EXHIBIT
D(9)
INVESTMENT
SUB-ADVISORY AGREEMENT
This Investment
Sub-Advisory Agreement (this “Sub-Advisory Agreement”), is by and
between Janus Capital Corporation (the “Sub-Adviser”) and
Massachusetts Mutual Life Insurance Company, a mutual life insurance company
organized under the laws of the Commonwealth of Massachusetts
(“MassMutual”), for the MassMutual Aggressive Growth Fund (the
“Fund”), a series of MassMutual Institutional Funds (the
“Trust”), a Massachusetts business trust which is an open-end
diversified management investment company registered as such with the
Securities and Exchange Commission (the “Commission”) pursuant to
the Investment Company Act of 1940, as amended (the “Act”),
effective as of the 1st day of May, 2000.
WHEREAS, the Trust
has appointed MassMutual as the investment adviser for the Fund pursuant to
the terms of an Investment Advisory Agreement (the “Advisory
Agreement”);
WHEREAS, the Advisory
Agreement provides that MassMutual may, at its option, subject to approval
by the Trustees of the Trust and, to the extent necessary, the shareholders
of the Fund, appoint a sub-adviser to assume certain responsibilities and
obligations of MassMutual under the Advisory Agreement;
WHEREAS, MassMutual
and the Sub-Adviser are investment advisers registered with the Commission
as such under the Investment Advisers Act of 1940, as amended (the
“Advisers Act”); and
WHEREAS, MassMutual
desires to appoint the Sub-Adviser as its sub-adviser for the Fund and the
Sub-Adviser is willing to act in such capacity upon the terms herein set
forth;
NOW THEREFORE, in
consideration of the premises and of the mutual covenants herein contained,
MassMutual, the Fund and the Sub-Adviser, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. General Provision.
(a)
MassMutual hereby employs the Sub-Adviser and the Sub-Adviser hereby
undertakes to act as the investment sub-adviser of the Fund to provide
investment advice and to perform for the Fund such other duties and
functions as are hereinafter set forth. The Sub-Adviser shall, in all
matters, give to the Fund and the Trust’s Board of Trustees, directly
or through MassMutual, the benefit of the Sub-Adviser’s best judgment,
effort, advice and recommendations and shall, at all times conform to, and
use its best efforts to ensure the Fund conforms to:
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(i) the
provisions of the Act and any rules or regulations thereunder;
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(ii) any
other applicable provisions of state or federal law;
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(iii)
the provisions of the Agreement and Declaration of Trust and Bylaws
of the Trust, as amended from time to time (collectively referred to as
the “Trust Documents”);
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(iv)
policies and determinations of the Board of Trustees of the Trust
and MassMutual;
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(v) the
fundamental and non-fundamental policies and investment restrictions of
the Fund as reflected in the Trust’s registration statement under the
Act or as such policies may, from time to time, be amended by the
Fund’s shareholders; and
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(vi) the
Prospectus and Statement of Additional Information of the Fund in effect
from time to time (collectively referred to as the “Disclosure
Documents”).
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(b) The
appropriate officers and employees of the Sub-Adviser shall be available
upon reasonable notice for consultation with any of the Trustees and
officers of the Trust and MassMutual with respect to any matter dealing with
the business and affairs of the Fund, such as the valuation of portfolio
securities of the Fund, including but not limited to securities that are
either not registered for public sale or securities not traded on any
securities
market, provided, however, that the parties agree that the Sub-Adviser is not
responsible for valuation of portfolio securities.
2. Duties of the Sub-Adviser.
(a) The
Sub-Adviser shall, subject to the direction and control by the Trust’s
Board of Trustees or MassMutual, to the extent MassMutual’s direction
is not inconsistent with that of the Board of Trustees, (i) regularly
provide investment advice and recommendations to the Fund, directly or
through MassMutual, with respect to the Fund’s investments, investment
policies and the purchase, sale or other disposition of securities and other
investments; (ii) supervise and monitor continuously the investment program
of the Fund and the composition of its portfolio and determine what
securities or other investments shall be purchased or sold by the Fund;
(iii) arrange, subject to the provisions of Section 5 hereof, for the
purchase of securities and other investments for the Fund and the sale of
securities and other investments held in the portfolio of the Fund; (iv)
provide reports on the foregoing to the Board of Trustees for each Board
meeting; and (v) undertake to do anything incidental to the foregoing to
facilitate the performance of the Sub-Adviser’s obligations hereunder,
including voting proxies or exercising any consent rights with respect to
such securities or investments.
