Exhibit (d)(8)(ii)
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, dated as of July 31, 2003, by and
between The Equitable Life Assurance Society of the United States, a New York
stock life insurance corporation (the "Manager"), and Massachusetts Financial
Services Company, a corporation organized under the laws of the State of
Delaware ("Adviser").
WHEREAS, the Manager has entered into an Investment Management Agreement
dated November 30, 2001 with the AXA Premier Funds Trust ("Trust") an investment
company registered under the Investment Company Act of 1940, as amended
("Investment Company Act");
WHEREAS, the AXA Premier Large Cap Value Fund is a series of the Trust
("Fund");
WHEREAS, the Manager is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act") and is the
investment manager to the Trust;
WHEREAS, the Adviser is registered as an investment adviser under the
Advisers Act;
WHEREAS, the Board of Trustees of the Trust and the Manager desire that the
Manager retain the Adviser to render investment advisory and other services to
the portion of a Fund that has been allocated to Adviser (individually and
collectively referred to as an "Allocated Portion") in the manner and on the
terms hereinafter set forth;
WHEREAS, the Manager has the authority under the Investment Management
Agreement with the Trust to select advisers for each Fund of the Trust; and
WHEREAS, the Adviser is willing to furnish such services to the Manager and
a Fund;
NOW, THEREFORE, the Manager and the Adviser agree as follows:
1. APPOINTMENT OF ADVISER
The Manager hereby appoints the Adviser to act as an investment adviser for
a Fund, subject to the supervision and oversight of the Manager and the Trustees
of the Trust, and in accordance with the terms and conditions of this Agreement.
The Adviser will be an independent contractor and will have no authority to act
for or represent the Trust or the Manager in any way or otherwise be deemed an
agent of the Trust or the Manager except as expressly authorized in this
Agreement or another writing by the Trust, the Manager and the Adviser.
2. ACCEPTANCE OF APPOINTMENT
The Adviser accepts that appointment and agrees to render the services
herein set forth, for the compensation herein provided.
The assets of an Allocated Portion will be maintained in the custody of a
custodian (who shall be identified by the Manager in writing). The Adviser will
not have custody of any securities, cash or other assets of a Fund and will not
be liable for any loss resulting from any act or omission of the custodian other
than acts or omissions arising in reliance on instructions of the Adviser.
3. SERVICES TO BE RENDERED BY THE ADVISER TO THE TRUST
A. As investment adviser to a Fund, the Adviser will coordinate the
investment and reinvestment of the assets of an Allocated Portion and determine
the composition of the assets of an Allocated Portion, subject always to the
supervision and control of the Manager and the Trustees of the Trust.
B. As part of the services it will provide hereunder, the Adviser
will:
(i) obtain and evaluate, to the extent deemed necessary and
advisable by the Adviser in its discretion, pertinent economic,
statistical, financial, and other information affecting the economy
generally and individual companies or industries, the securities of which
are included in an Allocated Portion or are under consideration for
inclusion in an Allocated Portion;
(ii) formulate and implement a continuous investment program for an
Allocated Portion;
(iii) take whatever steps are necessary to implement the investment
program for an Allocated Portion by arranging for the purchase and sale of
securities and other investments, including issuing directives to the
administrator of the Trust as necessary for the appropriate implementation
of the investment program of an Allocated Portion;
(iv) keep the Trustees of the Trust and the Manager fully informed
on an ongoing basis as agreed by the Manager and Adviser of all material
facts concerning the investment and reinvestment of the assets in an
Allocated Portion, the Adviser and its key investment personnel and
operations, make periodic and special written reports of such additional
information concerning the same as may reasonably be requested from time to
time by the Manager or the Trustees of the Trust and the Adviser will
attend meetings with the Manager and/or the Trustees, as reasonably
requested, to discuss the foregoing;
(v) in accordance with procedures and methods established by the
Trustees of the Trust, which may be amended from time to time, provide
assistance in determining the fair value of all securities and other
investments/assets in an Allocated Portion, as necessary, and use
reasonable efforts to arrange for the provision of valuation information or
a price(s) from a party(ies) independent of the Adviser for each security
or other investment/asset in an Allocated Portion for which market prices
are not readily available;
(vi) provide any and all material composite performance information,
records and supporting documentation about accounts the Adviser manages, if
