement on Form N-1A or any amendments thereto (respectively, "Trust
Prospectus" and "SAI"), and any supplements thereto and shall be submitted by
the Participating Insurance Company to the Trust's transfer agent pursuant to
procedures and in accordance with payment provisions adopted by EDI and the
Trust from time to time. The Trust's Class IB shares may not be sold or
transferred, except to an Eligible Separate Account or Qualified Plan, without
the prior approval of the Trust's Board of Trustees.
Section 5. As compensation to EDI for services rendered and expenses
borne as a distributor hereunder, each Portfolio shall pay EDI a monthly fee
(payable on or before the fifth (5th) business day of the following month) at
a rate equal to 0.25% per annum of the average daily net assets of the
Portfolio attributable to Class IB shares with respect to which EDI provides
services and/or assumes expenses under the Class IB Distribution Plan. EDI
may, but need not, pay or charge Participating Insurance Companies pursuant to
Sales Agreements, as described in Section 2 hereof.
Section 6. The Trust represents to EDI that the Trust Prospectus and
SAI, as of their respective effective dates, contain (or will contain) all
statements and information which are required to be stated therein by the
Securities Act of 1933, as amended ("Securities Act"), and in all respects
conform to the requirements thereof, and neither the Trust Prospectus nor the
SAI include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the foregoing
representations shall not apply to information contained in or omitted from
the Trust Prospectus and SAI in reliance upon, and in conformity with, written
information furnished by EDI specifically for use in the preparation thereof.
In this connection, EDI acknowledges that the day-to-day operations
of the Trust, including without limitation, investment management, securities
brokerage allocation, cash control, accounting, recordkeeping and other
administrative, marketing and regulatory compliance functions, are carried on
and may in the future be carried on by The Equitable Life Assurance Society of
the United States ("Equitable"), affiliates of Equitable, and other parties
unaffiliated with Equitable on behalf of the Trust (collectively, the
"Preparing Parties"), under various agreements and arrangements, and that such
activities in large measure provide the basis upon which statements and
information are included or omitted from the Trust Prospectus and SAI. EDI
further acknowledges that because of the foregoing arrangements, the
preparation of the Trust Prospectus and SAI is substantially in the control of
the Preparing Parties, subject to the broad supervisory authority and
responsibility of the Trust's Board of Trustees, and that, essentially, the
only Trust Prospectus or SAI information not independently known to, or
prepared by, the Preparing Parties is personal information as to each
Trustee's full name, age, background, business experience and other personal
information that may require disclosures under securities laws and for which
the Preparing Parties necessarily must rely on each such Trustee to produce.
Section 7. The Trust will periodically prepare Prospectuses (and, if
applicable, SAIs) and any supplements thereto, proxy materials and semi-annual
reports (collectively, the "Documents")
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<PAGE>
and shall, in accordance with the form of Participation Agreement, provide
sufficient copies of such Documents or shall make camera ready copy available
to EDI for reproduction by EDI or the Participating Insurance Companies. To
the extent that the foregoing Documents are with respect to Class IB shares,
the cost of preparing, printing, mailing and otherwise distributing such
Documents will be at the expense of such Class IB shares with respect to
prospective owners of Variable Products. In addition, with respect to
Documents provided to existing owners of Variable Products, the cost of
preparing, printing, mailing and otherwise distributing such Documents shall
be borne by the Trust. The Trust will use its best efforts to provide notice
to EDI of anticipated filings or supplements. EDI or the Participating
Insurance Companies may alter the form of some or all of the Documents, with
the prior approval of the Trust's officers and legal counsel. Any preparation
costs associated with altering the form of the Documents will be borne by EDI
or the Participating Insurance Companies, not the Trust.
Section 8. EDI and officers of the Trust may, from time to time,
authorize descriptions of the Trust for use in sales literature or advertising
by the Participating Insurance Companies (including brochures, letters,
illustrations and other similar materials, whether transmitted directly to
potential applicants or published in print or audio-visual media), which
authorization will not be unreasonably withheld or delayed.
Section 9. EDI shall furnish to the Trust, at least quarterly,
reports as to the sales of the Trust's Class IB shares made pursuant to this
Agreement. These reports may be combined with any similar report prepared by
EDI or any of the Preparing Parties.
Section 10. EDI shall submit to all regulatory and administrative
bodies having jurisdiction over the operations of EDI, the Trust, or any
Participating Insurance Company, 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.
Section 11. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Exchange Act and the 1933 Act and the
rules, regulations, and rulings thereunder and of the NASD, from time to time
in effect, including such exemptions 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, (a) the term "assigned" shall not include any
transaction exempted from section 15(b)(2) of the Investment Company Act and
(b) the vote of the persons having voting rights in respect of the Trust
referred to in Section 12 shall be the affirmative votes of the lesser of (i)
the holders of more than 50% of all votes in respect of Class IB shares
entitled to be cast in respect of the Trust or (ii) the holders of at least
67% of the votes in respect of Class IB shares which are present at a meeting
of such persons if the holders of more than 50% of all votes in respect of
Class IB shares entitled to be cast in respect of the Trust are present or
represented by proxy at such meeting, in either case voted in accordance with
the provisions contained in the form of Participation Agreement or any
policies on conflicts adopted by the Board of Trustees.
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<PAGE>
Section 12. This Agreement shall continue in effect only so long as
such continuance is specifically approved at least annually by a majority of
the Trustees of the Trust who are not interested persons of the Trust or EDI
and who have no direct or indirect financial interest in the distribution plan
pursuant to which this Agreement has been authorized (or any agreement
thereunder) (the "Independent Trustees") by (a) persons having voting rights
in respect of the Trust, by the vote stated in Section 11, voted in accordance
with the provisions contained in the form of Participation Agreement or any
policies on conflicts adopted by the Board of Trustees, or (b) the
Board of Trustees of the Trust. This Agreement may be terminated at any time,
without penalty, by a majority of the Independent Trustees or by persons
having voting rights in respect of the Trust by the vote stated in Section 11.
Section 13. This Agreement shall terminate automatically if it shall
be assigned.
Section 14. The Trust shall indemnify and hold harmless EDI from any
and all losses, claims, damages or liabilities (or actions in respect thereof)
to which EDI 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 the Trust
or its officers, trustees, agents or representatives, other than acts or
omissions caused directly or indirectly by EDI.
EDI will indemnify and hold harmless the Trust, its officers,
trustees, agents and representatives against any losses, claims, damages or
liabilities, to which the Trust its officers, trustees, agents and
representatives may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Trust Prospectus and/or SAI or any supplements thereto; (ii)
the omission or alleged omission to state any material fact required to be
stated in the Trust Prospectus and/or SAI or any supplements thereto or
necessary to make the statements therein not misleading; or (iii) other
misconduct or negligence of EDI in its capacity as a principal underwriter of
the Trust's Class IB shares and will reimburse the Trust, its officers,
Trustees, agents and representatives for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that EDI shall not be liable in any such instance 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 supplement in good faith
reliance upon and in conformity with written information furnished by the
Preparing Parties specifically for use in the preparation of the Trust
Prospectus and/or SAI.
Section 15. A copy of the Amended and Restated Agreement and
Declaration of Trust of the Trust is on file with the Secretary of State of
Delaware and notice is given hereby that this Agreement is executed on behalf
of the Trustees of the Trust as trustees and not individually, and that the
obligations of or arising out of this Agreement are not binding upon any of
the Trustees or shareholders individually but are binding only upon the assets
and property of each Portfolio.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EQ ADVISORS TRUST
By: /s/
------------------------------
Peter D. Noris
President and Trustee
EQUITABLE DISTRIBUTORS, INC.
By: /s/
------------------------------
Jerome S. Golden
Chairman of the Board
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<PAGE>
SCHEDULE A
Portfolios of
EQ Advisors Trust
T. Rowe Price International Stock Portfolio
T. Rowe Price Equity Income Portfolio
EQ/Putnam Growth & Income Value Portfolio
EQ/Putnam International Equity Portfolio
EQ/Putnam Investors Growth Portfolio
EQ/Putnam Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Morgan Stanley Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Merrill Lynch World Strategy Portfolio
Merrill Lynch Basic Value Equity Portfolio
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<PAGE>
[INST/FIN]
DOMESTIC CUSTODY AGREEMENT
To: THE CHASE MANHATTAN BANK
Institutional Client Services
4 New York Plaza, 4th Floor
New York, New York 10004
Gentlemen:
We hereby request you to open and to maintain a separate Custody
Account in the name of EQ Advisors Trust (the "Trust"), a company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), on
behalf of each of the Trust's Portfolios designated in Appendix A. We further
request that you hold therein as our custodian, upon the following terms and
conditions all stocks, bonds, rights, warrants and other negotiable and
non-negotiable paper issued in certificated or book-entry form and commonly
treated or dealt with on securities exchanges or securities markets as shall be
received by or on instructions and acceptable to you for the Custody Account
(hereinafter referred to as "securities"). As used herein, the term Custody
Account shall include all such Custody Accounts opened pursuant to this
Domestic Custody Agreement (the "Agreement").
Securities held by you for the Custody Account shall be segregated at
all times from your proprietary assets, and on your records segregated from the
assets of any other account holder for which you serve as custodian or in any
other capacity.
1. TRANSACTIONS. Unless you receive contrary written instructions from
us, and subject to the provisions of this Agreement you are authorized and
instructed:
(a) to collect on a timely basis and/or receive all income, dividends
and other payments payable on the securities to which the Portfolios are
entitled either by law or pursuant to custom in the securities business,
and (except as hereinafter set forth in the section entitled
"Miscellaneous") to credit such payments to the demand deposit cash account
of the appropriate Portfolio as designated by us to receive all sums
collected in respect of transactions to the Custody Account (each such
account a "Cash Account");
(b) to credit all proceeds received from sales and redemptions of
securities to the Cash Account:
(c) to debit the Cash Account for the price (instructed by us) to
acquire securities for the Custody Account;
<PAGE>
(d) to present obligations (including coupons) for payment upon
maturity, when called for redemption and when income payments are due;
(e) to exchange securities for other securities where the exchange is
purely ministerial as, for example, the exchange of securities in temporary
form for securities in definitive form or the mandatory exchange of
certificates;
(f) to sell fractional interests resulting from a stock split or a
stock dividend and to credit the Cash Account with the proceeds thereof;
(g) to execute in our name, whenever you deem it appropriate, such
ownership and other certificates as may be required to obtain payments with
respect to, or to effect the sale, transfer or other disposition of,
securities in the Custody Account and to guarantee as our signature the
signature so affixed;
(h) to receive and hold in the Custody Account securities which have
transfer limitations imposed upon them by the Securities Act of 1933, as
amended; and
(i) to convert moneys received with respect to securities of foreign
issue into United States dollars whenever it is practical to do so through
customary banking channels. In effecting such conversion you may use any
method or agency available to you, including the facilities of your own
divisions, subsidiaries or affiliates. To the extent you act in good faith
in accordance with accepted industry practices for banks providing similar
services, you shall incur no liability on account of any loss suffered or
expense incurred as a result of such conversion, including, without
limitation, losses arising from fluctuations in exchange rates affecting
any such conversion.
2. INSTRUCTIONS. You are authorized to rely and act upon all written
instructions given or purported to be given by one or more officers, employees
or agents of ours (i) authorized by or in accordance with a corporate
resolution of ours delivered to you or (ii) described as authorized in a
certificate delivered to you by our Secretary or an Assistant Secretary or
similar officer of ours (each such officer, employee or agent or combination of
officers, employees and agents authorized pursuant to clause (i) or described
pursuant to clause (ii) of this paragraph is hereinafter referred to as an
"Authorized Officer"). (The term "instructions" includes, without limitation,
instructions to sell, assign, transfer, deliver, purchase or receive for the
Custody Account, any and all stocks, bonds and other securities or to transfer
funds in the Cash Account. Instructions must set forth the specific transaction
or type of transaction involved, including a statement of the purpose for which
the action is requested, and may be a blanket instruction authorizing specific
transactions of a routine nature or occurring repeatedly. We shall be solely
responsible to assure that instructions are in accord with any limitations or
restrictions applicable to us by law or as may be set forth in our prospectus.)
You may also rely and act upon instructions when bearing or purporting to bear
the facsimile signature of any of the individuals designated by an Authorized
Officer if such facsimile signature or signatures resemble(s) the facsimile
specimen or specimens from time to time furnished to you by any of such
Authorized
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<PAGE>
Officers, our Secretary or an Assistant Secretary or similar officer of ours
in writing, addressed to you, indicating that the signatures are those
belonging to persons authorized to give instructions with respect to the
Portfolios. In addition, you may rely and act upon instructions received by
telephone, telex, TWX, facsimile transmission, bank wire or other teleprocess
or electronic instruction or trade information system acceptable to both you
and us which you believe in good faith to have been given by an Authorized
Officer or which are transmitted with proper testing or authentication
pursuant to terms and conditions agreed by both of us. You may also rely and
act upon instructions transmitted electronically through your TITAN Data Entry
System, or any similar electronic instruction system acceptable to both of us.
You shall incur no liability to us or otherwise as a result of any act or
omission by you in accordance with instructions on which you are authorized to
rely pursuant to the provisions of this paragraph. Any instructions delivered
to you by telephone shall promptly thereafter be confirmed in writing by an
Authorized Officer, but you shall incur no liability for our failure to send
such confirmation in writing, the failure of any such written confirmation to
conform to the telephone instructions which you received, the failure of any
such written confirmation to be signed or properly signed, or your failure to
produce such confirmation at any subsequent time. You shall incur no liability
for refraining from acting upon any instructions which for any reason you, in
good faith, are unable to verify to your own satisfaction. You shall notify us
promptly of any discrepancies between oral and written instructions, the lack
of a valid signature, and with respect to instructions you choose not to
follow. With respect to instructions received hereunder to transfer funds from
the Cash Account to any other account or party, we agree to implement any
callback or other authentication method or procedure or security device to
which we together agree from time to time. Unless otherwise expressly
provided, blanket instructions authorizing specific transactions of a routine
nature or occurring repeatedly shall continue in full force and effect until
canceled or superseded by subsequent authorizations or instructions received
by your safekeeping account administrator with reasonable opportunity to act
thereon. Your authorization to rely and act upon instructions pursuant to this
paragraph shall be in addition to, and shall not limit, any other
authorization which we may give you regarding our accounts with you.
We agree that, if you require test arrangements, authentication
methods or procedures or other security devices to be used with respect to
instructions which we may give hereunder, thereafter instructions given by us
shall be given and processed in accordance with terms and conditions for the
use of such arrangements, methods or procedures or devices as you and we
together put into effect and modify from time to time. We shall take reasonable
steps to safeguard any test keys, identification codes or other security
devices which you make available to us and agree that we shall be responsible
for any loss, liability or damage incurred by you or by us as a result of your
acting in accordance with instructions from any unauthorized person using the
proper security device; except that we will not be responsible for your actions
where you knew that the instructions were given by an unauthorized person and
you failed to take any action. Both of us may electronically record any
instructions given by telephone, and any other telephone discussions with
respect to the Custody Account or transactions pursuant to this Agreement.
If you are instructed by us to purchase or sell securities for the
Custody Account you may enter purchase and sale orders and confirmations, and
perform any other acts incidental
-3-
<PAGE>
or necessary to the performance thereof with brokers or dealers or similar
agents selected by you, including any broker or dealer or similar agent
affiliated with you, for our account, and in accordance with accepted industry
practices in the relevant market.
Except as may be provided otherwise herein or prohibited by law or
regulatory interpretation applicable to you, you are authorized to execute our
instructions and take other actions pursuant to this Agreement in accordance
with your customary processing practices for customers similar to us and, in
accordance with such practices, you may retain agents, including subsidiaries
or affiliates of yours, to perform certain of such functions.
In acting upon instructions to deliver securities against payment, you
are authorized, to the extent you deem the practice under the circumstances to
be in accordance with customary securities processing practices, to deliver
such securities to the purchaser thereof or dealer therefor (including to an
agent for any such purchaser or dealer) against a receipt, with the expectation
of collecting payment from the purchaser, dealer or agent to whom the
securities were so delivered before the close of business on the same day.
