EXHIBIT NO. 99.4
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, dated this 1st day of January, 2002, by
and between MFS GROWTH OPPORTUNITIES FUND, a Massachusetts business trust (the
"Trust"), and MASSACHUSETTS FINANCIAL SERVICES COMPANY, a Delaware corporation
(the "Adviser").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an investment company
registered under the Investment Company Act of 1940; and
WHEREAS, the Adviser is willing to provide services to the Trust on
the terms and conditions hereinafter set forth;
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. (a) The Adviser shall provide the
Trust with such investment advice and supervision as the latter may from time
to time consider necessary for the proper supervision of its assets. The
Adviser shall act as investment adviser to the Trust and as such shall furnish
continuously an investment program and shall determine from time to time what
securities or other instruments shall be purchased, sold or exchanged and what
portion of the assets of the Trust shall be held uninvested, subject always to
the restrictions of the Trust's Amended and Restated Declaration of Trust,
dated January 1, 2002, and By-Laws, each as amended from time to time
(respectively, the "Declaration" and the "By-Laws"), to the provisions of the
Investment Company Act of 1940 and the Rules, Regulations and orders thereunder
and to the Trust's then-current Prospectus and Statement of Additional
Information. The Adviser also shall exercise voting rights, rights to consent
to corporate actions and any other rights pertaining to the Trust's portfolio
securities in accordance with the Adviser's policies and procedures as
presented to the Trustees of the Trust from time to time. Should the Trustees
at any time, however, make any definite determination as to the 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 shall be revoked.
(b) The Adviser shall take, on behalf of the Trust, 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 or other instruments for the Trust's account with brokers
or dealers selected by it, and to that end, the Adviser is authorized as the
agent of the Trust to give instructions to the Custodian of the Trust as to the
deliveries of securities or other instruments and payments of cash for the
account of the Trust. In connection with the selection of such brokers or
dealers and the placing of such orders, the Adviser is directed to seek for the
Trust the best overall price and execution available from responsible brokerage
firms, taking account of all factors it deems relevant, including by way of
illustration: price; the size of the transaction; the nature of the market for
the security; the amount of the commission; the timing and impact of the
transaction taking into account market prices and trends; the reputation,
experience and financial stability of the broker or dealer involved; and the
quality of services rendered by the broker or dealer in other transactions. 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 the Trust 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 the Trust and to other clients of the Adviser as to which the
Adviser exercises investment discretion. Subject to seeking the best price and
execution as described above, and in accordance with applicable rules and
regulations, the Adviser also is authorized to consider sales of shares of the
Trust or of other funds or accounts of the Adviser as a factor in the selection
of brokers and dealers.
(c) The Adviser may from time to time enter into sub-investment
advisory agreements with respect to the Trust with one or more investment
advisers with such terms and conditions as the Adviser may determine, provided
that such sub-investment advisory agreements have been approved in accordance
with applicable provisions of the Investment Company Act of 1940 and any rules,
regulations or orders of the Securities and Exchange Commission thereunder.
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 Trust by any sub-adviser.
ARTICLE 2. ALLOCATION OF CHARGES AND EXPENSES. (a) 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 the Trust and maintaining its organization, and investment
advisory facilities and executive and supervisory personnel for managing the
investments and effecting the portfolio transactions of the Trust. 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.
(b) It is understood that the Trust will pay all of its own expenses
incurred in its operations and the offering of its shares, unless specifically
provided otherwise in this Agreement or except to the extent that the Adviser
agrees in a written instrument executed by the Adviser (specifically referring
to this Article 2(b)) to assume or otherwise pay for specified expenses of the
Trust, 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, shareholder reports, notices, proxy
statements and reports to governmental officers and commissions; brokerage and
other expenses connected with the execution, recording and 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 and maintaining required books and accounts; expenses of calculating
the net asset value of shares of the Trust; organizational and start up costs;
such non-recurring or extraordinary expenses as may arise, including those
relating to actions, suits or proceedings to which the Trust is a party or
otherwise may have an exposure, and the legal obligation which the Trust may
have to indemnify the Trust's Trustees and officers with respect thereto; and
expenses relating to the issuance, registration and qualification of shares of
the Trust and the preparation, printing and mailing of prospectuses for such
purposes (except to the extent that any Distribution Agreement to which the
Trust is a party provides that another party is to pay some or all of such
expenses).
