INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 28th day of April, 2008, by and between Franklin
Mutual Advisers, LLC, a Delaware limited liability company ("Franklin")(the
"Adviser"), and Met Investors Advisory LLC, a Delaware limited liability company
(the "Manager").
WHEREAS, the Manager serves as investment manager of Met Investors
Series Trust (the "Trust"), a Delaware business trust which has filed a
registration statement (the "Registration Statement") under the Investment
Company Act of 1940, as amended (the "1940 Act") and the Securities Act of 1933,
as amended (the "1933 Act") pursuant to a management agreement dated December 8,
2000, as amended from time to time (the "Management Agreement"); and
WHEREAS, the Trust is comprised of several separate investment
portfolios, one of which is the Met/Franklin Mutual Shares Portfolio (the
"Portfolio"); and
WHEREAS, the Manager desires to avail itself of the services,
information, advice, assistance and facilities of an investment adviser to
assist the Manager in performing investment advisory services for the Portfolio;
and
WHEREAS, the Adviser is registered under the Investment Advisers Act of
1940, as amended (the "Advisers Act"), and is engaged in the business of
rendering investment advisory services to investment companies and other
institutional clients and desires to provide such services to the Manager;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, it is agreed as follows:
1. Employment of the Adviser. The Manager hereby employs the Adviser to
manage the investment and reinvestment of the assets of the Portfolio, subject
to the control and direction of the Trust's Board of Trustees, for the period
and on the terms hereinafter set forth. The Adviser hereby accepts such
employment and agrees during such period to render the services and to assume
the obligations herein set forth for the compensation herein provided. The
Adviser shall for all purposes herein be deemed to be an independent contractor
and shall, except as expressly provided or authorized (whether herein or
otherwise), have no authority to act for or represent the Manager, the Portfolio
or the Trust in any way. The Adviser may execute account documentation,
agreements, contracts and other documents requested by brokers, dealers,
counterparties and other persons in connection with its management of the assets
of the Portfolio, provided the Adviser receives the express agreement and
consent of the Manager and/or the Trust's Board of Trustees to execute futures
account agreements, ISDA Master Agreements and other documents related thereto,
which consent shall not be unreasonably withheld. In such respect, and only for
this limited purpose, the Adviser shall act as the Manager's and the Trust's
agent and attorney-in-fact.
Copies of the Trust's Registration Statement, as it relates to the
Portfolio (the "Registration Statement"), and the Trust's Declaration of Trust
and Bylaws (collectively, the "Charter Documents"), each as currently in effect,
have been or will be delivered to the Adviser. The Manager agrees, on an ongoing
basis, to notify the Adviser in writing of each change in the fundamental and
non-fundamental investment policies and restrictions of the Portfolio before
they become effective and to provide to the Adviser as promptly as practicable
copies of all amendments and supplements to the Registration Statement before
filing with the Securities and Exchange Commission ("SEC") and amendments to the
Charter Documents. The Manager will promptly provide the Adviser with any
procedures applicable to the Adviser adopted from time to time by the Trust's
Board of Trustees and agrees to promptly provide the Adviser copies of all
amendments thereto. The Adviser will not be bound to follow any change in the
investment policies, restrictions or procedures of the Portfolio or Trust,
however, until it has received written notice of any such change from the
Manager.
The Manager shall timely furnish the Adviser with such additional
information as may be reasonably necessary for or requested by the Adviser to
perform its responsibilities pursuant to this Agreement. The Manager shall
cooperate with the Adviser in setting up and maintaining brokerage accounts and
other accounts the Adviser deems advisable to allow for the purchase or sale of
various forms of securities pursuant to this Agreement.
2. Obligations of and Services to be Provided by the Adviser. The
Adviser undertakes to provide the following services and to assume the following
obligations:
a. The Adviser shall manage the investment and reinvestment of
the portfolio assets of the Portfolio, all without prior consultation with the
Manager, subject to and in accordance with the investment objective and policies
of the Portfolio set forth in the Trust's Registration Statement and the Charter
Documents if provided by the Manager to the Adviser, as such Registration
Statement and Charter Documents may be amended from time to time and if provided
to the Adviser as amended, 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 Section 817(h) of the Internal Revenue Code of 1986, as
amended (the "Code") including but not limited to, the diversification
requirements of Section 817(h) of the Code and the regulations thereunder and
any written instructions which the Manager or the Trust's Board of Trustees may
issue from time-to-time in accordance therewith. In pursuance of the foregoing,
the Adviser shall make all determinations with respect to the purchase and sale
of portfolio securities and shall take such action necessary to implement the
same. The Adviser shall render such reports to the Trust's Board of Trustees and
the Manager as they may reasonably request concerning the investment activities
of the Portfolio, provided that the Adviser shall not be responsible for
Portfolio accounting.