3. REGISTRATION. Unless you receive contrary instructions from us, you
are authorized to keep securities in your own vaults or in book entry form
registered in the name of the Portfolio or in the name of one or more of your
nominees assigned to the Portfolio, or in the name of any agent or subcustodian
appointed pursuant to the terms of this Agreement. Where securities are
eligible for deposit in a Depository (hereinafter defined), such as The
Depository Trust Company, the Federal Reserve Bank of New York or Participants
Trust Company, you may use any such Depository and permit the registration of
registered securities in the name of its nominee or nominees, and we agree to
hold you and the nominees harmless from any liability as holders of record. We
shall accept the return or delivery of securities of the same class and
denomination as those deposited with you by us or otherwise received by you for
the Custody Account, and you need not retain the particular certificates so
deposited or received.
If any of our securities registered in your name or the name of your
nominee or held in a Depository and registered in the name of the Depository's
nominee are called for partial redemption by the issuer of such securities, you
are authorized to allot the called portion to the respective beneficial holders
of the securities in any manner deemed to be fair and equitable in your sole
discretion.
4. SEGREGATED ACCOUNT. You will, upon receipt of instructions from us,
establish and maintain a segregated account or accounts on your records for and
on behalf of each Portfolio, into which may be credited cash and/or securities:
(a) in accordance with the provisions of any agreement among the
Trust, the Custodian and a broker-dealer (registered under the Securities
Exchange Act of 1934 ("Exchange Act") and a member of the National
Association of Securities Dealers, Inc. ("NASD"), or any futures commission
merchant registered under the Commodity Exchange Act, relating to
compliance with the rules of the Options Clearing Corporation
-4-
<PAGE>
and of any registered national securities exchange (or the Commodity
Futures Trading Commission or any registered contract market), or of any
similar organization, regarding escrow or other arrangements in connection
with the transactions by a Portfolio;
(b) for purposes of segregating cash or government securities in
connection with options purchased or sold or written by a Portfolio;
(c) for the purpose of compliance by the Trust with the procedures
required by 1940 Act Release No. 10,666, or any subsequent release, rule or
policy of the Securities and Exchange Commission ("SEC") relating to the
maintenance of segregated accounts by registered investment companies; and
(d) for other proper corporate purposes, but only in the case of this
clause upon receipt of, in addition to instructions as defined below, a
certified copy of a resolution of the Board of Trustees setting forth the
purpose of such segregated account and declaring such purposes to be proper
corporate purposes.
5. STATEMENTS. You shall notify us of each securities transaction
effected for the Custody Account and of income on and redemptions of the
securities in the Custody Account, as well as furnish us a listing of such
securities, at such times upon which you and we mutually agree. Periodic
statements shall be rendered to us as we may reasonably require, but not less
frequently than monthly. You shall at all times maintain proper books and
records that shall identify the securities as belonging to the appropriate
Portfolio. Your books and records relating to the Custody Account shall be
available for inspection upon reasonable notice to you during your regular
business hours by duly authorized officers, employees, or agents of ours, or by
legally authorized regulatory officials who are then in the process of
reviewing our financial affairs upon proof to you of such official status. You
agree to use reasonable efforts to maintain records sufficient to enable us to
determine and verify information concerning the custodied securities. You agree
to furnish, upon our request or the request of any regulatory authority of any
jurisdiction in which we are authorized to do business, a verification
certificate in sufficient detail to permit adequate identification of the
securities belonging to each Portfolio and held by you under the terms of this
Agreement. Such certificate shall be signed by a responsible official of yours
and furnished to the requestor, with a copy to us if the requestor is a
regulatory authority.
Unless we shall send to you a written exception or objection to any
statement of account within 60 days of our receipt of such statement from you,
we shall be deemed to have approved such statement. In such event, or where we
have otherwise approved such statement, you shall, to the extent permitted by
law, be released, relieved and discharged with respect to all matters set forth
in such statement or reasonably implied therefrom; provided, however, that any
matter that could not reasonably have been known by us or our agents during the
60-day period shall survive past that time limit, and we shall have available
to us all legal remedies with respect to any matter set forth in or reasonably
implied from the statement.
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<PAGE>
6. CORPORATE ACTIONS. You shall send us such proxies (signed in blank,
if issued in your name or the name of your nominee or a nominee of a
Depository) and communications with respect to securities in the Custody
Account as call for voting or relate to legal proceedings within a reasonable
time after sufficient copies are received by you for forwarding to customers.
In addition, you shall follow coupon payments, redemptions, exchanges or
similar matters with respect to securities in the Custody Account and advise us
of rights issued, tender offers or any other discretionary rights with respect
to such securities, in each case, of which you receive notice at your central
corporate actions department from the issuer or from the Depository in which
such securities are held or notice published in publications and reported in
reporting services routinely used by you for this purpose. If we desire to take
action with respect to any tender offer, exchange offer or any other similar
transaction, we will notify you at least three (3) business days prior to the
time such action must be taken under the terms of the transaction, and it will
be your responsibility to transmit the notice to the appropriate parties on a
timely basis. If we do not notify you of our desired action within the three
(3) business day period, you will use your reasonable best efforts to transmit
on a timely basis our notice to the appropriate person, but you will not be
liable for any failure to do so if such transmission was not practicable.
7. CUSTODIAN RESPONSIBILITY. Except as provided in the next following
paragraph, you shall be obligated to indemnify us for any loss of securities
credited to the Custody Account resulting from (i) the negligence or willful
misconduct of you or your officers, employees or agents retained by you to hold
such securities or (ii) the burglary, robbery, hold-up, theft or mysterious
disappearance, including loss by damage or destruction. In the event of a loss
of securities in the Custody Account for which you are required to indemnify us
pursuant to the immediately preceding sentence, at your option, you shall
promptly replace such securities (by among other means posting appropriate
security or bond with the issuer(s) of such securities and obtaining their
reissue) or the value thereof (determined based upon the market value of the
securities which are the subject of such loss as of the date of the discovery
of such loss) and the value of any loss of rights or privileges resulting from
the loss of such securities. The foregoing indemnity shall be your exclusive
liability to us for your loss of securities from the Custody Account. You shall
be responsible for exercising good faith and reasonable care as a professional
custodian for securities in carrying out your duties and obligations under this
Agreement. In respect of all your other duties and obligations pursuant to the
terms of this Agreement, you shall be liable to us only to the extent of our
general damages suffered or incurred as a result of any act or omission of you
or your officers, employees or agents which constitutes negligence or willful
misconduct. General damages shall mean only those damages as directly and
necessarily result from such act or omission without reference to any special
conditions or circumstances of ours or of any transaction, whether or not you
have been advised of any such special conditions or circumstances. Anything in
this Agreement to the contrary notwithstanding, in no event shall you be liable
to us under this Agreement for special, indirect or consequential loss or
damage of any kind whatsoever, whether or not you are advised as to the
possibility of such loss or damage and regardless of the form of action in
which any such loss or damage may be claimed.
It is our understanding that you maintain Bankers' Blanket Bond
insurance which includes fidelity insurance for your employees and loss of
property through any dishonest act of
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your employees, and loss through robbery, burglary, theft or mysterious
disappearance while on your premises or while in transit in the custody of
your employees. We understand it is your present intention to maintain such
insurance in respect of your activities as a securities custodian. Upon our
request, you shall have your Insurance Department provide to us a description
of the fidelity and other insurance coverage you maintain for your benefit in
respect of the assets you hold in custody for others.
You shall not be liable for the acts or omissions of (or the
bankruptcy or insolvency of) any Depository. If, however, as a result of any
act or omission of, or the bankruptcy or insolvency of, any Depository we
suffer any loss or liability, you will take such steps with respect thereto in
order to effect a recovery as you shall reasonably deem appropriate under the
circumstances (including the bringing and settling of legal proceedings),
provided that unless you shall be liable as set forth in the immediately
preceding paragraph of this Agreement, for such loss or liability by virtue of
the negligence or misconduct of you or your officers, employees or agents, the
amount of any cost or expense in effecting, or attempting to effect, such
recovery shall be for our account, and you shall have the right to charge such
cost or expense to the Cash Account. We further agree to be bound by the
Depository rules and procedures applicable to you as a participant in respect
of any securities held by you in your account with such Depository.
"Depository" shall mean a federal reserve bank and any "clearing corporation"
as defined under Article 8 of the New York Uniform Commercial Code, as amended
from time to time.
All collection and receipt of funds or securities and all payment and
delivery of funds or securities under this Agreement shall be made by you as
our agent, at our risk with respect to our actions or omissions and those of
persons other than you, including, without limitation, the risk associated with
the securities processing practice of delivering securities against a receipt
and the risk that the counterparty in any transaction into which we enter will
not transfer funds or securities or otherwise perform in accordance with our
expectation of its obligations thereunder (including, without limitation,
where, as a result of such non-performance, a Depository reverses, or requires
repayment of, any credit given in connection with the transfer of securities).
You will perform all your duties in a timely manner. What constitutes
timeliness in connection with a particular action will be determined by the
standards of the industry in the relevant market as they apply to the specific
type of transaction in question and taking into account relevant facts and
circumstances.
In no event shall you be responsible or liable for any loss due to
forces beyond your control, including, but not limited to, acts of God, flood,
fire, nuclear fusion, fission or radiation, war (declared or undeclared),
terrorism, insurrection, revolution, riot, strikes or work stoppages for any
reason, embargo, closure or disruption of any market, government action,
including any laws, ordinances, regulations or the like which restrict or
prohibit the providing of the services contemplated by this Agreement,
inability to obtain equipment or communications facilities, or the error in
transmission of information caused by any machines or systems or the
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failure of equipment or interruption of communications facilities, and other
causes whether or not of the same class or kind as specifically named above.
In the event that you are unable substantially to perform for any of the
reasons described in the immediately preceding sentence, you shall so notify
us as soon as reasonably practicable.
You shall be responsible for only those duties expressly stated in
this Agreement or expressly contained in instructions to perform the services
described herein given to you pursuant to the provisions of this Agreement and
accepted by you and. without limiting the foregoing, you shall have no duty or
responsibility:
(a) to supervise the investment of, or make recommendations with
respect to the purchase, retention or sale of, securities relating to the
Custody Account or to maintain any insurance on securities in the Custody
Account for our benefit;
(b) with regard to any security in the Custody Account as to which a
default in the payment of principal or interest has occurred, to give
notice of default, make demand for payment or take any other action with
respect to such default;
(c) except as otherwise specifically provided in this section under
the heading "Custodian Responsibility", for any act or omission, or for the
solvency or insolvency, or notice to us of the solvency or insolvency, of
any broker or agent which is selected by you with reasonable care or by us
or any other person to effect any transaction for the Custody Account or to
perform any service under this Agreement;
(d) to evaluate, or report to us regarding, the financial condition of
any person, firm or corporation to which you deliver securities or funds
pursuant to this Agreement:
(e) for any loss occasioned by delay in the actual receipt of notice
by you of any payment, redemption or other transaction in respect to which
you are authorized to take some action pursuant to this agreement; or
(f) for any errors or omissions made by any securities pricing service
used by you to value securities credited to the Custody Account as part of
any service subscribed to by us from you.
8. SETTLEMENTS. We agree with you that all credits of securities and
proceeds by you to the Custody Account and the Cash Account, respectively, on
the settlement or payable date shall be provisional when made and you shall be
entitled to reverse any such credits subject to actual receipt or collection of
immediately available funds.
We shall have sufficient immediately available funds each day in the
Cash Account to pay for the settlement of all securities delivered against
payment to you and credited to the Custody Account. Should we fail to have
sufficient immediately available funds in the Cash Account to settle these
deliveries of securities pursuant to the preceding sentence (a "Deficit"),
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you, in your sole discretion, may elect (i) to reject the settlement of any or
all of the securities delivered to you that day to the Custody Account, (ii)
to settle the deliveries on our behalf and debit the Cash Account (A) for the
amount of such Deficit and (B) for the amount of the funding or other cost or
expense incurred or sustained by you for our failure to have sufficient
immediately available funds in the Cash Account by the applicable settlement
deadline for you, or (iii) to reverse the posting of the securities credited
to the Custody Account.
You shall have the right to reverse any erroneous or provisional
credit entries to the Cash Account retroactively to the date upon which the
correct entry, or no entry, should have been made.
The foregoing rights are in addition to and not in limitation of any
other rights or remedies available to you under this Agreement or otherwise.
Any advances made by you to us in connection with the purchase, sale,
redemption, transfer or other designation of securities or in connection with
disbursements of funds to any party, which create or result in an overdraft in
the Cash Account shall be payable on demand, and bear interest on the amount of
the advance each day that the advance remains unpaid at your prime rate in
effect as announced by you from time to time, plus the cost to you of any
required reserves. We shall also bear the cost of any Federal Reserve Bank
daylight overdraft charge incurred by you and allocated to transactions
effected for the Custody Account or the Cash Account.
No prior action or course of dealing on your part with respect to the
settlement of securities transactions on our behalf shall be used by or give
rise to any claim or action by us against you for your refusal to pay or settle
for a securities transaction we have not timely funded as required herein.
9. RESPONSIBLE AS PRINCIPAL. We agree that we shall be responsible to
you as a principal for all of our obligations to you arising under or in
connection with this Agreement, notwithstanding that we may be acting on behalf
of other persons, and we warrant our authority to deposit in the Custody
Account and Cash Account, respectively, any securities and funds which you or
your agents receive therefor and to give instructions relative thereto. We
further agree that you shall not be subject to, nor shall your rights and
obligations with respect to this Agreement and the Custody Account or the Cash
Account be affected by, any agreement between us and any such person.
10. CREDITING AND DEBITING PROCEDURES. With respect to all
transactions for the Custody Account and the Cash Account, including, without
limitation, dividend and interest payments and sales and redemptions of
securities, availability of funds credited to the Custody Account and Cash
Account shall be based on the type of funds used in the trade settlement or
payment, including, but not limited to, same day availability for federal or
same day funds and next business day availability for clearing house or next
day funds. Furthermore, with respect to all purchases and sales of securities
for the Custody Account, the proceeds from the sale of securities shall be
credited to the Cash Account on the date proceeds are received by you and the
cost of securities purchased shall be debited to the Cash Account on the date
securities are
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received by you, unless we request your contractual settlement service for the
Custody Account in which case the following provisions shall apply with
respect to the delivery and receipt of securities for the Custody Account for
those securities and transactions as to which you customarily offer this
service.
(a) When we instruct you to deliver or receive securities, on the
contractual settlement date you shall credit the Cash Account with the expected
proceeds of the transaction and debit the Custody Account for the securities
which we have instructed you to deliver, in the case of deliveries, and debit
the Cash Account for the cost of the securities which we have instructed you to
receive and credit the Custody Account with such securities, in the case of
receives. These credits and debits are provisional accounting entries which you
shall reverse on our instructions and which you may reverse, even in the
absence of instructions from us, if the transaction with respect to which they
were made fails to settle within a reasonable period, determined by you in your
discretion, after the contractual settlement date, but only upon prior or
simultaneous notice to us. If you deliver securities which are returned by the
recipient thereof, you may reverse such credits and debits at any time. You
have no obligation to use this crediting and debiting procedure with respect to
a delivery of securities if we do not have actually in our account sufficient
securities to make the delivery.
(b) As with other transactions processed by you, your responsibility
with respect to transactions for which you use this crediting and debiting
procedure shall be governed by the provisions of this Custody Agreement,
including the section headed "Custodian Responsibility". We agree that your
using this procedure is not an assurance by you that the transaction will
actually settle on the contractual settlement date and does not impose any
additional responsibility on you with respect to the transaction. Without
limiting your right to reverse credits and debits described above, the account
statements which you furnish to us shall reflect transactions as to which you
use this procedure as if they had actually settled on the contractual
settlement date, unless prior to the date to which the statement relates, you
have reversed such credits and debits.
(c) We agree that you may terminate this contractual settlement
service to us at any time and for any reason.
With respect to securities or transactions as to which you do not
customarily offer this service, you shall (i) in the case of deliveries of
securities, credit the proceeds of the transaction to the Cash Account on the
date they are received by you and debit the securities from the Custody Account
on the date they are delivered by you, and (ii) in the case of securities
received, debit the Cash Account for the cost of such securities and credit the
Custody Account with such securities on the date the securities are received by
you.
