1
SECOND AMENDED AND RESTATED DISTRIBUTION AGREEMENT
CLASS B SHARES
METLIFE INVESTORS DISTRIBUTION COMPANY
SECOND AMENDED AND RESTATED AGREEMENT, dated as of August 30, 2002 by
and between Met Investors Series Trust (the "Trust") and MetLife Investors
Distribution Company ("MID").
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 B 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 or to
an investment adviser to the Trust or the investment adviser's affiliates: and
WHEREAS, the Trust has adopted a Distribution Plan with respect to its
Class B shares pursuant to Rule 12b-1 under the Investment Company Act of 1940,
as amended ("1940 Act"); and
WHEREAS, the Trust desires that MID undertake marketing activities with
respect to the Class B shares of the Trust's constituent series or investment
portfolios ("Portfolios") and to compensate MID for services rendered and
expenses borne in connection therewith; and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act: and
WHEREAS, the 1940 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 MID will be the distributor for sale of the Class B shares issued
by the Trust; and
WHEREAS, MID is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended ("1934 Act"), and is a member of the National
Association of Securities Dealers, Inc. ("NASD").
NOW THEREFORE, the Trust and MID hereby amend and restate this
Agreement in its entirety 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. MID 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 MID serves as the principal underwriter of the Class A shares, Class
B shares, Class C shares and Class E shares of the Trust (collectively, the
"Shares").
Section 2. MID 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 B 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. MID 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 1934 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 A, Class B, Class C and Class E shares. The Trust's
Portfolios and any restrictions on availability for Class B shares relating
thereto are set forth in Schedule A hereto, which may be amended from time to
time to add or delete Portfolios.
Purchases and redemptions of the Trust's Class B 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 B 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 MID and the Trust from time to time. The
Trust's Class B shares may not be sold or transferred, except to an Eligible
Separate Account, a Qualified Plan or an investment adviser to the Trust or the
investment adviser's affiliates, without the prior approval of the Trust's Board
of Trustees.
Section 5. As compensation to MID for services rendered and expenses
borne as a distributor hereunder, each Portfolio shall pay MID 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 B shares with respect to which MID provides services
and/or assumes expenses under the Class B Distribution Plan. MID 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 MID 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 ("1933 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 MID
specifically for use in the preparation thereof.
In this connection, MID 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 Met Investors Advisory LLC ("Met
Advisory"), affiliates of Met Advisory, and other parties unaffiliated with Met
Advisory 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 in or
omitted from the Trust Prospectus and SAI. MID 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 disclosure 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")) and shall, in accordance with the form
of Participation Agreement, provide sufficient copies of such Documents or shall
make camera ready copy available to MID for reproduction by MID or the
Participating Insurance Companies. To the extent that the foregoing Documents
are with respect to Class B shares, the cost of preparing, printing, mailing and
otherwise distributing such Documents will be at the expense of such Class B
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 MID of anticipated filings or supplements. MID 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 MID or the
Participating Insurance Companies, not the Trust.
Section 8. MID 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. MID shall furnish to the Trust, at least quarterly, reports
as to the sales of the Trust's Class B shares made pursuant to this Agreement.
These reports may be combined with any similar report prepared by MID or any of
the Preparing Parties.
Section 10. MID shall submit to all regulatory and administrative
bodies having jurisdiction over the operations of MID, 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
1940 Act, the 1934 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 1940 Act and (b) the vote of the persons having voting rights in respect
of the Trust referred to in Section 12 herein shall be the affirmative votes of
the lesser of (i) the holders of more than 50% of all votes in respect of Class
B 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 B shares which are present at a
meeting of such persons if the holders of more than 50% of all votes in respect
of Class B 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. (a) Current Portfolios. With respect to each of the
Portfolios listed on Schedule A as of August 14, 2002 ("Current Portfolios"),
this Agreement shall continue in effect until the anniversary date of this
Agreement 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 MID 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") 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, or (b) the Board of Trustees of the Trust.
(b) New Portfolios. With respect to any Portfolio not listed on
Schedule A hereto as of August 14, 2002 ("New Portfolio"), this Agreement shall
become effective on such date as determined by the Board of Trustees of the
Trust, provided that with respect to any New Portfolio, this Agreement shall not
take effect unless it has been approved by a majority of the 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, or (b) the Board of Trustees of the Trust.
This Agreement shall continue in effect with respect to the New
Portfolio, until the anniversary date of this Agreement, unless sooner
terminated, as provided herein, and shall continue from year to year thereafter,
provided each continuance is specifically approved at least annually by a
majority of the 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, or (b) the Board of Trustees of
the Trust.
(c) Termination. This Agreement may be terminated at any time, without
penalty, with respect to any Portfolio, 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. This Agreement shall terminate automatically if it shall
be assigned.
Section 13. The Trust shall indemnify and hold harmless MID from any
and all losses, claims, damages or liabilities (or actions in respect thereof)
to which MID 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 MID.
MID 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
MID in its capacity as a principal underwriter of the Trust's Class B 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 MID 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 14. A copy of the 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.
MET INVESTORS SERIES TRUST
By:
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Xxxxxxxxx X. Forget
President
METLIFE INVESTORS DISTRIBUTION COMPANY
By:
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Xxxxxxx X. Xxxxxxx
Executive Vice President
Schedule A
Second Amended and Restated Distribution Agreement
- Class B Shares
As of August 14, 2002
Portfolio
X.X. Xxxxxx Quality Bond
X.X. Xxxxxx Small Cap Stock
X.X. Xxxxxx Enhanced Index
X.X. Xxxxxx Select Equity
X.X. Xxxxxx International Equity
Lord Xxxxxx Bond Debenture
Lord Xxxxxx Mid-Cap Value
Lord Xxxxxx Developing Growth
Lord Xxxxxx Growth and Income
Lord Xxxxxx Growth Opportunities
PIMCO Total Return
PIMCO Money Market
PIMCO Innovation
MFS Mid Cap Growth
MFS Research International
Met/Xxxxxx Research
Janus Aggressive Growth
Xxxxxxxxxxx Capital Appreciation
Met/AIM Small Cap Growth
Met/AIM Mid Cap Core Equity
State Street Research Concentrated International
Third Avenue Small Cap Value