appropriate, which are relevant to an Allocated Portion and that have
investment objectives, policies, and strategies substantially similar to
those employed by the Adviser in managing an Allocated Portion that may be
reasonably necessary, under applicable laws, to allow a Fund or its agent
to present information concerning Adviser's prior performance in the
Trust's Prospectus and SAI (as hereinafter defined) and any permissible
reports and materials prepared by a Fund or its agent;
(vii) cooperate with and provide reasonable assistance to the
Manager, the Trust's administrator, the Trust's custodian and foreign
custodians, the Trust's transfer agent and pricing agents and all other
agents and representatives of the Trust and the Manager, keep all such
persons fully informed as to such matters as they may reasonably deem
necessary to the performance of their obligations to the Trust and the
Manager, provide prompt responses to reasonable requests made by such
persons and maintain any
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appropriate interfaces with each so as to promote the efficient exchange of
information; 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 an Allocated Portion, provided that except in
the case of routine trades the Adviser receives the express agreement and
consent of the Manager and/or the Trust's Board of Trustees to execute such
documentation, agreements 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.
C. In furnishing services hereunder, the Adviser shall be subject to, and
shall perform in accordance with the following: (i) the Trust's Agreement and
Declaration of Trust, as the same may be hereafter modified and/or amended from
time to time ("Trust Declaration"); (ii) the By-Laws of the Trust, as the same
may be hereafter modified and/or amended from time to time ("By-Laws"); (iii)
the currently effective Prospectus and Statement of Additional Information of
the Trust filed with the SEC and delivered to the Adviser, as the same may be
hereafter modified, amended and/or supplemented ("Prospectus and SAI"); (iv) the
Investment Company Act and the Advisers Act and the rules under each, and all
other federal and state securities laws or regulations applicable to the Trust
and a Fund; (v) the Trust's Compliance Manual and other policies and procedures
adopted from time to time by the Board of Trustees of the Trust; and (vi) the
written instructions of the Manager. Prior to commencement of the Adviser's
services hereunder, the Manager agrees to provide promptly to the Adviser a copy
of the documents mentioned above and all changes made to such documents and a
list of affiliated brokers and underwriters for reporting transactions under
applicable provisions of the Investment Company Act. These documents and any
amendments thereto shall not be deemed effective with respect to the Adviser
until three business days after the Adviser's receipt thereof.
D. In furnishing services hereunder, the Adviser will not consult with
any other adviser to (i) the Fund, (ii) any other Fund of the Trust or (iii) any
other investment company under common control with the Trust concerning
transactions of the Fund in securities or other assets. (This shall not be
deemed to prohibit the Adviser from consulting with any of its affiliated
persons concerning transactions in securities or other assets. This shall also
not be deemed to prohibit the Adviser from consulting with any of the other
covered advisers concerning compliance with paragraphs (a) and (b) of Rule
12d3-1 or as otherwise allowed under applicable law.)
E. The Adviser, at its expense, will furnish: (i) all necessary
facilities and personnel; and (ii) administrative facilities, including
bookkeeping, and all equipment necessary for the efficient conduct of the
Adviser's duties under this Agreement.
F. The Adviser will select brokers and dealers to effect all Fund
transactions subject to the conditions set forth herein. The Adviser will place
all necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions, if applicable. The Adviser is directed at all times to
seek to execute transactions for an Allocated Portion (i) in accordance with any
written policies, practices or procedures that may be established by the Board
of Trustees or the Manager from time to time and which have been provided to the
Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any
orders for the purchase or sale of investments for a Fund, in the name of an
Allocated Portion or its nominees, the Adviser shall, use its best efforts to
obtain for an Allocated Portion "best execution", considering all of the
circumstances, and shall maintain records adequate to demonstrate compliance
with this requirement. In no instance will portfolio securities be purchased
from or sold to the Adviser, or any affiliated person
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thereof, except in accordance with the Investment Company Act, the Advisers Act
and the rules under each, and all other federal and state laws or regulations
applicable to the Trust and a Fund.