11. SWEEP OF CASH BALANCES. When directed by us, you are authorized to
arrange for the investment of cash in the Cash Account in mutual funds
(including, without limitation, the VISTA Money Market Funds and any other
mutual fund with respect to which you or an affiliate or subsidiary of yours
serves as an investment adviser, administrator, shareholder servicing agent,
and/or custodian or subcustodian) or money market accounts (including, without
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limitation, accounts of yours or an affiliate or subsidiary of yours)
which you make available for such purposes and which we shall select through
instructions to you. Further, in this regard and in the absence of
prohibitions or contrary instructions, you are authorized to arrange for the
redemption of such mutual fund shares or for the withdrawal of amounts from
such money market accounts as may be necessary to avoid any potential
overdraft hereunder that you perceive based upon the information available to
you at the time of such redemption or withdrawal.
12. OTHER ACCOUNTS. From time to time we may instruct you to open and
maintain additional Custody Accounts for us. Unless we and you otherwise
expressly agree, such accounts will be governed by the provisions of this
Agreement.
13. FEES, INDEMNIFICATION. We agree to pay you compensation for your
services pursuant to this Agreement at the fees that are mutually agreed to
from time to time. We also agree to hold you and your officers, employees and
agents harmless from, and to indemnify and reimburse you and them for, all
claims, liabilities, losses, damages and expenses (including out-of-pocket and
incidental expenses and legal fees) incurred by you or them in connection with
or relating to the Custody Account or your acting under this Agreement,
provided that you or they, as the case may be, have not acted with negligence
or willful misconduct with respect to the events resulting in such claims,
liabilities, losses, damages or expenses.
14. SECURITY INTEREST. To the extent you have advanced funds on our
behalf in connection with the settlement of purchases and sales of securities
for the Custody Account you shall have a security interest in the securities
which are the subject of such purchases and sales until we shall have repaid
the amount of such advance to you, and your security interest in such
securities shall be released upon our repayment of such advance to you.
Except as otherwise provided in this Agreement, the securities and
other assets held by you for a Portfolio will be subject to no lien or charge
of any kind in your favor or in the favor of any person claiming through you,
but nothing in this Agreement will be deemed to deprive you of your right to
invoke any and all remedies available at law or equity to called amounts due to
you under this Agreement. Neither you nor your agents have any power or
authority to assign, hypothecate, pledge or otherwise dispose of any securities
held by you for a Portfolio except at our direction duly given or provided in
this Agreement, and only for the account of the Portfolio.
15. TAXES. Unless we have already done so, we shall deliver promptly
to you with respect to each Custody Account established under this Agreement,
two duly completed and executed copies of United States Internal Revenue
Service form Form W-9 as we are a U.S. citizen or resident person. We agree to
provide duly executed and completed updates of such form after the occurrence
of an event requiring a change in the form previously delivered by us to you.
We shall be responsible for all taxes relating to the property held in the
Custody Account.
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16. TERMINATION. Either party may terminate this Agreement at any time
upon thirty days written notice. Our obligations pursuant to the paragraphs
under the headings "Registration", "Settlements" and "Fees and Indemnification"
shall survive the termination of this Agreement, to the extent the survival of
those provisions does not violate any applicable law.
17. NOTICES. Notices with respect to termination, specification of
Authorized Officers and terms and conditions for instructions required
hereunder shall be in writing, and shall be deemed to have been duly given if
delivered personally, by courier service or by mail, postage prepaid, to the
following addresses (or to such other address as either party hereto may from
time to time designate by notice duly given in accordance with this paragraph):
To us at: EQ Advisors Trust
c/o Equitable Life Assurance Society
1290 Avenue of the Americas
New York, New York 10104
Attention: Peter Noris, President
Copies to: Mary Breen, Counsel
(to same address as above)
Jane A. Kanter
Katten Muchin & Zavis
East Lobby, Suite 700
1025 Thomas Jefferson Street, N.W.
Wasington, D.C. 20007-5201
To you, to the attention of the individual designated by you as the
safekeeping account administrator for our account, at:
The Chase Manhattan Bank
North American Insurance Securities Services
3 Chase MetroTech Center, 6th Floor
Brooklyn, New York 11245
18. CONFIDENTIALITY. You agree to treat as confidential all record and
other information relating to us and the Portfolios. You agree to keep such
information confidential except when requested to divulge such information by
duly constituted authorities, or when so requested by us.
19. GOVERNING LAW, SUCCESSORS AND ASSIGNS, HEADINGS. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to laws as to conflicts of laws, and shall be binding
on our and your respective successors
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and assigns. We and you hereby irrevocably submit to the exclusive jurisdiction
of the state and federal courts in the State and County of New York for the
purposes of any suit, action or other proceedings arising out of this
Agreement. We and you hereby irrevocably waive any objection on the ground of
venue, forum non convenient, or any similar grounds, and irrevocably consent to
service of process by mail or in any manner permitted by New York law. The
headings of the paragraphs hereof are included for convenience of reference
only and do not form a part of this Agreement.
20. INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with the
operation of this Agreement, you and we may from time to time agree on such
provisions interpretive of or in addition to the provision of this Agreement as
may in our joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions will be in a writing
signed by both of us and will be annexed to this Agreement.
21. DELAWARE BUSINESS TRUST. With respect to the Trust, which is a
party to this Agreement and which is organized as a business trust under the
Delaware Business Trust Act, the term Trust means and refers to the Trustees
serving under the applicable Trust Instrument. It is expressly understood that
the obligations of the Trust under this Agreement will not be binding on any of
the Trustees, Portfolio shareholders, nominees, officers, agents or employees
of the Trust personally, but bind only the property of the Trust's Portfolios.
22. PRIOR PROPOSALS. This Agreement (including any Riders relating to
additional services in respect of the Custody Account we may request of you)
shall contain the complete agreement of the parties hereto with respect to the
Custody Account (except as may be expressly provided to the contrary herein)
and supersedes and replaces any previously made proposals, representations,
warranties or agreements with respect thereto by either or both of the parties
hereto. This Agreement shall become effective upon execution hereof by us and
acceptance by you or as of the effective date of the Trust or its commencement
of operations, as we mutually agree.
23. SEPARABILITY. Any provisions of this Agreement which may be
determined by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
24. RESERVATION OF RIGHT. You shall have the right not to accept for
deposit to the Custody Account any securities which are in a form or condition
which you, in your sole discretion, determine not to be suitable for the
services you provide under this Agreement.
Your rights and remedies under this Agreement shall be in addition to,
and not in limitation of, any other rights and remedies you may have under
applicable law.
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25. ADDITIONAL DUTIES. If we shall ask you to perform duties or
responsibilities not specifically set forth in this Agreement and you choose to
perform such additional duties or responsibilities, you shall be held to the
same standard of care and you shall be entitled to all the protective
provisions (including but not limited to limitation of liability and
indemnification) set forth herein.
26. COUNTERPARTS. This Agreement may be executed in several
counterparts each of which shall be deemed to be an original and together shall
constitute one and the same agreement.
27. MISCELLANEOUS. We understand that we may request to have a Custody
Account established under this Agreement which is not linked to a Cash Account.
We understand further that with respect to any such Custody Account so
established any funds received by you in respect of transactions for such
Custody Account will be credited to the Custody Account and, further, funds
credited to the Custody Account must be transferred by us by means of
instruction (a "payment order") to one of your account administrators assigned
by you for the Custody Account, which you will identify to us. We agree that
payment orders and communications seeking to cancel or amend payment orders
which are issued by telephone, telecopier or in writing shall be subject to a
mutually agreed security procedure and you may execute or pay payment orders
issued in our name when verified by you in accordance with such procedure.
In executing or paying a payment order you may rely upon the
identifying number (e.g. Fedwire routing number or account) or any party as
instructed in the payment order. We assume full responsibility for any
inconsistency between the name and identifying number of any party in payment
orders issued to you in our name.
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With respect to any Custody Account established under this Agreement
which is not linked to a Cash Account, all references to Cash Account shall be
read to mean Custody Account.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and on its behalf by its duly authorized
representative.
EQ ADVISORS TRUST
By: /s/
-------------------------------
Title:
----------------------------
Date:
-----------------------------
THE CHASE MANHATTAN BANK
By: /s/
-------------------------------
Title:
----------------------------
Date:
-----------------------------
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APPENDIX A
Portfolios of
EQ Advisors Trust
T. Rowe Price International Stock Portfolio
T. Rowe Price Equity Income Portfolio
EQ/Putnam Growth & Income Value Portfolio
EQ/Putnam International Equity Portfolio
EQ/Putnam Investors Growth Portfolio
EQ/Putnam Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Morgan Stanley Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Merrill Lynch World Strategy Portfolio
Merrill Lynch Basic Value Equity Portfolio
<PAGE>
GLOBAL CUSTODY RIDER
TO
DOMESTIC CUSTODY AGREEMENT
FOR
MUTUAL FUNDS
We hereby request you, THE CHASE MANHATTAN BANK, to provide to us and
the Portfolios Global Custody Services subject to the terms of our Domestic
Custody Agreement with you, and the terms herein. If there is any conflict
between the terms in our Domestic Custody Agreement and the terms in this Rider
with regard to your providing Global Custody Services to us, the terms of this
Rider shall govern. The terms of this Rider shall be effective as of the date
you commence to provide Global Custody Services to us.
1. Maintenance of Securities and Cash Outside the United States.
Unless our instructions specifically require another location
acceptable to you and permitted under applicable law:
(a) securities shall be held in the country or other jurisdiction in
which the principal trading market for such securities are located, where
such securities are to be presented for payment or where such securities
are acquired; and
(b) cash shall be credited to an account in a country or other
jurisdiction in which such cash may be legally deposited or is the legal
currency for the payment of public or private debts.
Cash may be held pursuant to instructions in either interest or
non-interest bearing accounts as may be available for the particular currency.
To the extent you can comply with our instructions to you, you are authorized
to maintain cash balances on deposit for us with you or one of your
"Affiliates" at such reasonable rates of interest as may from time to time be
paid on such accounts, or in non-interest bearing accounts as we may direct, if
acceptable to you. For purposes hereof, the term "Affiliate" shall mean an
entity controlling, controlled by, or under common control with, you.
If we wish to have any of the securities held in the custody of an
institution other than the established Subcustodians as defined in Section 2
hereof (or their securities depositories), such arrangement must be authorized
by a written agreement, signed by you and us.
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2. Subcustodians and Depositories.
You may act under this Rider through the subcustodians listed in
Schedule A hereto with which you have entered into subcustodial agreements
("Subcustodians"). We authorize you to hold securities recorded to the Custody
Account in accounts which you have established with one or more of your
branches or Subcustodians. You and Subcustodians are authorized to hold any of
the securities in your accounts with any Depository in which you or they
participate.
You may add new, replace or remove Subcustodians. We shall be given
reasonable notice by you of any amendment to Schedule A. Upon our request, you
shall identify the name, address and principal place of business of any
Subcustodian of our securities and the name and address of the governmental
agency or other regulatory authority that supervises or regulates such
Subcustodian.
With respect to securities maintained outside the United States, the
terms Subcustodian and securities depositories as used herein shall mean a
branch of a qualified U.S. bank, an eligible foreign custodian or an eligible
foreign securities depository as those terms are defined in Securities and
Exchange Commission ("SEC") Rule 17f-5 under the 1940 Act.
We represent that our Board of Directors has approved each of the
Subcustodians listed in Schedule A hereto and the terms of the subcustody
agreements between you and each Subcustodian, which are attached as Schedule A,
and further represent that our Board has determined that the use of each
Subcustodian and the terms of each subcustody agreement are consistent with the
best interests of the Trust, the relevant Portfolios and their shareholders (to
the extent such approvals are required under the 1940 Act and the relevant SEC
rules thereunder). You shall supply us with any proposed amendment to Schedule
A, but you shall not place Trust assets with proposed Subcustodians until you
have received from us evidence of a certified resolution representing Board
approval of such amendment, as required. We have supplied or shall supply you
with certified copies of our Board of Trustees resolutions with respect to the
foregoing prior to your placing* securities with any Subcustodian so approved.
3. Use of Subcustodian.
(a) You shall identify the securities on your books as belonging to
us.
(b) A Subcustodian shall hold the Portfolios' securities in accounts
identified on such Subcustodian's books as for your exclusive benefit as our
agent.
(c) Any securities in the accounts held by a Subcustodian shall be
subject only to the instruction of you or your agent. Any securities held in a
Depository for the account of a Subcustodian shall be subject only to the
directions of such Subcustodian.
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(d) Any agreement you enter into with a Subcustodian for holding your
customers' assets shall provide that (i) such assets shall not be subject to
any right, charge, security interest, lien or claim of any kind in favor of
such Subcustodian except for safe custody or administration; (ii) the
beneficial ownership of such assets shall be freely transferable without the
payment of money or value other than for safe custody or administration; (iii)
your officers or auditors employed by you, or other representative of yours,
including, to the extent permitted under applicable law, our independent public
accounts, will be given access to the books and records of the Subcustodian
relating to its actions under its agreements with you; and (iv) our assets held
by the Subcustodian will be subject only to your instructions or the
instructions of your agent. Where securities are deposited by a Subcustodian
with a securities depository, you shall cause the Subcustodian to identify on
its books as belonging to you, as agent, the securities shown on the
Subcustodian's account on the books of such securities depository. The
foregoing shall not apply to the extent of any special agreement or arrangement
made by us with any particular Subcustodian.
(e) As long as SEC Rule 17f-5 or the 1981 Chase SEC Order requires the
Board of Directors/Trustees of a registered investment company directly to
approve its foreign custody arrangements, you shall furnish annually to us
information concerning Subcustodians similar in kind and scope as that
furnished to us in connection with the initial approval hereof. You shall
timely advise us of any material adverse change in the facts or circumstances
upon which such information is based where such changes would affect the
eligibility of the Subcustodian under Rule 17f-5 as soon as practicable after
you becomes aware of any such material adverse change in the normal course of
you custodial activities.
4. Global Securities Account Transactions.
(a) Securities shall be transferred, exchanged or delivered by you or
Subcustodian upon receipt by you of instructions which include all information
required by you. Settlement and payment for securities received for, and
delivery of securities out of, the Custody Account may be made in accordance
with the customary or established securities trading or securities processing
practices and procedures in the jurisdiction or market in which the transaction
occurs, including, without limitation, delivery of securities to a purchaser,
dealer or their agents against a receipt with the expectation of receiving
later payment and free delivery. Delivery of securities out of the Custody
Account may be made in any manner specifically required by our instructions
acceptable to you.
All collections of funds or other property paid or distributed in
respect of securities in the Custody Account shall be made at our risk. You
shall have no liability for any loss occasioned by delay in the actual receipt
of notice by you or by Subcustodians of any payment, redemption or other
transaction regarding securities in the Custody Account in respect of which you
have agreed to take any action under the Agreement.
5. Corporate Actions; Proxies; Tax Reclaims.
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(a) Corporate Actions. Whenever you receive information concerning the
securities which requires discretionary action by the beneficial owner of the
securities (other than a proxy), such as subscription rights, bonus issues,
stock repurchase plans and rights offerings, or legal notices or other material
intended to be transmitted to securities holders ("Corporate Actions"), you
shall give us notice of such Corporate Actions to the extent that your central
corporate actions department has actual knowledge of a Corporate Action in time
to notify your customers.
When a rights entitlement or a fractional interest resulting from a
rights issue, stock dividend, stock split or similar Corporate Action is
received which bears an expiration date, you shall endeavor to obtain
instructions from us or an Authorized Officer, but if instructions are not
received in time for you to take timely action, or actual notice of such
Corporate Action was received too late to seek instructions, you are authorized
to sell such rights entitlement or fractional interest and to credit the Cash
Account with the proceeds or take any other action you deem, in good faith, to
be appropriate in which case you shall be held harmless for any such action.
(b) Proxy Voting. You shall provide proxy voting services, if elected
by us, in accordance with the terms of the Proxy Voting Services Rider hereto.
Proxy voting services may be provided by you or, in whole or in part, by one or
more third parties appointed by you (which may be your Affiliates); provided
that you shall be liable for the performance of any such third party to the
same extent as you would have been if you performed such services yourself.
(c) Tax Reclaims.
(i) Subject to the provisions hereof, you shall apply for a reduction
of withholding tax and any refund of any tax paid or tax credits which
apply in each applicable market in respect of income payments on securities
for our benefit which you believe may be available to us.
