PARTICIPATION AGREEMENT
Among
MET INVESTORS SERIES TRUST,
METLIFE INVESTORS INSURANCE COMPANY,
METLIFE DISTRIBUTORS, INC.
THIS AGREEMENT, made and entered into as of the th day of , 2001 by and
among METLIFE INVESTORS INSURANCE COMPANY, a Delaware stock life insurance
company ("MetLife Insurance"), on its own behalf and on behalf of each of its
separate accounts set forth on Schedule A hereto, as amended from time to time
(each referred to as the "Account"), Met Investors Series Trust, a business
trust organized under the laws of the State of Delaware (the "Trust") and
METLIFE DISTRIBUTORS, INC., a Delaware corporation (the "Distributor").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts of insurance companies that issue variable life insurance
policies, variable annuity contracts and certificates relating to such policies
or contracts (collectively, the "Variable Contracts") and which have entered
into participation agreements with the Trust and its Distributor (the
"Participating Insurance Companies"); and
WHEREAS, the beneficial interests in the Trust are divided into series
of shares, (each a "Portfolio"), each representing the interest in a particular
managed portfolio of securities and other assets, and each Portfolio is divided
or may be divided into one or more classes of shares, i.e., currently Class A
shares, Class B shares and Class C shares, or such other classes of shares as
may be created in the future (the "Classes"); and
WHEREAS, one or more Portfolios or Classes thereof may be made
available by the Trust to serve as funding vehicles for Participating Insurance
Companies and their separate accounts funding Variable Contracts; and
WHEREAS, the Trust has filed an application to obtain an order from the
Securities and Exchange Commission (the "SEC") granting Participating Insurance
Companies and their separate accounts funding Variable Contracts exemptions from
the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Trust
and each of its Portfolios or Classes to be sold to and held by insurance
company separate accounts funding Variable Contracts of both affiliated and
unaffiliated life insurance companies (the "Shared Funding Exemptive Order");
and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act, and shares of its Portfolios are registered under
the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, Met Investors Advisory Corp., is the "Manager" of the Trust
and is duly registered with the SEC as an investment adviser under the
Investment Advisers Act of 1940, as amended, and is registered or exempt from
registration under all applicable state securities laws; and
WHEREAS, MetLife Insurance has registered or will register each of its
Accounts as a unit investment trust under the 1940 Act and has registered or
will register interests in each Account under the 1933 Act, other than those
exempt from such registration under applicable statutory provisions or
regulations; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of MetLife
Insurance or through properly delegated authority, and divided into subaccounts,
to set aside and invest assets attributable to the Variable Contracts; and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a
member in good standing of the National Association of Securities Dealers, Inc.
(the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, MetLife Insurance intends to purchase shares in the Portfolios and
one or more Classes thereof, listed on Schedule B hereto as amended from time to
time (the "Designated Portfolios and Classes") on behalf of each Account, in
order to fund certain of the Variable Contracts, and the Distributor is
authorized to sell such shares to each Account at the net asset value applicable
to such Portfolios and the Classes thereof.
NOW, THEREFORE, in consideration of their mutual promises, MetLife
Insurance, the Trust and the Distributor agree as follows:
ARTICLE I. Sale of Trust Shares
1.1. The Distributor agrees to sell to each Account those shares of the
Designated Portfolios and Classes for which it serves as the Trust's principal
underwriter and which each Account orders, executing such orders on a daily
basis at the net asset value per share next computed after receipt by the Trust
or its designee of the order for the shares of the Designated Portfolios and
Classes. [For purposes of this Section 1.1, neither MetLife Insurance nor any
Account shall be considered the designee of the Trust for receipt of such
purchase orders and receipt by MetLife Insurance] or any Account shall not
constitute receipt by the Trust for purposes of calculating each Portfolio's net
asset value per share.
1.2. The Trust agrees to make its shares of the Designated Portfolios
and Classes available for purchase by each Account at the applicable net asset
value per share on those days on which the Trust calculates the net asset value
per share of the Designated Portfolios and Classes pursuant to rules of the SEC.
The Trust shall use reasonable efforts to calculate the net asset value per
share of the Designated Portfolios and Classes on each day on which the New York
Stock Exchange is open for trading. Notwithstanding the foregoing, the Board of
Trustees of the Trust (the "Board") may refuse to sell shares of any Designated
Portfolio or Class to any person, or suspend or terminate the offering of shares
of any Portfolio or Class thereof, if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole discretion of the
Board acting in good faith and in light of its fiduciary duties under federal
and any applicable state laws, necessary in the best interests of the
shareholders of such Portfolio or Class thereof.
1.3. The Trust and the Distributor agree that shares of the Designated
Portfolios and Classes will be sold only to Participating Insurance Companies
and/or their separate accounts funding Variable Contracts or to other persons or
entities permitted under Section 817 of the Internal Revenue Code of 1986, as
amended (the "Code"), or regulations promulgated thereunder. No shares of any
Portfolio will be sold to the general public, except to the extent permitted
under the Code.
1.4. The Trust and the Distributor will not sell Trust shares to any
Participating Insurance Company or separate account funding Variable Contracts
unless an agreement containing provisions substantially the same as Articles I,
III, V, VII and Section 2.5 of Article II of this Agreement is in effect to
govern such sales.
1.5. The Trust agrees to redeem for cash or in-kind, at the request of
any Account or MetLife Insurance, any full or fractional shares of the Trust
held by the Account or MetLife Insurance. The Trust will execute such requests
on a daily basis at the net asset value per share of the Designated Portfolios
and Classes next computed after receipt by the Trust or its designee of the
request for redemption. [For purposes of this Section 1.5, neither MetLife
Insurance nor any Account shall be considered the designee of the Trust for
receipt of requests for redemption, and receipt by MetLife Insurance or any
Account shall not constitute receipt by the Trust for purposes of calculating
each Portfolio's net asset value per share.]