(b) The
Sub-Adviser shall provide to MassMutual such reports for the Fund, and in
such time frames, as MassMutual shall reasonably request or as required by
applicable law or regulation.
(c)
Provided that none of MassMutual, the Fund or the Trust shall be
required to pay any compensation other than as provided by the terms of this
Sub-Advisory Agreement and subject to the provisions of Section 7 hereof,
the Sub-Adviser may obtain investment information, research or assistance
from any other person, firm or corporation to supplement, update or
otherwise improve its investment management services.
(d) Except
as may otherwise be provided by the Act or other federal securities laws,
neither Sub-Adviser nor any of its affiliates, officers, directors,
shareholders, employees or agents shall be liable for any loss, liability,
cost, damage or expense (including reasonable attorneys’ fees and
costs) (collectively referred to in this Sub-Advisory Agreement as
“Losses”), including, without limitation, Losses in connection
with pricing information or other information provided by Sub-Adviser,
except for Losses directly resulting from Sub-Adviser’s gross
negligence, bad faith or willful misconduct.
(e) The
Sub-Adviser shall make all material disclosures to MassMutual and the Fund
regarding itself and its partners, officers, directors, shareholders,
employees, affiliates or any person who controls any of the foregoing,
including, but not limited to, information regarding any change in control
in the Sub-Adviser or any change in its key personnel, information regarding
any material adverse change in the condition (financial or otherwise) of the
Sub-Adviser or any person who controls the Sub-Adviser, commentary regarding
the investment performance and general investment methods of the
Sub-Adviser, its principals and affiliates, with respect to the Fund and
other funds or accounts which are managed by the same portfolio manager as
the Fund with substantially the same investment objectives, policies and
investment strategies, information that MassMutual reasonably deems material
to the Fund or necessary to enable MassMutual to monitor the performance of
the Sub-Adviser which is included in the Fund’s Disclosure Documents
and other sales literature, and information that is required, in the
reasonable judgment of MassMutual, to be disclosed in any filings required
by any governmental agency or by any applicable law, regulation, rule or
order.
(f) The
Sub-Adviser shall provide MassMutual with any information in the
Sub-Adviser’s possession necessary for supervising the activities of
its personnel, including professional, administrative and clerical
personnel, including the compilation and maintenance of such records with
respect to the Fund’s operations as may reasonably be
required.
(g) The
Sub-Adviser shall provide MassMutual, upon reasonable prior written request
by MassMutual to the Sub-Adviser, with access to inspect at the
Sub-Adviser’s office the books and records of the Sub-Adviser relating
to the Fund and the Sub-Adviser’s performance hereunder and such other
books and records of the Sub-
Adviser as are necessary to confirm that the Sub-Adviser has complied with its
obligations and duties under this Sub-Advisory Agreement.
(h) The
Sub-Adviser makes no representation or warranty, express or implied, that
any level of performance or investment results will be achieved by the Fund
or that the Fund will perform comparably with any standard or index,
including other clients, whether public or private.
(i) The
Sub-Adviser shall not be responsible for portfolio accounting, nor shall it
be required to generate information derived from portfolio accounting data.
The Sub-Adviser shall be responsible for the preparation and filing of
Schedule 13G and Form 13F on behalf of the Fund. The Sub-Adviser shall not
be responsible for the preparation or filing of any reports required of the
Fund by any governmental or regulatory agency, except as expressly agreed to
in writing.
(j) The
Sub-Adviser shall provide standard portfolio monitoring with respect to the
investment sub-adviser services provided hereunder, provided that MassMutual
directly or through its custodian shall deliver to the Sub-Adviser all
information requested by the Sub-Adviser to perform such monitoring.
Nonetheless, the Sub-Adviser shall have no responsibility to monitor certain
limitations or restrictions, including, without limitation, the 90% source
test and all other requirements requiring accounting information from
MassMutual for which the Sub-Adviser determines it has not been provided
sufficient information from MassMutual. All such monitoring shall be the
responsibility of MassMutual.
3. Other Activities.
(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 (excluding those affiliates the
Sub-Adviser does not control). 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.
4. Obligations of MassMutual and the
Fund.
