EXHIBIT NO. 99.5(a)
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT, dated as of this 14th day of
April, 1994 as amended and restated on this 16th day of October, 1997, by and
between MFS VARIABLE INSURANCE TRUST, a Massachusetts business trust (the
"Trust") on behalf of the series of the Trust listed on Exhibit A attached
hereto (referred to individually as a "Fund" and collectively as the "Funds"),
and Massachusetts Financial Services Company, a Delaware corporation (the
"Adviser").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end investment
company registered under the Investment Company Act of 1940;
WHEREAS, the Adviser is willing to provide business management services
to each Fund on the terms and conditions hereinafter set forth; and
WHEREAS, the parties hereto entered into this Agreement on April 14,
1994, and amended and restated this Agreement on October 16, 1997 for the
purposes of (i) making certain changes with respect to the MFS/Foreign &
Colonial Emerging Markets Equities Series (formerly known as the MFS Strategic
Fixed Income Series), such changes having been approved by the sole shareholder
of this Series on October 16, 1997; and (ii) making other minor and conforming
changes;
NOW, THEREFORE, in consideration of the mutual covenants and Agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
ARTICLE 1: Duties of the Adviser. The Adviser shall provide each Fund
with such investment advice and supervision as the latter may from time to time
consider necessary for the proper management of its funds. The Adviser shall act
as Adviser to each Fund and as such shall furnish continuously an investment
program and shall determine from time to time what securities shall be
purchased, sold or exchanged and what portion of the assets of each Fund shall
be held uninvested, subject always to the restrictions of the Trust's Amended
and Restated Declaration of Trust, dated January 24, 1996 and By-Laws, as
amended from time to time (respectively, the "Declaration" and the "By-Laws"),
and to the provisions of the Investment Company Act of 1940. Should the Trustees
at any time, however, make any determination as to investment policy and notify
the Adviser thereof in writing, the Adviser shall be bound by such determination
for the period, if any, specified in such notice or until similarly notified
that such determination has been revoked. The Adviser shall take, on behalf of
each Fund, all actions which it deems necessary to implement the investment
policies determined as provided above, and in particular to place all orders for
the purchase or sale of portfolio securities for each Fund's
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account with brokers or dealers selected by it, and to that end the Adviser is
authorized as the agent of each Fund to give instructions to the Custodian of
each Fund as to deliveries of securities and payments of cash for the account of
each Fund. In connection with the selection of such brokers or dealers and the
placing of such orders, the Adviser is directed to seek for each Fund execution
at the most favorable price by responsible brokerage firms at reasonably
competitive commission rates. In fulfilling this requirement the Adviser shall
not be deemed to have acted unlawfully or to have breached any duty, created by
this Agreement or otherwise, solely by reason of its having caused each Fund to
pay a broker or dealer an amount of commission for effecting a securities
transaction in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction, if the Adviser determined in good
faith that such amount of commission was reasonable in relation to the value of
the brokerage and research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the Adviser's overall
responsibilities with respect to each Fund and to other clients of the Adviser
as to which the Adviser exercises investment discretion.
With respect to the MFS/Foreign & Colonial Emerging Markets Equity
Series only, the Adviser may from time to time enter into investment
sub-advisory agreements with one or more investment advisers (a "Sub-Adviser")
to the Fund to perform some or all of the services for which the Adviser is
responsible pursuant to this Article 1 upon such terms and conditions as the
Adviser may determine provided that such investment sub-advisory agreements have
been approved by a majority of the Trustees of the Trust who are not interested
persons of the Trust, the Adviser or the Sub-Adviser and by vote of a majority
of the outstanding voting securities of the Fund. The Adviser may terminate the
services of any Sub-Adviser at any time in its sole discretion, and shall at
such time assume the responsibilities of such Sub-Adviser unless and until a
successor Sub-Adviser is selected. Subject to the provisions of Article 6, the
Adviser shall not be liable for any error of judgment or mistake of law by any
Sub-Adviser or for any loss arising out of any investment made by any
Sub-Adviser or for any act or omission in the execution and management of the
Fund by any Sub-Adviser.