1.6. MetLife Insurance agrees that purchases and redemptions of shares
of the Designated Portfolios and Classes offered by a then-current prospectus of
the Trust shall be made in accordance with the provisions of such prospectus.
MetLife Insurance agrees that all net amounts available under the Variable
Contracts listed on Schedule A attached hereto and incorporated herein by this
reference, as such Schedule A may be amended from time to time hereafter by
mutual written agreement of all the parties hereto (the "MetLife Insurance
Contracts"), shall be invested in the Trust and in such other investment
companies or other investment vehicles advised by the Manager as may be mutually
agreed to in writing by the parties hereto, or in MetLife Insurance's general
account. In addition, amounts also may be invested in investment companies other
than the Trust if: (a) any such other investment company, or series thereof, has
investment objectives or policies that are, in the opinion of the Manager,
substantially different from the investment objectives and policies of the
Portfolios of the Trust in which the Accounts invest; or (b) MetLife Insurance
gives the Trust and the Distributor forty-five (45) days written notice of its
intention to make such other investment companies available as a funding vehicle
for the MetLife Insurance Contracts, and no written objection is received by
MetLife Insurance; or (c) any such other investment companies were available as
a funding vehicle for the MetLife Insurance Contracts prior to the date of this
Agreement and MetLife Insurance so informs the Trust and Distributor prior to
their signing this Agreement (a list of such other investment companies appears
on Schedule C to this Agreement); or (d) the Trust and the Distributor consent
to the use of any such other investment company.
1.7. MetLife Insurance shall pay for shares of Designated Portfolios
and Classes thereof purchased for the Accounts or its general account on the
business day on which an order to purchase Trust shares is made in accordance
with the provisions of Section 1.1 hereof. "Business Day" shall mean any day on
which the New York Stock Exchange is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the SEC. Payment shall
be in federal funds transmitted by wire. For purposes of Section 2.9 and 2.10,
upon receipt by the Trust of the federal funds so wired, such funds shall cease
to be the responsibility of MetLife Insurance and shall become the
responsibility of the Trust.
1.8. Issuance and transfer of the shares of the Designated Portfolios
and Classes thereof will be by book entry only. Stock certificates will not be
issued to MetLife Insurance or any Account. Shares ordered from the Trust will
be recorded in an appropriate title for each Account or the appropriate
subaccount of each Account.
1.9. The Trust shall furnish same day notice (by wire or telephone,
followed by written confirmation) of any income dividends or capital gain
distributions payable on the shares of the Designated Portfolios and Classes
thereof. MetLife Insurance and each Account hereby elect to receive all such
income dividends and capital gain distributions as are payable on the shares of
the Designated Portfolios and Classes thereof in additional shares of the
relevant Designated Portfolios and Classes. (MetLife Insurance and each Account
reserve the right to revoke this election and to receive all such income
dividends and capital gain distributions in cash.) The Trust shall provide
notification by the end of the next Business Day of the number of shares so
issued as payment of such dividends and distributions. The Trust shall provide
advance notice to MetLife Insurance and each Account of any date on which the
Trust reasonably expects to make a dividend distribution; normally this notice
will be given at least ten (10) days in advance of the ex-dividend date.
1.10. The Trust shall make the net asset value per share for each
Designated Portfolio and Class thereof available to MetLife Insurance and each
Account or their designee on a daily basis as soon as reasonably practical after
the net asset value per share is calculated (normally by 6:30 p.m. New York
time) and shall use its best efforts to make such net asset value per share
available by 7:00 p.m. New York time.
ARTICLE II. Representations and Warranties
2.1. MetLife Insurance represents and warrants that: (a) the MetLife
Insurance Contracts will be issued and sold in compliance, in all material
respects, with all applicable federal and state laws; and (b) it requires the
Distributor to comply, in all material respects, with state insurance
suitability requirements. MetLife Insurance further represents and warrants
that: (a) it is an insurance company duly organized and in good standing under
applicable law; (b) it has legally and validly established each Account, prior
to any issuance or sale of interests therein, as a segregated asset account
under applicable insurance laws; (c) it has registered or, prior to any issuance
or sale of the MetLife Insurance Contracts, will register each Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a
segregated investment account for the MetLife Insurance Contracts, unless such
Accounts are exempt from such registration under applicable statutory provisions
or regulations; and (d) it has registered or, prior to the issuance or sale of
the MetLife Insurance Contracts, will register interests in the Accounts under
the 1933 Act, unless interests in such Accounts are exempt from such
registration under applicable statutory provisions or regulations.
2.2. The Trust, to the best of its knowledge, represents and warrants
that Trust shares sold pursuant to this Agreement shall be: (a) registered under
the 1933 Act; and (b) duly authorized for issuance; and (c) sold in compliance
with and all applicable federal securities laws. The Trust further represents
and warrants that it is and shall remain registered under the 1940 Act. The
Trust shall amend the registration statement for its shares (the "Registration
Statement") under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of shares of the Designated Portfolios
and Classes. This requirement shall not, however, in any manner limit the
Trust's ability to cease offering shares in one or more of the Designated
Portfolios or Classes, provided such action complies with applicable laws and
regulations.
2.3. MetLife Insurance represents that the MetLife Insurance Contracts
are currently treated as annuity, endowment or life insurance contracts under
applicable provisions of the Code and that it will make every effort to maintain
such treatment and that it will notify the Trust and the Distributors
immediately upon having a reasonable basis for believing that the MetLife
Insurance Contracts have ceased to be so treated or that they might not be so
treated in the future.
