EXHIBIT NO. 99.5(d)
SUB-ADVISORY AGREEMENT
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SUB-ADVISORY AGREEMENT, dated this 1st day of April, 1996, by and between
FOREIGN & COLONIAL MANAGEMENT LTD., a company incorporated under the laws of
England and Wales (the "Sub-Adviser"), and FOREIGN & COLONIAL EMERGING MARKETS
LIMITED, a company incorporated under the laws of England and Wales ("FCEM").
WITNESSETH:
WHEREAS, Massachusetts Financial Services Company (the "Adviser") provides
MFS World Growth Fund (the "Fund"), a series of MFS Series Trust VIII (the
"Trust"), an open-end investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), business services pursuant to the
terms and conditions of an investment advisory agreement dated August 30, 1993
(the "Advisory Agreement") between the Adviser and the Trust, on behalf of the
Fund;
WHEREAS, the Sub-Adviser provides services to the Adviser pursuant to the
terms and conditions of a sub-advisory agreement dated April 1, 1996 (the "FCM
Sub-Advisory Agreement") between the Adviser and the Sub-Adviser; and
WHEREAS, FCEM is willing to provide services to the Sub-Adviser 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:
1. Duties of FCEM. FCEM will furnish the Sub-Adviser with information and
advice, including advice on the allocation of investments among emerging market
countries or regions, relating to such portion of the Fund's assets as the
Adviser, Sub-Adviser and FCEM shall from time to time mutually designate (the
"Designated Assets"). Subject to the supervision of the Trustees of the Trust,
the Adviser and the Sub-Adviser, FCEM will: (a) manage the Designated Assets on
behalf of the Fund in accordance with the Fund's investment objective, policies
and limitations as stated in the Fund's then current Prospectus (the
"Prospectus") and Statement of Additional Information (the "Statement"), and the
Trust's Declaration of Trust dated July 31, 1987, as amended and restated May 6,
1991, and Amended and Restated By-Laws, each as from time to time in effect
(respectively, the"Declaration" and the "By-Laws") and in compliance with the
1940 Act and the rules, regulations and orders thereunder; (b) make investment
decisions with respect to the Designated Assets; (c) place purchase and sale
orders for portfolio transactions with respect to the Designated Assets; (d)
manage otherwise uninvested cash assets with respect to the Designated Assets ;
(e) as the agent of the Fund, give instructions (including
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trade tickets) to the custodian and any sub-custodian of the Fund as to
deliveries of securities, transfers of currencies and payments of cash with
respect to the Designated Assets (FCEM shall promptly notify the Adviser and the
Sub-Adviser of such instructions); (f) employ professional portfolio managers to
provide research services to the Fund; (g) attend periodic meetings of the Board
of Trustees of the Trust and (h) obtain all the registrations, qualifications
and consents, on behalf of the Fund, which are necessary for the Fund to
purchase and sell assets in each jurisdiction (other than the United States) in
which the Designated Assets are to be invested (FCEM shall promptly provide the
Adviser and the Sub-Adviser with copies of any such registrations,
qualifications and consents). In providing these services, FCEM will furnish
continuously an investment program with respect to the Designated Assets. FCEM
shall be responsible for monitoring the Fund's compliance with the Prospectus,
the Statement, the Declaration, the By-Laws and the 1940 Act and the rules,
regulations and orders thereunder and in monitoring such compliance FCEM shall
do so in the functional currency of the Fund. FCEM shall only be responsible for
compliance with the above-mentioned restrictions in regards to the Designated
Assets. The Sub-Adviser agrees to provide FCEM with such assistance as may be
reasonably requested by FCEM in connection with its activities under this
Agreement, including, without limitation, information concerning the Fund, its
funds available, or to become available, for investment and generally as to the
conditions of the Fund's affairs.