(ii) The provision of tax reclaim services by you is conditional upon
your receiving from us or to the extent beneficially owned by others, the
beneficial owners, of securities (A) a declaration of its identity and
place of residence and (B) certain other documentation (pro forma copies of
which are available from you). We acknowledge that, if you do not receive
such declarations, documentation and information, additional United Kingdom
taxation shall be deducted from all income received in respect of
securities issued outside the United Kingdom and that U.S. non-resident
alien tax or U.S. backup withholding tax shall be deducted from U.S. source
income. We shall provide to you such documentation and information as you
may require in connection with taxation, and warrant that, when given, this
information shall be true and correct in every respect, not misleading in
any way, and contain all material information. We undertake to notify you
immediately if any such information requires updating or amendment.
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<PAGE>
(iii) You shall not be liable to us or any third party for any taxes,
fines or penalties payable by you or us, and shall be indemnified
accordingly, whether these result from the inaccurate completion of
documents by us or any third party, or as a result of the provision to you
or any third party or inaccurate or misleading information or the
withholding of material information by us or any other third party, or as a
result of any delay of any revenue authority or any other matter beyond
your control.
(iv) We confirm that you are authorized to deduct from any cash
received or credited to the Cash Account any taxes or levies required by
any revenue or governmental authority for whatever reason in respect of the
Custody Account.
(v) You shall perform tax reclaim services only with respect to
taxation levied by the revenue authorities of the countries notified to us
from time to time and you may, by notification in writing, at your absolute
discretion, supplement or amend the markets in which the tax reclaim
services are offered. Other than as expressly provided in this sub-clause,
you shall have no responsibility with regard to our tax position or status
in any jurisdiction.
(vi) We confirm that you are authorized to disclose any information
requested by any revenue authority or any governmental body in relation to
us or the securities and/or cash held for us.
(vii) Tax reclaim services may be provided by you or, in whole or in
part, by one or more third parties appointed by you (which may be your
Affiliates); provided that you shall be liable for the performance of any
such third party to the same extent as you would have been if you performed
such services yourself.
6. Nominees.
Securities which are ordinarily held in registered form may be
registered in a nominee name of yours, Subcustodian or Depository, as the case
may be. You may without notice to us cause any such securities to cease to be
registered in the name of any such nominee and to be registered in our name. We
agree to hold you, Subcustodian, Depository and your and their respective
nominees harmless from any liability arising directly or indirectly from your
or their status as a mere record holder of securities in the Custody Account.
7. Standard of Care.
(a) Delete the second paragraph under "Custodian Responsibility" and
insert, in lieu thereof, the following:
You shall be liable to us for any loss which shall occur as the result of
the failure of a Subcustodian to exercise reasonable care with respect to
the safekeeping of securities to the same extent that you would be liable
to us if you were holding such securities in New
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<PAGE>
York. In the event of any loss to us by reason of the failure of a
Subcustodian to utilize reasonable care, you shall be liable to us only to
the extent of our direct damages, to be determined based on the market
value of the property which is the subject of the loss at the date of
discovery of such loss and without reference to any special conditions or
circumstances. You shall have no liability whatsoever for any
consequential, special, indirect or speculative loss or damages (including,
but not limited to, lost profits) suffered by us in connection with the
transactions contemplated hereby and the relationship established hereby
even if you have been advised as to the possibility of the same and
regardless of the form of the action. As long as you shall have been in
compliance with your obligations pursuant to Section 3(e) hereof, you shall
not be responsible for the insolvency of any Subcustodian which is not a
branch or Affiliate of yours.
(b) Add the following at the end of the "Custodian Responsibility" section:
i) You shall be entitled to rely, and may act, upon the advice of
counsel (who may be counsel for us) on all matters and shall be without
liability for any action reasonably taken or omitted pursuant to such
advice.
(ii) Without limiting anything else contained in this Section, you
shall not be liable for any loss which results from: 1) the general risk of
investing, or 2) investing or holding securities in a particular country
including, but not limited to, nationalization, expropriation or other
governmental actions; regulation of the banking or securities industry;
currency restrictions, devaluations or fluctuations; and market conditions
which prevent the orderly execution of securities transactions or affect
the value of securities.
(iii) Consistent with and without limiting the remainder hereof, it is
specifically acknowledged that you shall have no duty or responsibility to:
(i) question instructions; (ii) supervise or make recommendations with
respect to investments or the retention of securities; (iii) advise us or
any Authorized Person regarding any default in the payment of principal or
income of any security; (iv) review or reconcile trade confirmations
received from brokers. We shall bear any responsibility to review such
confirmations against instructions issued to and statements issued by you.
(iv) We authorize you to act hereunder (but do not indemnify you or
assume any liabilities you might incur in connection with actions you take
which are found by any regulatory agency or court of law to be improper)
notwithstanding that you or any of your divisions or Affiliates may have a
material interest in a transaction, or circumstances are such that you may
have a potential conflict of duty or interest including the fact that you
or any of your Affiliates may provide brokerage services to other
customers, act as financial advisor to the issuer of securities, act as a
lender to the issuer of securities, act in the same transaction as agent
for more than one customer, have a matenal interest in the issue of
securities, or earn profits from any of the activities listed herein
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<PAGE>
(v) You hereby warrant to us that in your opinion, after due inquiry,
the established procedures to be followed by each of your branches, each
branch of a qualified U.S. Bank, each eligible foreign custodian and each
eligible foreign securities depository holding our securities pursuant
hereto afford protection for such securities at least equal to that
afforded by your established procedures with respect to similar securities
held by you and your securities depositories in New York.
(c) At our election we will be entitled to be subrogated to your
rights with respect to any claims you may have against a Subcustodian as a
consequence of any loss, damage, cost, expense, liability or claim incurred by
us if and to the extent that we have not been made whole by you for any such
loss, damage, expense, liability or claim; it being understood that the
foregoing does not constitute a representation by you that that subrogation
will be permitted by applicable law.
8. Fees and Expenses.
We agree to pay you for Global Custody Services hereunder the fees set
forth in Schedule B hereto or such other amounts as may be agreed upon in
writing together with your reasonable out-of-pocket or incidental expenses,
including, but not limited to, legal fees.
9. Miscellaneous.
(a) Foreign Exchange Transactions. To facilitate the administration of
our trading and investment activity, you are authorized to enter into spot or
forward foreign exchange contracts with us or an Authorized Officer for us and
may also provide foreign exchange through your subsidiaries, Affiliates or
Subcustodians. Instructions including standing instructions, may be issued with
respect to such contracts but you may establish rules or limitations concerning
any foreign exchange facility made available. In all cases where you and your
subsidiaries, Affiliates or Subcustodian and, to the extent not inconsistent,
the Agreement shall apply to such transaction.
(b) Access to Records. You shall allow our independent public
accountants reasonable access to records relating to the Custody Account as is
required in connection with their examination of books and records pertaining
to our affairs. Subject to restrictions under applicable law, you shall also
obtain an undertaking to permit our independent public accountants reasonable
access to the records of any Subcustodian which has physical possession of any
securities as may be required in connection with the examination of our books
and records. Upon our reasonable request, you shall furnish us such reports (or
portions thereof) of your system of internal accounting controls applicable to
your duties hereunder. You shall endeavor to obtain and furnish us with such
similar reports as it may reasonably request with respect to each Subcustodian
and securities depository holding securities.
(c) Representation. By accepting our securities for safekeeping, you
acknowledge that the securities being placed in your custody are subject to the
1940 Act, as the same may be amended from time to time.
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(d) Compliance with Rule 17f-5. Except to the extent that you have
specifically agreed to comply with a condition of a rule, regulation,
interpretation promulgated by or under the authority of the Securities and
Exchange Commission ("SEC") or the Exemptive Order applicable to accounts of
this nature issued to you (1940 Act, Release No. 12053, November 20, 1981), as
amended, or unless you have otherwise specifically agreed, we shall be solely
responsible to assure that the terms of the arrangement for the custody of
securities hereunder complies with such rules, regulations, interpretations or
exemptive order promulgated by or under the authority of the SEC.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and on its behalf by its duly authorized
representative.
EQ ADVISORS TRUST
By: /s/
--------------------------------
Title:
-----------------------------
Date:
------------------------------
THE CHASE MANHATTAN BANK
By: /s/
-------------------------------
Title:
----------------------------
Date:
-----------------------------
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<PAGE>
AMENDMENT, dated April ___, 1997 to the April, 1997 custody agreement
entitled Domestic Custody Agreement ("Agreement"), between EQ Advisors Trust ,
having a place of business at 1290 Avenue of the Americas, New York, New York
10104, and The Chase Manhattan Bank, having a place of business at 270 Park
Ave., New York, N.Y. 10017-2070.
It is hereby agreed as follows:
Section 1. Except as modified hereby, the Agreement is confirmed in
all respects. Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Agreement.
Section 2. The Global Custody Rider ("Rider") to the Agreement is
amended as follows by adding the following as new ss.10:
"Unless the context clearly requires otherwise, the following words
shall have the meanings set forth below when used herein:
"(a) "CMBI" shall mean Chase Manhattan Bank International, an
indirect wholly-owned subsidiary of Bank, located in Moscow, Russia, and any
nominee companies appointed by it.
"(b) "International Financial Institution" shall mean any bank in
the top 1,000 (together with their affiliated companies) as measured by "Tier
1" capital or any broker/dealer in the top 100 as measured by capital.
"(c) "Negligence" shall mean the failure to exercise "Reasonable
Care".
"(d) "No-Action Letter" shall mean the response of the Securities
and Exchange Commission's Office of Chief Counsel of Investment Management,
dated April 18, 1995, in respect of the Templeton Russia Fund, Inc. (SEC Ref.
No. 95-151-CC, File No. 811-8788) providing "no-action" relief under ss.17(f)
of The Investment Company Act of 1940, as amended, and SEC Rule 17f-5
thereunder, in connection with custody of such Templeton Russia Fund, Inc.'s
investments in Russian Securities.
"(e) "Reasonable Care" shall mean the use of reasonable custodial
practices under the applicable circumstances as measured by the custodial
practices then prevailing in Russia of International Financial Institutions
acting as custodians for their institutional investor clients in Russia.
"(f) "Registrar Company" shall mean any entity providing share
registration services to an issuer of Russian Securities.
"(g) "Registrar Contract" shall mean a contract between CMBI and
a Registrar Company (and as the same may be amended from time to time)
containing, inter alia, the contractual provisions described at paragraphs
(a)-(e) on pps. 5-6 of the No-Action Letter.
"(h) "Russian Security" shall mean a Security issued by a Russian
issuer.
"(i) "Share Extract" shall mean: (1) an extract of its share
registration books issued by a Registrar Company indicating an investor's
ownership of a security; and (2) a form prepared by CMBI or its agent in those
cases where a Registrar Company is unwilling to issue a Share Extract.
<PAGE>
Section 3. Section 4(a) of the Rider is amended by adding the
following at the end of the first paragraph thereof: "With respect to Russia,
payment for Russian Securities shall not be made prior to the issuance and
receipt of the Share Extract (as defined in Section 10(i)(1)) relating to such
Russian Security. Delivery of Russian Securities may be made in accordance with
the customary or established securities trading or securities processing
practices and procedures in Russia. Delivery of Russian Securities may also be
made in any manner specifically required by Instructions acceptable to you. We
shall promptly supply such transaction and settlement information as may be
requested by you or CMBI in connection with particular transactions."
Section 4. Section 5 of the Rider is amended by adding a new paragraph
to the end thereof as follows: "It is understood and agreed that you need only
use your reasonable efforts with respect to performing the functions described
in this ss.5 with respect to Russian Securities (except that you shall use
Reasonable Care with respect to your duties to transmit information to us), it
being understood that proxy voting services are not available. To the extent
that you receive proxy materials (whether or not received in a timely fashion),
you will forward the same to us upon request and without translation."
Section 5. Section 7(a) of the Agreement and the Rider are amended
with respect to Russian custody by deleting the phrase "reasonable care"
wherever it appears and substituting, in lieu thereof, the phrase "Reasonable
Care".
Section 6. Section 7(a) of the Rider is amended with respect to
Russian custody by inserting the following at the end of the first sentence
thereof: "; provided that, with respect to Russian Securities, your
responsibilities shall be limited to safekeeping of relevant Share Extracts."
Section 7. Section 7(a) of the Rider is further amended with respect
to Russian custody by inserting the following after the second sentence
thereof: "Delegation by you to CMBI shall not relieve you of any responsibility
to us for any loss due to such delegation, and you shall be liable for any loss
or claim arising out of or in connection with the performance by CMBI of such
delegated duties to the same extent as if you had yourself provided the custody
services hereunder. In connection with the foregoing, neither you nor CMBI
shall assume responsibility for, and neither shall be liable for, any action or
inaction of any Registrar Company and no Registrar Company shall be, or shall
be deemed to be, you, CMBI, a Subcustodian, a securities depository or the
employee, agent or personnel of any of the foregoing. To the extent that CMBI
employs agents to perform any of the functions to be performed by you or CMBI
with respect to Russian Securities, neither you nor CMBI shall be responsible
for any act, omission, default or for the solvency of any such agent unless the
appointment of such agent was made with Negligence or in bad faith, except that
where you or CMBI uses (i) an affiliated nominee or (ii) an agent to perform
the share registration or share confirmation functions described in paragraphs
(a)-(e) on pps. 5-6 of the No-Action Letter, and, to the extent applicable to
CMBI, the share registration functions described on pps. 2-3 of the No-Action
Letter, you and CMBI shall be liable to us as if CMBI were responsible for
performing such services itself."
Section 8. Add a new Section 11 to the Rider as follows:
"(a) You will advise us (and will update such advice from time to
time as changes occur) of those Registrar Companies with which CMBI has entered
into a Registrar Contract. You shall cause CMBI both to monitor each Registrar
Company and to promptly advise us and our investment advisor when CMBI has
actual knowledge of the occurrence of any one or more of the events described
in paragraphs (i)-(v) on pps. 8-9 of the No-Action Letter with respect to a
Registrar Company that serves in that capacity for any issuer the shares of
which are held by us.
<PAGE>
"(b) Where we are considering investing in the Russian Securities
of an issuer as to which CMBI does not have a Registrar Contract with the
issuer's Registrar Company, we may request that you ask that CMBI both consider
whether it would be willing to attempt to enter into such a Registrar Contract
and to advise us of its willingness to do so. Where CMBI has agreed to make
such an attempt, you will advise us of the occurrence of any one or more of the
events described in paragraphs (i)-(iv) on pps. 8-9 of the No-Action Letter of
which CMBI has actual knowledge.
(c) Where we are considering investing in the Russian Securities
of an issuer as to which CMBI has a Registrar Contract with the issuer's
Registrar Company, we may advise you of our interest in investing in such
issuer and, in such event, you will advise us of the occurrence of any one or
more of the events described in paragraphs (i)-(v) on pps. 8-9 of the No-Action
Letter of which CMBI has actual knowledge."
Section 9. Add a new Section 12 to the Rider as follows: "We shall pay
for and hold you and CMBI harmless from any liability or loss resulting from
the imposition or assessment of any taxes (including, but not limited to,
state, stamp and other duties) or other governmental charges, and any related
expenses incurred by you, CMBI or their respective agents with respect to
income on our Russian Securities.
Section 10. Add a new Section 13 to the Rider as follows: "We
acknowledge and agree that CMBI may not be able, in given cases and despite its
reasonable efforts, to obtain a Share Extract from a Registrar Company and CMBI
shall not be liable in any such event including with respect to any losses
resulting from such failure."
Section 11. Add a new Section 14 to the Rider as follows: "We
acknowledge that we have received, reviewed and understands your market report
for Russia, including, but not limited to, the risks described therein."
Section 12. Add a new Section 15 to the Rider as follows: "Subject to
the cooperation of a Registrar Company, for at least the first two years
following CMBI's first use of a Registrar Company, you shall cause CMBI to
conduct share confirmations on at least a quarterly basis, although thereafter
confirmations may be conducted on a less frequent basis if our Board of
Directors, in consultation with CMBI, determines it to be appropriate."