2.4. The Trust currently intends for one or more Classes, particularly
Class B and Class C, to make payments to finance its distribution expenses
pursuant to a Plan adopted under Rule 12b-1 under the 1940 Act, although it may
determine to discontinue such practice in the future. To the extent that any
Class of the Trust finances its distribution expenses pursuant to a Plan adopted
under Rule 12b-1, the Trust undertakes to have a Board, a majority of whose
members are not interested persons of the Trust or its Distributor or Manager,
and to otherwise comply with any then current SEC and SEC staff interpretations
concerning Rule 12b-1 or any successor provision.
2.5. The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states,
except that the Trust represents that the investment objectives, policies, fees
and expenses of each of the Designated Portfolios and Classes thereof are and
shall at all times remain in compliance with the insurance laws of the State of
Delaware, and the Trust and the Distributor severally represent that their
respective operations are and shall at all times remain in compliance, in all
material respects, with the insurance laws of the State of Delaware to the
extent required to perform their respective obligations under this Agreement.
2.6. The Distributor represents and warrants that: (a) it is a member
in good standing of the NASD; and (b) it is registered as a broker-dealer with
the SEC and all necessary states. The Distributor further represents that it
will sell and distribute the Trust's shares in accordance with the laws of the
State of Delaware and all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, the 1940 Act, and all
applicable Rules of the NASD.
2.7. The Trust represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply, in all material respects, with the 1940 Act.
2.8. The Trust and the Distributor severally represent and warrant that
all of their trustees, directors, officers, employees, investment managers and
investment advisers, and other individuals/entities dealing with the money
and/or securities of the Trust are and shall continue to be at all times covered
by a blanket fidelity bond or similar coverage for the benefit of the Trust in
an amount not less than the minimal coverage required by Rule 17g-(1) of the
1940 Act or such related provisions as may be promulgated from time to time. The
aforesaid fidelity bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.9. MetLife Insurance represents and warrants that all of its
directors, officers, employees, and other individuals/entities dealing with the
money and/or securities of the Trust are covered by a blanket fidelity bond or
similar coverage for the benefit of the Trust. MetLife Insurance further
represents and warrants that said fidelity bond is issued by a reputable bonding
company, includes coverage for larceny and embezzlement, and is in an amount not
less than $5 million. MetLife Insurance agrees to make all reasonable efforts to
see that this fidelity bond or another bond containing these provisions is
continuously in effect and agrees to notify the Trust and the Distributor in the
event that such coverage no longer applies.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Trust or its Distributor shall provide MetLife Insurance with
as many printed copies of the Trust's current prospectus and statement of
additional information and any supplements thereto for the Designated Portfolios
and Classes thereof as MetLife Insurance may reasonably request. If requested by
MetLife Insurance in lieu thereof, the Trust or its Distributor shall provide
camera-ready film containing the Trust's prospectus and statement of additional
information and any supplements thereto for the Designated Portfolios and
Classes thereof, and such other assistance as is reasonably necessary in order
for MetLife Insurance once each year (or more frequently if the prospectus
and/or statement of additional information for the Designated Portfolios and
Classes thereof is amended during the year) to have the prospectus for the
Account, with respect to the MetLife Insurance Contracts, and the Trust's
prospectus printed together in one document, and to have the statement of
additional information for the Trust and the statement of additional information
for the Account, with respect to the MetLife Insurance Contracts, printed
together in one document. Alternatively, MetLife Insurance may print the
prospectus and/or statement of additional information for the Designated
Portfolios and Classes thereof in combination within the prospectuses and
statements of additional information for other investment companies. To the
extent that the foregoing Trust prospectuses, statements of additional
information and any supplements thereto are with respect to Class B or Class C
shares, or other Classes of shares subject to a Plan adopted under Rule 12b-1
under the 1940 Act, the cost of preparing, printing, and distributing such
documents will be at the expense of such Class or Classes of shares, with
respect to prospective owners of MetLife Insurance Contracts. In addition, with
respect to prospectuses and statements of additional information for the
Designated Portfolios and Classes thereof provided by MetLife Insurance to its
existing owners of MetLife Insurance Contracts ("Contract owners") in order to
update disclosure as required by the 1933 Act and/or the 1940 Act, the cost of
preparing, printing, mailing and otherwise distributing such prospectuses and
statements of additional information and any supplements thereto shall be borne
by the Trust. Furthermore, if in such case MetLife Insurance or the Distributor
are provided with camera-ready film of such documents in lieu of printed
documents, MetLife Insurance or the Distributor shall request reimbursement from
the Trust for their printing, mailing and other costs associated with such
distribution.
MetLife Insurance and the Distributor each agrees to provide the Trust
or its designee with such information as may be reasonably requested by the
Trust to assure that the Trust's expenses or the expenses of any Class do not
include the cost of printing, mailing and otherwise distributing any
prospectuses, statements of additional information or supplements thereto for
the Designated Portfolios and Classes thereof other than those actually
distributed (a) to existing Contract owners; or (b) under a Rule 12b-1 Plan for
a particular Class of shares to prospective Contract owners.
3.2 MetLife Insurance may alter the form of the Trust's prospectus,
statement of additional information, annual and semi-annual reports to
shareholders, proxy statements, and other Trust documents with the prior
approval of the Trust. MetLife Insurance shall bear all costs associated with
such alteration of form.
3.3. The Trust's prospectus for the Designated Portfolios and Classes
thereof shall state that the statement of additional information for the
Designated Portfolios and Classes thereof is available from the Distributor or
MetLife Insurance (or in the Trust's discretion, the prospectus shall state that
such statement of additional information is available from the Trust).
