Exhibit 5(b)(2)
INVESTMENT SUB-ADVISORY AGREEMENT
BETWEEN MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
AND CONCERT CAPITAL MANAGEMENT, INC.
Regarding MML Series Investment Fund -- The MML Equity Fund
THIS AGREEMENT is by and between Massachusetts Mutual Life Insurance Company, a
mutual life insurance company organized under the laws of the Commonwealth of
Massachusetts (hereinafter "MassMutual"), and Concert Capital Management, Inc.,
a corporation organized under the laws of the Commonwealth of Massachusetts
(hereinafter "CCM") and a registered investment adviser under the Investment
Advisers Act of 1940, as amended (the "Agreement"). This Agreement is effective
as of April 16, 1993.
WHEREAS, MassMutual has entered into an investment management agreement with MML
Series Investment Fund (the "Trust") on behalf of MML Equity Fund (the "Fund"),
dated as of April 16, 1993 (the "Management Agreement"). Pursuant to the
management agreement, MassMutual is responsible for providing equity investment
advice to the Fund;
WHEREAS, MassMutual desires to appoint CCM as its sub-adviser for the Fund and
CCM is willing to act in such capacity; and
WHEREAS, The Shareholders of the Trust approved this Agreement at its Annual
Meeting of Shareholders on April 16, 1993 (the "Annual Meeting").
NOW, THEREFORE, MassMutual and CCM, hereby agree as follows:
Section 1--Investment Advisory Services:
MassMutual hereby employs CCM and CCM hereby undertakes to act as the investment
sub-adviser to the Fund and to provide the investment advisory, accounting and
other services as are specifically hereinafter set forth. CCM shall, subject to
the direction and supervision of the Trust's Board of Trustees, provide a
continuing and suitable investment program for the Fund in accordance with the
respective investment objectives and policies of the Fund. In the performance
of its duties hereunder, CCM will, at its expense:
(a) manage the investment and reinvestment of the assets of the Fund;
(b) supervise and monitor the equity investment program of the Fund,
including portfolio composition and identification of securities to be purchased
or sold;
(c) arrange, subject to the provisions of Section 10 hereof, for the
purchase and sale of equity securities for the Fund;
(d) recommend appropriate levels of cash investments pursuant to the
investment objectives of the Fund and provide MassMutual or its designee with
any information necessary to purchase, sell, exchange, or liquidate such cash
investments;
(e) furnish to MassMutual such statistical information regarding the
Fund's investments which the Fund may hold or contemplate purchasing, as
MassMutual may reasonably request;
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(f) at the request of the Trust's Board of Trustees (the "Board of
Trustees") or its designee, prepare and present written reports concerning the
performance of the Fund;
(g) take appropriate steps to keep MassMutual informed of important
developments materially affecting the investment performance of the Fund;
(h) notify MassMutual in writing immediately of any change in CCM's status
as a registered investment adviser under either state or federal law;
(i) make available to MassMutual on an as-needed basis (but no less
frequently than quarterly), information in its possession necessary to prepare
annual, semi-annual and quarterly statements of portfolio holdings;
(j) make available to MassMutual information in its possession necessary
to prepare tax returns, as well as reports to and filings with the Securities
and Exchange Commission, state insurance authorities, state corporation
authorities and/or state "Blue Sky" authorities;
(k) agree to provide or contract for calculations of the unit values of
the Fund and each unit value derived therefrom (if any) as a result of different
asset charges daily or at such lesser frequency as MassMutual may request, and
to have the party responsible for calculating such unit values, if different
than MassMutual, advise MassMutual of such unit values no later than 6:00 p.m.
eastern time on each valuation day;
(l) regularly make reports regarding the Fund's performance at meetings of
the Board of Trustees;
(m) attend periodic meetings of MassMutual's General Agents or other
significant special events upon reasonable request, at which meetings CCM shall
present reports on such aspects of its performance as MassMutual shall request;
(n) make available its SEC Form ADV, Parts I and II, and other licensing
forms to MassMutual upon request; and
(o) as directed by MassMutual, vote all proxies solicited by or with
respect to the equity securities held by the Funds in accordance with CCM's
Statement of Policy and Procedures Regarding the Voting of Securities, which
shall be reviewed at least annually by MassMutual.