Section 13. Add a new Section 16 to the Rider as follows: "You shall
cause CMBI to prepare for distribution to our Board of Directors a quarterly
report identifying: (i) any concerns it has regarding the Russian share
registration system that should be brought to the attention of the Board of
Directors; and (ii) the steps CMBI has taken during the reporting period to
ensure that our interests continue to be appropriately recorded."
Section 14. Add a new Section 17 to the Rider as follows: "Except as
provided in new ss.11(b), the services to be provided by you hereunder will be
provided only in relation to Russian Securities for which CMBI has entered into
a Registrar Contract with the relevant Registrar Company."
*********************
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
EQ Advisors Trust THE CHASE MANHATTAN BANK
<PAGE>
By: /s/ By: /s/
------------------------------- -------------------------------
Name: Name:
Title: Title:
Date: Date:
<PAGE>
EXHIBIT 9(a)
MUTUAL FUNDS SERVICE AGREEMENT
TRUST ADMINISTRATION AND COMPLIANCE SERVICES
TRUST ACCOUNTING SERVICES
CHASE GLOBAL FUNDS SERVICES COMPANY
APRIL 25, 1997
<PAGE>
MUTUAL FUNDS SERVICE AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
- ------- ----
1. Appointment.............................................................1
2. Representations and Warranties..........................................1
3. Delivery of Documents...................................................2
4. Services Provided.......................................................3
5. Fees and Expenses.......................................................4
6. Limitation of Liability and Indemnification.............................6
7. Term....................................................................7
8. Notices.................................................................7
9. Waiver..................................................................8
10. Force Majeure...........................................................8
11. Amendments..............................................................8
12. Severability............................................................8
13. Governing Law...........................................................9
14. Miscellaneous...........................................................9
15. Confidentiality.........................................................9
16. Signatures..............................................................9
Schedule A - Fees and Expenses.............................................A-1
Schedule B - Trust Administration and Compliance Services Description......B-1
Schedule C - Trust Accounting Services Description.........................C-1
<PAGE>
MUTUAL FUNDS SERVICE AGREEMENT
AGREEMENT made as of April 25, 1997 by and between the EQ ADVISORS
TRUST (the "Trust"), a business trust organized under Delaware law, and CHASE
GLOBAL FUNDS SERVICES COMPANY ("Chase"), a Delaware corporation.
WITNESSETH:
WHEREAS, the Trust is registered as an open-end management investment
company of the series type under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Trust wishes to contract with Chase to provide certain
administrative, accounting and compliance services with respect to the Trust,
including its constituent portfolios (the "Portfolios" and, each, a
"Portfolio");
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints Chase to provide
administrative, accounting and compliance services for the Trust, as described
hereinafter, subject to the supervision of the Board of Trustees of the Trust
(the "Board")and EQ Financial Consultants, Inc., the Trust's manager
("Manager"), for the period and on the terms set forth in this Agreement.
Chase accepts such appointment and agrees to furnish the services herein set
forth in return for the compensation as provided in Section 5 of and Schedule
A to this Agreement.
2. REPRESENTATIONS AND WARRANTIES.
(a) Chase represents and warrants to the Trust that:
(i) Chase is a corporation, duly organized and
existing under the laws of the State of Delaware;
(ii) Chase is duly qualified to carry on its
business in the Commonwealth of Massachusetts in performance of its duties
under this Agreement;
(iii) Chase is empowered under applicable laws and
by its Articles of Incorporation and By-Laws to enter into and perform this
Agreement;
(iv) all requisite corporate proceedings have been
taken to authorize Chase to enter into and perform this Agreement;
(v) Chase has, and will continue to have, access to
the facilities, personnel and equipment required to fully perform its duties
and obligations hereunder;
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(vi) no legal or administrative proceedings have
been instituted or threatened which would impair Chase's ability to perform
its duties and obligations under this Agreement; and
(vii) Chase's entrance into this Agreement shall
not cause a material breach or be in material conflict with any other
agreement or obligation of Chase or any law or regulation applicable to Chase.
(b) The Trust represents and warrants to Chase that:
(i) the Trust is a Delaware business trust, duly
organized and existing and in good standing under the laws of the State of
Delaware;
(ii) the Trust is empowered under applicable laws
and by its Charter Document and By-Laws to enter into and perform this
Agreement;
(iii) all requisite proceedings have been taken to
authorize the Trust to enter into and perform this Agreement;
(iv) the Trust is an investment company properly
registered under the 1940 Act;
(v) a registration statement under the Securities
Act of 1933, as amended ("1933 Act") and the 1940 Act on Form N-1A has been
filed and will be effective and will remain effective during the term of this
Agreement, and all necessary filings under the laws of the states will have
been made and will be current during the term of this Agreement;
(vi) no legal or administrative proceedings have
been instituted or threatened which would impair the Trust's ability to
perform its duties and obligations under this Agreement;
(vii) the Trust's registration statements comply in
all material respects with the 1933 Act and the 1940 Act (including the rules
and regulations thereunder) and none of the Trust's prospectuses and/or
statements of additional information contain any untrue statement of material
fact or omit to state a material fact necessary to make the statements therein
not misleading; and
(viii) the Trust's entrance into this Agreement
shall not cause a material breach or be in material conflict with any other
agreement or obligation of the Trust or any law or regulation applicable to
it.
3. DELIVERY OF DOCUMENTS. The Trust will promptly furnish to
Chase such
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<PAGE>
copies, properly certified or authenticated, of contracts, documents and other
related information, other than confidential documents or information, that
Chase may reasonably request or require to properly discharge its duties. Such
documents may include but are not limited to the following:
(a) Resolutions of the Board authorizing the appointment of
Chase to provide certain services to the Trust and approving this Agreement;
(b) The Trust's Declaration of Trust;
(c) The Trust's By-Laws;
(d) The Trust's Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and Exchange Commission
("SEC");
(e) The Trust's registration statement including exhibits,
as amended, on Form N-1A (the "Registration Statement") under the 1933 Act and
the 1940 Act, as filed with the SEC;
(f) Copies of the Investment Management Agreement between
the Trust and the Manager (the "Management Agreement");
(g) Copies of each of the Investment Advisory Agreements
between the Manager and the investment advisers;
(h) Opinions of counsel and auditors' reports;
(i) The Trust's prospectus(es) and statement(s) of
additional information relating to all trusts, series, portfolios and classes,
as applicable, and all amendments and supplements thereto (such prospectus(es)
and statement(s) of additional information and supplements thereto, as
presently in effect and as from time to time hereafter amended and
supplemented, herein called the "Prospectuses"); and
(j) Such other material agreements as the Trust may enter
into from time to time including securities lending agreements, futures and
commodities account agreements, brokerage agreements and options agreements.
4. SERVICES PROVIDED.
(a) Chase will provide the following services subject to the
control, direction and supervision of the Board and in compliance with the
objectives, policies and limitations set forth in the Trust's Registration
Statement, Declaration of Trust and By-Laws; applicable laws and regulations;
and all resolutions and policies implemented by the Board:
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<PAGE>
(i) Trust Administration,
(ii) Trust Accounting, and
(iii) Compliance Services.
A detailed description of each of the above services is contained in Schedules
B and C, respectively, to this Agreement.
(b) Chase will also:
(i) provide, without additional cost to the Trust
except for out-of-pocket expenses, office facilities in an appropriate
location with respect to the provision of the services contemplated herein
(which may be in the offices of Chase or a corporate affiliate of Chase);
(ii) provide, without additional remuneration from
or other cost to the Trust except for out-of-pocket expenses, the services of
individuals to serve as officers of the Trust who will be designated by Chase
and elected by the Board subject to reasonable Board approval;
(iii) provide or otherwise obtain, without
additional remuneration from or other cost to the Trust except for
out-of-pocket expenses, personnel sufficient for provision of the services
contemplated herein;
(iv) furnish, at no additional cost to the Trust
except for out-of-pocket expenses, equipment and other materials, which are
necessary or desirable for provision of the services contemplated herein; and
(v) keep records, at no additional cost to the
Trust except for out-of- pocket expenses, relating to the services provided
hereunder in such form and manner as Chase may deem appropriate or advisable.
To the extent required by Section 31 of the 1940 Act and the rules thereunder,
Chase agrees that all such records prepared or maintained by Chase relating to
the services provided hereunder are the property of the Trust and will be
preserved for the periods prescribed under Rule 3la-2 under the 1940 Act and
made available in accordance with such Section and rules.
5. FEES AND EXPENSES.
(a) As compensation for the services rendered to the Trust
pursuant to this Agreement, as set forth in Section 4 and in Schedules B and C
hereof, the Trust shall pay Chase monthly fees determined as set forth in
Schedule A to this Agreement. Such fees are to be billed monthly and shall be
due and payable upon receipt of the invoice. If this Agreement becomes
effective or the provision of services under this Agreement terminates before
the end of any month, the fee for the part of the month from the effective
date to the end of the month or from the
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<PAGE>
beginning of the month to the date of such termination shall be prorated
according to the proportion which such part bears to the full monthly period
and shall be payable upon the date of such termination.
(b) For the purpose of determining fees calculated as a
function of the Trust's assets, the value of the Trust's assets and net assets
shall be computed as required by its currently effective Prospectus, generally
accepted accounting principles, and resolutions of the Board.
(c) The Trust may request additional services, additional
processing, or special reports, with such specifications and requirements as
may be reasonably required by Chase. If Chase elects to provide such
additional services or arrange for their provision, it shall be entitled to
additional fees and expenses at its customary rates and charges.
(d) Chase will bear its own expenses, in connection with the
performance of the services under this Agreement, except as provided herein or
as agreed to by the parties. The Trust agrees to bear all expenses that are
incurred in its operation and not specifically assumed by Chase.
Such other expenses to be incurred in the operation of the Trust and to be
borne by the Trust, include, but are not limited to: taxes; interest;
brokerage fees and commissions; salaries and fees of officers and trustees who
are not officers, directors, shareholders or employees of Chase, or the
Manager, the Trust's investment advisers, transfer agent, or distributor, SEC
and state registration and qualification fees, levies, fines and other
charges; EDGAR filing fees, processing services and related fees; postage and
mailing costs; costs of share certificates; management, investment advisory,
transfer agency, distribution, shareholder service and administration fees;
charges and expenses of pricing and data services, independent public
accountants and custodians; insurance premiums including fidelity bond
premiums; legal expenses; consulting fees; customary bank charges and fees;
costs of maintenance of trust existence; expenses of typesetting and printing
of Trust prospectuses for regulatory purposes and for distribution to current
shareholders of the Trust (for classes of shares of any of the Portfolios that
have adopted a Rule 12b-1 plan, such classes of shares may bear the expense of
all other printing, production, and distribution of prospectuses, and
marketing materials provided to potential investors); expenses of printing and
production costs of shareholders' reports and proxy statements and materials;
expenses of proxy solicitation, proxy tabulation and Trust shareholder
meetings; costs and expenses of Trust stationery and forms; costs associated
with Trust, shareholder and Board meetings; trade association dues and
expenses; charges and expenses related to the FundWorks System licensed by
Chase, provided, however, that the Trust will only be responsible for a pro
rata share of such charges and expenses based upon the number of shareholder
reports produced by Chase utilizing this system; and any extraordinary
expenses and other customary Trust expenses. In addition, Chase may utilize
one or more independent pricing services to obtain securities prices and to
act as backup to the primary pricing services, in connection with determining
the net asset values of the Trust. The Trust will reimburse Chase for the
Trust's share of the cost of such pricing services based upon the actual
usage, or a pro-rata estimate of the use, of the services for the benefit of
the Trust.
(e) All fees, approved out-of-pocket expenses, or additional
charges of Chase
5
<PAGE>
shall be billed on a monthly basis and shall be due and payable upon receipt
of the invoice. Out-of-pocket expenses shall be considered and approved in
accordance with Expense Approval Guidelines as mutually agreed upon by the
parties hereto from time to time.
(f) Chase will render, after the close of each month in
which services have been furnished, a statement reflecting all of the charges
for such month.
(g) The Trust must notify Chase in writing of any contested
amounts within sixty (60) days of receipt of a billing for such amounts.
Disputed amounts are not due and payable while they are being investigated.
6. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) Chase shall not be liable for any error of judgment or
mistake of law or for any loss or expense suffered by the Trust, in connection
with the matters to which this Agreement relates, except for a loss or expense
caused by or resulting from or attributable to willful misfeasance, bad faith
or negligence on Chase's part in the performance of its duties or from
reckless disregard by Chase of its obligations and duties under this Agreement
or, subject to Section 10 below, Chase's refusal or failure to comply with the
terms of this Agreement or its breach of any representation or warranty under
this Agreement. In no event shall Chase be liable for any indirect,
incidental, special or consequential losses or damages of any kind whatsoever
(including but not limited to lost profits), even if Chase has been advised of
the likelihood of such loss or damage and regardless of the form of action.
(b) Except to the extent that Chase may be held liable
pursuant to Section 6(a) above, Chase shall not be responsible for, and the
Trust shall indemnify and hold Chase harmless from and against any and all
losses, damages, costs, reasonable attorneys' fees and expenses, payments,
expenses and liabilities, including but not limited to those arising out of or
attributable to:
(i) any and all actions of Chase or its officers or
agents required to be taken pursuant to this Agreement;
(ii) the reliance on or use by Chase or its
officers or agents of information, records, or documents which are received by
Chase or its officers or agents and furnished to it or them by or on behalf of
the Trust, and which have been prepared or maintained by the Trust or any
third party on behalf of the Trust;
(iii) the Trust's refusal or failure to comply with
the terms of this Agreement or the Trust's lack of good faith, or its actions,
or lack thereof, involving negligence or willful misfeasance;
(iv) the breach of any representation or warranty
of the Trust hereunder;
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(v) the reliance on or the carrying out by Chase or
its officers or agents of any proper instructions reasonably believed to be
duly authorized, or requests of the Trust;
(vi) any delays, inaccuracies, errors in or
omissions from information or data provided to Chase by data services,
including data services providing information in connection with the CMO
System licensed by Chase, and by any corporate action services, pricing
services or securities brokers and dealers;
(vii) the offer or sale of shares by the Trust in
violation of any requirement under the Federal securities laws or regulations
or the securities laws or regulations of any state, or in violation of any
stop order or other determination or ruling by any Federal agency or any state
agency with respect to the offer or sale of such shares in such state (1)
resulting from activities, actions, or omissions by the Trust or its other
service providers and agents, or (2) existing or arising out of activities,
actions or omissions by or on behalf of the Trust prior to the effective date
of this Agreement;
(viii) any failure of the Trust's registration
statement to comply with the 1933 Act and the 1940 Act (including the rules
and regulations thereunder) and any other applicable laws, or any untrue
statement of a material fact or omission of a material fact necessary to make
any statement therein not misleading in a Trust's prospectus;
(ix) except as provided for in Schedule B.II., the
actions taken by the Trust, its Manager, its investment advisers, and its
distributor in compliance with applicable securities, tax, commodities and
other laws, rules and regulations, or the failure to so comply; and
(x) all actions, inactions, omissions, or errors
caused by third parties to whom Chase or the Trust has assigned any rights
and/or delegated any duties under this Agreement at the specific request of or
as required by the Trust, its Manager, investment advisers, distributor,
administrator or sponsor.
The Trust shall not be liable for any indirect, incidental, special
or consequential losses or damages of any kind whatsoever (including but not
limited to lost profits) even if the Trust has been advised of the likelihood
of such loss or damage and regardless of the form of action, except when the
Trust is required to indemnify Chase pursuant to this Agreement.
7. TERM. This Agreement shall become effective on the date first
hereinabove written and may be modified or amended from time to time in
writing by mutual agreement between the parties hereto. The Agreement shall
continue in effect unless terminated by either party on ninety (90) days'
prior written notice. Upon termination of this Agreement, the Trust shall pay
to Chase such compensation and any documented and agreed upon out-of-pocket or
other reimbursable expenses which may become due or payable under the terms
hereof as of the date of termination or after the date that the provision of
services ceases, whichever is later.