3.4. The Trust, at its expense, shall provide MetLife Insurance with
copies of its proxy statements, annual and semi-annual reports to shareholders,
and other communications to shareholders in such quantities as MetLife Insurance
shall reasonably require for mailing or otherwise distributing such materials to
Contract owners and shall assume all expenses associated with mailing or
otherwise distributing those materials. In the alternative, the Trust shall
reimburse MetLife Insurance for its costs in printing, mailing and distributing
such materials to Contract owners.
3.5. If and to the extent required by law, MetLife Insurance shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Trust shares for the Designated Portfolios
and Classes in accordance with instructions received from
Contract owners; and
(c) vote Trust shares for the Designated Portfolios
and Classes for which no instructions have been received in a
particular Account in the same proportion as Trust shares for the
Designated Portfolios and Classes for which instructions have been
received so long as and to the extent that the SEC continues to
interpret the 1940 Act to require pass-through voting privileges for
Contract owners. MetLife Insurance reserves the right to vote Trust
shares held in any Account in its own right, to the extent permitted by
law. Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in the
Trust calculates voting privileges in a manner consistent with the
standards adopted by the Board, which standards will be provided to all
other Participating Insurance Companies.
3.6. The Trust will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Trust will comply with
Section 16(c) of the 1940 Act as well as with Sections 16(a) and, if and when
applicable, Section 16(b). Further, the Trust will act in accordance with the
SEC or SEC staff's written interpretation concerning the requirements of Section
16(a) with respect to periodic elections of Trustees and with whatever rules the
SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. MetLife Insurance shall furnish, or shall cause to be furnished,
to the Trust or its designee, the form of each piece of sales literature or
other promotional material in which the Trust, the Manager or the Distributor
are named prior to its first use. No such material shall be used if the Trust or
its designee reasonably objects to its use after the Trust's receipt of such
material.
4.2. MetLife Insurance shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the sale of the MetLife Insurance Contracts other than the
information or representations contained in or accurately derived from the
Registration Statements, prospectus or statement of additional information for
the Trust, as such Registration Statements, prospectus or statement of
additional information may be amended or supplemented from time to time, or in
reports or proxy statements for the Trust, or in sales literature or other
promotional material approved by the Trust or its designee, except with the
permission of the Trust or its designees.
4.3. The Trust or the Distributor, or their respective designees, shall
furnish, or shall cause to be furnished, to MetLife Insurance or its designees,
the form of each piece of sales literature or other promotional material in
which MetLife Insurance is named prior to its use. No such material shall be
used if MetLife Insurance or its designees reasonably object to its use after
receipt of such material.
4.4. The Trust and the Distributor shall not give any information or
make any representations on behalf of MetLife Insurance or concerning MetLife
Insurance, each Account, or the MetLife Insurance Contracts other than the
information or representations contained in or accurately derived from a
registration statement, prospectus or Statement of Additional Information for
the Accounts with respect to the MetLife Insurance Contracts, as such
registration statement, prospectus or Statement of Additional Information may be
amended or supplemented from time to time, or in published reports for each
Account which are in the public domain or approved by MetLife Insurance for
distribution to Contract owners, or in sales literature or other promotional
material approved by MetLife Insurance or its designees, except with the
permission of MetLife Insurance.
4.5. The Trust shall provide to MetLife Insurance at least one complete
copy of all Registration Statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Trust or its shares,
contemporaneously with the filing of such document with the SEC, the NASD, or
other regulatory authorities.
4.6. MetLife Insurance shall provide to the Trust at least one complete
copy of all registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to the
MetLife Insurance Contracts or any Account if such document also relates to the
Trust, contemporaneously with the filing of such document with the SEC, the
NASD, or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Trust or any affiliate of the Trust: advertisements
(including materials published or designed for use in a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, electronic messages or
communications or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees, and registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials. However, it is
anticipated that materials provided solely: (a) internally to MetLife
Insurance's or the Distributor's own employees or counsel; or (b) to certain
designated third parties and that are not designed to be provided or
communicated in any manner to the general public (e.g., training materials
provided to Distributor or agents) will not be filed with the SEC, the NASD, or
any state securities or insurance regulatory authorities, although such
materials will be prepared in accordance with applicable laws.
ARTICLE V. Fees and Expenses
5.1. The Trust and the Distributor shall pay no fee or other
compensation to MetLife Insurance under this Agreement except for: (a) items
covered in Article III; or (b) pursuant to a Plan adopted by the Trust in
accordance with Rule 12b-1 under the 1940 Act to finance the distribution
expenses of any Class. Nevertheless, the Distributor may make payments to
MetLife Insurance or to any distributor for the MetLife Insurance Contracts in
amounts agreed to by the Distributor in any writing, and such payments by the
Distributor (other than pursuant to a Rule 12b-1 Plan) may be made out of
existing fees otherwise payable to the Distributor, past profits of the
Distributor, or other resources available to the Distributor.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. Without limiting the foregoing, the Trust
shall see to it that all shares are registered and authorized for issuance prior
to their sale in accordance with applicable federal law, and shall bear all
expenses with respect to: registration and qualification of the Trust's shares;
preparation and filing of the Trust's Registration Statement, prospectus,
statement of additional information, proxy materials, and reports; setting the
prospectus and statement of additional information in type; setting in type,
printing, mailing or otherwise distributing proxy materials and semi-annual and
annual reports sent to Contract owners (including the costs of setting in type,
printing, mailing or otherwise distributing a prospectus that constitutes an
annual report) and if certain Classes of the Trust so elect and the Rule 12b-1
Plan so provides, the preparation, printing, mailing or otherwise distributing
of such materials to prospective owners of MetLife Insurance Contracts; the
preparation of all statements and notices required by any federal or state law;
and all taxes on the issuance or transfer of the Trust's shares.