G. Subject to the appropriate policies and procedures approved by the
Board of Trustees, Adviser may, to the extent authorized by Section 28(e) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") cause an Allocated
Portion to pay a broker or dealer that provides brokerage or research services
to the Manager, the Adviser and an Allocated Portion an amount of commission for
effecting a Fund 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 a Fund or its other advisory clients. To the extent
authorized by Section 28(e) and the Trust's Board of Trustees, the Adviser shall
not be deemed to have acted unlawfully or to have breached any duty created by
this Agreement or otherwise solely by reason of such action. In addition,
subject to seeking "best execution", the Manager or the Adviser may also
consider sales of shares of the Trust as a factor in the selection of brokers
and dealers. Subject to seeking best execution, the Board of Trustees or the
Manager may direct the Adviser to effect transactions in Fund securities through
broker-dealers in a manner that will help generate resources to: (i) pay the
cost of certain expenses which the Trust is required to pay or for which the
Trust is required to arrange payment; or (ii) recognize broker-dealers for the
sale of Fund shares.
H. On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of an Allocated Portion as well as other clients of
the Adviser, the Adviser to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be purchased or sold to attempt to obtain a more favorable price or lower
brokerage commissions and efficient execution. Allocation of the securities so
purchased or sold, as well as the expenses incurred in the transaction, will be
made by the Adviser in the manner which the Adviser considers to be the most
equitable and consistent with its fiduciary obligations to an Allocated Portion
and to its other clients over time. The Manager agrees that Adviser and its
affiliates may give advice and take action in the performance of their duties
with respect to any of their other clients that may differ from advice given, or
the timing or nature of actions taken, with respect to an Allocated Portion. The
Manager also acknowledges that Adviser and its affiliates are fiduciaries to
other entities, some of which have the same or similar investment objectives
(and will hold the same or similar investments) as an Allocated Portion, and
that Adviser will carry out its duties hereunder together with its duties under
such relationships. Nothing in this Agreement shall be deemed to confer upon
Adviser any obligation to purchase or to sell or to recommend for purchase or
sale for an Allocated Portion any investment that Adviser, its affiliates,
officers or employees may purchase or sell for its or their own account or for
the account of any client, if in the sole and absolute discretion of Adviser it
is for any reason impractical or undesirable to take such action or make such
recommendation for an Allocated Portion.
I. The Adviser will maintain all accounts, books and records with respect
to an Allocated Portion 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 ("Required Records") and shall file with the SEC all forms
pursuant to Section 13 of the Exchange Act, with respect to its duties as are
set forth herein.
J. The Manager acknowledges that the Adviser is not the compliance agent
for the Funds or an Allocated Portion, and does not have all of the books and
records necessary to perform certain compliance testing. The Adviser shall
perform such compliance testing as it deems reasonable based on its own books
and records with respect to an Allocated Portion and shall certify compliance to
the Manager accordingly.
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K. The Adviser will, unless and until otherwise directed by the Manager
or the Board of Trustees, vote proxies with respect to an Allocated Portion's
securities and exercise rights in corporate actions or otherwise in accordance
with the Adviser's proxy voting guidelines, as amended from time to time, which
shall be provided to the Trust and the Manager.
4. COMPENSATION OF ADVISER
The Manager will pay the Adviser a monthly advisory fee with respect to an
Allocated Portion as specified in Appendix A to this Agreement. Payments shall
be made to the Adviser on or about the fifth day of each month; however, this
advisory fee will be calculated daily for an Allocated Portion based on the net
assets of an Allocated Portion on each day and accrued on a daily basis.
Payments of the monthly management fee will be accompanied by documentation that
verifies the calculation of such fee. The compensation for any partial period
will be pro-rated for the services provided during that period.
