(a)
Nothing in this Sub-Advisory Agreement shall prevent MassMutual or the
Sub-Adviser or any officer thereof from acting as investment adviser or
sub-adviser for any other person, firm, corporation or other entity
and shall not in any
way limit or restrict MassMutual or the Sub-Adviser or any of their
respective directors, officers, members, stockholders, partners or employees
from buying, selling, or trading any securities for its own account or for
the account of others for whom it or they may be acting, provided that such
activities are in compliance with U.S. federal and state securities laws,
regulations and rules and will not adversely affect or otherwise impair the
performance by any party of its duties and obligations under this
Sub-Advisory Agreement.
(b) The
Sub-Adviser agrees that it will not knowingly or deliberately favor any
other account managed or controlled by it or any of its principals or
affiliates over the Fund. The Sub-Adviser, upon reasonable request and
receipt of adequate assurances of confidentiality, shall provide MassMutual
with an explanation of the differences, if any, in performance between the
Fund and any other account with investment objectives and policies similar
to the Fund for which the Sub-Adviser, or any one of its principals or
affiliates, acts as investment adviser. To the extent that a particular
investment is suitable for both the Fund and the Sub-Adviser’s other
clients, such investment will be allocated among the Fund and such other
clients in a manner that is fair and equitable in the circumstances.
Notwithstanding the foregoing or any other provision herein, no provision of
this Sub-Advisory Agreement shall require Sub-Adviser to breach the terms of
any agreement or agreements with its other clients regarding
confidentiality. Upon Sub-Adviser’s provision to MassMutual of
reasonable evidence that provision of the information identified under this
Section would breach such confidentiality provisions, MassMutual shall not
require Sub-Adviser to produce such information.
4. Compensation of the Sub-Adviser.
MassMutual agrees to
pay the Sub-Adviser and the Sub-Adviser agrees to accept as full
compensation for the performance of all functions and duties on its part to
be performed pursuant to the provisions hereof, a fee paid quarterly, in
arrears, at the following rate: an annual rate of .01% on the first $1
billion of Aggregate Assets; and .0075% on Aggregate Assets in excess of $1
billion. For the purposes of this Sub-Advisory Agreement, “Aggregate
Assets” shall mean the aggregate of (i) the average daily net assets of
the Fund determined at the close of the New York Stock Exchange (the
“Exchange”) on each day that the Exchange is open for trading, and
(ii) the average daily net assets of all other funds or accounts of
MassMutual or its affiliates, including other funds registered under the
Act, for which the Sub-Adviser provides investment advisory services
determined at the close of the Exchange on each day that the Exchange is
open for trading. MassMutual shall pay the Sub-Adviser such fee not later
than the tenth (10th) business day immediately following the end of each
calendar quarter. Aggregate Assets for which the Sub-Adviser provides
investment advisory services shall mean only equity securities and
securities convertible into equity securities, but shall not include cash or
cash equivalents.
5. Portfolio Transactions and
Brokerage.
(a) The
Sub-Adviser is authorized, in arranging the purchase and sale of the
Fund’s publicly-traded portfolio securities, to employ or deal with
such members of securities exchanges, brokers or dealers (hereinafter
“broker-dealers”), as may, in its best judgment, implement the
policy of the Fund to obtain, at reasonable expense, the best execution
(prompt and reliable execution at reasonable expense) of the Fund’s
portfolio transactions. Such brokers and dealers may include brokers or
dealers that are “affiliated persons” (as such term is defined in
the Act) of the Trust, the Sub-Adviser or MassMutual, provided that the
Sub-Adviser shall only place orders on behalf of the Fund with such
affiliated persons in accordance with procedures adopted by the Trustees
pursuant to Rule 17e-1 under the Act.
(b) The
Sub-Adviser may effect the purchase and sale of securities (which are
otherwise publicly traded) in private transactions on such terms and
conditions as are customary in such transactions, may use a broker to effect
such transactions, and may enter into a contract in which the broker acts
either as principal or as agent.
(c) The
Sub-Adviser shall select broker-dealers to effect the Fund’s portfolio
transactions on the basis of its estimate of their ability to obtain best
execution of particular and related portfolio transactions. The abilities of
a broker-dealer to obtain best execution of particular portfolio
transaction(s) will be judged by the Sub-Adviser on the basis of all
relevant factors and considerations including, insofar as feasible, the
execution capabilities required by the transaction or transactions; the
ability and willingness of the broker-dealer to facilitate the Fund’s
portfolio transactions by participating therein for its own account; the
importance to the Fund of speed, efficiency or confidentiality; the
broker-dealer’s apparent familiarity with sources from or to whom
particular securities might be purchased or sold; other matters involved in
the receipt of brokerage and research services in accordance with Section
28(e) of the Securities Exchange Act of 1934, as amended; as well as any
other matters relevant to the selection of a broker-dealer for particular
and related transactions of the Fund; and such other considerations as the
Board of Trustees of the Trust or MassMutual determine and provide to the
Sub-Adviser from time to time.
