EXHIBIT NO. 99.9(a)
MFS VARIABLE INSURANCE TRUST
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxx 00, 0000
XXX Service Center, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Shareholder Servicing Agent Agreement
Dear Sir:
MFS Variable Insurance Trust, which is a Massachusetts business trust
(referred to as the "Trust") with twelve series, MFS OTC Series, MFS Growth
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 Strategic Fixed Income Series, MFS Bond Series, MFS Limited Maturity
Series, and MFS Money Market Series (each a "Fund"), is an open-end registered
investment company. The Trust has selected you to act as each Fund's Shareholder
Servicing Agent and you hereby agree to act as such Agent and to perform the
duties and functions thereof in the manner and on the conditions hereinafter set
forth. Accordingly, the Trust on behalf of each Fund hereby agrees with you as
follows:
1. The Facility. You represent that you have the necessary computer
equipment, software and other office equipment ("Facility") adequate to perform
the services contemplated hereby for each Fund as well as for other investment
companies (such investment companies, together with each Fund, are herein
collectively referred to as the "MFS Funds") for which Massachusetts Financial
Services Company ("MFS") acts as investment adviser. The Facility is presently
located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, and is to be dedicated
solely to the performance of services for the MFS Funds, provided that the
Facility may be utilized to perform services for others with the permission of
the MFS Funds.
2. Name. Unless otherwise directed in writing by MFS, you shall
perform the services contemplated hereby under the name "MFS Service Center,
Inc.", which name and any similar names and any logos of which shall remain the
property and under the control of MFS. Upon
termination of this Agreement, you shall cease to use such name or any similar
name within a reasonable period of time.
3. Services to be Performed. As Shareholder Servicing Agent ("Agent"),
you shall be responsible for administering and performing transfer and dividend
and distribution disbursing functions in connection with the issuance, transfer
and redemption of shares of beneficial interest ("Shares"). The details of the
operating standards and procedures to be followed by you shall be determined
from time to time by agreement between you and the Trust on behalf of each Fund.
4. Standard of Service. As Agent for each Fund, you agree to provide
service equal to or better than that provided by you or others furnishing
shareholder services to other open-end investment companies ("Standard") at a
fee comparable to the fee paid you for your services hereunder. The Standard
shall include at least the following:
(a) Prompt reconciliation of any differences as to the number of
outstanding shares between various Facility records or between Facility
records and records of each Fund's custodian;
(b) Prompt processing of shareholder correspondence and of other
matters requiring action by you;
(c) Prompt clearance of any daily volume backlog;
(d) Providing innovative services and technological improvements;
(e) Meeting the requirements of any governmental authority having
jurisdiction over you or each Fund; and
(f) Prompt reconciliation of all bank accounts under your control
belonging to each Fund or MFS.
If any MFS Fund serviced by you is reasonably of the view that
the service provided by you does not meet the Standard, it shall give you
written notice specifying the particulars, and you then shall have 120 days in
which to restore the service so that it meets the Standard, except that such
period shall be 180 days with respect to meeting that portion of the Standard
described above in item (d) of this paragraph 4. If at the end of such period
such acting MFS Fund remains reasonably of the view that the service provided by
you, in the particulars specified, does not meet the Standard, then the MFS
Funds having a majority of the accounts for which you are then Agent may, by
appropriate action (including the concurrence of a majority of the Trustees of
such MFS Funds, who are not interested persons of MFS), elect to terminate this
Agreement for cause as to each such MFS Fund upon 90 days notice to you. Upon
termination hereof, the Trust, on behalf of each Fund shall pay you such
compensation as may be due to you as of the date of such termination, and shall
likewise reimburse you for any costs, expenses, and disbursements reasonably
incurred by you to such date in the performance of your duties hereunder.