(a)
MassMutual will provide, or has provided, to the Sub-Adviser the
information and documents listed on the attached Exhibit A. Throughout the
term of this Sub-Advisory Agreement, MassMutual shall continue to provide
such information and documents to the Sub-Adviser, including any amendments,
updates or supplements to such information or documents before or at the
time the amendments, updates or supplements become effective. MassMutual
shall timely furnish the Sub-Adviser with such additional information as may
be reasonably necessary for or requested by the Sub-Adviser to perform its
responsibilities pursuant to this Sub-Advisory Agreement.
(b)
MassMutual shall provide such assistance to the Sub-Adviser in setting
up and maintaining brokerage accounts and other accounts as the Sub-Adviser
shall reasonably request to allow for the purchase or sale of various forms
of securities pursuant to this Sub-Advisory Agreement.
5. Custodian and Fund Accountant.
The Fund assets shall
be maintained in the custody of Investors Bank & Trust Company, 200
Clarendon Street, Boston, Massachusetts 02116, or such other custodian
identified to the Sub-Adviser. Any assets added to the Fund shall be
delivered directly to such custodian. The Sub-Adviser shall have no
liability for the acts or omissions of any custodian of the Fund’s
assets. The Sub-Adviser shall have no responsibility for the segregation
requirement of the Act or other applicable law. In addition, at the date of
this Sub-Advisory Agreement, MassMutual has contracted with Investors Bank
& Trust Company to provide fund accounting services on behalf of the
Fund. The Sub-Adviser shall have no liability for the acts or omissions of
Investors Bank & Trust Company or such other fund accountant in
connection with fund accounting services provided on behalf of the
Fund.
6. Compensation of the Sub-Adviser.
(a)
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, based on net assets of the
Fund under Management by the Sub-Adviser: an annual rate of .55% on the
first $100 million of net assets of the Fund; .50% on the next $400 million
of net assets of the Fund; and .45% on net assets of the Fund in excess of
$500 million. MassMutual shall pay the Sub-Adviser such fee not later than
the tenth (10th) business day immediately following the end of each calendar
quarter.
(b)
Expenses. MassMutual, the Trust and the
Fund shall assume and pay their respective organizational, operational and
business expenses not specifically assumed or agreed to be paid by the
Sub-Adviser pursuant to this Sub-Advisory Agreement. The Sub-adviser shall
pay its own organizational, operational and business expenses but shall not
be obligated to pay any expenses of MassMutual, the Trust or the Fund,
including, without limitation: (a) interest and taxes; (b) brokerage
commissions and other costs in connection with the purchase or sale of
securities or other investment instruments of the Fund; and (c) custodian
fees and expenses. Any reimbursement of management or other fees required by
an expense limitation provisions and any liability arising out of a
violation by MassMutual of Section 36(b) of the Act shall be the sole
responsibility of MassMutual, provided that nothing herein shall relieve
Sub-Adviser from its own liability under Section 36(b) of the Act with
respect to its duties under this Sub-Advisory Agreement.
7. 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 the most favorable security price
obtainable) of the Fund’s portfolio transactions.
(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. Subject to the foregoing, the Sub-Adviser may also
consider sales of shares of the Fund, or may consider or follow the
recommendations of MassMutual that take such sales into account, as factors
in the selection of broker-dealers to effect the Fund’s portfolio
transactions. Notwithstanding the above, nothing herein shall require the
Sub-Adviser to use a broker-dealer which provides research services or to
use a particular broker-dealer which MassMutual has recommended. Particular
recommendations will be provided separately by MassMutual and the Trustees
of the Fund, and approved by the Sub-Adviser.
8. Representations And Warranties of the
Sub-Adviser.
The Sub-Adviser
hereby represents and warrants to the Fund and MassMutual that:
(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, and
will maintain and renew any required licenses, registrations, approvals and
memberships during the term of this Sub-Advisory Agreement.
(b) 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
Sub-Adviser or Sub-Adviser’s portfolio manager for the Fund is subject,
which might reasonably be expected to (i) materially impair the
Sub-Adviser’s ability to discharge its obligations under this
Sub-Advisory Agreement, (ii) or result in a matter requiring an amendment to
the Sub-Adviser’s Form ADV, Part II.
(c) 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.
9. Representations and Warranties of
MassMutual.