Should the Trustees of the Trust or the Adviser and the Sub-Adviser at any
time make any determination as to investment policy and notify FCEM thereof in
writing, FCEM shall be bound by such determination for the period, if any,
specified in such notice or until notified that such determination has been
revoked. Further, the Adviser and the Sub-Adviser or the Trustees of the Trust
may at any time, upon written notice to FCEM, suspend or restrict the right of
FCEM to determine what assets of the Fund shall be purchased or sold and what
portion, if any, of the Fund's assets shall be held uninvested. It is understood
that the Adviser and the Sub-Adviser undertake to discuss with FCEM any such
determinations of investment policy and any such suspensions or restrictions on
the right of FCEM to determine what assets of the Fund shall be purchased or
sold or held uninvested, prior to the implementation thereof.
2. Execution of Certain Documents. Subject to any other written
instructions of the Adviser, the Sub-Adviser and the Trustees of the Trust, FCEM
is hereby appointed the Sub-Adviser's and the Trust's agent and attorney-in-fact
to execute account documentation, agreements, contracts and other documents as
FCEM shall be requested by brokers, dealers, counterparties and other persons in
connection with its management of the Designated Assets.
3. Brokerage. In connection with the selections of brokers, dealers or
other entities and the placing of orders for the purchase and sale of portfolio
investments for the Fund with respect to the Designated Assets, FCEM is directed
to seek for the Fund execution at the most favorable price by responsible
brokerage firms at reasonably competitive commission rates. In fulfilling this
requirement, FCEM 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 Fund to pay a broker, dealer or other entity an amount of
commission for effecting a securities transaction in excess of the amount of
commission another broker, dealer or other entity would have charged for
effecting that transaction, if FCEM determined in good faith that
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such amount of commission was reasonable in relation to the value of the
brokerage and research services (within the meaning of Section 28(e) of the
Securities Exchange Act of 1934, as amended) provided by such broker, dealer or
other entity, viewed in terms of either that particular transaction or FCEM's
overall responsibilities with respect to the Fund and to other clients of FCEM
as to which FCEM exercises investment discretion.
4. Reports. FCEM shall furnish to the Trustees of the Trust, the Adviser or
the Sub-Adviser, or all of them, as may be appropriate, quarterly reports of its
activities on behalf of the Fund, as required by applicable law or as otherwise
requested from time to time by the Trustees of the Trust, the Adviser or the
Sub-Adviser, and such additional information, reports, evaluations, analyses and
opinions as the Trustees of the Trust, the Adviser or the Sub-Adviser, as
appropriate, may request from time to time.
5. Services to Other Companies or Accounts. On occasions when FCEM deems
the purchase or sale of a security to be in the best interest of the Fund as
well as other clients, FCEM, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be so purchased or sold in order to obtain the most favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction will be made by FCEM in the manner it considers to be the most
equitable. FCEM agrees to allocate similarly opportunities to sell or otherwise
dispose of securities among the Fund and other clients of FCEM.
6. Compensation of FCEM. For the services to be rendered by FCEM under this
Agreement, the Sub-Adviser shall pay to FCEM compensation, computed and paid
monthly in arrears, at a rate of 1.00% per annum of the average daily net asset
value of the Designated Assets. If FCEM shall serve for less than the whole of
any month, the compensation payable to FCEM with respect to the Fund will be
prorated. FCEM will pay its expenses incurred in performing its duties under
this Agreement. Neither the Trust, the Adviser nor the Fund shall be liable to
FCEM for the compensation of FCEM. For the purpose of determining fees payable
to FCEM, the value of the Fund's net assets shall be computed at the times and
in the manner specified in the Prospectus and/or Statement. In the event that
the Sub-Adviser reduces its management fee payable under the FCM Sub-Advisory
Agreement in order to comply with the expense limitations of a State securities
commission or otherwise (but not a voluntary reduction), FCEM agrees to reduce
its fee payable under this Agreement by a pro rata amount.