5. Purchase of Facility. In the event that you have given notice of
termination of this Agreement pursuant to the provisions of paragraph 14 hereof,
or for cause as provided in paragraph 4 hereof, the MFS Funds shall have the
right, but shall not be required (a) to purchase the Facility and assume the
unexpired portion of any leases of equipment or real estate relating to the
Facility from you at a price equal to your estimated unrecovered acquisition
value (as supported by the schedules and records used in determining monthly
xxxxxxxx) of the machinery, equipment, software, furniture, fixtures and
leasehold improvements included in the Facility, and (b) to negotiate with
persons then employed by you in the operation of the Facility and to hire any or
all of them in connection with the purchase of the Facility from you by the MFS
Funds. You agree to release each such employee from any contractual obligations
such persons may have to you that may interfere with such person's being hired
at such time by the MFS Funds and agree not to interfere with the negotiation
and hiring of any such persons at any such time. In the event that the MFS Funds
have given notice of termination of this Agreement pursuant to the provisions of
paragraph 14 hereof, for reasons other than cause as defined in paragraph 4
hereof, the MFS Funds shall purchase the Facility under the terms and conditions
set forth in subsections (a) and (b) of this paragraph 5.
You shall effect the transfer of the Facility pursuant to this
paragraph 5 upon the termination date specified in the notice, or at such other
time as shall be agreed upon by the parties hereto.
6. Rights in Data and Confidentiality. You agree that all records,
data, files, input materials, reports, forms and other data received, computed
or stored in the performance of this Agreement are the exclusive property of
each Fund and that all such records and other data shall be furnished without
additional charge, except for actual processing costs, to each Fund in machine
readable as well as printed form immediately upon termination of this Agreement
or at each Fund's request. You shall safeguard and maintain the confidentiality
of each Fund's data and information supplied to you by each Fund and you shall
not transfer or disclose each Fund's data to any third party without each Fund's
prior written consent unless compelled to do so by order of a court or
regulatory authority.
7. Fees. The fee for your services hereunder shall not be in excess of
such amount as shall be agreed in writing between us (see Exhibit A attached
hereto). Such fee shall be payable in monthly installments of one-twelfth of the
annual fee. Such fee shall be subject to review at least annually and fixed by
the parties in good faith negotiation on the basis of a statement of the
expenses of the Facility prepared by you, which either you or any Fund may
require to be certified by a major accounting firm acceptable to the parties.
The party or parties requesting such certification shall bear all expenses
thereof. In addition to the foregoing fee, you will be reimbursed by each Fund
for out-of-pocket expenses reasonably incurred by you on behalf of each such
Fund, including but not limited to expenses for stationery (including business
forms and checks), postage, telephone and telegraph line and toll charges, and
premiums for negotiable instrument insurance and similar items.
8. Record Keeping. You will maintain records in a form acceptable to
each Fund 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 each Fund and will be
available for inspection and use by each Fund.
9. Duty of Care and Indemnification. You will at all times act in good
faith in performing your duties hereunder. You will not be liable or responsible
for delays or errors by reason of circumstances beyond your control, including
acts of civil or military authority, national emergencies, labor difficulties,
fire, mechanical breakdown beyond your control, flood or catastrophe, acts of
God, insurrection, war, riots or failure beyond your control of transportation,
communication or power supply. The Trust on behalf of each Fund will indemnify
you against and hold you harmless from any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and expenses)
resulting from any claim, demand, action or suit not resulting from your bad
faith or negligence, and arising out of, or in connection with, your duties on
behalf of such Fund hereunder. In addition, the Trust on behalf of each Fund
will indemnify you against and hold you harmless from any and all losses,
claims, damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any claim, demand, action or suit as a result of your
acting in accordance with any instructions reasonably believed by you to have
been executed or orally communicated by any person duly authorized by such Fund
or its Principal Underwriter, or as a result of acting in accordance with
written or oral advice reasonably believed by you to have been given by counsel
for such Fund, or as a result of acting in accordance with any instrument or
share certificate reasonably believed by you to have been genuine and signed,
countersigned or executed by any person or persons authorized to sign,
countersign or execute the same (unless contributed to by your gross negligence
or bad faith). In any case in which the Trust on behalf of a Fund may be asked
to indemnify you or hold you harmless, the Fund shall be advised of all
pertinent facts concerning the situation in question and you will use reasonable
care to identify and notify such Fund promptly concerning any situation which
presents or appears likely to present a claim for indemnification against such
Fund. The Trust on behalf of such Fund shall have the option to defend you
against any claim which may be the subject of this indemnification, and in the
event that the Trust on behalf of such Fund so elects such defense shall be
conducted by counsel chosen by the Trust on behalf of such Fund and satisfactory
to you and it will so notify you, and thereupon the Trust on behalf of such Fund
shall take over complete defense of the claim and you shall sustain no further
legal or other expenses in such situation for which you seek indemnification
under this paragraph, except the expense of any additional counsel retained by
you. You will in no case confess any claim or make any compromise in any case in
which the Trust on behalf of a Fund will be asked to indemnify you except with
the Trust's prior written consent. The obligations of the parties hereto under
this paragraph shall survive the termination of this Agreement.
