INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ___ day of February, 2001, by and between
Massachusetts Financial Services Company, a Delaware corporation ("MFS") (the
"Adviser"), and Met Investors Advisory Corp., a Delaware corporation (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 (the "Management Agreement"); and
WHEREAS, the Trust is comprised of several separate investment
portfolios, one of which is the MFS Mid Cap Growth Portfolio (the "Portfolio");
and
WHEREAS, the Manager is registered under the Investment Advisers Act of
1940, as amended (the "Advisers Act") and 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 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 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 Adviser agrees to implement such changes as soon as reasonably
practicable.
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, as such Registration Statement and Charter Documents may be amended
from time to time, in compliance with the requirements applicable to registered
investment companies under applicable laws and those requirements applicable to
both regulated investment companies and segregated asset accounts under
Subchapters M and L of the Internal Revenue Code of 1986, as amended (the
"Code") 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. Unless the Manager gives the Adviser
written instructions to the contrary, the Adviser shall, in good faith and in a
manner which it reasonably believes best serves the interests of the Portfolio's
shareholders, direct the Portfolio's custodian as to how to vote such proxies as
may be necessary or advisable in connection with any matters submitted to a vote
of shareholders of securities held by the Portfolio.
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. In addition, subject to seeking the most favorable price and
best execution available, the Adviser may also consider sales of shares of the
Trust as a factor in the selection of brokers and dealers. Subject to seeking
the most favorable price and execution and any other applicable legal
requirements, the Board of Trustees or the Manager may cause the Adviser to
effect transactions in portfolio 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) finance activities that are primarily intended to result in the
sale of Trust shares. On occasions when the Adviser deems the purchase or sale
of a security to be in the best interest of the Portfolio as well as other
clients of the Adviser, the Adviser to the extent permitted by applicable laws
and regulations, may, but shall be under no obligation to, aggregate the
securities to be purchased or sold to attempt to obtain a more favorable price
or lower brokerage commissions and efficient execution. In such event,
allocation of the securities so purchased or sold, as well as the expenses
incurred in the transactions, will be made by the Adviser in the manner Adviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Portfolio and to its other clients.
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 ("Required Records"). All Required
Records shall be the property of the Trust 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. Where applicable, such Required Records shall be
maintained by the Adviser for the periods and in the places required by Rule
31a-2 under the 1940 Act.
d. 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.
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 L of the Code, the 1940 Act and the Advisers
Act ("Applicable Law")), the Adviser shall perform such services based upon its
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 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.
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 not later
than the tenth business day of the month following the month in which such
services were rendered.. 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 Adviser hereby consents to the Portfolio being
named the MFS Mid Cap Growth Portfolio. The Manager shall not use the names
"Massachusetts Financial Services Company," "MFS Investment Management" or "MFS"
or any derivative or logo or trade or service xxxx thereof, or disclose
information related to the business of the Adviser or any of its affiliates in
any prospectus, sales literature or other material relating to the Trust in any
manner not approved prior thereto by the Adviser; provided, however, that the
Adviser shall approve all uses of its name and that of its affiliates which
merely refer in accurate terms to its appointment hereunder or which are
required by the SEC or a state securities commission. The Adviser shall not use
the name of the Trust, the Manager or any of their affiliates in any material
relating to the Adviser in any manner not approved prior thereto by the Manager;
provided, however, that the Manager shall approve all uses of its or the Trust's
name which merely refer in accurate terms to the appointment of the Adviser
hereunder or which are required by the SEC or a state securities commission.
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 the name "MFS" or any derivative or abbreviation thereof 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.
Upon termination of this Agreement for any reason, the Manager shall as
soon as practicable but within 30 days thereafter cease and cause the Portfolio
to cease all use of the name and xxxx "MFS."
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 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; provided however, that with respect to the Registration Statement, such
statement or omission was made in direct reliance upon and in direct conformity
with specific information furnished by the Adviser expressly for use therein
("Furnished Information").
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 as provided in Section 6(a) hereof.
c. Promptly after receipt by an indemnified party under this
Section 6 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 6, 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 6. In case any such action is brought against any indemnified party, and
it notified the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish and unless the indemnified party releases the indemnifying party from any
further obligation under this Section 6 in connection with that action, assume
the defense thereof. 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.
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, for a period of two
years from the date hereof 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.
10. 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.
11. 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.
12. 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.
13. 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 CORP.
BY:
Authorized Officer
MASSACHUSETTS FINANCIAL SERVICES
COMPANY
BY:
Authorized Officer
SCHEDULE A
Percentage of average daily net assets
MFS Mid Cap Growth Portfolio
0.40% of first $150
million of such assets,
plus 0.375% of such assets
over $150 million up to
$300 million, plus 0.35%
of such assets over $300
million