ARTICLE 2: Allocation of Charges and Expenses. The Adviser shall
furnish at its own expense investment advisory and administrative services,
office space, equipment and clerical personnel necessary for servicing the
investments of each Fund and maintaining the Trust's organization, and
investment advisory facilities and executive and supervisory personnel for
managing the investments and effecting the portfolio transactions of each Fund.
The Adviser shall arrange, if desired by the Trust, for Directors, officers and
employees of the Adviser to serve as Trustees, officers or agents of the Trust
if duly elected or appointed to such positions and subject to their individual
consent and to any limitations imposed by law. It is understood that the Trust
will pay all of its own expenses including, without limitation, compensation of
Trustees not affiliated with the Adviser, governmental fees, interest charges,
taxes, membership dues in the Investment Company Institute allocable to the
Trust, fees and expenses of independent auditors, of legal counsel and of any
transfer agent, registrar or dividend disbursing agent of the Trust, expenses of
repurchasing and redeeming shares and servicing shareholder accounts, expenses
of preparing, printing and mailing stock certificates, prospectuses, periodic
reports, notices and proxy statements to shareholders and to governmental
officers and commissions, brokerage and other expenses connected with the
execution, recording and
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settlement of portfolio security transactions, insurance premiums, fees and
expenses of the custodian for all services to the Trust, including safekeeping
of funds and securities, keeping of books and accounts and calculation of the
net asset value of shares of each Fund, expenses of shareholder meetings, and
expenses relating to the issuance, registration and qualification of shares of
the Trust.
ARTICLE 3: Compensation of the Adviser. For the services to be rendered
and the facilities to be furnished as provided in Articles 1 and 2 above, each
Fund shall pay to the Adviser an investment advisory fee computed and paid
monthly at the annual rate as listed on Exhibit B, attached hereto, of each
Fund's average daily net assets.
If the Adviser shall serve for less than the whole of any period
specified in this Article 3, the compensation to the Adviser shall be prorated.
ARTICLE 4: Special Services. Should the Trust have occasion to request
the Adviser to perform services not herein contemplated or to request the
Adviser to arrange for the services of others, the Adviser will act for the
Trust upon request to the best of its ability, with compensation for the
Adviser's services to be agreed upon with respect to each such occasion as it
arises.
ARTICLE 5: Covenants of the Adviser. The Adviser agrees that it will
not deal with itself, or with the Trustees of the Trust or the Trust's
distributor as principals in making purchases or sales of securities or other
property for the account of any Fund, will not take a long or short position in
the shares of any Fund except as provided by the Declaration, and will comply
with all other provisions of the Declaration and By-Laws relative to the Adviser
and its Directors and officers.
ARTICLE 6: Limitation of Liability of the Adviser. The Adviser shall
not be liable for any error of judgment or mistake of law or for any loss
arising out of any investment or for any act or omission in the execution and
management of any Fund, except for willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder. As used in this Article 6, the term
"Adviser" shall include Directors, officers and employees of the Adviser as well
as the corporation itself.
ARTICLE 7: Activities of the Adviser. The services of the Adviser to
the Trust are not to be deemed to be exclusive, the Adviser being free to render
services to others. The Adviser may permit other fund clients to use the words
"Massachusetts Financial" or "MFS" in their names. The Trust agrees that if the
Adviser shall for any reason no longer serve as the Adviser to the Trust, the
Trust and each Fund will each change its name so as to delete the words
"Massachusetts Financial" or "MFS". It is understood that Trustees, officers,
and shareholders of the Trust are or may be or become interested in the Adviser,
as Directors, officers, employees, or otherwise and that Directors, officers and
employees of the Adviser are or may become similarly interested in the Trust and
that the Adviser may be or become interested in the Trust as a shareholder or
otherwise.