5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company Act or
any other federal securities law, neither the Adviser nor any of its officers,
members or employees (its "Affiliates") shall be liable for any losses, claims,
damages, liabilities or litigation (including legal and other expenses) incurred
or suffered by the Manager or the Trust as a result of any error of judgment or
mistake of law by the Adviser or its Affiliates with respect to a Fund, except
that nothing in this Agreement shall operate or purport to operate in any way to
exculpate, waive or limit the liability of the Adviser or its Affiliates for,
and the Adviser shall indemnify and hold harmless the Trust, the Manager, all
affiliated persons thereof (within the meaning of Section 2(a)(3) of the
Investment Company Act) and all controlling persons (as described in Section 15
of the Securities Act of 1933, as amended ("1933 Act")) (collectively, "Manager
Indemnitees") against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which any of the
Manager Indemnitees may become subject under the 1933 Act, the Investment
Company Act, the Advisers Act, or under any other statute, at common law or
otherwise arising out of or based on any willful misconduct, bad faith, reckless
disregard or gross negligence of the Adviser in the performance of any of its
duties or obligations hereunder.
B. Except as may otherwise be provided by the Investment Company Act or
any other federal securities law, the Manager and the Trust shall not be liable
for any losses, claims, damages, liabilities or litigation (including legal and
other expenses) incurred or suffered by the Adviser as a result of any error of
judgment or mistake of law by the Manager with respect to an Allocated Portion,
except that nothing in this Agreement shall operate or purport to operate in any
way to exculpate, waive or limit the liability of the Manager for, and the
Manager shall indemnify and hold harmless the Adviser, all affiliated persons
thereof (within the meaning of Section 2(a)(3) of the Investment Company Act)
and all controlling persons (as described in Section 15 of the 1933 Act)
(collectively, "Adviser Indemnitees") against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses) to which any of the Adviser Indemnitees may become subject under the
1933 Act, the Investment Company Act, the Advisers Act, or under any other
statute, at common law or otherwise arising out of or based on any willful
misconduct, bad faith, reckless disregard or gross negligence of the Manager in
the performance of any of its duties or obligations hereunder.
C. Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from liability
which it may have to any indemnified party otherwise than under this Section 5.
In case any such action is brought against any indemnified party, and it
notified the indemnifying
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party of the commencement thereof, the indemnifying party will be entitied to
participate therein and, to the extent that it may wish and unless the
indemnified releases the indemnifying party from any further obligations made
under this Seciton 5 in connection with that action, assume the defense thereof,
with counsel satisfactory to such indemnified party. After notice from the
indemnifying party of its intention to assume the defense of an action, the
indemnified party shall bear the expenses of any additional counsel obtained by
it, and the indemnifying party shall not be liable to such indemnified party
under this section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
6. REPRESENTATIONS OF MANAGER
The Manager represents, warrants and agrees that:
A. The Manager has been duly authorized by the Board of Trustees of the
Trust to delegate to the Adviser the provision of investment services to an
Allocated Portion as contemplated hereby.
B. The Manager has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide the Adviser with
a copy of such code of ethics.
C. The Manager is currently in compliance and shall at all times continue
to comply with the requirements imposed upon the Manager by applicable law and
regulations.
D. The Manager (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services
contemplated by this Agreement; (iii) to the best of its knowledge, has met and
will seek to continue to meet for so long as this Agreement is in effect, any
other applicable federal or state requirements, or the applicable requirements
of any regulatory or industry self-regulatory agency necessary to be met in
order to perform the services contemplated by this Agreement; (v) will promptly
notify Adviser of the occurrence of any event that would disqualify Manager from
serving as investment manager of an investment company pursuant to Section 9(a)
of the Investment Company Act or otherwise; and (vi) will notify the Adviser of
any assignment of the Management Agreement or change of control of the Manager.
The Manager will also promptly notify the Adviser if it is served or otherwise
receives notice of any action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, public board or body, involving the
affairs of a Fund, provided, however, that routine regulatory examinations shall
not be required to be reported by this provision.