ARTICLE VI. Diversification AND QUALIFICATION
6.1. The Trust represents that: (a) it currently has elected or will
elect to qualify as a regulated investment company under Subchapter M of the
Code; (b) it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision); (c) it will notify MetLife
Insurance immediately upon having a reasonable basis for believing that it has
ceased to so qualify or that it might not so qualify in the future; and (d) it
will seek to minimize any damages and to rectify its failure to so qualify
promptly. The Trust acknowledges that any failure to qualify as a regulated
investment company will eliminate the ability of the Accounts to avail
themselves of the "look through" provisions of Section 817(h) of the Code and
that, as a result, the MetLife Insurance Contracts will almost certainly fail to
qualify as life insurance and annuity contracts under Section 817(h) of the
Code.
6.2. The Trust further represents that it will at all times invest
money from the Accounts in such a manner as to assure that the MetLife Insurance
Contracts will be treated as variable annuity or variable life insurance
contracts under the Code and the regulations issued thereunder. Without limiting
the scope of the foregoing, the Trust represents that it will at all times
comply with Section 817(h) of the Code and Treasury Regulation 1.817-5, relating
to the diversification requirements for variable annuity, endowment, or life
insurance contracts, and any amendments or other modifications to such Section
or Regulations. In the event of a breach of this Article VI by the Trust, the
Trust warrants that it will take all reasonable steps: (a) to immediately notify
MetLife Insurance of such breach; and (b) to adequately diversify the Trust's
assets so as to achieve compliance within the grace period afforded by
Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
variable annuity and variable life insurance separate accounts investing in the
Trust. An irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority; or (b) a
change in applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; or (c) an administrative or judicial decision in any
relevant proceeding; or (d) the manner in which the investments of any
Designated Portfolio are being managed; or (e) a difference in voting
instructions given by owners of Variable Contracts; or (f) a decision by an
insurer to disregard the voting instructions of owners of Variable Contracts.
The Board shall promptly inform MetLife Insurance if it determines that a
irreconcilable material conflict exists and the implications thereof.
7.2. MetLife Insurance will report any potential or existing conflicts,
of which it is aware, to the Board. MetLife Insurance will assist the Board in
carrying out its responsibilities under any Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board to
consider any issues raised. This includes, but is not limited to, an obligation
by MetLife Insurance to inform the Board whenever the voting instructions of
owners of Variable Contracts are disregarded. MetLife Insurance's
responsibilities under this Section 7.2 will be carried out with a view only to
the interests of its Contract owners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested Trustees, that an irreconcilable material conflict exists,
MetLife Insurance and other Participating Insurance Companies shall, at their
expense and to the extent reasonably practicable (as determined by a majority of
the disinterested Trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (a)
withdrawing the assets allocable to some or all of the variable annuity and
variable life insurance separate accounts from the Trust or any Portfolio and
reinvesting such assets in a different investment medium, including (but not
limited to) another Portfolio of the Trust, or submitting the question of
whether such withdrawal should be implemented to a vote of all affected owners
of Variable Contracts and, as appropriate, withdrawing the assets of any
appropriate group (i.e., owners of variable annuity contracts or owners of
variable life insurance contracts of one or more Participating Insurance
Companies) that votes in favor of such withdrawal, or offering to the affected
owners of Variable Contracts the option of making such a change; and (b)
establishing a new registered management investment company or managed separate
account. MetLife Insurance's responsibilities under this Section 7.3 will be
carried out with a view only to the interests of Contract owners.
7.4. If an irreconcilable material conflict were ever to arise because
of a decision by MetLife Insurance to disregard Contract owner voting
instructions and that decision represents a minority position or would preclude
a majority vote, MetLife Insurance may be required, at the Trust's election, to
withdraw the affected Account's (or subaccount's) investment in the Trust and
terminate this Agreement with respect to such Account (or subaccount); provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing irreconcilable material conflict as determined by a
majority of the disinterested members of the Board. No charge or penalty shall
be imposed as a result of such withdrawal. Any such withdrawal and termination
must take place within six (6) months after the Trust gives written notice that
this provision is being implemented and, until the end of that six (6) month
period, the Distributor and Trust shall continue to accept and implement orders
by MetLife Insurance for the purchase (and redemption) of shares of the Trust.
7.5. If an irreconcilable material conflict were ever to arise because
a particular state insurance regulator's decision applicable to MetLife
Insurance conflicts with the majority of other state regulators, then MetLife
Insurance shall withdraw the affected Account's (or subaccount's) investment in
the Trust and terminate this Agreement with respect to such Account (or
subaccount) within six (6) months after the Board informs MetLife Insurance in
writing that it has determined that such decision has created an irreconcilable
material conflict; provided, however, that such withdrawal and termination shall
be limited to the extent required by the foregoing irreconcilable material
conflict as determined by a majority of the disinterested members of the Board.
Until the end of the foregoing six (6) month period, the Distributor and the
Trust shall continue to accept and implement orders by MetLife Insurance for the
purchase (and redemption) of shares of the Trust.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict, but in
no event will the Trust be required to establish a new funding medium for the
MetLife Insurance Contracts. MetLife Insurance shall not be required by Section
7.3 to establish a new funding medium for the MetLife Insurance Contracts if an
offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Board determines that any proposed action does not adequately
remedy any irreconcilable material conflict, then MetLife Insurance will
withdraw the Account's (or subaccount's) investment in the Trust and terminate
this Agreement within six (6) months after the Board informs MetLife Insurance
in writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
irreconcilable material conflict as determined by a majority of the
disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then: (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and
7.5 of this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted; and (c) this Agreement shall be otherwise
amended by the Trust, without the need for any consent of the other parties, as
required by such change in law.