7
<PAGE>
8. NOTICES. Any notice required or permitted hereunder shall be in
writing and shall be deemed effective on the date of personal delivery (by
private messenger, courier service or otherwise) or upon confirmed receipt of
telex or facsimile, whichever occurs first, or upon receipt if by mail to the
parties at the following address (or such other address as a party may specify
by notice to the other):
If to the Trust:
EQ Advisors Trust
c/o The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
New York, NY 10104
Attention: Peter D. Noris
Fax: (212) 707-1550
If to Chase:
Chase Global Funds Services Company
73 Tremont Street
Boston, MA 02108
Attention:
Fax:
9. WAIVER. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
nor shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
10. FORCE MAJEURE. In the event Chase is unable to perform its
obligations or duties under the terms of this Agreement because of any act of
God, strike, riot, act of war, equipment failure, power failure or damage or
other causes reasonably beyond its control, Chase shall not be liable for any
loss, damage, cost, charge, counsel fee, payment, expense or liability to any
other party (whether or not a party to this Agreement) resulting from such
failure to perform its obligations or duties under this Agreement or otherwise
from such causes. This provision, however, shall in no way excuse Chase from
liability to the Trust for any and all losses, damages, costs, charges,
counsel fees, payments and expenses, except for any indirect, incidental,
special or consequential losses or damages of any kind whatsoever (including
but not limited to lost profits), incurred by the Trust due to the
non-performance or delay in performance by Chase of its duties and obligations
under this Agreement if such non-performance or delay in performance could
have been reasonably prevented by Chase through back-up systems and other
procedures commonly employed by other administrators in the mutual fund
industry, provided that Chase shall have the right, at all times, to mitigate
or cure any losses.
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<PAGE>
11. AMENDMENTS. This Agreement may be modified or amended from time
to time by mutual written agreement between the parties. No provision of this
Agreement may be changed, discharged, or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought.
12. SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
13. GOVERNING LAW. This Agreement shall be governed by the
substantive laws of the State of New York.
14. MISCELLANEOUS. In performing its services hereunder, Chase shall
be entitled to rely on any oral or written instructions, notices or other
communications, including electronic transmissions, from the Trust and its
custodians, officers and trustees, investors, agents and other service
providers which Chase reasonably believes to be genuine, valid and authorized.
Chase shall also be entitled to consult with and rely on the advice and
opinions of outside legal counsel retained by the Trust, as necessary or
appropriate.
15. CONFIDENTIALITY. Chase agrees that, except as otherwise required
by law or in connection with any required disclosure to a banking or other
regulatory authority or for purposes of performing its obligations hereunder,
it will keep confidential all records and information in its possession
relating to the Trust or its shareholders and will not disclose any
confidential information except at the request or with the written consent of
the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below as of the date first written
above.
EQ ADVISORS TRUST
By: /s/
---------------------------------
Name: Peter D. Noris
Title: President and Trustee
CHASE GLOBAL FUNDS
SERVICES COMPANY
By: /s/
---------------------------------
Name:
Title:
9
<PAGE>
MUTUAL FUNDS SERVICE AGREEMENT
SCHEDULE A
FEES AND EXPENSES
TRUST ADMINISTRATION, ACCOUNTING AND COMPLIANCE FEES
A. For the services rendered under this Agreement, the Trust shall pay
to Chase an annual fee in accordance with the following schedule:
i. Until the total Trust assets reach $2.0 billion:
.0525 of 1% of the total Trust assets, plus $25,000 for
each Portfolio.
ii. When the total Trust assets exceed $2.0 billion:
.0425 of 1% of the first $0.5 billion of the total Trust
assets; .035 of 1% of the next $2.0 billion of the total
Trust assets; .025 of 1% of the next $1.0 billion of the
total Trust assets; .015 of 1% of the next $2.5 billion of
the total Trust assets; and .01 of 1% of the total Trust
assets in excess of $6.0 billion;
except that the annual fee payable to Chase hereunder with
respect to any Portfolio which commences operations after
July 1, 1997 and whose assets do not exceed $200 million
shall be computed in accordance with paragraph A.i. of this
Schedule A.
B. The foregoing calculations are based on the average daily net assets
of the Trust, as described. The fees will be computed, billed and
payable monthly.
C. Approved out-of-pocket expenses, as provided in Section 5, will be
computed, billed and payable monthly.
D. Notwithstanding the foregoing provisions of this Schedule A and
Section 5 of this Agreement, no fees will be charged by Chase for its
services under this Agreement until November 1, 1997.
A-1
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MUTUAL FUNDS SERVICE AGREEMENT
SCHEDULE B
GENERAL DESCRIPTION OF TRUST ADMINISTRATION
AND COMPLIANCE SERVICES
I.FINANCIAL AND TAX REPORTING
A. Prepare management reports and Board of Trustees materials, such as
unaudited financial statements and summaries of dividends and
distributions.
B. Report Trust performance to outside services as directed by Trust
management.
C. Calculate dividend and capital gain distributions in accordance with
distribution policies detailed in the Trust's prospectus(es) or Board
resolutions. Assist Trust management in making final determinations
of distribution amounts.
D. Estimate and recommend year-end dividend and capital gain
distributions necessary for each Portfolio to avoid the excise tax on
undistributed income of a regulated investment company ("RIC") under
Section 4982 of the Internal Revenue Code of 1986, as amended (the
"Code").
E. The Trust will advise Chase of the declaration of any dividend or
distribution and the record and payable date thereof at least five
(5) days prior to the record date; and Chase will make appropriate
credits to each shareholder's account.
F. Working with the Trust's independent public accountants and other
appropriate persons, prepare and file the Trust's Federal tax return
on Form 1120-RIC (or any similar Form), along with all state and
local tax returns where applicable. Prepare and file Federal Excise
Tax Return (Form 8613) (or any similar Form). Will obtain all
information concerning foreign tax filings prepared and filed in
foreign jurisdictions necessary for Chase to perform its obligations
under this Agreement.
G. Prepare for review by appropriate persons and file Trust's Form N-SAR
with the SEC.
H. Prepare and coordinate printing of Trust's semi-annual and annual
reports to shareholders and file such reports with the appropriate
regulatory agencies. Notwithstanding the foregoing, Chase shall not
be responsible for preparing the "President's Letters" or the
"Management's discussion of each Portfolio's performance" but shall
review the text of the "President's letters" and "Management's
discussion of each Portfolio's performance" (which shall also be
subject to review by the Trust's legal counsel).
I. Prepare for review and approval by the Trust's officers financial
information for the
B-1
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Trust's semi-annual and annual reports, proxy statements and other
communications required or otherwise sent to the Trust's shareholders
(and their contractowners) and arrange, if requested, for the
printing and dissemination of such reports and communications.
J. Provide financial information for Trust proxies and prospectuses
including expense table.
K. File copies of financial reports to shareholders with the SEC under
Rule 30b2-1.
L. Notify the separate accounts as to what portion, if any, of the
distributions made by the Trust during the prior fiscal year were
exempt-interest dividends under Section 852(b)(5)(A) of the Code.
M. Provide Form 1099-MISC to persons other than corporations (i.e.,
Trustees) to whom the Trust paid more than $600 during the year.
II. PORTFOLIO COMPLIANCE
Chase shall provide the following compliance services in conjunction
with each Adviser's obligations pursuant to its Investment Advisory Agreement
with the Trust and all applicable laws.
A. Monitor and periodically test each Portfolio's compliance with
investment restrictions (e.g., issuer or industry diversification,
etc.) listed in the current prospectus(es) and Statement(s) of
Additional Information.
B. Monitor and periodically test, including on required quarterly
testing dates, each Portfolio's compliance with the requirements of
Section 851 of the Code and applicable Treasury Regulations for
qualification as a RIC.
C. Monitor and periodically test, including on required quarterly
testing dates, each Portfolio's compliance with the requirements of
Section 817(h) of the Code and applicable Treasury Regulations.
D. Monitor each investment adviser's compliance with Board directives
such as "Approved Issuers Listings for Repurchase Agreements", Rule
17a-7, Rule 17e-1 and Rule 12d-3 procedures.
E. Mail quarterly requests for "Securities Transaction Reports" to the
Trust's Trustees and Officers and "access persons" under the terms of
the Trust's Code of Ethics and SEC regulations.
F. Prepare, distribute, and utilize in compliance training sessions,
comprehensive compliance materials, including compliance manuals and
checklists, subject to review and comment by the Trust's legal
counsel and develop or assist in
B-2
<PAGE>
developing guidelines and procedures to improve overall compliance
by the Trust and its various agents.
III. REGULATORY AFFAIRS AND CORPORATE GOVERNANCE
A. Prepare and file post-effective amendments to the Trust's
registration statement and supplements as needed with respect to the
currently existing Portfolios only.
B. Prepare and file proxy materials and administer shareholder meetings.
C. Prepare agenda, collect background information and prepare all Board
materials for Board meetings and distribute such materials to all
necessary parties.
D. Prepare minutes, and follow up on matters related to Chase's
responsibilities under this Agreement that are raised at all Board
meetings.
E. In coordination with the Manager, make reports and recommendations to
the Board concerning the performance of each of the investment
advisers and other service providers for the Trust, as the Board may
reasonably request.
F. Prepare and file with the SEC Rule 24f-2 Notices (and all similar
state filings, if required by the states). Chase shall not be
responsible for preparing any legal opinions required in connection
with Rule 24f-2 Notices.
G. Assist with the review and monitoring of fidelity bond and errors and
omissions insurance coverage and the submission of any related
regulatory filings.
H. Prepare and update documents, such as charter document, by-laws, and
foreign qualification filings.
I. Provide support and counsel with respect to routine regulatory
examinations or investigations of the Trust and work closely with the
Trust's legal counsel in response to any non-routine regulatory
matters. Also, coordinate all communications and data collection with
regard to any regulatory examinations and yearly audits by
independent accountants.
J. Maintain general corporate calendar.
K. Assist with preparations for, attend and prepare minutes of
shareholder meetings.
L. When requested provide consultation on regulatory matters relating to
portfolio management, Trust operations and any potential changes in
each Portfolio's investment policies, operations or structure.
M. Maintain continuing awareness of significant emerging regulatory and
legislative
B-3
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developments which may affect each Portfolio; update the Board and the
Manager on those developments and provide related planning assistance
where reasonably requested or appropriate.
IV. GENERAL ADMINISTRATION
A. Furnish appropriate officers for the Trust, subject to Board
approval.
B. Prepare Trust, portfolio or class expense projections, establish
accruals and review on a periodic basis, including expenses based on
a percentage of average daily net assets (e.g., management, advisory
and administrative fees) and expenses based on actual charges
annualized and accrued daily (audit fees, registration fees,
directors' fees, etc.).
C. For new Portfolios and classes, obtain Employer or Taxpayer
Identification Number and CUSIP numbers, as necessary. Estimate
organizational costs and expenses and monitor against actual
disbursements.
D. Arrange if directed by the appropriate Trust officers, for the
payment of the Trust's and each Portfolio's or class' expenses.
B-4
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MUTUAL FUNDS SERVICE AGREEMENT
SCHEDULE C
DESCRIPTION OF FUND ACCOUNTING SERVICES
I. GENERAL DESCRIPTION
Chase shall provide the following accounting services to the Trust:
A. Maintenance of the. books and records for the Trust's assets,
including records of all securities transactions.
B. Calculation of each Portfolio's or class' net asset value in
accordance with the Trust's prospectus, and after the Portfolio or
class meets eligibility requirements, transmission to NASDAQ and to
such other entities as directed by the Trust.
C. Accounting for dividends and interest received and distributions made
by the Trust.
D. Coordinate with the Trust's independent auditors with respect to the
annual audit, and as otherwise requested by the Trust.
E. Consult with the Trust's officers, independent public accountants and
other appropriate persons in establishing the accounting policies of
the Trust.
F. As mutually agreed upon, Chase will provide domestic and/or
international reports.
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EXHIBIT 9(b)
EXPENSE LIMITATION AGREEMENT
EQ ADVISORS TRUST
EXPENSE LIMITATION AGREEMENT, effective as of April 14, 1997, by and
between EQ Financial Consultants, Inc. (the "Manager") and EQ Advisors Trust
(the "Trust"), on behalf of each series of the Trust set forth in Schedule A
(each a "Portfolio," and collectively, the "Portfolios").
WHEREAS, the Trust is a Delaware business trust organized under the
Amended and Restated Agreement and Declaration of Trust ("Declaration of
Trust"), and is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end management company of the series
type, and each Portfolio is a series of the Trust; and
WHEREAS, the Trust and the Manager have entered into an Investment
Management Agreement (the "Management Agreement"), pursuant to which the
Manager will render investment management services to each Portfolio for
compensation based on the value of the average daily net assets of each such
Portfolio; and
WHEREAS, the Trust and the Manager have determined that it is
appropriate and in the best interests of each Portfolio and its shareholders
to maintain the expenses of each Portfolio at a level below the level to which
each such Portfolio would normally be subject during its start-up period.
NOW THEREFORE, the parties hereto agree as follows:
1. Expense Limitation
1.1 Applicable Expense Limit. To the extent that the aggregate
expenses of every character incurred by a Portfolio in any fiscal year,
including but not limited to investment management fees of the Manager (but
excluding interest, taxes, brokerage commissions, and other expenditures which
are capitalized in accordance with generally accepted accounting principles,
and other extraordinary expenses not incurred in the ordinary course of such
Portfolio's business) ("Portfolio Operating Expenses"), exceed the Operating
Expense Limit, as defined in Section 1.2 below, such excess amount (the
"Excess Amount") shall be the liability of the Manager.
1.2 Operating Expense Limit. The maximum Operating Expense Limit in
any year with respect to each Portfolio shall be the amount specified in
Schedule A based on a percentage of the average daily net assets of each
Portfolio.
1.3 Method of Computation. To determine the Manager's liability with
respect to the Excess Amount, each month the Portfolio Operating Expenses for
each Portfolio shall be annualized as of the last day of the month. If the
annualized Portfolio Operating Expenses for any month of a Portfolio exceed
the Operating Expense Limit of such Portfolio, the Manager shall first
<PAGE>
waive or reduce its investment management fee for such month by an amount
sufficient to reduce the annualized Portfolio Operating Expenses to an amount
no higher than the Operating Expense Limit. If the amount of the waived or
reduced investment management fee for any such month is insufficient to pay
the Excess Amount, the Manager may also remit to the appropriate Portfolio or
Portfolios an amount that, together with the waived or reduced investment
management fee, is sufficient to pay such Excess Amount.
1.4 Year-End Adjustment. If necessary, on or before the last day of
the first month of each fiscal year, an adjustment payment shall be made by
the appropriate party in order that the amount of the investment management
fees waived or reduced and other payments remitted by the Manager to the
Portfolio or Portfolios with respect to the previous fiscal year shall equal
the Excess Amount.
2. Reimbursement of Fee Waivers and Expense Reimbursements.
2.1 Reimbursement. If in any year during which the total assets of a
Portfolio are greater than $100 million and in which the Management Agreement
is still in effect, the estimated aggregate Portfolio Operating Expenses of
such Portfolio for the fiscal year are less than the Operating Expense Limit
for that year, subject to quarterly approval by the Trust's Board of Trustees
as provided in Section 2.2 below, the Manager shall be entitled to
reimbursement by such Portfolio, in whole or in part as provided below, of the
investment management fees waived or reduced and other payments remitted by
the Manager to such Portfolio pursuant to Section 1 hereof. The total amount
of reimbursement to which the Manager may be entitled (the "Reimbursement
Amount") shall equal, at any time, the sum of all investment management fees
previously waived or reduced by the Manager and all other payments remitted by
the Manager to the Portfolio, pursuant to Section 1 hereof, during any of the
previous two (2) fiscal years, less any reimbursement previously paid by such
Portfolio to the Manager, pursuant to Sections 2.2 or 2.3 hereof, with respect
to such waivers, reductions, and payments. The Reimbursement Amount shall not
include any additional charges or fees whatsoever, including, e.g., interest
accruable on the Reimbursement Amount.
2.2 Board Approval. No reimbursement shall be paid to the Manager
with respect to any Portfolio pursuant to this provision in any fiscal
quarter, unless the Trust's Board of Trustees has determined that the payment
of such reimbursement is in the best interests of such Portfolio and its
shareholders. The Trust's Board of Trustees shall determine quarterly in
advance whether any reimbursement may be paid to the Manager with respect to
any Portfolio in such quarter.