Decisions on proxy voting will be made by the Adviser unless such
decisions are expressly reserved by the Manager. The Adviser's obligation to
vote proxies shall be contingent upon receipt of proxies from the Portfolio
custodian in a timely manner. The Adviser shall not be expected or required to
take any action other than the rendering of investment-related advice with
respect to lawsuits involving securities presently or formerly held in the
Portfolio, or the issuers thereof. However, the Adviser will use commercially
reasonable efforts to file proofs of claim on behalf of the Portfolio in
securities class-action suits and SEC settlements which have a proof of claim
process for investors and, in that connection, the Adviser may, without prior
permission or consent, include information about the Portfolio. The Adviser may,
at any time, terminate its obligation to file such proofs of claim by giving
notice of such termination to the Manager, and such obligation shall, if not
sooner terminated, automatically terminate upon the termination of this
Agreement. The Manager and the Portfolio acknowledge that by filing a proof of
claim on the Portfolio's behalf, the Adviser may waive the Portfolio's right to
pursue separate litigation against the issuer with respect to the subject matter
of the lawsuit. Should the Adviser determine to undertake litigation against an
issuer on behalf of one or more funds, the Adviser shall obtain the prior
written consent of the Portfolio to undertake such litigation. If the Portfolio
consents to such litigation, the Portfolio agrees to pay the portion of any
reasonable legal fees associated with the action or the Portfolio will forfeit
any claim to any assets the Adviser may recover on behalf of the Portfolio up to
the amount of such legal fees owed by the Portfolio to the Adviser. If the
Portfolio does not consent to such litigation, the Manager and the Portfolio
agree to hold the Adviser harmless for excluding the Portfolio from such action
and agree to indemnify the Adviser against any claims they may have against the
Adviser from the Portfolio's exclusion.
b. To the extent provided in the Trust's Registration
Statement, as such Registration Statement may be amended from time to time, the
Adviser shall, in the name of the Portfolio, place orders for the execution of
portfolio transactions with or through such brokers, dealers or other financial
institutions as it may select including affiliates of the Adviser and, complying
with Section 28(e) of the Securities Exchange Act of 1934, may pay a commission
on transactions in excess of the amount of commission another broker-dealer
would have charged.
c. In connection with the placement of orders for the
execution of the portfolio transactions of the Portfolio, the Adviser shall
create and maintain all necessary records pertaining to the purchase and sale of
securities by the Adviser on behalf of the Portfolio in accordance with all
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the 1940 Act. All records shall be the property of
the Trust and the Adviser and shall be available for inspection and use by the
SEC, the Trust, the Manager or any person retained by the Trust at all
reasonable times. The Adviser will give copies of such records to the Manager or
the Trust within a reasonable time after request. Where applicable, such records
shall be maintained by the Adviser for the periods and in the places required by
Rule 31a-2 under the 1940 Act.
d. Except as provided below, the Adviser shall bear its
expenses of providing services pursuant to this Agreement, but shall not be
obligated to pay any expenses of the Manager, the Trust, or the Portfolio,
including without limitation: (a) interest and taxes; (b) brokerage commissions
and other costs in connection with the purchase or sale of securities or other
investment instruments for the Portfolio; and (c) custodian fees and expenses.
The Portfolio and not the Adviser is responsible for post investment decision,
pre-acquisition due diligence expenses ("Due Diligence") incurred on behalf of
the Portfolio as part of the cost of acquisition of certain investment
opportunities and post investment expenditures to protect or enhance an
investment or expenditures incurred to pursue other claims or legal action that
are treated as operating expenses of the Portfolio ("Legal Services").