(a)
MassMutual represents and warrants to the Sub-Adviser the
following:
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(i)
MassMutual has all requisite corporate power and authority under the
laws of the Commonwealth of Massachusetts and federal securities laws and
under the Advisory Agreement with the Fund to execute, deliver and perform
this Sub-Advisory Agreement.
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(ii)
MassMutual is a registered investment adviser under the Advisers Act
and is in material compliance with all other required registrations under
applicable federal and state law.
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(iii)
MassMutual has complied, in all material respects, with all
registrations required by, and will comply, in all material respects, with
all applicable rules and regulations of the Commission.
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(iv)
MassMutual has received a copy of Part II of Sub-Adviser’s Form
ADV.
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(v)
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 MassMutual is subject, which might reasonably be expected to (i)
materially impair MassMutual’s ability to discharge its obligations
under this Sub-Advisory Agreement or its Advisory Agreement, (ii) or
result in a matter requiring an amendment to MassMutual’s Form ADV,
Part II.
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10. Covenants.
(a)
Covenants of the Sub-Adviser.
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(i) 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 in
circumstance which would make the Sub-Adviser’s representations and
warranties in Section 8 inaccurate or incomplete in any material respect
or which might render the
Disclosure Documents untrue or misleading in any material respect
(collectively “Sub-Adviser Information”), the Sub-Adviser will
provide written notification of such Sub-Adviser Information to
MassMutual, provided that such Sub-Adviser Information is public or
required to be made public. Prior to its being made public, the
Sub-Adviser will provide notification to MassMutual regarding such
Sub-Adviser Information required to be made public. All Sub-Adviser
Information provided to MassMutual pursuant to this Section 10(a) shall be
governed by Section 11 of this Sub-Advisory Agreement and shall be treated
as confidential until such time as it is made public.
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(ii) 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.
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(b)
Covenants of MassMutual. If at any time during the term of this
Sub-Advisory Agreement, MassMutual discovers any fact or omission, or any
event or change in circumstance which would make the MassMutual’s
representations and warranties in Section 9 inaccurate or incomplete in any
material respect or which might render the Disclosure Documents untrue or
misleading in any material respect (collectively “MassMutual
Information”), MassMutual will provide written notification of such
MassMutual Information to the Sub-Adviser, provided that such MassMutual
Information is public or required to be made public. Prior to its being made
public, MassMutual will provide notification to the Sub-Adviser regarding
MassMutual Information required to be made public. All MassMutual
Information provided to the Sub-Adviser pursuant to this Section shall be
governed by Section 11 of this Sub-Advisory Agreement and shall be treated
as confidential until such time as it is made public.
11. 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.
12. Duration.
Unless terminated
earlier pursuant to Section 13 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 13 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.
13. 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.
14. 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, 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, 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, damage, liability, cost or
expense related to, was based upon, or arose out of an act or omission of
the Sub-Adviser or its officers, directors, employees, affiliates or
controlling persons constituting willful misfeasance, bad faith, gross
negligence, fraud, willful misconduct, a breach of this Sub-Advisory
Agreement, or a violation of applicable federal or state securities laws,
rules and regulations.
(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, damage, 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 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 14
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 14, 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 14 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 14 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 14. Notwithstanding any
other provisions of this Section 14, 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.
(d) The
obligations of this Section 11 shall survive termination of this
Sub-Advisory Agreement.
15. 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.
16. 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, Vice President
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If to the
Sub-Adviser: Janus Capital Corporation
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Attention: General
Counsel
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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, Vice President and
Secretary
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17. 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.
18. 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.
19. 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.
20. 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.
21. Successors.
This Sub-Advisory
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their successors and permitted assigns.
22. 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.
23. 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.
24. 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.
25. Use
of Names; Review of Fund Disclosure Documents and Sales
Literature.
The Sub-Adviser is
the sole owner of the name and mark “Janus”. MassMutual shall not,
and shall not permit the Fund to, without the prior consent of the
Sub-adviser, use the name or mark “Janus” or make representations
regarding the Sub-Adviser or its affiliates. Upon termination of this
Sub-Advisory Agreement for any reason, MassMutual shall immediately cease,
and MassMutual shall cause the Fund to immediately cease, all use of the
Janus name or any Janus mark in connection with the Fund (other than such
uses in the Disclosure Documents which may be required by law).