ARTICLE VIII. Indemnification
8.1. Indemnification By MetLife Insurance
8.1(a). MetLife Insurance agrees to indemnify and hold harmless the
Trust, each member of the Board, the Distributor and the directors and officers
and each person, if any, who controls any such person within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes
of this Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of MetLife
Insurance), investigation of claims or litigation (including legal and other
expenses), to which the Indemnified Parties may become subject under any
statute, 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 Trust's shares or the MetLife
Insurance Contracts or interests in the Accounts and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any material fact contained
in the registration statement, prospectus, or statement of additional
information for the MetLife Insurance Contracts or contained in the
MetLife Insurance Contracts or sales literature for the MetLife
Insurance Contracts (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 reliance upon and in conformity with
information furnished to MetLife Insurance by or on behalf of the Trust
for use in the registration statement, prospectus, or statement of
additional information for the MetLife Insurance Contracts or in the
MetLife Insurance Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the
MetLife Insurance Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the Registration Statement, prospectus or statement of additional
information, or sales literature of the Trust not supplied by MetLife
Insurance or persons under its control) or wrongful conduct of MetLife
Insurance or persons under its control, with respect to the sale or
distribution of the MetLife Insurance Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a Registration
Statement, prospectus, or statement of additional information, or sales
literature of the Trust 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 statements
therein not misleading if such a statement or omission was made in
reliance upon information furnished to the Trust by or on behalf of
MetLife Insurance; or
(iv) arise as a result of any failure by MetLife
Insurance to provide the services and furnish the materials required to
be provided or furnished by it under the terms of this Agreement; or
(v) arise out of or result from any material breach
of any representation and/or warranty made by MetLife Insurance in this
Agreement or arise out of or result from any other material breach of
this Agreement by MetLife Insurance; as limited by and in accordance
with the provisions of Sections 8.1(b) and 8.1(c) hereof.
8.1(b). MetLife Insurance shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities, or litigation incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations or duties
under this Agreement or to the Trust, whichever is applicable.
8.1(c). MetLife Insurance shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified MetLife Insurance in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify MetLife Insurance
of any such claim shall not relieve MetLife Insurance from any liability which
it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, MetLife Insurance shall be
entitled to participate, at its own expense, in the defense of such action.
MetLife Insurance also shall be entitled to assume the defense thereof, with
counsel reasonably satisfactory to the party named in the action. After notice
from MetLife Insurance to such party of MetLife Insurance's election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and MetLife Insurance will not be liable
to such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
8.1(d). The Indemnified Parties shall promptly notify MetLife Insurance
of the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Trust's shares or the MetLife Insurance
Contracts or the operation of the Trust.
8.2. Indemnification by the Distributor
8.2(a). The Distributor agrees to indemnify and hold harmless MetLife
Insurance, the Trust and each of their directors and officers and each person,
if any, who controls MetLife Insurance within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Distributor), investigation
of claims or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, 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 Trust's shares or the MetLife Insurance Contracts or
interests in the Accounts and:
(i) 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, or sales literature of the 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 reliance upon and in
conformity with information furnished to the Distributor or the Trust
by or on behalf of MetLife Insurance for use in the Registration
Statement, prospectus, or statement of additional information for the
Trust, or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the MetLife Insurance
Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the registration statement, prospectus or statement of additional
information, or sales literature for the MetLife Insurance Contracts
not supplied by the Distributor or persons under its control) or
wrongful conduct of the Distributor or persons under its control, with
respect to the sale or distribution of the MetLife Insurance Contracts
or Trust shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or statement of additional information or sales
literature covering the MetLife Insurance Contracts, 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 MetLife Insurance by or on behalf of the Distributor or
the Trust; or
(iv) arise as a result of any failure by the
Distributor or the Trust to provide the services and furnish the
materials required to be provided or furnished by the Distributor or
the Trust under the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to comply with the
diversification or other qualification requirements specified in
Article VI of this Agreement); or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the Distributor in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Distributor; as limited by and in accordance with
the provisions of Sections 8.2(b) and 8.2(c) hereof.
8.2(b). The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, 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 to MetLife Insurance or any Account, whichever is applicable.
8.2(c). The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Distributor will be entitled to
participate, at its own expense, in the defense thereof. The Distributor also
shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action. After notice from the Distributor
to such party of the Distributor's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributor will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
8.2(d). MetLife Insurance agrees promptly to notify the Distributor of
the commencement of any material litigation or proceedings against it or any of
its officers or directors in connection with the issuance or sale of the MetLife
Insurance Contracts or the operation of each Account.
8.3. Indemnification By the Trust
8.3(a). The Trust agrees to indemnify and hold harmless MetLife
Insurance and each of its directors and officers and each person, if any, who
controls MetLife Insurance within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.3)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Trust), investigation of claims or
litigation (including legal and other expenses) to which the Indemnified Parties
may become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements result from the gross negligence, bad faith or
willful misconduct of the Board or any member thereof, or are related to the
operations of the Trust and:
(i) arise as a result of any failure by the Trust to
provide the services and furnish the materials required to be provided
or furnished by it under the terms of this Agreement (including a
failure to comply with the diversification and other qualification
requirements specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach
of any representation and/or warranty made by the Trust in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Trust; as limited by and in accordance with the
provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities, or
litigation incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, 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 to MetLife Insurance, the Trust, the Distributor or each Account,
whichever is applicable.
