INDEMNIFICATION AGREEMENT
BETWEEN
MASSACHUSETTS FINANCIAL SERVICES COMPANY
AND
METROPOLITAN LIFE INSURANCE COMPANY
THIS AGREEMENT (the "Agreement") is made and entered into this 1st day of
May 2009, by and between MASSACHUSETTS FINANCIAL SERVICES COMPANY, a Delaware
corporation ("MFS"), and METROPOLITAN LIFE INSURANCE COMPANY (the "Company"), on
its own behalf and on behalf of segregated asset accounts of the Company (the
"Accounts").
WHEREAS, MFS and the Company, on its own behalf and on behalf of the
Accounts, have entered into a Participation Agreement with MFS Variable
Insurance Trust, a Massachusetts business trust (the "Trust I"), MFS Variable
Insurance Trust II, a Massachusetts business trust (the "Trust II") (Trust I and
Trust II each referred to, individually, as the "Trust" and, collectively, as
the "Trusts"), dated as of May 1st, 2009 (the "Participation Agreement");
NOW, THEREFORE, in consideration of their mutual promises as set forth in
the Participation Agreement, MFS and the Company agree as follows:
ARTICLE I. DEFINITIONS
All capitalized terms not defined herein shall have the meanings as set
forth in the Participation Agreement.
ARTICLE II. APPLICABILITY
The indemnification provided by MFS under this Agreement shall relate
solely to certain losses, claims, damages, liabilities and expenses that may
arise in connection with the performance by each Trust or MFS of its obligations
and duties under the Participation Agreement.
ARTICLE III. INDEMNIFICATION
3.1. MFS agrees to indemnify and hold harmless the Company and each of its
directors, officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act and any agents or
employees of the foregoing (each an "Indemnified Party" or,
collectively, the "Indemnified Parties") against any and all losses,
claims, damages, liabilities (including amounts paid in settlement
with the written consent of MFS) or expenses (including reasonable
counsel fees) to which an Indemnified Party may become subject under
any statute or regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or acquisition
of the Shares or the Policies and:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of additional
information ("SAI") of each Trust or sales literature for each
Trust (or any amendment or supplement to any of the foregoing),
or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this Agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reasonable
reliance upon and in conformity with information furnished to
each Trust, MFS or the Underwriter by or on behalf of the Company
for use in the registration statement, prospectus, or SAI of each
Trust or in sales literature or other promotional material for
each Trust (or any amendment or supplement) or otherwise for use
in connection with the sales of the Policies or Shares; or
(b) arise out of or as a result of material statements or
representations (other than statements or representations
contained in the registration statement, prospectus, SAI or sales
literature or other promotional literature for the Policies not
supplied by either Trust, MFS, the Underwriter or their
respective designees or persons under their control and on which
each Trust has reasonably relied) or wrongful conduct of either
Trust, MFS, the Underwriter or persons under their control, with
respect to the sale or distribution of the Policies or Shares; or
(c) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement,
prospectus, SAI or sales literature or other promotional
literature covering the Policies, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished to the Company by or on behalf of each
Trust; or
(d) arise as a result of any material failure by either Trust or MFS
to provide the services and furnish the materials under the terms
of the Participation Agreement (including a failure, whether
unintentional or in good faith or otherwise, of either Trust to
comply with the diversification requirements specified in Article
VI of the Participation Agreement); or
(e) arise out of or result from any material breach of any
representation and/or warranty made by MFS in the Participation
Agreement or any other material breach of the Participation
Agreement by MFS; or
(f) arise out of or result from the materially incorrect or untimely
calculation or reporting by MFS of the daily net asset value per
share or dividend or capital gain distribution rate;
as limited by and in accordance with the provisions of this Article III.
3.2. In no event shall MFS be liable under the indemnification provisions
contained in this Agreement to any individual or entity, including,
without limitation, the Company, any Participating Insurance Company
or any Policy holder, with respect to any losses, claims, damages,
liabilities or expenses that arise out of or result from (i) a breach
of any representation, warranty, and/or covenant made by the Company
under the Participation Agreement or by any Participating Insurance
Company under an agreement containing substantially similar
representations, warranties and covenants; (ii) the failure by the
Company or any Participating Insurance Company to maintain its
segregated asset account (which invests in any Portfolio) as a legally
and validly established segregated asset account under applicable
state law and as a duly registered unit investment trust under the
provisions of the 1940 Act (unless exempt therefrom); or (iii) the
failure by the Company or any Participating Insurance Company to
maintain its variable annuity and/or variable life insurance
contracts (with respect to which any Portfolio serves as an underlying
funding vehicle) as life insurance, endowment or annuity contracts
under applicable provisions of the Code.
-2-
3.3. MFS shall not be liable under this Agreement with respect to any
losses, claims, damages, liabilities or expenses to which an
Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, willful misconduct, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations
and duties under this Agreement or the Participation Agreement.
3.4. Promptly after receipt by an Indemnified Party under this Section 3.4
of commencement of an action, such Indemnified Party will, if a claim
in respect thereof is to be made against MFS under this section,
notify MFS of the commencement thereof; but the omission so to notify
MFS will not relieve it from any liability that it may have to any
Indemnified Party otherwise than under this section. In case any such
action is brought against any Indemnified Party, and it notified MFS
of the commencement thereof, MFS will be entitled to participate
therein and, to the extent that it may wish, assume the defense
thereof, with counsel satisfactory to such Indemnified Party. After
notice from MFS 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 MFS 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.
3.5. Each party hereto shall promptly notify the other parties to the
Participation Agreement of the commencement of any litigation or
proceeding against it or any of its respective officers, directors,
trustees, employees or 1933 Act control persons in connection with
this Agreement and the Participation Agreement, the issuance or sale
of the Policies, the operation of the Accounts, or the sale or
acquisition of Shares.
3.6. A successor by law of the parties to this Agreement and the
Participation Agreement shall be entitled to the benefits of the
indemnification contained herein. The indemnification provisions
contained herein shall survive any termination of this Agreement and
the Participation Agreement.
ARTICLE IV. DURATION AND TERMINATION
This Agreement shall be effective upon execution and shall terminate with
respect to the Accounts, or one, some or all Portfolios, immediately upon
termination of the Participation Agreement with respect to the Accounts, or one,
some or all Portfolios, in accordance with the provisions of Article XII
thereof.
ARTICLE V. CONFIDENTIALITY
Except as required by applicable law or pursuant to the written consent of
MFS, the Company shall treat as confidential the indemnification provided
pursuant to this Agreement, all information reasonably related to this
Agreement, and the existence of this Agreement. This Article V shall survive the
termination of this Agreement.
ARTICLE VI. MISCELLANEOUS
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts. This
Agreement may be executed simultaneously in one or more counterparts, each of
which taken together shall constitute one and the same instrument. The captions
in this Agreement are included for convenience of reference only. Any notice
required by this Agreement shall be sent to the persons so specified to receive
notice in the Participation Agreement.
-3-
IN WITNESS WHEREOF, both of the parties hereto have caused this Agreement
to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By its authorized officer,
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
METROPOLITAN LIFE INSURANCE COMPANY
By its authorized officer,
By: /s/ Xxxx X. Xxxxxx Xx
------------------------------------
Name: Xxxx X. Xxxxxx Xx
Title: Vice President
-4-