Compensation payable for Due Diligence and Legal Services shall be the
responsibility of the Trust, not the Adviser. All other expenses not
specifically assumed by the Adviser hereunder or by the Manager under the
Management Agreement are borne by the Portfolio or the Trust.
e. The Adviser and the Manager acknowledge that the Adviser is
not the compliance agent for the Portfolio or for the Manager, and does not have
access to all of the 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 and Charter Documents, written instructions of the Manager 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 Subchapters M and the diversification requirements of section
817(h) of the Code, the 1940 Act and the Advisers Act ("Applicable Law")), the
Adviser shall perform such services based upon its reasonable interpretations of
Applicable Law including the Adviser's internal conventions with respect to
compliance with the diversification requirements of the Code, and the books and
records with respect to the Portfolio (as specified in Section 2.c. hereof),
which comprise a portion of the 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 Adviser shall, as part of a complete portfolio compliance
testing program, perform quarterly diversification testing under Section 817(h)
of the Code. The Adviser shall provide timely notice each calendar quarter that
such diversification was satisfied or if not satisfied, that corrections were
made within 30 days of the end of the calendar quarter. The Adviser shall have
no responsibility to monitor certain limitations or restrictions for which the
Adviser has not been provided sufficient information in accordance with Section
1 of this Agreement or otherwise. All such monitoring shall be the
responsibility of the Manager.
f. The Adviser makes no representation or warranty, express or
implied, that any level of performance or investment results will be achieved by
the Portfolio or that the Portfolio will perform comparably with any standard or
index, including other clients of the Adviser, whether public or private.
g. The Adviser shall be responsible for the preparation and
filing of Schedule 13G and Form 13F on behalf of the Portfolio. The Adviser
shall not be responsible for the preparation or filing of any other reports
required of the Portfolio by any governmental or regulatory agency, except as
expressly agreed to in writing.
h. The Adviser shall provide assistance in determining the
fair value of all securities and other investments/assets in the Portfolio, 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 the Portfolio for which market prices are
not readily available.
i. The Adviser will notify the Trust and the Manager of any
assignment of this Agreement or change of control of the Adviser, as applicable,
and any changes in the key personnel who are either the portfolio manager(s) of
the Portfolio or senior management of the Adviser, in each case prior to or
promptly after, such change. The Adviser agrees to bear all reasonable expenses
of the Trust, if any, arising out of any assignment by, or change in control of
the Adviser and any changes in the key personnel who are either the portfolio
manager(s) of the Portfolio or senior management of the Adviser.
j. The Adviser may, but is not obligated to, combine or
"batch" orders for client portfolios to obtain best execution, to negotiate more
favorable commission rates or to allocate equitably among the Adviser's clients
differences in prices and commissions or other transaction costs that might have
been obtained had such orders been placed independently. Under this procedure,
transactions will be averaged as to price and transaction costs and typically
will be allocated among the Adviser's clients in proportion to the purchase and
sale orders placed for each client account on any given day. If the Adviser
cannot obtain execution on all the combined orders at prices or for transaction
costs that the Adviser believes are desirable, the Adviser will allocate the
securities the Adviser does buy or sell as part of the combined orders by
following the Adviser's order allocation procedures.
k. The Adviser will not consult with any other adviser of the
Trust concerning securities transactions of any portfolio of the Trust in
securities or other assets, except as otherwise permitted by the 1940 Act or any
rules thereunder.
3. Compensation of the Adviser. In consideration of services rendered
pursuant to this Agreement, the Manager will pay the Adviser a fee at the annual
rate of the value of the Portfolio's average daily net assets set forth in
Schedule A hereto. Such fee shall be accrued daily and paid monthly as soon as
practicable after the end of each month. If the Adviser shall serve for less
than the whole of any month, the foregoing compensation shall be prorated. For
the purpose of determining fees payable to the Adviser, the value of the
Portfolio's net assets shall be computed at the times and in the manner
specified in the Trust's Registration Statement.
4. Activities of the Adviser. The services of the Adviser hereunder are
not to be deemed exclusive, and the Adviser shall be free to render similar
services to others and to engage in other activities, so long as the services
rendered hereunder are not impaired.
The Adviser shall be subject to a written code of ethics adopted by it
that conforms to the requirements of Rule 17j-1(b) of the 1940 Act, and shall
not be subject to any other code of ethics, including the Manager's code of
ethics, unless specifically adopted by the Adviser.