8.3(c). The Trust shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Trust of any
such claim shall not relieve the Trust from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Trust will be entitled to participate, at
its own expense, in the defense thereof. The Trust also shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the party
named in the action. After notice from the Trust to such party of the Trust's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Trust will
not be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3(d). MetLife Insurance and the Distributor each agree promptly to
notify the Trust of the commencement of any material litigation or proceedings
against it or any of its respective officers or directors in connection with
this Agreement, the issuance or sale of the MetLife Insurance Contracts, with
respect to the operation of any Account, or the sale or acquisition of shares of
the Trust.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of California.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934, and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules, and regulations as the SEC
may grant (including, but not limited to, any Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party, with or without cause, upon six (6) months'
advance written notice delivered to the other parties; or
(b) termination by MetLife Insurance upon thirty (30) days'
written notice to the Trust, the Manager and the Distributor
with respect to any Designated Portfolio or Class thereof
based upon MetLife Insurance's determination that shares of
such Designated Portfolio or Class thereof are not reasonably
available to meet the requirements of the MetLife Insurance
Contracts or are not consistent with MetLife Insurance's
obligations to Contract owners; or
(c) termination by MetLife Insurance upon thirty (30) days'
written notice to the Trust, the Manager and the Distributor
with respect to any Designated Portfolio or Class thereof in
the event any of the Designated Portfolio's shares or any
shares with respect to any Class are not registered, issued or
sold in accordance with applicable federal and/or state law or
such law precludes the use of such shares as the underlying
investment media of the MetLife Insurance Contracts issued or
to be issued by MetLife Insurance; or
(d) termination by MetLife Insurance by written notice to the
Trust and the Distributor with respect to any Designated
Portfolio or Class thereof in the event that such Designated
Portfolio or Class thereof ceases to qualify as a regulated
investment company under Subchapter M of the Code or any other
failure under Section 817 of the Code, or under any successor
or similar provision of either, or if MetLife Insurance
reasonably believes that the Trust may fail to so qualify; or
(e) termination by either the Trust or the Distributor by written notice to
MetLife Insurance, if the Trust or the Distributor shall determine, in its
sole judgment exercised in good faith, that MetLife Insurance and/or its
affiliated companies have suffered a material adverse change in their
business, operations, financial condition, or prospects since the date of
this Agreement or are the subject of material adverse publicity; but no
termination shall be effective under this subsection (e) until MetLife
Insurance has been afforded a reasonable opportunity to respond to a
statement by the Trust or the Distributor concerning the reason for notice
of termination hereunder; or
(f) termination by MetLife Insurance by written notice to the Trust and the
Distributor, if MetLife Insurance shall determine, in its sole judgment
exercised in good faith, that either the Trust, the Manager or the
Distributor has suffered a material adverse change in its business,
operations, financial condition, or prospects since the date of this
Agreement or is the subject of material adverse publicity; but no
termination shall be effective under this subsection (f) until the Trust,
the Manager or the Distributor have been afforded a reasonable opportunity
to respond to a statement by MetLife Insurance concerning the reason for
notice of termination hereunder.
10.2. Notwithstanding any termination of this Agreement, the Trust and
the Distributor shall, at the option of MetLife Insurance, continue to make
available additional shares of the Trust pursuant to the terms and conditions of
this Agreement, for all MetLife Insurance Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as "Existing
MetLife Insurance Contracts"). Specifically, without limitation, the owners of
the Existing MetLife Insurance Contracts shall be permitted to reallocate
investments in the Trust, redeem investments in the Trust, and/or invest in the
Trust upon the making of additional purchase payments under the Existing MetLife
Insurance Contracts. The parties agree that this Section 10.2 shall not apply to
any terminations under Article VII and the effect of such Article VII
terminations shall be governed by Article VII of this Agreement.
10.3. MetLife Insurance shall not redeem Trust shares attributable to
the MetLife Insurance Contracts (as opposed to Trust shares attributable to
MetLife Insurance's assets held in any Account) except: (a) as necessary to
implement Contract owner initiated or approved transactions; or (b) as required
by federal and/or state laws or regulations or judicial or other legal precedent
of general application (hereinafter referred to as a "Legally Required
Redemption"); or (c) as permitted pursuant to Section 26(b) of the 1940 Act or
otherwise pursuant to an order of the SEC that permits MetLife Insurance to
redeem Trust shares attributable to MetLife Insurance Contracts. Upon request,
MetLife Insurance shall promptly furnish to the Trust and the Distributor the
opinion of counsel for MetLife Insurance (which counsel shall be reasonably
satisfactory to the Trust and the Distributor) to the effect that any redemption
pursuant to clause (b) above is a Legally Required Redemption or any redemption
pursuant to clause (b) is permitted without first obtaining an order of the SEC
pursuant to Section 26(b) or any other provision of the 1940 Act. Furthermore,
except in cases where permitted under the terms of the MetLife Insurance
Contracts, and as may be in the best interests of Contract owners, as determined
by MetLife Insurance, MetLife Insurance shall not prevent Contract owners from
allocating payments to a Designated Portfolio or Class thereof that was
otherwise available under the MetLife Insurance Contracts without first giving
the Trust or the Distributor ninety (90) days' notice of its intention to do so.
10.4. Notwithstanding any termination of this Agreement for any reason,
the terms and conditions of the following provisions of this Agreement shall
remain in effect with respect to any Existing Contract, for so long as any
assets invested in the Trust are attributable to such Existing Contract:
Sections 1.3 to 1.10 of Article I (governing the pricing and redemption of
shares); Article II (Representations and Warranties); Sections 3.1 through 3.4
and 3.6 of Article III (Prospectuses and Proxy Statements, and Voting); Articles
IV through IX (Sales Material and Information; Fees and Expenses;
Diversification and Qualification; Potential Conflicts; Indemnification; and
Applicable Law); Article XI (Notices); and Sections 12.1, 12.2, and 12.5 through
12.8 of Article XII (Miscellaneous). Further, notwithstanding any termination of
this Agreement for any reason, the terms and conditions of the following
provisions of this Agreement shall remain in effect with regard to MetLife
Insurance Contracts whose assets were previously invested in the Trust: Article
II (Representations and Warranties), Article VI (Diversification and
Qualification) and Article VII (Indemnification).