(c) The payment or assumption by the Adviser of any expenses of the
Trust that the Adviser is not obligated by this Agreement or otherwise to pay
or assume shall not obligate the Adviser to pay or assume the same or any
similar expenses of the Trust on any subsequent occasion.
ARTICLE 3. COMPENSATION OF THE ADVISER. For the services to be
rendered and the facilities provided, the Trust shall pay to the Adviser an
investment advisory fee computed and paid monthly as set forth in Appendix A
attached hereto. If the Adviser shall serve for less than the whole of any
period specified in this Article 3, the compensation paid to the Adviser will
be prorated.
ARTICLE 4. ADDITIONAL SERVICES. Should the Trust have occasion to
request the Adviser or its affiliates to perform administrative or other
additional services not herein contemplated or to request the Adviser or its
affiliates to arrange for the services of others, the Adviser or its affiliates
will act for the Trust upon request to the best of its ability, with
compensation for the services to be agreed upon with respect to each such
occasion as it arises. No such agreement for additional services shall expand,
reduce or otherwise alter the obligations of the Adviser, or the compensation
that the Adviser is due, under this Agreement.
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, if any, as principals in making purchases or sales of securities
or other property for the account of the Trust, except as permitted by the
Investment Company Act of 1940 and any rules, regulations or orders of the
Securities and Exchange Commission thereunder, will not take a long or short
position in the shares of the Trust except as permitted by the applicable law,
and will comply with all other provisions of the Declaration and the By-Laws
and the then-current Prospectus and Statement of Additional Information of the
Trust 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 the Trust, except for willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations hereunder. As
used in this Article 6, the term "Adviser" shall include directors, officers
and employees of the Adviser as well as that corporation itself.
ARTICLE 7. ACTIVITIES OF THE ADVISER. (a) The Trust acknowledges that
the services of the Adviser are not exclusive, the Adviser being free to render
investment advisory and/or other services to others. The Trust further
acknowledges that it is possible that, based on their investment objectives and
policies, certain funds or accounts managed by the Adviser or its affiliates
may at times take investment positions or engage in investment techniques which
are contrary to positions taken or techniques engaged in on behalf of the
Trust. Notwithstanding the foregoing, the Adviser will at all times endeavor to
treat all of its clients in a fair and equitable manner.
(b) The Trust acknowledges that whenever the Trust and one or more
other funds or accounts advised by the Adviser have available monies for
investment, investments suitable and appropriate for each shall be allocated in
a manner believed by the Adviser to be fair and equitable to each entity.
Similarly, opportunities to sell securities or other investments shall be
allocated in a manner believed by the Adviser to be fair and equitable to each
entity. The Trust acknowledges that in some instances this may adversely affect
the size of the position that may be acquired or disposed of for the Trust.
(c) It is understood that the 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.
ARTICLE 8. MFS NAME. The Trust acknowledges that the names
"Massachusetts Financial Services," "MFS" or any derivatives thereof or logos
associated with those names (collectively, the "MFS Marks") are the valuable
property of the Adviser and its affiliates. The Adviser grants the Trust a
non-exclusive and non-transferable right and sub-license to use the MFS Marks
only so long as the Adviser serves as investment adviser to the Trust. The
Trust agrees that if the Adviser for any reason no longer serves as investment
adviser to the Trust, and the Adviser so requests, the Trust promptly shall
cease to use the MFS Marks and promptly shall amend its registration statement
to delete any references to the MFS Marks. The Trust acknowledges that the
Adviser may permit other clients to use the MFS Marks in their names or other
material. For purposes of this Article, the Trust shall be deemed to have taken
the required action "promptly" if such action is taken within 90 days of the
Adviser no longer serving as the investment adviser to the Trust, or from the
date of the Adviser's request, as the case may be.
