EXHIBIT NO. 99.9(b)
PROXY SERVICES AGREEMENT
THIS PROXY SERVICES AGREEMENT is made this 8th day of December, 1993
by and between MFS Union Standard Trust, a Massachusetts business trust (the
"Trust") on behalf of its various series as currently in existence and as
established from time to time, and American Capital Strategies Ltd., a
Maryland corporation ("ACS").
W I T N E S S E T H :
WHEREAS, ACS and Massachusetts Financial Services Company, a Delaware
Corporation ("MFS"), have entered into a Services and Maintenance Agreement
dated September 1, 1993 (the "Services Agreement") pursuant to which ACS has
agreed, among other things, to develop, maintain and administer a list of
companies which will meet certain quantitative and qualitative guidelines
relating to a company's sensitivity to the U.S. labor movement (the "LSI"),
to establish and generally administer the activities of a Labor Advisory
Board (the "LAB") which will assist ACS with respect to the development,
refinement and application of such quantitative standards and in the
development and refinement of the LSI, and to calculate and furnish to MFS
the performance of the LSI; and
WHEREAS, the Trust and MFS intend to enter into an Investment Advisory
Agreement pursuant to which MFS will provide the Trust with certain business
management services as specified therein and which contemplates that ACS
shall perform certain proxy services on behalf of the Trust pursuant to this
Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. EXERCISE OF PROXY RIGHTS. ACS shall determine, taking into
account the AFL-CIO Proxy Voting Guidelines attached hereto as Exhibit A to
the extent such Guidelines do not conflict with legal obligations to the
Trust's investors, the manner in which voting rights pertaining to the
Trust's portfolio securities (collectively, "Proxy Rights") shall be
exercised and shall duly exercise all Proxy Rights in a timely fashion;
PROVIDED, HOWEVER, that should the Board of Trustees of the Trust at any time
make any determination as to the exercise of any specific Proxy Right and
notify ACS thereof in writing (a "Trustee Determination"), ACS shall be bound
by such Trustee Determination for the period, if any, specified in such
notice or until similarly notified that such Trustee Determination has been
revoked or revised. The Trust shall cause its custodian, State Street Bank
and Trust Company ("State Street"), to provide ACS with such proxy material
and other correspondence necessary in order for ACS to exercise the Proxy
Rights (collectively, "Proxy Materials") promptly after its receipt of the
Proxy Materials. The Trust shall cause MFS to provide ACS with such
information as to portfolio holdings of the Trust as ACS may require in order
to make timely filings under Section 13(d) of the Securities Exchange Act of
1934 and the rules promulgated thereunder as required on account of ACS's
exercise (or right to exercise) the Proxy Rights.
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2. LIMITATION OF LIABILITY. ACS shall not be liable for any error of
judgment or mistake of law or for any loss arising out of any act or failure
to act hereunder, except for willful misfeasance, bad faith or negligence in
the performance of its duties hereunder, or by reason of reckless disregard
of its obligations and duties hereunder.
3. TERMINATION. The term of this Agreement shall commence on the
date hereof and shall continue thereafter until the sooner to occur of (a)
the termination of the Services Agreement pursuant to its terms, or (b) the
30th day after written notice is provided by the Trust to ACS of the Trust's
intention to terminate this Agreement.
4. GOVERNING LAW. This Agreement shall be construed in accordance
with the internal laws of The Commonwealth of Massachusetts as such laws are
applicable to contracts that are entered into and are fully performed within
The Commonwealth of Massachusetts.
5. NOTICES. All notices required or permitted to be sent under this
Agreement shall be sent, if to ACS:
American Capital Strategies Ltd.
0 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
or if to the Trust, in care of:
Massachusetts Financial Services Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
or if to State Street:
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: [ ]
or such other name or address as may be given in writing to the other party.
Any notice shall be deemed to be given or received on the third day after
deposit in the U.S. mails with the postage prepaid or when actually received,
whichever is earlier.
6. AMENDMENT. This Agreement may be amended, modified or
supplemented only pursuant to a written document signed on behalf of both
parties hereto.
7. ADDITIONAL SERIES. Unless written notice is given by the Trust to
ACS to the contrary, this Agreement shall apply to any future series of the
Trust.
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8. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective successors and
assigns, but no assignment or transfer hereof or of any rights or obligations
hereunder shall be made by any party without the prior written consent of the
other party. Nothing herein expressed or implied is intended or shall be
construed to confer upon or give any person, firm or corporation, other than
the parties hereto, MFS and their respective successors and assigns, any
rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above. The undersigned trustee of the
Trust has executed this Agreement not individually but as trustee under the
Trust's Declaration of Trust dated September 1, 1993, and the obligations of
this Agreement are not binding upon any of the trustees or shareholders of
the Trust individually but bind only the estate of the Trust.
MFS UNION STANDARD TRUST
By:
---------------------------------
[Illegible]
AMERICAN CAPITAL STRATEGIES, LTD.
By: XXXXX XXXXXX
----------------------------------
Xxxxx Xxxxxx
President
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EXHIBIT A
Chapter 2 - "Model Guidelines for Delegated Proxy Voting Responsibility" and
Chapter 3 - "ERISA Fiduciary Duty and Proxy Voting Guidelines: An Overview,"
from PENSIONS IN CHANGING CAPITAL MARKETS, AFL-CIO Employee Benefits
Department. (February 1993)
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