7. REPRESENTATIONS OF ADVISER
The Adviser represents, warrants and agrees as follows:
A. The Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the 1940 Act, the Advisers Act or
other law, regulation or order from performing the services contemplated by this
Agreement; (iii) to the best of its knowledge, has met and will seek to continue
to meet for so long as this Agreement remains in effect, any other applicable
federal or state requirements, or the applicable requirements of any regulatory
or industry self-regulatory agency necessary to be met in order to perform the
services contemplated by this Agreement; (iv) has the authority to enter into
and perform the services contemplated by this Agreement; and (v) will promptly
notify Manager of the occurrence of any event that would disqualify the Adviser
from serving as an investment adviser of an investment company pursuant to
Section 9(a) of the
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Investment Company Act or otherwise. The Adviser will also promptly notify a
Fund and the Manager if it is served or otherwise receives notice of any action,
suit, proceeding, inquiry or investigation, at law or in equity, before or by
any court, public board or body, involving the affairs of a Fund, provided,
however, that routine regulatory examinations shall not be required to be
reported by this provision.
B. The Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the Investment Company Act and will provide the
Manager and the Board with a copy of such code of ethics, together with evidence
of its adoption. Within forty-five days of the end of the last calendar quarter
of each year that this Agreement is in effect, and as otherwise requested, the
president, Chief Operating Officer or a vice-president of the Adviser shall
certify to the Manager that the Adviser has complied in all material respects
with the requirements of Rule 17j-1 during the previous year and that there has
been no material violation of the Adviser's code of ethics relating to the
services the Adviser performs under this Agreement or, if such a material
violation has occurred, that appropriate action was taken in response to such
violation. Upon the written request of the Manager, the Adviser shall permit the
Manager, its employees or its agents to examine the reports required to be made
to the Adviser by Rule 17j-1(c)(1) and all other records relevant to the
Adviser's code of ethics relating to the services the Adviser performs under
this Agreement.
C. The Adviser has provided the Trust and the Manager with a copy of its
Form ADV at least 48 hours prior to execution of this Agreement, which as of the
date of this Agreement is its Form ADV as most recently filed with the
Securities and Exchange Commission and promptly will furnish a copy of all
amendments to the Trust and the Manager at least annually. Such amendments shall
reflect all changes in the Adviser's organizational structure, professional
staff or other significant developments affecting the Adviser, as required by
the Advisers Act.
D. The Adviser will notify the Trust and the Manager of any assignment of
this Agreement or change of control of the Adviser, as applicable, and any
changes in the key personnel who are the portfolio manager(s) of an Allocated
Portion prior to or, promptly after, such change. The Adviser agrees to bear all
reasonable expenses of a Fund, if any, arising out of an assignment or change in
control.
E. The Adviser agrees to maintain an appropriate level of errors and
omissions or professional liability insurance coverage.
F. The Adviser agrees that neither it, nor any of its affiliates, will
knowingly in any way refer directly or indirectly to its relationship with the
Trust, a Fund, the Manager or any of their respective affiliates in offering,
marketing or other promotional materials without the express written consent of
the Manager, except as required by rule, regulation or upon the request of a
governmental authority. However, the Adviser may use the performance of an
Allocated Portion in its composite performance.
8. NON-EXCLUSIVITY
The services of the Adviser to the Manager, an Allocated Portion and the
Trust are not to be deemed to be exclusive, and the Adviser shall be free to
render investment advisory or other services to others and to engage in other
activities. It is understood and agreed that the directors, officers, and
employees of the Adviser are not prohibited from engaging in any other business
activity or from rendering services to any other person, or from serving as
partners, officers, directors, trustees, or employees of any other firm or
corporation.