ARTICLE 9. DURATION, TERMINATION AND AMENDMENT OF THIS AGREEMENT. (a)
This Agreement shall become effective with respect to the Trust on the date
first written above. Thereafter, this Agreement will remain in effect with
respect to the Trust for a period of two years from the date first written
above, on which date it will terminate for the Trust unless its continuance 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 Board of Trustees of the Trust, or by "vote of a
majority of the outstanding voting securities" of the Trust.
(b) This Agreement may be terminated as to the Trust at any time
without the payment of any penalty by the Trustees or by "vote of a majority of
the outstanding voting securities" of the Trust, or by the Adviser, in each
case on not more than sixty days' nor less than thirty days' written notice to
the other party. This Agreement shall automatically terminate in the event of
its "assignment".
(c) This Agreement may be amended with respect to the Trust only if
such amendment is in writing signed by or on behalf of the Trust and the
Adviser and is approved by "vote of a majority of the outstanding voting
securities" of the Trust (if such shareholder approval is required by the
Investment Company Act of 1940).
ARTICLE 10. SCOPE OF TRUST'S OBLIGATIONS. A copy of the Trust's
Declaration of Trust is on file with the Secretary of State of The Commonwealth
of Massachusetts. The Adviser acknowledges that the obligations of or arising
out of this Agreement 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.
ARTICLE 11. DEFINITIONS AND INTERPRETATIONS. The terms "specifically
approved at least annually," "vote of a majority of the outstanding voting
securities," "assignment," "affiliated person," and "interested person," when
used in this Agreement, shall have the respective meanings specified, and shall
be construed in a manner consistent with, the Investment Company Act of 1940
and the rules and regulations promulgated thereunder. Any question of
interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the Investment Company Act
of 1940, the Investment Advisers Act of 1940, the Securities Act of 1933, or
the Securities Exchange Act of 1934 (collectively, the "Federal Securities
Acts") shall be resolved by reference to such term or provision of the Federal
Securities Acts and to interpretations thereof, if any, by United States
federal courts or, in the absence of any controlling decisions of any such
court, by rules or regulations of the Securities and Exchange Commission. Where
the effect of a requirement of the Federal Securities Acts reflected in any
provision of this Agreement is revised by rule or regulation of the Securities
and Exchange Commission, such provisions shall be deemed to incorporate the
effect of such rule or regulation.
ARTICLE 12. 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 13. MISCELLANEOUS. (a) This Agreement contains the entire
understanding and agreement of the parties with respect to the subject matter
hereof.
(b) Headings in this Agreement are for ease of reference only and
shall not constitute a part of the Agreement.
(c) Should any portion of this Agreement for any reason be held void
in law or equity, the remainder of the Agreement shall be construed to the
extent possible as if such voided portion had never been contained herein.
(d) This Agreement shall be governed by the laws of the Commonwealth
of Massachusetts, without giving effect to the choice of laws provisions
thereof, except that questions of interpretation shall be resolved in
accordance with the provisions of Article 11 above.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered in their names and on their behalf by the undersigned
officers thereunto duly authorized, all as of the day and year first above
written. The undersigned officer of the Trust has executed this Agreement not
individually, but as an officer 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 GROWTH OPPORTUNITIES FUND
By: XXXXX X. XXXXXXXXX, XX.
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Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Assistant Secretary
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By: XXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman
APPENDIX A
COMPENSATION TO THE ADVISER
The investment advisory fee payable by the Trust shall be computed and paid
monthly at the annual rate equal to 0.50% of the first $200,000,000 of the
Trust's average daily net assets and 0.40% of the amount of the Trust's average
daily net assets in excess of $200,000,000, for its then current fiscal year.