5. Use of Names. The parties to this Agreement agree that the names of
the Adviser and its affiliates and any of their logos or trademarks or service
marks or trade names or any derivatives of them (collectively, "Adviser Names")
are the valuable property of the Adviser and its affiliates. The Manager and the
Portfolio may use the name of the Adviser to identify it as the subadviser to
the Portfolio as required by law or regulation. Any other use of an Adviser Name
must be expressly pre-approved in writing by the Adviser and all marketing
materials, advertisements, sales literature and notices using an Adviser Name
must be submitted to the Adviser for approval at least ten (10) business days
prior to the date such approval is needed. The Manager and the Portfolio agree
that, with respect to such materials submitted to the Adviser, the Adviser shall
have no responsibility to ensure the adequacy of the form or content of such
materials for purposes of the 1940 Act or other applicable laws and regulations.
Once approved in writing by the Adviser, any change in any approved use of an
Adviser Name including, without limitation, change in phrases identifying or
associated with a fund, requires prior approval in writing by the Adviser. Upon
termination of this Agreement, the Manager and the Portfolio shall forthwith
cease to use all Adviser Names, except as may be required by law or regulation.
If the Manager or the Portfolio makes any unauthorized use of an Adviser Name,
the parties acknowledge that the Adviser and its affiliates shall suffer
irreparable harm for which monetary damages may be inadequate and thus the
Adviser and its affiliates shall be entitled to injunctive relief, as well as
any other remedy available under law.
The Manager recognizes that from time to time directors, officers and
employees of the Adviser may serve as directors, trustees, partners, officers
and employees of other corporations, business trusts, partnerships or other
entities (including other investment companies) and that such other entities may
include Adviser Names as part of their name, and that the Adviser or its
affiliates may enter into investment advisory, administration or other
agreements with such other entities.
6. Liability and Indemnification.
a. Except as may otherwise be provided by the 1940 Act or any
other federal securities law, the Adviser shall not be liable for any losses,
claims, damages, liabilities or litigation (including legal and other expenses)
incurred or suffered by the Manager or the Trust as a result of any error of
judgment or mistake of law by the Adviser with respect to the Portfolio, except
that nothing in this Agreement shall operate or purport to operate in any way to
exculpate, waive or limit the liability of the Adviser for, and the Adviser
shall indemnify and hold harmless the Trust, the Manager, all affiliated persons
thereof (within the meaning of Section 2(a)(3) of the 1940 Act ) and all
controlling persons (as described in Section 15 of the 1933 Act) (collectively,
"Manager Indemnitees") against any and all losses, claims, damages, liabilities
or litigation (including reasonable legal and other reasonable expenses) to
which any of the Manager Indemnitees may become subject under the 1933 Act, the
1940 Act, the Advisers Act, or under any other statute, at common law or
otherwise arising out of or based on (i) any willful misconduct, bad faith,
reckless disregard or gross negligence of the Adviser in the performance of any
of its duties or obligations hereunder or (ii) any untrue statement of a
material fact contained in the Registration Statement, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to the Portfolio
or the omission to state therein a material fact known to the Adviser which was
required to be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance upon information
furnished to the Manager or the Trust by the Adviser Indemnitees (as defined
below) for use therein.
b. Except as may otherwise be provided by the 1940 Act or any
other federal securities law, the Manager and the Trust shall not be liable for
any losses, claims, damages, liabilities or litigation (including legal and
other expenses) incurred or suffered by the Adviser as a result of any error of
judgment or mistake of law by the Manager with respect to the Portfolio, except
that nothing in this Agreement shall operate or purport to operate in any way to
exculpate, waive or limit the liability of the Manager for, and the Manager
shall indemnify and hold harmless the Adviser, all affiliated persons thereof
(within the meaning of Section 2(a)(3) of the 0000 Xxx) 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 1940 Act, the
Advisers Act, or under any other statute, at common law or otherwise arising out
of or based on (i) any willful misconduct, bad faith, reckless disregard or
gross negligence of the Manager in the performance of any of its duties or
obligations hereunder, (ii) any failure by the Manager to properly notify the
Adviser of changes to the Registration Statement or any Charter Requirements
that leads to any such losses, claims, damages, liabilities or litigation to
which any of the Adviser Indemnitees may be subject or (iii) any untrue
statement of a material fact contained in the Registration Statement, proxy
materials, reports, advertisements, sales literature, or other materials
pertaining to the Portfolio or the omission to state therein a material fact
known to the Manager which was required to be stated therein or necessary to
make the statements therein not misleading, unless such statement or omission
was made in reliance upon information furnished to the Manager or the Trust by
an Adviser Indemnitee for use therein.