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9. SUPPLEMENTAL ARRANGEMENTS
The Adviser may from time to time employ or associate itself with any
person it believes to be particularly suited to assist it in providing the
services to be performed by such Adviser hereunder, provided that no such person
shall perform any services with respect to an Allocated Portion that would
constitute an assignment or require a written advisory agreement pursuant to the
Investment Company Act. Any compensation payable to such persons shall be the
sole responsibility of the Adviser, and neither the Manager nor the Trust shall
have any obligations with respect thereto or otherwise arising under the
Agreement.
10. REGULATION
The Adviser shall submit to all regulatory and administrative bodies having
jurisdiction over the services provided pursuant to this Agreement any Required
Records that any such body by reason of this Agreement may request or require
pursuant to applicable laws and regulations.
11. RECORDS
The Required 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, provided that the Adviser
may retain any such records that are required by law or regulation. The Manager
and the Adviser shall keep confidential any information obtained in connection
with its duties hereunder and disclose such information only if the Trust has
authorized such disclosure or if such disclosure is expressly required or
requested by applicable federal or state regulatory authorities, or otherwise
required by law.
12. DURATION OF AGREEMENT
This Agreement shall become effective upon the date of its execution. This
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 by the Board of Trustees provided that in such event such
continuance shall also be approved by the vote of a majority of the Independent
Trustees of any party to this Agreement cast in person at a meeting called for
the purpose of voting on such approval.
13. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Trustees, including a majority of the Independent
Trustees, by the vote of a majority of the outstanding voting securities of a
Fund, on sixty (60) days' written notice to the Manager and the Adviser, or by
the Manager or Adviser on sixty (60) days' written notice to the Trust and the
other party. This Agreement will automatically terminate, without the payment of
any penalty, (i) in the event of its assignment (as defined in the Investment
Company Act), or (ii) in the event the Investment Management Agreement between
the Manager and the Trust is assigned (as defined in the Investment Company Act)
or terminates for any other reason. This Agreement will also terminate upon
written notice to the other party that the other party is in material breach of
this Agreement, unless the other party in material breach of this Agreement
cures such breach to the reasonable satisfaction of the party alleging the
breach within thirty (30) days after written notice.
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14. USE OF ADVISER'S NAME
The parties agree that the name of the Adviser, the names of any affiliates
of the Adviser and any derivative or logo or trademark or service ▇▇▇▇ or trade
name are the valuable property of the Adviser and its affiliates. The Manager
and the Trust shall have the right to use such name(s), derivatives, logos,
trademarks or service marks or trade names only with the prior written approval
of the Adviser so long as this Agreement is in effect.
Upon termination of this Agreement, the Manager and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. The Manager and the Trust agree that they will review with
the Adviser any advertisement, sales literature, or notice prior to its use that
makes reference to the Adviser or its affiliates or any such name(s),
derivatives, logos, trademarks, service marks or trade names so that the Adviser
may review the context in which it is referred to, it being agreed that the
Adviser shall have no responsibility to ensure the adequacy of the form or
content of such materials for purposes of the Investment Company Act or other
applicable laws and regulations. If the Manager or the Trust makes any
unauthorized use of the Adviser's names, derivatives, logos, trademarks or
service marks or trade names, the parties acknowledge that the Adviser shall
suffer irreparable harm for which monetary damages may be inadequate and thus,
the Adviser shall be entitled to injunctive relief, as well as any other remedy
available under law.
15. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules
or regulations thereunder or pursuant to exemptive relief granted by the SEC,
this Agreement may be amended by the parties only if such amendment, if
material, is specifically approved by the vote of a majority of the outstanding
voting securities of a Fund (unless such approval is not required by Section 15
of the Investment Company Act as interpreted by the SEC or its staff or unless
the SEC has granted an exemption from such approval requirement) and by the vote
of a majority of the Independent Trustees cast in person at a meeting called for
the purpose of voting on such approval. The required shareholder approval shall
be effective with respect to a Fund if a majority of the outstanding voting
securities of a Fund 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 Fund affected by the amendment or all the Funds of the
Trust.