During the term of
this Sub-Advisory Agreement, MassMutual shall furnish to the Sub-Adviser at
its principal office all prospectuses, proxy statements, reports to
shareholders, sales literature or other material prepared for distribution
to shareholders of the Fund or the public which refer to the Sub-Adviser or
its clients in any way, prior to the use thereof, and MassMutual shall not
use any such materials if the Sub-Adviser reasonably objects in writing
within five (5) days (or such other time as may be mutually agreed, which
would include longer time periods for review of the Fund’s Disclosure
Documents) after receipt thereof. MassMutual shall ensure that materials
prepared by employees or agents of MassMutual or its affiliates that refer
to the Sub-Adviser or its clients in any way are consistent with those
materials previously approved by the Sub-Adviser as referenced in the
preceding sentence.
26. Non-Exclusivity.
(a) The
Sub-Adviser, its affiliates or any of their directors, officers, employees
or agents may buy, sell or trade any securities or other investment
instruments for their own account or for the account of others for whom it
or they may be acting, provided that such activities will not adversely
affect or otherwise impair the performance by the Sub-Adviser of its
responsibilities under this Sub-Advisory Agreement. The Sub-Adviser and its
affiliates may act as investment manager or provide other services with
respect to various investment companies and other managed accounts, which
advice or services, including the nature of such services, may differ from
or be identical to the advice given or action taken with respect to the
Fund. In the event of such activities, the transactions and associated costs
will be allocated among such clients (including the Fund) in a manner that
the Sub-Adviser believes to be equitable to the accounts involved and
consistent with such accounts’ investment objectives, policies and
limitations.
(b) The
Sub-Adviser shall be subject to a written code of ethics adopted by it
pursuant to Rule 17j-1(b) of the Act, and shall not be subject to any other
code of ethics, including MassMutual’s or the Fund’s code of
ethics, unless specifically adopted by the Sub-Adviser.
(c) The
Sub-Adviser may provide advice to or take action with respect to other
clients, which advice or action, including the timing and nature of such
action, may differ from or be identical to advice given or action taken with
respect to the Fund.
27. 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.
|
MASSACHUSETTS
MUTUAL
LIFE
INSURANCE
COMPANY
|
|
JANUS
CAPITAL
CORPORATION
|
|
By: |
/S
/ KELLEY
ABBOTT
HANES
|
|
|
Name: Kelley Abbott Hanes
|
ACKNOWLEDGED
:
MASS
MUTUAL
INSTITUTIONAL
FUNDS
on behalf of
MassMutual Aggressive Growth Fund
| By: |
/s/ THOMAS
M. KINZLER
|
|
|
|
|
|
Name: Thomas M. Kinzler
|
|
Title: Vice
President and Secretary
|
EXHIBIT
“A”
Information and
documentation provided or to be provided by MassMutual:
|
1.
A copy of the Trust’s registration statement
|
|
2.
Copies of the Fund’s prospectus and statement of additional
information
|
|
3.
Copies of the Trust’s organizational documents, by-laws, and,
as applicable to the Fund, minutes of meetings of the Trustees of the
Trust
|
|
4.
Notice of the Fund’s custodian designated to hold assets in the
Fund
|
|
5.
A list of the countries approved by the Trustees in accordance with
Rule 17f-5 in which Fund assets may be maintained and a list of those
countries available immediately
|
|
6.
Certified copies of financial statements or reports prepared for the
Fund by certified or independent public accountants
|
|
7.
Copies of any financial statement or reports made by the Fund to its
shareholders or to any governmental body or securities
exchange
|
|
8.
Reports as to the composition of assets in the Fund, cash
requirements and cash available for investment
|
|
9.
Copies of MassMutual’s liquidity procedures, cross-trade
procedures, repurchase agreement procedures, 10f-3, 17a-7 and 17e-1
procedures and other procedures that may affect the duties of the
Sub-Adviser
|
|
10. An
Internal Revenue Service Form W-9 completed by the Fund
|
|
11. A
Qualified Institutional Investor Certification completed by the
Fund
|
|
12. A
list of persons authorized to act on behalf of the Fund
|
|
13. A
list of “affiliates” of the Fund, as such term is used in the
Act, including all broker-dealers affiliated with the Fund
|
|
14.
Applicable Commodities Futures Trading Commission exemptions,
notifications and/or related documentation
|
|
15. A
list of established futures accounts
|