If any officer of the Trust shall no longer be vested with
authority to sign for the Trust, written notice thereof shall forthwith be given
to you by the Trust and until receipt of such
notice by it, you shall be fully indemnified and held harmless by the Trust in
recognizing and acting upon certificates or other instruments bearing the
signatures or facsimile signatures of such officer.
10. Insurance. You will notify each Fund should any of your insurance
coverage, as set forth on Exhibit B hereto, be changed for any reason, such
notification to include the date of change and reason or reasons therefor.
11. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed sufficient if mailed to either party at the
addresses set forth in this Agreement, or at such other addresses as the parties
hereto may designate by notice to each other.
12. Further Assurances. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
13. Use of a Sub- or Co-Transfer Agent. Notwithstanding any other
provision of this Agreement, it is expressly understood and agreed that you are
authorized in the performance of your duties hereunder to employ, from time to
time, one or more Sub-Transfer Agents and/or Co-Transfer Agents.
14. Termination. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing, which, except in the case of termination, shall be signed by the party
against which enforcement of such change, waiver or discharge is sought. Except
as otherwise provided in paragraph 4 hereof, this Agreement shall continue
indefinitely until terminated by 90 days' written notice given by the Trust (on
behalf of all Funds or any Fund) to you or by you to the Trust. Upon termination
hereof, the terminating Funds shall pay you such compensation as may be due to
you as of the date of such termination, and shall likewise reimburse you for any
costs, expenses, and disbursements reasonably incurred by you to such date in
the performance of your duties hereunder. You agree to cooperate with the Trust
and provide all necessary assistance in effectuating an orderly transition upon
termination of this Agreement.
15. Successor. In the event that in connection with termination a
successor to any of your duties or responsibilities hereunder is designated by
the Trust by written notice to you, you will, promptly upon such termination and
at the expense of the terminating Funds, transfer to such successor a certified
list of the shareholders of each terminating Fund (with name, address and tax
identification or Social Security number), an historical record of the account
of each shareholder and the status thereof, and all other relevant books,
records, correspondence, and other data established or maintained by you under
this Agreement in form reasonably acceptable to the Trust (if such form differs
from the form in which you have maintained the same, the Trust on behalf of such
Fund shall pay any expenses associated with transferring the same to such form),
and will cooperate in the transfer of such duties and responsibilities,
including provision for assistance from your cognizant personnel in the
establishment of books, records and other data by such successor.
16. Miscellaneous. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the Commonwealth of Massachusetts.
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 simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. This
Agreement has been executed by the Trust on behalf of each Fund by the
undersigned not individually, but in the capacity indicated, and the obligations
of this Agreement are not binding upon any of the Trustees or shareholders of
the Trust individually, but bind only the trust estate.