6. Representations And Warranties of The
Sub-Adviser.
The Sub-Adviser
hereby represents and warrants to the Fund and MassMutual that:
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(a) The
Sub-Adviser has obtained all required governmental and regulatory
licenses, registrations and approvals required by law as may be necessary
to perform its obligations under this Sub-Advisory Agreement and to act as
contemplated by the Trust Documents and the Disclosure Documents,
including without limitation registration as an investment adviser under
the Advisers Act, as applicable, and will maintain, obtain and/or renew
any required licenses, registrations, approvals and memberships during the
term of this Sub-Advisory Agreement.
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(b)
Except as described in Section 6(c), there is no pending, or to the
best of its knowledge, threatened or contemplated action, suit or
proceeding before or by any court, governmental, administrative or
self-regulatory body or arbitration panel to which the Sub-Adviser or any
of its principals or affiliates is a party, or to which any of the assets
of the Sub-Adviser is subject, which reasonably might be expected to (i)
result in any material adverse change in the Sub-Adviser’s condition
(financial or otherwise), business or prospects, (ii) affect adversely in
any material respect any of the Sub-Adviser’s assets or (iii)
materially impair the Sub-Adviser’s ability to discharge its
obligations under this Sub-Advisory Agreement; and the Sub-Adviser has not
received any notice of an investigation by the Securities and Exchange
Commission or any state regarding U.S. federal or state securities laws,
regulations or rules.
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(c) As a
result of Sub-Adviser’s March 11, 1999 guilty plea, Sub-Adviser would
not be able to provide sub-advisory services to the Fund. The Securities
and Exchange Commission (“SEC”) has granted a temporary order to
permit Sub-Adviser and its affiliates to continue to provide investment
advisory services to registered investment companies, and this temporary
order would allow Sub-Adviser to provide the services to the Fund
hereunder. However, there is no assurance that the SEC will grant a
permanent order and the failure by Sub-Adviser to receive such permanent
order could result in Sub-Adviser not being able to provide the services
contemplated hereunder.
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(d) All
references in the Disclosure Documents concerning the Sub-Adviser and its
affiliates and the controlling persons, affiliates, stockholders,
directors, officers and employees of any of the foregoing are accurate in
all material respects and do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
such information not misleading.
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(e)
Subject to adequate assurances of confidentiality, the Sub-Adviser
has supplied or will supply to, or has made or will make available for
review by, MassMutual (and if requested by MassMutual to its designated
auditor) all documents, statements and workpapers reasonably requested by
it relating to the Fund and the Sub-Adviser’s performance results.
Notwithstanding the foregoing or any other provision herein, no provision
of this Sub-Advisory Agreement shall require Sub-Adviser to breach the
terms of any agreement or agreements with its other clients regarding
confidentiality. Upon Sub-Adviser’s provision to MassMutual of
reasonable evidence that provision of the information identified under
this Section would breach such confidentiality provisions, MassMutual
shall not require Sub-Adviser to produce such information.
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The foregoing
representations and warranties shall be continuing during the term of this
Sub-Advisory Agreement.
7. Covenants of the Sub-Adviser.
(a) If at
any time during the term of this Sub-Advisory Agreement, the Sub-Adviser
discovers any fact or omission, or any event or change of circumstances
occurs, which would make the Sub-Adviser’s representations and
warranties in Section 6 inaccurate or incomplete in any material respect, or
which might render the Disclosure Documents untrue or misleading in any
material respect, the Sub-Adviser will provide prompt written notification
to the Fund and MassMutual of any such fact, omission, event or change of
circumstances, and the facts related thereto.
(b) The
Sub-Adviser agrees that, during the term of this Sub-Advisory Agreement, and
for so long as investment in the Fund is being offered for sale, it will
provide the Fund and the Sub-Adviser with updated information relating to
the Sub-Adviser’s performance results as reasonably required from time
to time by the Fund and MassMutual. The Sub-Adviser shall use its best
efforts to provide such information within a reasonable period of time after
the end of the month to which such updated information relates and the
information is available to it.
8. Confidentiality.
All information and
advice furnished by one party to the other party (including their respective
agents, employees and representatives) hereunder shall be treated as
confidential and shall not be disclosed to third parties, except as may be
necessary to comply with applicable laws, rules and regulations, subpoenas
or court orders.
