Exhibit 4(ii)
INTERIM ADVISORY AGREEMENT
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INTERIM AGREEMENT made as of this October 30, 2000 by and between NEW
ENGLAND VARIABLE ANNUITY FUND I (the "Fund"), a separate investment account of
Metropolitan Life Insurance Company and a registered investment company under
the Investment Company Act of 1940 (the "1940 Act"), and CAPITAL GROWTH
MANAGEMENT LIMITED PARTNERSHIP, a Massachusetts partnership (the "Adviser").
WITNESSETH:
WHEREAS, the Fund and the Adviser wish to enter into an interim agreement
setting forth the terms upon which the Adviser will perform certain services for
the Fund;
NOW THEREFORE, in consideration of the premises and covenants hereinafter
contained, the parties agree as follows:
1. The Fund hereby employs the Adviser to manage, subject to the
supervision of the Board of Managers of the Fund, the investment and
reinvestment of the assets held in the Fund in a manner consistent with the
investment policies and restrictions set forth in its registration statement and
prospectus filed under the Securities Act of 1933, as from time to time amended,
and in accordance with all other applicable provisions of law. The Adviser shall
perform the services herein set forth for the period and on the terms in this
Agreement set forth. The Adviser hereby accepts such employment and agrees
during such period, at its own expense, to render the services and to assume the
obligations herein set forth, but no other services or obligations with respect
to the management of the affairs of the Fund, for the compensation herein
provided. The Adviser shall, for all purposes herein, be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
2. In carrying out its obligations to manage the investment and
reinvestment of the assets belonging to the Fund, the Adviser shall at its own
expense:
(a) obtain and evaluate such economic, statistical and financial data
and information and undertake such additional investment research as it
shall believe necessary or advisable for the management of the investment
and reinvestment of the assets belonging to the Fund in accordance with the
Fund's investment objective and policies;
(b) take such steps as are necessary to implement the investment
policies of the Fund, including the placing of orders for purchase and sale
of securities; and
(c) regularly report to the Board of Managers with respect to the
implementation of the investment policies of the Fund. Nothing herein
shall require the Adviser to bear the cost of or reimburse the Fund for
brokers' commissions and issue and transfer taxes payable in connection
with the purchase or sale of the Fund's investments.
3. All activities in connection with the management of the affairs of the
Fund undertaken by the Adviser pursuant to this Agreement shall at all times be
subject to the supervision and control of the Board of Managers, any duly
constituted committee thereof or any officer of the Fund acting pursuant to like
authority.
4. The services of the Adviser to the Fund hereunder are not to be deemed
exclusive and the Adviser shall be free to render similar services to others, so
long as its services hereunder are not impaired thereby.
5. As compensation for its services hereunder, the Fund shall pay the
Adviser compensation equal to a daily deduction of .00084% (.3066% on an annual
basis) of the current value of the total net assets of the Fund (it being
understood that the phrase "total net assets" means total assets less all
accrued expenses including, if any, accrued tax liabilities and reserves for
taxes arising from the income and realized and unrealized capital gains on the
assets of the Fund). Such compensation shall be payable monthly in arrears or
at such other intervals, not less frequently than quarterly, as the Board of
Managers of the Fund may from time to time determine and specify in writing to
the Adviser. The current value of the total assets of the Fund on any day shall
be the value of such assets as of the close of trading on the New York Stock
Exchange on such day, or, if said Exchange is closed on such day, as of the
close of trading on the next day on which said Exchange is open.
Further:
(a) Such compensation shall be held in an interest-bearing escrow account
with State Street Bank and Trust Company pursuant to an escrow letter
substantially in the form attached hereto;
(b) If a majority of the outstanding voting securities of the Fund approve
a new Advisory Agreement with the Adviser before 150 days after the Effective
Date (as defined in Section 7), the amount in the escrow account (including
interest earned thereon) with respect to such Fund shall be paid to the Adviser;
and
(c) If a majority of the outstanding voting securities of the Fund do not
approve a new Advisory Agreement with the Adviser, the Adviser shall be paid,
from the escrow account, the lesser of an amount equal to:
(1) any costs incurred in performing this Agreement (plus interest
earned on that amount in the escrow account) or
(2) the total amount in the escrow account (plus interest earned
thereon).
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6. It is understood that any of the variable annuity Contractholders,
Managers, trustees, officers, employees and agents of the Fund may be a partner,
shareholder, director, officer, employee or agent of, or be otherwise interested
in, the Adviser, any affiliated person of the Adviser, any organization in which
the Adviser may have an interest or any organization which may have an interest
in the Adviser; that the Adviser, any such affiliated person or any such
organization may have an interest in the Fund; and that the existence of any
such dual interest shall not affect the validity hereof or of any transactions
hereunder except as otherwise provided in the Rules and Regulations of the Fund
or the Partnership Agreement of the Adviser, or by specific provisions of
applicable law.
7. This Agreement shall become effective as of the date of its execution
(the "Effective Date") and will continue in effect until a new Advisory
Agreement between the Adviser and the Fund is approved by the Contractholders or
for 150 days, whichever is sooner.
This Agreement may be terminated at any time, without the payment of any
penalty,
a. by the Board of Managers of the Fund or by the vote of a majority of
the outstanding voting securities of the Fund, on ten days' written notice to
the Adviser,
b. by the Adviser on sixty days' written notice to the Fund; or
c. automatically terminate in the event of its assignment.
In the event of termination of this Agreement, all compensation due to the
Adviser through the date of termination will be calculated through the date of
termination and paid on the first business day after the next succeeding month
end.
8. (a) For the purposes of this Agreement, the phrase "affirmative vote
of a majority of the votes which may be cast by all variable annuity
Contractholders" means the affirmative vote, at a duly called and held
meeting of the variable annuity Contractholders of the Fund, (1) of
variable annuity Contractholders who hold 67 percent or more of all the
votes which may be cast by such Contractholders of the Fund as are present
(in person or by proxy) and entitled to vote at such meeting, provided that
variable annuity Contractholders holding more than 50 percent of all votes
of the Fund entitled to be cast at such meeting are present (in person or
by proxy), or (2) of the holders of more than 50 percent of all votes which
may be cast by all variable annuity Contractholders of the Fund entitled to
vote at such meeting, whichever is less.
(b) For the purpose of this Agreement, the terms "vote of a majority
of the outstanding voting securities", "interested person", "affiliated
person" and "assignment" shall have their respective meanings defined in
the 1940 Act, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission under said Act; and the term "variable
annuity Contractholder" shall mean the owner of a variable annuity contract
which depends in whole or in part upon the investment performance of
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the Fund, and shall to the extent provided in the Rules and Regulations of
the Fund include Metropolitan Life Insurance Company.
9. This Agreement may be amended at any time by mutual consent of the
parties, provided that such consent on the part of the Fund shall have been
approved by the affirmative vote of a majority of the votes which may be cast by
all of the variable annuity Contractholders.
10. In the absence of willful misfeasance, bad faith or gross negligence
on the part of the Adviser, or reckless disregard of its obligations and duties
hereunder, the Adviser shall not be subject to any liability to the Fund, to any
variable annuity Contractholder of the Fund or to any other person, firm or
organization, for any act or omission in the course of, or connected with,
rendering services hereunder.
11. This Agreement is and shall be subject to the provisions of the 1940
Act, as amended, and the rules and regulations promulgated by the Securities and
Exchange Commission thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
NEW ENGLAND VARIABLE CAPITAL GROWTH MANAGEMENT
ANNUITY FUND I LIMITED PARTNERSHIP
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxx
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Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxx
Title: Chairman of the Board Title: President
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