2.3 Method of Computation. To determine each Portfolio's payments, if
any, to reimburse the Manager for the Reimbursement Amount, each month the
Portfolio Operating Expenses of each Portfolio shall be annualized as of the
last day of the month. If the annualized Portfolio Operating Expenses of a
Portfolio for any month are less than the Operating Expense Limit of such
Portfolio, such Portfolio, only with the prior approval of the Trust's Board
of Trustees, shall pay to the Manager an amount sufficient to increase the
annualized Portfolio
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Operating Expenses of that Portfolio to an amount no greater than the
Operating Expense Limit of that Portfolio, provided that such amount paid to
the Manager will in no event exceed the total Reimbursement Amount.
2.4 Year-End Adjustment. If necessary, on or before the last day of
the first month of each fiscal year, an adjustment payment shall be made by
the appropriate party in order that the actual Portfolio Operating Expenses of
a Portfolio for the prior fiscal year (including any reimbursement payments
hereunder with respect to such fiscal year) do not exceed the Operating
Expense Limit.
3. Term and Termination of Agreement.
This Agreement shall continue in effect for a period of one year from
the date of its execution and from year to year thereafter provided such
continuance is specifically approved by a majority of the Trustees of the
Trust who (i) are not "interested persons" of the Trust or any other party to
this Agreement, as defined in the 1940 Act, and (ii) have no direct or
indirect financial interest in the operation of this Agreement
("Non-Interested Trustees"). Nevertheless, this Agreement may be terminated by
either party hereto, without payment of any penalty, upon ninety (90) days'
prior written notice to the other party at its principal place of business;
provided that, in the case of termination by the Trust, such action shall be
authorized by resolution of a majority of the Non-Interested Trustees of the
Trust or by a vote of a majority of the outstanding voting securities of the
Trust.
4. Miscellaneous.
4.1 Captions. The captions in this Agreement are included for
convenience of reference only and in no other way define or delineate any of
the provisions hereof or otherwise affect their construction or effect.
4.2 Interpretation. Nothing herein contained shall be deemed to
require the Trust or the Portfolios to take any action contrary to the Trust's
Declaration of Trust or By-Laws, or any applicable statutory or regulatory
requirement to which it is subject or by which it is bound, or to relieve or
deprive the Trust's Board of Trustees of its responsibility for and control of
the conduct of the affairs of the Trust or the Portfolios.
4.3 Definitions. Any question of interpretation of any term or
provision of this Agreement, including but not limited to the investment
management fee, the computations of net asset values, and the allocation of
expenses, having a counterpart in or otherwise derived from the terms and
provisions of the Management Agreement or the 1940 Act, shall have the same
meaning as and be resolved by reference to such Management Agreement or the
1940 Act.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed by their respective officers thereunto duly authorized and their
respective corporate seals to be hereunto affixed, as of the day and year
first above written.
EQ ADVISORS TRUST
ON BEHALF OF
EACH OF ITS SERIES
By: /s/
--------------------------------
Peter D. Noris
President and Trustee
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
--------------------------------
Peter D. Noris
Executive Vice President
4
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SCHEDULE A
EXPENSE LIMITATION AMOUNTS
This Agreement relates to the following Portfolios of the Trust:
Maximum Expense
Name of Portfolio Limitation Amount
- ----------------- -----------------
T. Rowe Price International Stock Portfolio 1.20%
T. Rowe Price Equity Income Portfolio 0.85%
EQ/Putnam Growth & Income Value Portfolio 0.85%
EQ/Putnam International Equity Portfolio 1.20%
EQ/Putnam Investors Growth Portfolio 0.85%
EQ/Putnam Balanced Portfolio 0.90%
MFS Research Portfolio 0.85%
MFS Emerging Growth Companies Portfolio 0.85%
Morgan Stanley Emerging Markets Equity Portfolio 1.75%
Warburg Pincus Small Company Value Portfolio 1.00%
Merrill Lynch World Strategy Portfolio 1.20%
Merrill Lynch Basic Value Equity Portfolio 0.85%
5
<PAGE>
EXHIBIT 9(c)
EQ ADVISORS TRUST
ORGANIZATIONAL EXPENSE
REIMBURSEMENT AGREEMENT
This Agreement is made this 14th day of April 1997, by and between EQ
Financial Consultants, Inc. (the "Manager") and EQ Advisors Trust (the
"Trust"), on behalf of each series of the Trust set forth in Schedule A (each a
"Portfolio," and collectively, the "Portfolios").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended; and
WHEREAS, there have been certain necessary organizational expenses
incurred as a part of such process, which are proper expenses of the
Portfolios, that have been and will in the future be paid by the Manager and
affiliated companies of the Manager, by reason of the fact that each Portfolio
was not capitalized when such expenses were incurred (such expenses hereinafter
referred to as "Organizational Expenses");
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. Effective as of the initial public offering of shares of each
Portfolio, the Trust shall be obligated to reimburse and pay
to the Manager, or such affiliated companies of the Manager
as the Manager may designate, the amounts expended and to be
expended by the Manager and its affiliates for Organizational
Expenses.
2. Such reimbursements shall be paid by the Trust promptly upon
the demand of the Manager. Upon demand for payment, the
Manager shall present copies of invoices of receipts, copies
of canceled checks or other evidence of payment of the
Organizational Expenses for which it is demanding
reimbursement from the Trust.
EQ ADVISORS TRUST
ON BEHALF OF
EACH OF ITS SERIES
By: /s/
-------------------------------
Peter D. Noris
President and Trustee
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
-------------------------------
Peter D. Noris
Executive Vice President
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SCHEDULE A
This Agreement relates to the following Portfolios of the Trust:
T. Rowe Price International Stock Portfolio
T. Rowe Price Equity Income Portfolio
EQ/Putnam Growth & Income Value Portfolio
EQ/Putnam International Equity Portfolio
EQ/Putnam Investors Growth Portfolio
EQ/Putnam Balanced Portfolio
MFS Research Portfolio
MFS Emerging Growth Companies Portfolio
Morgan Stanley Emerging Markets Equity Portfolio
Warburg Pincus Small Company Value Portfolio
Merrill Lynch World Strategy Portfolio
Merrill Lynch Basic Value Equity Portfolio
<PAGE>
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
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"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
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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
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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
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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
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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
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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
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(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
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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.
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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If to the Trust:
EQ Advisors Trust
1290 Avenue of the Americas
New York, New York 10104
Attention: Peter D. Noris
If to Equitable:
The Equitable Life Assurance Society of the United States
1290 Avenue of the Americas
New York, New York 10104
Attention: Peter D. Noris
If to the Distributors:
Equitable Distributors, Inc.
1290 Avenue of the Americas
New York, New York 10104
Attention: Jerome S. Golden
EQ Financial Consultants, Inc.
1755 Broadway
New York, New York 10019
Attention: Michael F. McNelis
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
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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-
<PAGE>
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: Peter D. Noris
Title: President and Trustee
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By: /s/
-----------------------------
Name: Peter D. Noris
Title: Executive Vice President
and Chief Investment Officer
EQUITABLE DISTRIBUTORS, INC.
By: /s/
-----------------------------
Name: Jerome S. Golden
Title: Chairman of the Board
EQ FINANCIAL CONSULTANTS, INC.
By: /s/
-----------------------------
Name: Michael S. Martin
Title: Chairman of the Board
and Chief Executive Officer
-22-
<PAGE>
SCHEDULE A
ACCOUNTS AND ASSOCIATED VARIABLE INSURANCE CONTRACTS
Name of Account
- ---------------
- ------------------------------------
Equitable Contracts
Funded By Account
- -----------------
- -------------------------------------
<PAGE>
SCHEDULE B
DESIGNATED PORTFOLIOS AND CLASSES
Portfolios of
EQ Advisors Trust
-----------------
T. Rowe Price International Stock Portfolio:
Class IA Shares
Class IB Shares
T. Rowe Price Equity Income Portfolio:
Class IA Shares
Class IB Shares
EQ/Putnam Growth & Income Value Portfolio:
Class IA Shares
Class IB Shares
EQ/Putnam International Equity Portfolio:
Class IA Shares
Class IB Shares
EQ/Putnam Investors Growth Portfolio:
Class IA Shares
Class IB Shares
EQ/Putnam 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
Morgan Stanley Emerging Markets Equity Portfolio:
Class IA Shares
Class IB Shares
Warburg Pincus Small Company Value Portfolio:
Class IA Shares
Class IB Shares
<PAGE>
Merrill Lynch World Strategy Portfolio:
Class IA Shares
Class IB Shares
Merrill Lynch Basic Value Equity Portfolio:
Class IA Shares
Class IB Shares
-2-
<PAGE>
SCHEDULE C
LIST OF OTHER INVESTMENT COMPANIES
<PAGE>
EXHIBIT 9(e)
LICENSE AGREEMENT RELATING TO USE OF NAME
AGREEMENT made as of the ___ day of April, 1997, by and between
MERRILL LYNCH & CO. INC., a Delaware corporation ("Merrill Lynch"), and EQ
ADVISORS TRUST, a Delaware business trust (the "Trust");
WITNESSETH
WHEREAS, Merrill Lynch was incorporated under the laws of the State
of Delaware on March 27, 1973 under the corporate name "Merrill Lynch & Co.
Inc." and has used such name at all times thereafter; and
WHEREAS, Merrill Lynch was duly qualified as a foreign corporation
under the laws of the State of New York on April 25, 1973 and has remained so
qualified at all times thereafter; and
WHEREAS, the Trust was organized as a business trust under the laws
of the State of Delaware pursuant to an Agreement and Declaration of Trust
dated as of October 31, 1996, under the name "787 Trust", and such name was
changed to "EQ Advisors Trust", pursuant to an Amended and Restated Agreement
and Declaration of Trust dated January 22, 1997 (the "Declaration of Trust");
and
WHEREAS, the Trust was organized as series trust that may consist of
one or more funds (the "Funds"); and
WHEREAS, the Trust desires to qualify as a foreign business trust
under the laws of the State of New York and has requested Merrill Lynch to
give its consent to the use of the name "Merrill Lynch" in the name of any of
the Trust's Funds for which Merrill Lynch Asset Management, L.P. ("MLAM")
provides investment advisory services (the "MLAM-advised Funds").
NOW, THEREFORE, in consideration of the premises and of the covenants
hereinafter contained, Merrill Lynch, and the Trust hereby agree as follows:
1. Merrill Lynch hereby grants the Trust a non-exclusive license to
use the words "Merrill Lynch" in the name of any of its MLAM-advised Funds.
2. Merrill Lynch hereby consents to the qualification of the Trust as
a foreign business trust under the laws of the State of New York with the
words "Merrill Lynch" in the names of the Trust's MLAM-advised Funds and
agrees to execute, or to cause its affiliates to execute, such formal consents
as may be necessary in connection with such filing.
3. The non-exclusive license hereinabove referred to has been given
and is given by Merrill Lynch on the condition that it may at any time, in its
sole and absolute discretion, withdraw the non-exclusive license to the use of
words "Merrill Lynch" in the name of any of the Trust's MLAM-advised Funds;
and, as soon as practicable after receipt by the Trust of written notice of
the
<PAGE>
withdrawal of such non-exclusive license, and in no event later than ninety
(90) days thereafter, the Trust will change the names of any of its Funds that
include the words "Merrill Lynch" so that such names will not thereafter
include the words "Merrill Lynch" or any variation thereof, including without
limitation the abbreviation "ML".
4. Merrill Lynch reserves and shall have the right to grant to any
other company or trust, including without limitation, any other investment
company, the right to use the words "Merrill Lynch" or variations thereof in
its name and no consent or permission of the Trust shall be necessary; but, if
required by any applicable laws of any state, the Trust will forthwith grant
all requisite consents.
5. The Trust will not grant to any other company, trust or series of
either of them the right to use a name similar to that of the Trust's
MLAM-advised Funds or Merrill Lynch without the written consent of Merrill
Lynch.
6. Regardless of whether the Trust should hereafter change the names
of any of its Funds that include the words "Merrill Lynch" and eliminate the
words "Merrill Lynch" or any variation thereof from such names, the Trust
hereby grants to Merrill Lynch the right to cause the incorporation of other
corporations or the organizations of voluntary associations that may have
names similar to that of the Trust's MLAM-advised Funds or to that to which
the Trust may change the names of any of its MLAM-advised Funds and to own all
or any portion of the shares of such other corporations or associations and to
enter into contractual relationships with such other corporations or
associations, subject to any requisite approval of a majority of the Trust's
shareholders and the Securities and Exchange Commission and subject to the
payment of a reasonable amount to be determined at the time of use, and the
Trust agrees to give and execute any such formal consents or agreements as may
be necessary in connection therewith.
7. The Trust will not, and will not permit any of its trustees,
officers, employees or agents including without limitation any distributor of
the Trust's shares to use the name of MLAM or any affiliate of MLAM, including
Merrill Lynch, in Trust literature (including "Trust Documents" as defined in
this paragraph) without prior written review and approval by MLAM, which
approval will not be unreasonably withheld or delayed, and for which review
and approval the Trust shall provide MLAM a reasonable period of time and
advance notice where practicable. As used in this Agreement, "Trust Documents"
shall include any registration statement or prospectus for the Trust's
MLAM-advised Funds or sales literature on behalf of the Trust's MLAM-advised
Funds (or any amendment or supplement to the foregoing).
8. The Trust agrees to indemnify and hold harmless Merrill Lynch,
MLAM, or any affiliate of either of them (collectively "indemnified parties")
and each of any of their directors, officers, employees and agents against any
and all losses, claims, damages, liabilities (including amounts paid in
settlement with the Trust's written consent) or expenses (including reasonable
costs of investigating or defending any alleged loss, claim, damage, liability
or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which indemnified parties may become subject
under statute, regulation, common law or otherwise, insofar as such
-2-
<PAGE>
Losses arise out of or are based upon any use not authorized under the terms
of this Agreement of the name "Merrill Lynch" or any variation thereof.
9. This Agreement may be amended at any time by a writing signed by
the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
MERRILL LYNCH & CO., INC.
By: /s/
------------------------------
Executive Vice President
EQ ADVISORS TRUST
By: /s/
------------------------------
Peter D. Noris
President and Trustee
-3-
<PAGE>
EXHIBIT 15
EQ ADVISORS TRUST
CLASS IB
DISTRIBUTION PLAN
WHEREAS, The Board of Trustees of the EQ Advisors Trust (the "Trust"),
including the Independent Trustees (as defined herein), have concluded in the
exercise of their reasonable business judgment and in light of their fiduciary
duties under the Investment Company Act of 1940, as amended (the "Act"), that
there is a reasonable likelihood that this Plan (the "Plan") will benefit each
of the Trust's constituent portfolios (each a "Portfolio") and the Class IB
shareholders thereto;
NOW, THEREFORE, in consideration of the foregoing, this Plan is hereby
adopted as follows:
Section 1. The Trust is authorized to pay a fee (the "Distribution
Fee") for services rendered and expenses borne in connection with the
distribution of the Class IB shares of the Trust, at an annual rate with
respect to each Portfolio not to exceed .50% of the average daily net assets
attributable to the Portfolio's Class IB shares. Some or all of such
Distribution Fee may be paid to each of the distributors of the Trust's Class
IB shares (collectively, "Class IB Distributors") in accordance with the
distribution agreements with each of the Class IB Distributors. Subject to such
limit and subject to the provisions of Section 9 hereof, the Distribution Fee
shall be approved from time to time by: (a) a majority of the Board of Trustees
of the Trust and (b) a majority of the Trustees who (i) are not "interested
persons" of the Trust, as defined in the Act, and (ii) have no direct or
indirect financial interest in the operation of the Plan or any agreements
related thereto ("Independent Trustees"), and may be paid in respect of
services rendered and/or expenses borne in the past in connection with the
Portfolios' Class IB shares as to which no Distribution Fee was paid on account
of such limitation. If at any time this Plan shall not be in effect with
respect to the Class IB shares of all Portfolios of the Trust, the Distribution
Fee shall be computed on the basis of the net assets of the Class IB shares of
those Portfolios for which the Plan is in effect. The Distribution Fee shall be
accrued daily and paid monthly or at such other intervals as the Board of
Trustees shall determine.
