Exhibit (e)(8)(i)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
CLASS IB SHARES
AXA ADVISORS, LLC
AMENDED AND RESTATED AGREEMENT, dated as of July 15, 2002 by and
between EQ Advisors Trust (the "Trust") and AXA Advisors, LLC ("AXA Advisors").
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 AXA Advisors undertake marketing
activities with respect to the Class IB shares of the Trust's constituent series
or investment portfolios ("Portfolios") and to compensate AXA Advisors 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 AXA Advisors will be a distributor for sale of the Class IB shares
issued by the Trust; and
WHEREAS, AXA Advisors 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 AXA Advisors 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 Amended and
Restated 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 Amended and Restated Agreement
shall be deemed amended to the extent the form of Participation Agreement is
amended or superseded. AXA Advisors 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 AXA Advisors serves
as the principal underwriter of the Class IB shares of the Trust.
Section 2. AXA Advisors 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 Amended and Restated 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. AXA
Advisors 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 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 AXA Advisors 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 AXA Advisors for services rendered and
expenses borne as a distributor hereunder, each Portfolio shall pay AXA Advisors
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
AXA Advisors provides services and/or assumes expenses under the Class IB
Distribution Plan. AXA Advisors may,
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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 AXA Advisors 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 AXA Advisors specifically for use in the preparation thereof.
In this connection, AXA Advisors 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. AXA Advisors 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, SAI's) 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 AXA Advisors for
reproduction by AXA Advisors 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 AXA Advisors of anticipated
filings or supplements. AXA Advisors 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 AXA Advisors or the
Participating Insurance Companies, not the Trust.
Section 8. AXA Advisors 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.
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Section 9. AXA Advisors shall furnish to the Trust, at least quarterly,
reports as to the sales of the Trust's Class IB shares made pursuant to this
Amended and Restated Agreement. These reports may be combined with any similar
report prepared by AXA Advisors or any of the Preparing Parties.
Section 10. AXA Advisors shall submit to all regulatory and
administrative bodies having jurisdiction over the operations of AXA Advisors,
the Trust, or any Participating Insurance Company, present or future, any
information, reports or other material which any such body by reason of this
Amended and Restated Agreement may request or require as authorized by
applicable laws or regulations.
Section 11. This Amended and Restated 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.
Section 12. This Amended and Restated 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 AXA Advisors and who have no direct or indirect
financial interest in the distribution plan pursuant to which this Amended and
Restated 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 Amended and Restated 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 Amended and Restated Agreement shall terminate
automatically if it shall be assigned.
Section 14. The Trust shall indemnify and hold harmless AXA Advisors
from any and all losses, claims, damages or liabilities (or actions in respect
thereof) to which AXA Advisors 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 AXA Advisors.
AXA Advisors 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
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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 AXA Advisors 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
AXA Advisors 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 Amended and Restated 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 Amended and
Restated 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 Amended and
Restated Agreement to be duly executed as of the day and year first above
written.
EQ ADVISORS TRUST
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
President and Trustee
AXA ADVISORS, LLC
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Xxxx Xxxxxxxx
Executive Vice President
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SCHEDULE A
EQ ADVISORS TRUST
PORTFOLIOS OF THE TRUST
EQ/Evergreen Omega Portfolio
EQ/Alliance Common Stock Portfolio (fka EQ/Evergreen Portfolio)
EQ/Aggressive Stock Portfolio EQ/FI Mid Cap Portfolio
(fka Alliance Aggressive Stock Portfolio)
EQ/FI Small/Mid Cap Value Portfolio
EQ/Alliance Global Portfolio (fka Warburg Pincus Small Company Value Portfolio)
EQ/Alliance Growth and Income Portfolio EQ/International Equity Index Portfolio
(fka BT International Equity Index Portfolio)
EQ/Alliance Growth Investors Portfolio
EQ/Janus Large Cap Growth Portfolio
EQ/High Yield Portfolio
(fka EQ/Alliance High Yield Portfolio) EQ/X.X. Xxxxxx Core Bond Portfolio
(fka JPM Core Bond Portfolio)
EQ/Alliance Intermediate Government Securities Portfolio
EQ/Lazard Small Cap Value Portfolio
EQ/Alliance International Portfolio
EQ/Xxxxxxx Focus Portfolio
EQ/Alliance Money Market Portfolio
EQ/Mercury Basic Value Equity Portfolio
EQ/Alliance Quality Bond Portfolio (fka Xxxxxxx Xxxxx Basic Value Equity Portfolio)
EQ/Alliance Small Cap Growth Portfolio EQ/MFS Emerging Growth Companies Portfolio
EQ/Alliance Premier Growth Portfolio EQ/MFS Investors Trust Portfolio
EQ/Alliance Technology Portfolio EQ/MFS Research Portfolio
EQ/Xxxxxxxxx Diversified Value Portfolio EQ/Emerging Markets Equity Portfolio
EQ/Balanced Portfolio EQ/Xxxxxx Growth & Income Value Portfolio
(fka Alliance Balanced Portfolio)
EQ/Xxxxxx International Equity Portfolio
EQ/Xxxxxxx Socially Responsible Portfolio
EQ/Xxxxxx Voyager Portfolio
EQ/Capital Guardian International Equity Portfolio (fka EQ/Xxxxxx Investors Growth Portfolio)
EQ/Capital Guardian Research Portfolio EQ/Small Company Index Portfolio
(fka BT Small Company Index Portfolio)
EQ/Capital Guardian U.S. Equity Portfolio
EQ/Equity 500 Index Portfolio
(fka Alliance Equity Index Portfolio)
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