7. Limitation of Trust's Liability. The Adviser acknowledges that it
has received notice of and accepts the limitations upon the Trust's liability
set forth in its Agreement and Declaration of Trust. The Adviser agrees that any
of the Trust's obligations shall be limited to the assets of the Portfolio and
that the Adviser shall not seek satisfaction of any such obligation from the
shareholders of the Trust nor from any Trust officer, employee or agent of the
Trust.
8. Renewal, Termination and Amendment. This Agreement shall continue in
effect, unless sooner terminated as hereinafter provided, until December 31,
2008 and shall continue in full force and effect for successive periods of one
year thereafter, but only so long as each such continuance as to the Portfolio
is specifically approved at least annually by vote of the holders of a majority
of the outstanding voting securities of the Portfolio or by vote of a majority
of the Trust's Board of Trustees; and further provided that such continuance is
also approved annually by the vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of any such party. This
Agreement may be terminated as to the Portfolio at any time, without payment of
any penalty, by the Trust's Board of Trustees, by the Manager, or by a vote of
the majority of the outstanding voting securities of the Portfolio upon 60 days'
prior written notice to the Adviser, or by the Adviser upon 90 days' prior
written notice to the Manager, or upon such shorter notice as may be mutually
agreed upon. This Agreement shall terminate automatically and immediately upon
termination of the Management Agreement between the Manager and the Trust. This
Agreement shall terminate automatically and immediately in the event of its
assignment. The terms "assignment" and "vote of a majority of the outstanding
voting securities" shall have the meaning set forth for such terms in the 1940
Act. This Agreement may be amended at any time by the Adviser and the Manager,
subject to approval by the Trust's Board of Trustees and, if required by
applicable SEC rules, regulations, or orders, a vote of a majority of the
Portfolio's outstanding voting securities.
9. Confidential Relationship. Any information and advice furnished by
any party to this Agreement to the other party or parties shall be treated as
confidential and shall not be disclosed to third parties without the consent of
the other party hereto except as required by law, rule or regulation.
The Manager hereby consents to the disclosure to third parties of (i)
investment results and other data of the Manager or the Portfolio in connection
with providing composite investment results of the Adviser and (ii) investments
and transactions of the Manager or the Portfolio in connection with providing
composite information of clients of the Adviser and the Adviser performing its
duties pursuant to this Agreement.
10. Cooperation with Regulatory Authorities. The parties to this
Agreement each agree to cooperate in a reasonable manner with each other in the
event that any of them should become involved in a legal, administrative,
judicial or regulatory action, claim, or suit as a result of performing its
obligations under this Agreement.
11. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
12. Custodian. The Portfolio assets shall be maintained in the custody
of its custodian. Any assets added to the Portfolio shall be delivered directly
to such custodian. The Adviser shall have no liability for the acts or omissions
of any custodian of the Portfolio's assets. The Adviser shall have no
responsibility for the segregation requirement of the 1940 Act or other
applicable law other than to notify the custodian of investments that require
segregation and appropriate assets for segregation.
13. Information. The Manager hereby acknowledges that it and the
Trustees of the Trust have been provided with all information necessary in
connection with the services to be provided by the Adviser hereunder, including
a copy of Part II of the Adviser's Form ADV at least 48 hours prior to the
Manager's execution of this Agreement, and any other information that the
Manager or the Trustees deem necessary.
14. Miscellaneous. This Agreement constitutes the full and complete
agreement of the parties hereto with respect to the subject matter hereof. Each
party agrees to perform such further actions and execute such further documents
as are necessary to effectuate the purposes hereof. This Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of Delaware and the applicable provisions of the 1940 Act. The captions in this
Agreement are included for convenience only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed in several counterparts, all of which together shall
for all purposes constitute one Agreement, binding on all the parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
MET INVESTORS ADVISORY LLC
BY:
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Authorized Officer
FRANKLIN MUTUAL ADVISERS, LLC
BY:
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Authorized Officer
SCHEDULE A
Percentage of average daily net assets
Met/Franklin Mutual Shares Portfolio 0.51%