9. Duration.
Unless terminated
earlier pursuant to Section 10 hereof, this Sub-Advisory Agreement shall
remain in effect for a period of two years from the date hereof. Thereafter
it shall continue in effect from year to year, unless terminated pursuant to
Section 10 hereof, so long as such continuance shall be approved at least
annually by the Trust’s Board of Trustees, including the vote of the
majority of the Trustees of the Trust who are not parties to this
Sub-Advisory Agreement or “interested persons” (as defined in the
Act) of any such party cast in person at a meeting called for the purpose of
voting on such approval, or by the holders of a “majority” (as
defined in the Act) of the outstanding voting securities of the
Fund.
10. Termination.
(a) This
Sub-Advisory Agreement shall terminate automatically upon its unauthorized
assignment (within the meaning of the Act), the termination of the Advisory
Agreement or the dissolution of the Fund.
(b) The
Sub-Advisory Agreement may be terminated by MassMutual or the Board of
Trustees of the Trust: (i) by written notice to the Sub-Adviser with
immediate effect, if the Sub-Adviser’s registration under the
Adviser’s Act is suspended, terminated, lapsed or not renewed; (ii) by
written notice to the Sub-Adviser with immediate effect, if the Sub-Adviser
is bankrupt or insolvent, seeks an arrangement with creditors, is dissolved
or terminated or ceases to exist; (iii) by written notice to the Sub-Adviser
with immediate effect, if MassMutual determines in good faith, for any
reason, that such termination is appropriate for the protection of the Fund,
including without limitation a good faith determination by MassMutual or the
Board of Trustees of the Trust that the Sub-Adviser has breached an
obligation or duty under this Sub-Advisory Agreement; or (iv) in their sole
discretion, without penalty, upon ninety days prior written notice to
Sub-Adviser. This Sub-Advisory Agreement also may be terminated at any time,
without penalty, by the vote of the holders of a “majority” of the
outstanding voting securities of the Fund (as defined in the
Act).
(c) The
Sub-Advisory Agreement may be terminated by the Sub-Adviser, without penalty
at any time, upon ninety days’ prior written notice, to MassMutual and
the Trust.
11. Indemnification.
(a) In any
action in which MassMutual or the Fund or any of its or their controlling
persons, or any shareholders, partners, directors, officers and/or employees
of any of the foregoing, are parties, the Sub-Adviser
agrees to indemnify and hold harmless the foregoing persons against any loss,
claim, settlement, damage, charge, liability or expense (including, without
limitation, reasonable attorneys’ and accountants’ fees) to which
such persons may become subject, insofar as such loss, claim, settlement,
damage, charge, liability or expense arises out of or is based upon any
demands, claims, liabilities, expenses, lawsuits, actions or proceedings
relating to this Sub-Advisory Agreement or to the advisory services for the
account of the Fund provided by the Sub-Adviser, provided that the loss,
claim, settlement, damage, charge, liability, cost or expense related to,
was based upon, or arose out of (i) an act or omission of the Sub-Adviser or
its officers, directors, employees, affiliates or controlling persons and
(ii) constituted willful misfeasance, bad faith, gross negligence, fraud,
willful misconduct, a material breach of this Sub-Advisory Agreement, or a
violation of applicable federal or state securities laws, rules and
regulations by the Sub-Adviser.
(b) In any
action in which the Sub-Adviser or any of its controlling persons, or any
shareholders, partners, directors, officers and/or employees of any of the
foregoing, are parties, MassMutual agrees to indemnify and hold harmless the
foregoing persons against any loss, claim, settlement, damage, charge,
liability or expense (including, without limitation, reasonable
attorneys’ and accountants’ fees) to which such persons may become
subject, insofar as such loss, claim, settlement, damage, charge, liability
or expense arises out of or is based upon any demands, claims, liabilities,
expenses, lawsuits, actions or proceedings relating to this Sub-Advisory
Agreement, the advisory services for the account of the Fund provided by the
Sub-Adviser, the operation of the Fund or the contents of the Disclosure
Documents, provided that the loss, claim, settlement, damage, charge,
liability, cost or expense did not relate to, or was not based upon, or did
not arise out of an act or omission of the Sub-Adviser, its shareholders, or
any of its partners, officers, directors, employees, agents or controlling
persons constituting willful misfeasance, bad faith, gross negligence,
fraud, willful misconduct, a material breach of this Sub-Advisory Agreement,
or a violation of applicable federal or state securities laws, rules and
regulations.