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ARTICLE 8: Duration, Termination and Amendments of this Agreement. This
Agreement shall become effective with respect to each Fund on the date of its
execution and shall govern the relations between the parties hereto thereafter,
and shall remain in force with respect to a Fund until August 1, 1999, on which
date it will terminate with respect to that Fund unless its continuance after
August 1, 1999, is specifically approved at least annually (i) by the vote of a
majority of the Trustees of the Trust who are not interested persons of the
Trust or of the Adviser at a meeting specifically called for the purpose of
voting on such approval, and (ii) by the Trustees of the Trust, or by vote of a
majority of the outstanding voting securities of that Fund. The aforesaid
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
This Agreement may be terminated as to any Fund at any time without the
payment of any penalty by the Trustees or by vote of a majority of the
outstanding voting securities of that Fund, or by the Adviser, on not more than
sixty days' nor less that thirty days' written notice to the other party. This
Agreement shall automatically terminate in the event of its assignment.
This Agreement may be amended with respect to any Fund only if such
amendment is approved by vote of a majority of the outstanding voting securities
of that Fund.
The terms "vote of a majority of the outstanding voting securities,"
"assignment," "affiliated person," and "interested persons," when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act of 1940 and the Rules and Regulations thereunder, subject, however,
to such exemptions as may be granted by the Securities and Exchange Commission
under said Act.
ARTICLE 9: Record Keeping. The Adviser will maintain records in a form
acceptable to the Trust and in compliance with the rules and regulations of the
Securities and Exchange Commission, including but not limited to records
required to be maintained by Section 31(a) of the Investment Company Act of 1940
and the rules thereunder, which at all times will be the property of the Trust
and will be available for inspection and use by the Trust.
ARTICLE 10: Limitation of Liability of the Trustees and Shareholders. A
copy of the Declaration of the Trust is on file with Secretary of State of The
Commonwealth of Massachusetts. The parties hereto acknowledge that the
obligations of or arising out of this instrument are not binding upon any of the
Trust's trustees, officers, employees, agents or shareholders individually, but
are binding solely upon the assets and property of the Trust in accordance with
its proportionate interest hereunder. If this instrument is executed by the
Trust on behalf of one or more series of the Trust, the parties hereto
acknowledge that the assets and liabilities of each series of the Trust are
separate and distinct and that the obligations of or arising out of this
instrument are binding solely upon the assets or property of the series on whose
behalf the Trust has executed this instrument. If the Trust has executed this
instrument on behalf of one or more series of the Trust, the parties hereto also
agree that the obligations of each series
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hereunder shall be several and not joint, in accordance with its proportionate
interest hereunder, and the parties hereto agree not to proceed against any
series for the obligations of another series.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, and their respective seals to be hereto affixed, all
as of the day and year first written above. The undersigned Trustee of the Trust
has executed this Agreement not individually, but as Trustee under the
Declaration and the obligations of this Agreement are not binding upon any of
the Trustees, officers or shareholders of the Trust, individually, but bind only
the Trust estate.
MFS VARIABLE INSURANCE TRUST
By: A. XXXXX XXXXXXX
A. Xxxxx Xxxxxxx
Chairman and Trustee
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By: XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
President
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EXHIBIT A
MFS VARIABLE INSURANCE TRUST
MFS Emerging Growth Series
MFS Value Series
MFS Research Series
MFS Growth With Income Series
MFS Total Return Series
MFS Utilities Series
MFS High Income Series
MFS World Governments Series
MFS/Foreign & Colonial Emerging Markets Equity Series
MFS Bond Series
MFS Limited Maturity Series
MFS Money Market Series
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EXHIBIT B
MANAGEMENT FEES
SERIES % OF AVERAGE DAILY NET ASSETS
MFS Emerging Growth Series 0.75
MFS Value Series 0.75
MFS Research Series 0.75
MFS Growth With Income Series 0.75
MFS Total Return Series 0.75
MFS Utilities Series 0.75
MFS High Income Series 0.75
MFS World Government Series 0.75
MFS/Foreign & Colonial Emerging Markets Equity Series 1.25
MFS Bond Series 0.60
MFS Limited Maturity Series 0.55
MFS Money Market Series 0.50
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