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Trust:
Met Investors Series Trust
1350 Newport Center Drive
Suite 1350
Newport Beach, California 92660
Attention: Elizabeth Forget
If to MetLife Insurance:
MetLife Investors Insurance Company
1350 Newport Center Drive
Suite 1350
Newport Beach, California 92660
Attention: Richard Pearson, Esq.
If to the Distributor:
MetLife Distributors, Inc.
1350 Newport Center Drive
Suite 1350
Newport Beach, California 92660
Attention: James A. Shepherdson
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board (or its members), officers, agents, or shareholders shall
assume any personal liability for obligations entered into on behalf of the
Trust.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the Contract owners and all information reasonably identified as confidential
in writing by any other party hereto and, except as permitted by this Agreement,
shall not disclose, disseminate, or utilize such names and addresses and other
confidential information until such time as it may come into the public domain
without the express written consent of the affected party. Without limiting the
foregoing, no party hereto shall disclose any information that such party has
been advised is proprietary, except such information that such party is required
to disclose by any appropriate governmental authority (including without
limitation the SEC, the NASD, and state securities or insurance regulators).
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule, or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.7. The rights, remedies, and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies, and
obligations, at law or in equity, to which the parties hereto are entitled under
federal and state laws.
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Distributor may assign this Agreement or any
rights or obligations hereunder to any affiliate of or company under common
control with the Distributor (but in such event the Distributor shall continue
to be liable under Article VIII of this Agreement for any indemnification due to
MetLife Insurance and the Trust, and the assignee shall also be liable), if such
assignee is duly licensed and registered to perform the obligations of the
Distributor under this Agreement.
12.9. MetLife Insurance shall furnish, or shall cause to be furnished,
to the Trust or its designee upon request copies of the following reports:
(a) MetLife Insurance's annual statements (prepared under statutory
accounting principles) and annual reports (prepared under generally accepted
accounting principles ("GAAP"), if any), as soon as practical and in any event
within ninety (90) days after the end of each fiscal year;
(b) any material financial statement, proxy statement, notice, or
report of MetLife Insurance sent to policyholders, as soon as practical after
the delivery thereof to stockholders;
(c) any registration statement (without exhibits) and financial reports
of MetLife Insurance filed with the SEC or any state insurance regulator, as
soon as practical after the filing thereof; and
(d) any other report submitted to MetLife Insurance by independent
accountants in connection with any annual, interim, or special audit made by
them of the books of MetLife Insurance, as soon as practical after the receipt
thereof; but nothing in this subsection shall require MetLife Insurance to
disclose any information that is privileged or which, if disclosed, would put
MetLife Insurance at a competitive disadvantage or is both: (a) confidential;
and (b) not material to MetLife Insurance's financial condition.
12.10 At the request of any party to this Agreement, each other party
will make available to the requesting party's independent auditors and/or
representatives of the appropriate regulatory agencies, all records, data, and
access to operating procedures that may be reasonably requested in connection
with compliance and regulatory requirements related to this Agreement or any
party's obligations under this Agreement.
12.11 Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified below.
MET INVESTORS SERIES TRUST
By: /s/
---
Name: Elizabeth Forget
Title: President
METLIFE INVESTORS INSURANCE COMPANY
By: /s/
---
Name: James A. Shepherdson
Title: Co-President
METLIFE DISTRIBUTORS, INC.
By: /s/
---
Name: James A. Shepherdson
Title: Co-President
<PAGE>
SCHEDULE A
ACCOUNTS AND ASSOCIATED VARIABLE INSURANCE CONTRACTS
Name of Account
MetLife Insurance Contracts
Funded By Account
<PAGE>
SCHEDULE B
DESIGNATED PORTFOLIOS AND CLASSES
Portfolios of
Met Investors Series Trust
J.P. Morgan Quality Bond Portfolio:
Class A Shares
Class B Shares
Class C Shares
J.P. Morgan Small Cap Stock Portfolio:
Class A Shares
Class B Shares
Class C Shares
J.P. Morgan Enhanced Index Portfolio:
Class A Shares
Class B Shares
Class C Shares
J.P. Morgan Select Equity Portfolio:
Class A Shares
Class B Shares
Class C Shares
J.P. Morgan International Equity Portfolio:
Class A Shares
Class B Shares
Class C Shares
Lord Abbett Bond Debenture Portfolio:
Class A Shares
Class B Shares
Class C Shares
Lord Abbett Mid-Cap Value Portfolio:
Class A Shares
Class B Shares
Class C Shares
Lord Abbett Developing Growth Portfolio:
Class A Shares
Class B Shares
Class C Shares
Lord Abbett Growth and Income Portfolio:
Class A Shares
Class B Shares
Class C Shares
Firstar Balanced Portfolio:
Class A Shares
Class B Shares
Class C Shares
Firstar Equity Income Portfolio:
Class A Shares
Class B Shares
Class C Shares
Firstar Growth & Income Equity Portfolio:
Class A Shares
Class B Shares
Class C Shares
BlackRock Equity Portfolio:
Class A Shares
Class B Shares
Class C Shares
BlackRock U.S. Government Income Portfolio:
Class A Shares
Class B Shares
Class C Shares
