INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 1st day of May, 2004, by and between Xxxxxx Investment
Partners, Inc., a Pennsylvania corporation ("Xxxxxx") (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 Xxxxxx Mid-Cap Growth 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 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, 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 Section 817(h) 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,
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.
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 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 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 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 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 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 Adviser hereby consents to the Portfolio being named
the Xxxxxx Mid-Cap Growth Portfolio. The Manager shall not use the name "Xxxxxx"
and any of the other names of the Adviser or its affiliated companies and 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; and provided, further,
that in no event shall such approval be unreasonably withheld. 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; and, provided, further, that in no event shall such approval be
unreasonably withheld.
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 "Xxxxxx" 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 within
30 days cease and cause the Portfolio and the Trust to cease all use of the name
and xxxx "Xxxxxx."
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.
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,
2005 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 LLC
BY:
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Authorized Xxxxxxx
XXXXXX INVESTMENT PARTNERS, INC.
BY:
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Authorized Officer
SCHEDULE A
Percentage of average daily net assets
Xxxxxx Mid-Cap Growth Portfolio 0.55% of first $50 million of such assets, plus
0.50% of such assets over $50 million up to $300
million, plus 0.45% of such assets over $300 million