7. Limitation of Liability of FCEM. FCEM 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 Fund, except for
willful misfeasance, bad faith or gross negligence in the performance of its
duties and obligations hereunder. The Trust, on behalf of the Fund, may enforce
any obligations of FCEM under this Agreement and may recover directly from FCEM
for any liability it may have to the Fund.
8. Activities of FCEM. The services of FCEM to the Fund are not deemed to
be exclusive, FCEM being free to render investment advisory and/or other
services to others. It is
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understood that the Trustees, officers and shareholders of the Trust, the Fund,
the Adviser or the Sub-Adviser are or may become interested in FCEM or any
person controlling, controlled by or under common control with FCEM, as
trustees, officers, employees or otherwise and that trustees, officers and
employees of FCEM or any person controlling, controlled by or under common
control with FCEM may become similarly interested in the Trust, the Fund, the
Adviser or the Sub-Adviser and that FCEM may be or become interested in the Fund
as a shareholder or otherwise.
9. Covenants of FCEM. FCEM agrees that it (a) will not deal with itself,
"affiliated persons" of FCEM, the Sub-Adviser, the Trustees of the Trust or the
Fund's distributor, as principals, agents, brokers or dealers in making
purchases or sales of securities or other property for the account of the Fund,
except as permitted by the 1940 Act and the rules, regulations and orders
thereunder and subject to the prior written approval of the Adviser, (b) will
not take a long or short position in the shares of the Fund except as permitted
by the Declaration and (c) will comply with all other provisions of the
Declaration and the By-Laws and the then-current Prospectus and Statement
relative to FCEM and its trustees, officers, employees and affiliates.
10. Representations, Warranties and Additional Agreements of FCEM. FCEM
represents, warrants and agrees that:
(a) It: (i) is registered as an investment adviser under the U.S.
Investment Advisers Act of 1940 (the "Advisers Act"), is
authorized to undertake investment business in the United Kingdom
by virtue of its membership in the Investment Management
Regulatory Organisation ("IMRO") and is registered under the laws
of any jurisdiction in which FCEM is required to be registered as
an investment adviser in order to perform its obligations under
this Agreement, and will continue to be so registered for so long
as this Agreement remains in effect; (ii) is not prohibited by
the 1940 Act or the Advisers Act from performing the services
contemplated by this Agreement; (iii) has met, and will continue
to meet for so long as this Agreement remains in effect, any
other applicable Federal or State requirements, or the applicable
requirements of any regulatory or industry self-regulatory
agency, necessary to be met in order to perform the services
contemplated by this Agreement; (iv) has the authority to enter
into and perform the services contemplated by this Agreement; (v)
will immediately notify the Adviser and the Sub-Adviser in
writing of the occurrence of any event that would disqualify FCEM
from serving as an investment adviser of an investment company
pursuant to Section 9(a) of the 1940 Act or otherwise; and (vi)
will immediately notify the Adviser and the Sub-Adviser in
writing of any change of control of FCEM or any parent of FCEM
resulting in an "assignment" of this Agreement.
(b) It will maintain, keep current and preserve on behalf of the
Fund, in the manner and for the periods of time required or
permitted by the 1940 Act and the rules, regulations and orders
thereunder and the Advisers Act and the rules, regulations and
orders thereunder, records relating to investment transactions
made by FCEM for the Fund as may be reasonably requested by the
Adviser or the Fund from time
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to time. FCEM agrees that such records are the property of the
Fund, and will be surrendered to the Fund promptly upon request;
provided, however, that FCEM may retain copies of such records
for archival purposes as required by IMRO.
(c) FCEM has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and, if it has not
already done so, will provide the Adviser, the Sub-Adviser and
the Trust with a copy of such code of ethics, and upon any
amendment to such code of ethics, promptly provide such
amendment. At least annually FCEM will provide the Trust, the
Sub-Adviser and the Adviser with a certificate signed by the
chief compliance officer (or the person performing such function)
of FCEM certifying, to the best of his or her knowledge,
compliance with the code of ethics during the immediately
preceding twelve (12) month period, including any material
violations of or amendments to the code of ethics or the
administration thereof.