Section 2. Some or all of the Distribution Fee paid to each of the
Class IB Distributors may be spent on any activities or expenses primarily
intended to result in the sale of Class IB shares of the Trust, including but
not limited to the following:
(a) compensation to and expenses, including overhead and telephone
expenses, of employees of each of the Class IB Distributors that
engage in the distribution of the Class IB shares;
(b) printing and mailing of prospectuses, statements of additional
information, and reports for prospective purchasers of variable
annuity or variable life insurance contracts ("Variable Contracts")
investing indirectly in Class IB shares;
(c) compensation to financial intermediaries and broker-dealers to pay
or reimburse them for their services or expenses in connection with
the distribution of Variable Contracts investing indirectly in Class
IB shares;
(d) expenses relating to the development, preparation, printing, and
mailing of Trust
<PAGE>
advertisements, sales literature, and other promotional materials
describing and/or relating to the Trust;
(e) expenses of holding seminars and sales meetings designed to
promote the distribution of the Class IB shares;
(f) expenses of obtaining information and providing explanations to
Variable Contract owners regarding Trust investment objectives and
policies and other information about the Trust and its Portfolios,
including the performance of the Portfolios;
(g) expenses of training sales personnel regarding the Trust;
(h) expenses of compensating sales personnel in connection with the
allocation of cash values and premiums of the Variable Contracts to
the Trust; and
(i) expenses of personal services and/or maintenance of Variable
Contract accounts with respect to Class IB shares attributable to such
accounts.
Section 3. This Plan shall not take effect until it has been approved,
together with any related agreements, by votes of the majority (or whatever
greater percentage may, from time to time, be required by Section 12(b) of the
Act or the rules and regulations thereunder) of both (a) the Trustees of the
Trust, and (b) the Independent Trustees of the Trust, as defined herein, cast
in person at a meeting called for the purpose of voting on this Plan or such
agreement. Approval of the Plan in this manner, with respect to any Portfolio,
prior to the initial public offering of the shares of such Portfolio shall be
deemed to have been approved by that Portfolio's outstanding voting securities.
Section 4. This Plan shall continue in effect for a period of more
than one year after it takes effect only for so long as such continuance is
specifically approved at least annually in the manner provided for approval of
this Plan in Section 3 hereof.
Section 5. Any person authorized to direct the disposition of monies
paid or payable by the Class IB shares of the Trust pursuant to this Plan or
any related agreement shall provide to the Board of Trustees of the Trust, and
the Trustees shall review, at least quarterly, a written report of the amounts
so expended and the purposes for which such expenditures were made.
Section 6. This Plan may be terminated at any time with respect to the
Class IB shares of any Portfolio by vote of a majority of the Independent
Trustees, or by vote of a majority of the outstanding voting securities
representing the Class IB shares of that Portfolio.
Section 7. All agreements with any person relating to implementation
of this Plan with respect to the Class IB shares of any Portfolio shall be in
writing, and any agreement related to this Plan with respect to the Class IB
shares of any Portfolio shall provide:
(a) That such agreement may be terminated at any time, without
payment of any penalty, by vote of a majority of the Independent
Trustees or by vote of a majority of the outstanding voting
securities representing the Class IB shares of such Portfolio, on not
more than 60 days' written notice to any other party to the
agreement; and
<PAGE>
(b) That such agreement shall terminate automatically in the event of
its assignment.
Section 8. This Plan may not be amended to materially increase the
amount of Distribution Fees permitted pursuant to Section 1 hereof with respect
to any Portfolio until it has been approved by a vote of at least a majority of
the outstanding voting securities representing the Class IB shares of that
Portfolio. This Plan shall be deemed to have been effectively approved with
respect to the Class IB shares of any Portfolio if a majority of the
outstanding voting securities representing the Class IB shares of that
Portfolio votes for the approval of this Plan, notwithstanding that this Plan
has not been approved by a majority of the outstanding voting securities
representing the Class IB shares of any other Portfolio or that this Plan has
not been approved by a majority of the outstanding voting securities
representing the Class IB shares of the Trust. In addition, all material
amendments to this Plan shall be approved in the manner provided for approval
of this Plan in Section 3 hereof.
Section 9. As used in this Plan, the terms "assignment", "interested
person", and "majority of the outstanding voting securities" shall have the
respective meanings specified in the Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the Securities and
Exchange Commission.
Adopted as of March 31, 1997.
<PAGE>
EXHIBIT 18
EQ ADVISORS TRUST
PLAN PURSUANT TO RULE 18f-3 UNDER THE
INVESTMENT COMPANY ACT OF 1940
This Plan (the "Plan") is adopted by the EQ Advisors Trust (the
"Trust") pursuant to Rule 18f-3 under the Investment Company Act of 1940, as
amended (the "Act"), and sets forth the general characteristics of, and the
general conditions under which the Trust may offer, multiple classes of shares
of its now existing and hereafter created series. This Plan is intended to
allow the Trust to offer multiple classes of shares to the full extent and in
the manner permitted by Rule 18f-3 under the Act (the "Rule"), subject to the
requirements and conditions imposed by the Rule. This Plan may be revised or
amended from time to time as provided below.
CLASS DESIGNATIONS
Each of the Trust's constituent series (each, a "Portfolio") may from
time to time issue one or more of the following classes of shares: Class IA
shares and Class IB shares. Each of the two classes of shares will represent
interests in the same portfolio of investments of the Portfolio and, except as
described herein, shall have the same rights and obligations as each other
class. Each class shall be subject to such investment minimums and other
conditions of eligibility as are set forth in the Trust's prospectus or
statement of additional information as from time to time in effect (the
"Prospectus").
CLASS CHARACTERISTICS
Class IA shares are offered at a public offering price that is equal
to their net asset value ("NAV") without an initial sales charge or a
contingent deferred sales charge ("CDSC").
Class IB shares are offered at their NAV, without an initial sales
charge or a CDSC, but may be subject to a fee imposed in accordance with Rule
12b-1 under the Act ("Rule 12b-1 fees"), as described in the Prospectus.
The Class IA shares and Class IB shares may subsequently be offered
pursuant to an initial sales charge and/or CDSC (each of which may be subject
to reduction or waiver) as permitted by the Act, and as described in the
Prospectus.
<PAGE>
ALLOCATIONS TO EACH CLASS
EXPENSE ALLOCATIONS
The following expenses shall be allocated, to the extent practicable,
on a class-by-class basis: Rule 12b-1 fees payable by the Trust to each of the
distributors of the Trust's Class IB shares.(1) Subject to the approval of a
majority of the Trust's Board of Trustees, including a majority of the
Independent Trustees (as defined in each Distribution Plan), the following
"Class Expenses" may, to the extent not required to be borne by the Manager,
pursuant to the Trust's Investment Management Agreement, be allocated on a
class-by-class basis: (a) printing and postage expenses related to preparing
and distributing materials such as shareholder reports, Prospectuses and proxy
statements to current shareholders of a specific class; (b) SEC registration
fees incurred with respect to a specific class; (c) state blue sky and foreign
registration fees and expenses incurred with respect to a specific class; (d)
the expenses of administrative personnel and services required to support
shareholders of a specific class; (e) litigation and other legal expenses
relating to a specific class; (f) Trustees' fees or expenses incurred as a
result of issues relating to a specific class of shares; (g) accounting and
consulting expenses relating to a specific class; (h) any fees imposed
pursuant to a non-Rule 12b-1 shareholder services plan that relate to a
specific class; and (i) any additional expenses, not including investment
management fees, investment advisory fees, custodial fees or other expenses
relating to the management of the Trust's assets, if such expenses are
actually incurred in a different amount with respect to a class that are of a
different kind or to a different degree than with respect to one or more other
classes.
All expenses not hereafter designated as Class Expenses will be
allocated to each class on the basis of the net asset value of that class in
relation to the net asset value of the Portfolio ("Portfolio Expenses").
However, notwithstanding the above, the Trust may allocate all
expenses other than Class Expenses on the basis of the relative net assets
(settled shares) of each class, as permitted by Rule 18f-3 under the Act.
WAIVERS AND REIMBURSEMENTS
The Manager or Distributors may choose to waive or reimburse Rule
12b-1 fees or any Class Expenses on a voluntary basis. Such waiver or
reimbursement may be applicable to some or all of the classes and may be in
different amounts for one or more classes.
- -------------------------------
(1) As of the date of this Plan, the Trust has adopted a Distribution Plan
pursuant to Rule 12b-1 under the Act only for the Class IB shares (the
"Distribution Plan"). EQ Financial Consultants, Inc., which also serves as the
Trust's investment manager (the "Manager") and Equitable Distributors, Inc.
each serve as distributors for both the Class IA shares and Class IB shares
(the "Distributors").
-2-
<PAGE>
INCOME, GAINS AND LOSSES
Income and realized and unrealized capital gains and losses shall be
allocated to each class on the basis of the net asset value of that class in
relation to the net asset value of the Portfolio.
The Portfolio may allocate income and realized and unrealized capital
gains and losses to each share based on relative net assets (settled shares)
of each class, as permitted by Rule 18f-3 under the Act.
CONVERSION AND EXCHANGE
The Class IA shares and Class IB shares shall not convert into
another Class. Subsequent classes of shares (each a "Converting Class") may
automatically convert into another class of shares (the "Conversion Class"),
subject to such terms as may be approved by the Trustees.
In the event of any material increase in payments authorized under
the Distribution Plan (or, if presented to shareholders, any material increase
in payments authorized by a non-Rule 12b-1 shareholder services plan)
applicable to any Conversion Class, existing Converting Class shares will not
be permitted to convert into Conversion Class shares unless the Converting
Class shareholders, voting separately as a class, approve the material
increase in such payments. Pending approval of such increase, or if such
increase is not approved, the Trustees shall take such action as is necessary
to ensure that existing Converting Class shares are exchanged or converted
into a new class of shares ("New Conversion Class") identical in all material
respects to the Conversion Class shares as they existed prior to the
implementation of the material increase in payments, no later than the time
such shares were scheduled to convert to the Conversion Class shares.
Converting Class shares sold after the implementation of the fee increase may
convert into Conversion Class shares subject to the higher maximum payment,
provided that the material features of the Conversion Class plan and the
relationship of such plan to the Converting Class shares were disclosed in an
effective registration statement.
EXCHANGE FEATURES
Shares of each class generally will be permitted to be exchanged only
for shares of a class with similar characteristics in another Portfolio; Class
IA shares may be exchanged for Class IA shares of another Portfolio and Class
IB shares may be exchanged for Class IB shares of another Portfolio. All
exchange features applicable to each class will be described in the
Prospectus.
DIVIDENDS
Dividends paid by the Trust with respect to its Class IA shares and
Class IB shares, to the extent any dividends are paid, will be calculated in
the same manner, at the same time and will be in the same amount, except that
any Rule 12b-1 fee payments relating to a class of shares will be borne
exclusively by that class and any incremental transfer agency costs or, if
applicable, Class Expenses relating to a class shall be borne exclusively by
that class.
VOTING RIGHTS
-3-
<PAGE>
Each share of each Portfolio entitles the shareholder of record to
one vote. Each class of shares of the Portfolio will vote separately as a
class with respect to any Distribution Plan, as defined herein, applicable to
that class and on other matters for which class voting is required under
applicable law. Class IB shareholders will vote separately as a class to
approve any material increase in payments authorized under the Distribution
Plan applicable to Class IB shares.
RESPONSIBILITIES OF THE TRUSTEES
On an ongoing basis, the Trustees will monitor the Trust and each
Portfolio for the existence of any material conflicts among the interests of
the two classes of shares. The Trustees shall further monitor on an ongoing
basis the use of waivers or reimbursement by the Manager and the Distributors
of expenses to guard against cross-subsidization between classes. The
Trustees, including a majority of the Independent Trustees, shall take such
action as is reasonably necessary to eliminate any such conflict that may
develop. If a conflict arises, the Manager and the Distributors (which also
distribute the Class IA shares) at their own cost, will remedy such conflict
up to and including establishing one or more new registered management
investment companies.
REPORTS TO THE TRUSTEES
The Manager and the Distributors will be responsible for reporting
any potential or existing conflicts among the two classes of shares to the
Trustees. In addition, the Trustees will receive quarterly and annual
statements concerning expenditures complying with paragraph (b)(3)(ii) of Rule
12b-1. In the statements, only expenditures properly attributable to the
direct or indirect sale or servicing of a particular class of shares shall be
used to justify any distribution fee charged to that class. The statements,
including the allocations upon which they are based, will be subject to the
review of the Independent Trustees in the exercise of their fiduciary duties.
AMENDMENTS
The Plan may be amended from time to time in accordance with the
provisions and Requirements of Rule 18f-3 under the Act.
Adopted this 31st day of March, 1997.
-4-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 6
<CIK> 0001027263
<NAME> EQ ADVISORS TRUST
<SERIES>
<NUMBER> 12
<NAME> MERRILL LYNCH BASIC VALUE EQUITY PORTFOLIO
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> MAY-01-1997
<PERIOD-END> JUN-30-1997
<INVESTMENTS-AT-COST> 5,993
<INVESTMENTS-AT-VALUE> 6,282
<RECEIVABLES> 959
<ASSETS-OTHER> 0
<OTHER-ITEMS-ASSETS> 30
<TOTAL-ASSETS> 7,271
<PAYABLE-FOR-SECURITIES> 1,141
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 76
<TOTAL-LIABILITIES> 1,217
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 5,749
<SHARES-COMMON-STOCK> 552
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 13
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> 1
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 291
<NET-ASSETS> 6,054
<DIVIDEND-INCOME> 8
<INTEREST-INCOME> 10
<OTHER-INCOME> 0
<EXPENSES-NET> (5)
<NET-INVESTMENT-INCOME> 13
<REALIZED-GAINS-CURRENT> 1
<APPREC-INCREASE-CURRENT> 291
<NET-CHANGE-FROM-OPS> 305
<EQUALIZATION> 0
<DISTRIBUTIONS-OF-INCOME> 0
<DISTRIBUTIONS-OF-GAINS> 0
<DISTRIBUTIONS-OTHER> 0
<NUMBER-OF-SHARES-SOLD> 556
<NUMBER-OF-SHARES-REDEEMED> (4)
<SHARES-REINVESTED> 0
<NET-CHANGE-IN-ASSETS> 6,054
<ACCUMULATED-NII-PRIOR> 0
<ACCUMULATED-GAINS-PRIOR> 0
<OVERDISTRIB-NII-PRIOR> 0
<OVERDIST-NET-GAINS-PRIOR> 0
<GROSS-ADVISORY-FEES> 3
<INTEREST-EXPENSE> 0
<GROSS-EXPENSE> 50
<AVERAGE-NET-ASSETS> 3,756
<PER-SHARE-NAV-BEGIN> 10.00
<PER-SHARE-NII> 0.02
<PER-SHARE-GAIN-APPREC> 0.96
<PER-SHARE-DIVIDEND> 0
<PER-SHARE-DISTRIBUTIONS> 0
<RETURNS-OF-CAPITAL> 0
<PER-SHARE-NAV-END> 10.98
<EXPENSE-RATIO> 0.85
<AVG-DEBT-OUTSTANDING> 0
<AVG-DEBT-PER-SHARE> 0
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 6
<CIK> 0001027263
<NAME> EQ ADVISORS TRUST
<SERIES>
<NUMBER> 11
<NAME> MERRILL LYNCH WORLD STRATEGY PORTFOLIO
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> MAY-01-1997
<PERIOD-END> JUN-30-1997
<INVESTMENTS-AT-COST> 5,913
<INVESTMENTS-AT-VALUE> 6,353
<RECEIVABLES> 224
<ASSETS-OTHER> 0
<OTHER-ITEMS-ASSETS> 43
<TOTAL-ASSETS> 6,620
<PAYABLE-FOR-SECURITIES> 20
<SENIOR-LONG-TERM-DEBT> 0
<OTHER-ITEMS-LIABILITIES> 112
<TOTAL-LIABILITIES> 132
<SENIOR-EQUITY> 0
<PAID-IN-CAPITAL-COMMON> 6,010
<SHARES-COMMON-STOCK> 594
<SHARES-COMMON-PRIOR> 0
<ACCUMULATED-NII-CURRENT> 26
<OVERDISTRIBUTION-NII> 0
<ACCUMULATED-NET-GAINS> (2)
<OVERDISTRIBUTION-GAINS> 0
<ACCUM-APPREC-OR-DEPREC> 454
<NET-ASSETS> 6,488
<DIVIDEND-INCOME> 19
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<NUMBER-OF-SHARES-REDEEMED> (203)
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</TABLE>