Very truly yours,
MFS VARIABLE INSURANCE TRUST
By: A. XXXXX XXXXXXX
A. Xxxxx Xxxxxxx
Chairman and President
The foregoing is hereby accepted as of the date thereof.
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By: XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
President
The foregoing is hereby accepted as of the date thereof.
MFS SERVICE CENTER, INC.
By: XXXXXX XXXXXXXXXX
Xxxxxx Xxxxxxxxxx
President
As of January 1, 1995
EXHIBIT A TO SHAREHOLDER SERVICING AGENT AGREEMENT (THE "AGREEMENT")
MFS VARIABLE INSURANCE TRUST
Pursuant to Section 7 of the Agreement, the fees to be paid by each
Fund to MFS Service Center, Inc. ("MFSC"), for MFSC's services as shareholder
servicing agent under the Agreement, are 0.035% per annum of each Fund's average
daily net assets.
MFS VARIABLE INSURANCE TRUST
By: A. XXXXX XXXXXXX
A. Xxxxx Xxxxxxx
Chairman and President
MFS SERVICE CENTER, INC.
By: XXXXXX X. XXXXXXXXXX
Xxxxxx X. Xxxxxxxxxx
President
Exhibit B
MFS Service Center, Inc.
Summary of Insurance Coverage
1. Fidelity Bond
MFS Service Center, Inc. ("MFSC") is a named insured on the Massachusetts
Financial Services Company ("MFS") fidelity bonds that cover losses incurred
under the following circumstances:
a) Any larceny or embezzlement committed by an employee, whether alone or
through collusion; and
b) Any loss of property, offices, or equipment through robbery,
burglary, larceny, hold- up, misplacement, unexplainable disappearance, damage
or destruction thereof and in transit coverage while in custody of any person
acting as messenger.
Total coverage: $55 million
Policy Insurance Company
$40mm primary coverage National Union Fire Insurance Co. of
Pittsburgh, PA/Chubb Federal Insurance
Co.(co-surety)
$15mm excess of $40mm ICI Mutual Insurance Co.
2. Errors & Omissions Insurance
The MFS Errors and Omissions insurance policy lists MFSC as a named
insured and covers against liabilities imposed by law by reason of
negligent acts, errors or accidental omissions, including costs and expenses
in defense of claims for which indemnity is provided.
Total coverage: $20 million
Policy Insurance Company
$10mm primary coverage National Union Fire Insurance Co. of
Pittsburgh, PA
$10mm excess of $10mm ICI Mutual Insurance Co.
3. Lost Certificate Insurance
MFSC maintains its own Lost Certificate insurance policy with Seaboard
Surety which covers securities lost in the mail or lost by shareholders once
received.
4. Package Policy and Umbrella Liability Insurance
MFS and its subsidiaries, including MFSC, insure their personal
property (furniture, leasehold improvements, and electronic data processing
equipment) for fire insurance and liability coverage. Presently, fire insurance
coverage purchased from Chubb/Federal Insurance Company approximates $53
million. General liability coverage of $1 million for a combined single limit is
also included. Additionally, MFS and its subsidiaries are covered by a $30
million umbrella liability insurance policy above our general liability policy
limits.
5. Extra Expense
MFS and its subsidiaries, including MFSC, purchase Extra Expense
insurance as part of the Package Policy provided by Chubb/Federal Insurance
Company. Extra Expense covers additional expenses incurred in order to remain in
business while premises or equipment are being repaired or replaced. Presently
the limits are $5 million for contents and a separate $5 million for electronic
data processing.
6. Non-owned Automobile Liability Insurance
MFS and its subsidiaries, including MFSC, purchase $1 million combined
single limit insurance coverage for bodily injury and property damage from
Chubb\Federal Insurance Company. This coverage applies for all autos rented by
personnel. Excess coverage beyond these limits is insured by the umbrella
liability policy.
7. Worker's Compensation
MFS and its subsidiaries, including MFSC, purchase Worker's
Compensation insurance for the entire staff. The policy provides the benefits
required by state law.