(d) It has provided the Adviser, the Sub-Adviser and the Trust with a
copy of its Form ADV as most recently filed with the Securities
and Exchange Commission (the "SEC") and will, promptly after
filing any amendment to its Form ADV with the SEC, furnish a copy
of such amendment to the Adviser, the Sub-Adviser and the Trust.
11. Duration and Termination of this Agreement. This Agreement shall become
effective on the date first above written and shall govern the relations between
the parties hereto thereafter, and shall remain in force until April 1, 1998 and
each year thereafter but only so long as its continuance is "specifically
approved at least annually" (a) by the vote of a majority of the Trustees of the
Trust who are not "interested persons" of the Trust, the Adviser, the
Sub-Adviser or FCEM at a meeting specifically called for the purpose of voting
on such approval, and (b) by the Board of Trustees of the Trust, or by "vote of
a majority of the outstanding voting securities" of the Fund. This Agreement may
be terminated at any time without the payment of any penalty by the Trustees of
the Trust, by "vote of a majority of the outstanding voting securities" of the
Fund or by the Adviser or the Sub-Adviser, on not more than sixty days nor less
than thirty days written notice, or by FCEM on not more than ninety days nor
less than sixty days written notice. This Agreement shall automatically
terminate in the event of its "assignment" or in the event that the FCM
Sub-Advisory Agreement or the Advisory Agreement shall have terminated for any
reason.
12. Amendments to this Agreement. This Agreement may be amended only if
such amendment is approved by "vote of a majority of the outstanding voting
securities" of the Fund, by the Adviser, by the Sub-Adviser and by FCEM.
13. Certain Definitions. The terms "specifically approved at least
annually", "vote of a majority of the outstanding voting securities",
"assignment", "control", "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 1940 Act and the rules, regulations
and
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orders thereunder, subject, however, to such exemptions as may be granted by the
SEC under the 1940 Act.
14. Survival of Representations and Warranties; Duty to Update Information.
All representations and warranties made by FCEM pursuant to Section 9 hereof
shall survive for the duration of this Agreement and FCEM shall immediately
notify, but in no event later than five (5) business days, the Adviser and the
Sub-Adviser in writing upon becoming aware that any of the foregoing
representations and warranties are no longer true.
15. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of The Commonwealth of Massachusetts. All
notices provided for by this Agreement shall be in writing and shall be deemed
given when received, against appropriate receipt, by the Sub-Adviser's Secretary
in the case of the Sub-Adviser, by the Adviser's General Counsel in the case of
the Adviser, by FCEM's Secretary in the case of FCEM and by the Trust's
Secretary in the case of the Fund, or such other person as a party shall
designate by notice to the other parties. This Agreement constitutes the entire
agreement among the parties hereto and supersedes any prior agreement among the
parties relating to the subject matter hereof. The section headings of this
Agreement are for convenience of reference and do not constitute a part hereof.
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.
FOREIGN & COLONIAL MANAGEMENT LTD.
By: XXXXX XXXXXX
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Xxxxx Xxxxxx
By: XXXXXXXX XXXXXX
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Xxxxxxxx Xxxxxx
FOREIGN & COLONIAL EMERGING MARKETS
LIMITED
By: AUDLEY TWISTON DAVIES
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Audley Twiston Davies
By: XXXXX XXXXXX
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Xxxxx Xxxxxx
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The foregoing is hereby agreed to:
A copy of the Declaration of Trust of the Trust is on file with the
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 more than one series of the Trust, the
parties hereto also agree that the obligations of each series 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.
MFS SERIES TRUST VIII on behalf of
MFS WORLD GROWTH FUND
By: A. XXXXX XXXXXXX
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A. Xxxxx Xxxxxxx
Chairman
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By: XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
President