Section 2--Standard of Care:
CCM agrees to exercise its best judgment, effort, advice, and recommendations in
rendering its services. MassMutual agrees that CCM shall not be liable
hereunder for any error of judgment or mistake of law or for any loss suffered
by MassMutual with respect to the Funds, provided that nothing herein shall be
deemed to protect or purport to protect CCM against any liability to MassMutual
or its policyowners to which CCM would otherwise be subject by reason of the
willful misfeasance, bad faith or gross negligence of CCM, its directors,
officers, employees or agents in the performance of CCM's duties hereunder, or
by reason of the reckless disregard of CCM's obligations and duties hereunder.
Section 3--Expenses:
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(a) CCM shall be responsible only for expenses incurred in connection with
the performance of its services under this Agreement. The expenses to be borne
by CCM include the following: (1) the compensation and benefits of all
directors, officers, employees, and agents of CCM; (2) any license or similar
fees in connection with CCM's use of computer software; (3) the management
services fees arising from the Management Services Agreement between MassMutual
and CCM dated January 1, 1993; (4) premiums on any insurance policies purchased
by CCM, including any fidelity insurance purchased pursuant to Section 5 hereof;
(5) those expenses associated with fund accounting for the Fund; and (6) any
other expenses incurred by CCM in connection with the performance of its duties
hereunder, including the compensation of its field representatives and the
expenses of servicing investments.
(b) MassMutual shall be responsible for all expenses related to the Fund,
other than those expressly assumed by CCM hereunder. Expenses to be borne by
MassMutual include, but are not limited to, the following: (1) premiums on any
insurance policies purchased to cover the Fund by MassMutual, including any
fidelity insurance purchased pursuant to Section 5 hereof; (2) charges of
custodians for the Funds; (3) outside legal expenses of MassMutual or the Trust;
and (4) expenses of MassMutual attributable to contract owner services
(including, without limitation, telephone and personnel expenses).
Section 4--Duties of MassMutual:
MassMutual will be responsible for establishing and maintaining appropriate
custodial account(s), payment of charges of custodians, and arranging to have
the Sub-Adviser informed of all receipts and disbursements of cash, cash on
hand, and securities positions.
Section 5--Compensation:
In consideration of the services rendered pursuant to this Agreement, MassMutual
shall pay CCM, and CCM agrees to accept as full compensation for the performance
of all functions and duties assumed and expenses to be borne pursuant to this
Agreement a quarterly fee equal to an annual rate of .13% of the average daily
net value of the Fund as of the close of each business day;
Section 6--Fidelity Insurance and Errors and Omissions Coverage:
In the event that MassMutual no longer arranges for insurance coverage on behalf
of CCM as provided for in Section 1(a)(iv) of the Management Agreement between
CCM and MassMutual dated as of April 16, 1993, CCM agrees to maintain and
provide evidence of fidelity insurance and errors and omissions coverage
relating to its services hereunder in such amounts and with such carriers as are
common in the investment advisory industry.
Section 7--Books and Records:
CCM agrees that all books and records maintained relating to the Fund are the
property of the Trust. CCM may disclose the Trust's books and records to CCM's
governmental regulators, and upon subpoena or with the written consent of the
Trust. CCM may maintain copies of such books and records for its own regulatory
purposes. CCM agrees to furnish the Massachusetts Commissioner of Insurance
(or, at MassMutual's request, any other state insurance authority) with any
information or reports in connection with its services hereunder which the
Commissioner may request to ascertain whether the life insurance operations of
MassMutual are being conducted in a manner consistent with applicable law.
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Section 8--Non-Exclusive Contract; Other Activities of CCM and Affiliates:
Nothing in this Agreement shall prevent MassMutual, CCM or any officers,
directors or employees thereof from acting as investment adviser or sub-adviser
for any other person, firm, or corporation provided, however, CCM will not enter
into an investment advisory agreement with any competitors of MassMutual or its
affiliates without the prior approval of CCM's Board of Directors. This
Agreement shall not limit or restrict MassMutual or CCM, or any of their
respective directors, officers, stockholders or employees from buying, selling,
or trading any securities for its or their own account or for the account of
others for whom it or they may be acting, provided that such activities will not
be in violation of any securities laws or statements of policy on conflict of
interest and or trading and will not adversely affect or otherwise impair the
performance by any party of its duties and obligations under this Agreement.
Section 9--Allocation of Securities Purchased or Sold for More than One Account:
CCM and MassMutual agree that when the purchase or sale of securities of the
same issuer is suitable for the investment objectives of two or more accounts
managed by CCM, the securities purchased or sold will be allocated in a manner
believed by CCM to be in keeping with its fiduciary duties to each account.