(c)
Promptly after receipt by an indemnified party under this Section 11
of notice of any claim or dispute or commencement of any action or
litigation, such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party under this Section 11, notify the
indemnifying party of the commencement thereof; but the omission to notify
the indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 11 except to
the extent, if any, that such failure or delay prejudiced the other party in
defending against the claim. In case any such claim, dispute, action or
litigation is brought or asserted against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, to assume the defense thereof, with counsel
specially approved in writing by such indemnified party, such approval not
to be unreasonably withheld, following notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof; in
which event, the indemnifying party will not be liable to such indemnified
party under this Section 11 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof,
but shall continue to be liable to the indemnified party in all other
respects as heretofore set forth in this Section 11. Notwithstanding any
other provisions of this Section 11, if, in any claim, dispute, action or
litigation as to which indemnity is or may be available, any indemnified
party reasonably determines that its interests are or may be, in whole or in
part, adverse to the interests of the indemnifying party, the indemnified
party may retain its own counsel, with the choice of counsel subject to the
consent of the indemnifying party (which consent shall not be withheld
unreasonably), in connection with such claim, dispute, action or litigation
and shall continue to be indemnified by the indemnifying party for any legal
or any other expenses reasonably incurred in connection with investigating
or defending such claim, dispute, action or litigation.
12. Disclaimer of Shareholder
Liability.
MassMutual and the
Sub-Adviser understand that the obligations of the Trust under this
Sub-Advisory Agreement are not binding upon any Trustee or shareholder of
the Trust personally, but bind only the Trust and the Trust’s property.
MassMutual and the Sub-Adviser represent that each has notice of the
provisions of the Trust Documents disclaiming shareholder and Trustee
liability for acts or obligations of the Trust.
13. Notice.
Any notice under this
Sub-Advisory Agreement shall be in writing, addressed and delivered or
mailed, postage prepaid, to the other party, with a copy to the Trust, at
the addresses below or such other address as such other party may designate
for the receipt of such notice.
If to MassMutual:
Massachusetts Mutual Life Insurance Company
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Attention: Vernon
J. Meyer
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If to the
Sub-Adviser: Bankers Trust Company
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Attention: Robert
Laverty, 35th Floor
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If to either
MassMutual or the Sub-Adviser, copies to:
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MassMutual
Institutional Funds
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Attention: Thomas
M. Kinzler
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Vice President and
Secretary
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14. No
Assignment.
No assignment (within
the meaning of the Act) of this Sub-Advisory Agreement may be made without
the express written consent of all parties hereto.
15. Amendments to this Sub-Advisory
Agreement.
This Sub-Advisory
Agreement may be amended only by a written instrument approved in writing by
all parties hereto.
16. Governing Law.
This Sub-Advisory
Agreement shall be governed by and construed in accordance with the internal
laws of the Commonwealth of Massachusetts, without giving effect to
principles of conflict of laws.
17. Survival.
The provisions of
this Sub-Advisory Agreement shall survive the termination or other
expiration of this Sub-Advisory Agreement with respect to any matter arising
while this Sub-Advisory Agreement was in effect.
18. Successors.
This Sub-Advisory
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their successors and permitted assigns.
19. Entire Agreement.
This Sub-Advisory
Agreement constitutes the entire agreement among the parties hereto with
respect to the matters referred to herein, and no other agreement, oral or
otherwise, shall be binding on the parties hereto.
20. No
Waiver.
No failure or delay
on the part of any party hereto in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. Any
waiver granted hereunder must be in writing and shall be valid only in the
specific instance in which given.
21. Severability.
If any one or more
provisions in this Sub-Advisory Agreement shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not effect any other provision of this
Sub-Advisory Agreement, but this Sub-Advisory Agreement shall be construed
so as to effectuate the intent of the parties hereto as nearly as possible
without giving effect to such invalid, illegal or unenforceable provision
had never been contained herein.
22. Use
of Names.
Neither the Trust nor
MassMutual will use the name of the Sub-Adviser, or any affiliate of the
Sub-Adviser, in any prospectus, advertisement, sales literature or other
communication to the public except with the prior approval of the
Sub-Adviser. The Sub-Adviser will not use the name of the MassMutual, the
Trust, the Fund or any of their affiliates in any prospectus, advertisement,
sales literature or other communication to the public except with the prior
approval of MassMutual.
23. Counterparts.
This Sub-Advisory
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which when taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF,
the Fund, MassMutual and the Sub-Adviser have caused this Sub-Advisory
Agreement to be executed as of the day and year first above
written.
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MASSACHUSETTS
MUTUAL
LIFE
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ACKNOWLEDGED
:
MASS
MUTUAL
INSTITUTIONAL
FUNDS
on behalf of
MassMutual Indexed Equity Fund
| By: |
/S
/ THOMAS
M. KINZLER
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Name: Thomas M. Kinzler
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Title: Vice President and
Secretary
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