16. ASSIGNMENT
Any assignment (as that term is defined in the Investment Company Act) of
the Agreement made by the Adviser without the prior written consent of the Trust
and the Manager shall result in the automatic termination of this Agreement, as
provided in Section 13 hereof. Notwithstanding the foregoing, no assignment
shall be deemed to result from any changes in the directors, officers or
employees of such Adviser except as may be provided to the contrary in the
Investment Company Act or the rules or regulations thereunder. The Adviser
agrees that it will notify the Trust and the Manager of any changes in its
directors, officers or employees within a reasonable time thereafter.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to an Allocated Portion.
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18. HEADINGS
The headings in the sections of this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
19. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the address listed below of each applicable party in
person or by registered or certified mail or a private mail or delivery service
providing the sender with notice of receipt. 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.
For: The Equitable Life Assurance Society of the United States
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President and Associate General Counsel
1290 Avenue of the Americas, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For: AXA Premier Funds Trust
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President and Secretary
1290 Avenue of the Americas, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For: Massachusetts Financial Services Company
Attn: Legal Department
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void in
law or in equity, the Agreement shall be construed, insofar as is possible, as
if such portion had never been contained herein.
21. TRUST AND SHAREHOLDER LIABILITY
The Manager and Adviser are hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Agreement and
Declaration of Trust of the Trust and agree that obligations assumed by the
Trust pursuant to this Agreement shall be limited in all cases to the Trust and
its assets, and if the liability relates to one or more series, the obligations
hereunder shall be limited to the respective assets of a Fund. The Manager and
Adviser further agree that they shall not seek satisfaction of any such
obligation from the shareholders or any individual shareholder of a Fund, nor
from the Trustees or any individual Trustee of the Trust.
22. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of New York, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
10
23. INTERPRETATION
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
Investment Company Act shall be resolved by reference to such term or provision
of the Investment Company Act and to interpretations thereof, if any, by the
United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued pursuant to the
Investment Company Act. Specifically, the terms "vote of a majority of the
outstanding voting securities," "interested persons," "assignment," and
"affiliated persons," as used herein shall have the meanings assigned to them by
Section 2(a) of the Investment Company Act. In addition, where the effect of a
requirement of the Investment Company Act reflected in any provision of this
Agreement is relaxed by a rule, regulation or order of the SEC, whether of
special or of general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
THE EQUITABLE LIFE ASSURANCE MASSACHUSETTS FINANCIAL SERVICES
SOCIETY OF THE UNITED STATES COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- -------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President Title: Senior Vice President
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APPENDIX A
TO
INVESTMENT ADVISORY AGREEMENT
WITH
MASSACHUSETTS FINANCIAL SERVICES COMPANY
Related Portfolios Annual Advisory Fee Rate***
-------------------------------------- ----------------------------------------
Large Cap Value Portfolios, which 0.40% the MFS Allocated Portions'
shall consist of the following average daily net assets up to and
Allocated Portion and Other Allocated including $300 million; and 0.375% of
Portion** (collectively referred to as the MFS Allocated Portions' average
"Large Cap Value Portfolios"): daily net assets in excess of $300
million and up to and including $600
AXA Premier Large Cap Value Fund* million; and 0.35% of the MFS
AXA Premier VIP Large Cap Value Allocated Portions' average daily net
Portfolio* assets in excess of $600 million
* Fee to be paid with respect to this Fund shall be based only on the portion of
a Fund's average daily net assets advised by the Adviser, which may be referred
to as an "MFS Allocated Portion."
** Other Allocated Portions are other registered investment companies (or series
or portions thereof) that are managed by the Manager and advised by the Adviser,
which are classified as "Large Cap Value Portfolios."
*** The daily advisory fee for the Related Portfolios is calculated by
multiplying the aggregate net assets of the Related Portfolios at the close of
the immediately preceding business day by the annual Advisory Fee Rate
calculated as set forth above and then dividing the result by the number of days
in the year. The daily fee applicable to each Allocated Portion is the portion
of the daily advisory fee for the Related Portfolios equal to the Allocated
Portion's net assets relative to the aggregate net assets of the Related
Portfolios, including the Allocated Portion, used in the fee calculation.
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