Section 10--Portfolio Transactions and Brokerage:
CCM is authorized, in arranging the purchase and sale of publicly-traded
portfolio securities, to employ or deal with such brokers or dealers ("broker-
dealers"), including affiliated broker-dealers, as may, in its best judgment,
implement the policy of the affected account to obtain the "best execution"
(prompt and reliable execution at the most reasonable security price obtainable)
of the transactions. CCM shall select broker-dealers to effect portfolio
transactions on the basis of its estimate of their ability to obtain best
execution of particular and related portfolio transactions. In placing
portfolio transactions for the Fund, CCM will follow such practices as may from
time to time be set forth in the Trust's most recent prospectus or specified by
its Board of Directors.
Section 11--No Assignment:
This Agreement is not assignable by the parties hereto without the prior written
consent of each party. For purposes of this Section 11, a change in the control
of CCM or MassMutual shall be deemed to be an assignment of this Agreement.
Section 12--No Partnership or Joint Venture:
Neither MassMutual, the Trust, the Fund, nor CCM are partners of or joint
venturers with each other, and nothing herein shall be construed so as to make
them such partners or joint venturers or impose any liability as such on any of
them.
Section 13--Duration and Termination of this Agreement:
This Agreement, having been approved by the Shareholders of the Trust at the
Annual Meeting, shall remain in full force and effect for one year and from year
to year thereafter to the extent approved at least annually by vote of a
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majority of Trustees of the Trust that are not interested persons of the Trust
or you, cast in person at a meeting called for that purpose of voting on such
approval, and specifically either the Board of Trustees or by a vote of a
majority of the outstanding voting securities of the Trust. This Agreement shall
terminate: (a) automatically in the event of the Fund's liquidation (b)
automatically upon the termination of a Management Agreement with respect to
effected Fund; (c) by MassMutual without penalty upon 60 days' written notice to
CCM; (d) by CCM without penalty upon 60 days' written notice, and (e) this
agreement may be terminated by MassMutual upon 30 days' written notice to CCM
with payment of a penalty equal to the fees paid in the prior calendar quarter.
Section 14--Amendment of this Agreement:
This Agreement may be changed, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
Section 15--Miscellaneous:
The captions in this Agreement are included for convenience of reference only
and in no way define or delimit any of the provisions hereof, or otherwise
affect their construction or effect. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 16--Notice:
Any notice under this Agreement shall be in writing, addressed and delivered or
mailed, postage prepaid, to the other party at the address 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
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. XxXxxxxxxx, Xx.
Vice President and Managing Director
If to CCM: Concert Capital Management, Inc.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: F. Xxxxxx Xxxxx
President and Chief Executive Officer
A copy of any notice shall also be sent to:
MML Series Investment Fund
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Hamline X. Xxxxxx
Vice President and Chief Financial Officer
Section 17--Governing Law:
This Agreement shall be administered, construed and enforced in accordance with
the laws of the Commonwealth of Massachusetts relating to contracts performed in
that Commonwealth except to the extent superseded by federal
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securities laws or Employee Retirement Income Security Act of 1974, as amended
(hereinafter "ERISA"), the Investment Advisers Act of 1940, or other Federal or
state law.
Section 18--ERISA Compliance:
CCM shall not engage in any transaction that it knows or should have reason to
know is in violation of any provisions of Section 406 of ERISA. Notwithstanding
the foregoing, CCM may, in accordance with any appropriate exemption provided
under ERISA or upon the approval of the Secretary of Labor, enter into any
transaction otherwise prohibited under Section 406. CCM agrees to provide
MassMutual with reasonable prior notice of its intent to enter into such
transactions to allow MassMutual to review for potential prohibited
transactions.
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IN WITNESS WHEREOF, MassMutual and CCM have caused this Agreement to be
executed.
Massachusetts Mutual Life Insurance Company
By:
Xxxxx X. XxXxxxxxxx, Xx.
Its: Vice President and Managing Director
Concert Capital Management, Inc.
By:
F. Xxxxxx Xxxxx
Its: President and Chief Executive Officer
Accepted and agreed to by MML Series Investment Fund:
On behalf of MML Equity Fund:
By:
Hamline X. Xxxxxx
Its: Vice President and
Chief Financial Officer
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