Exhibit No. 99.4(a)
FORM OF
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, dated this __th day of November 2007, by and
between MFS SERIES TRUST XV, a Massachusetts business trust (the "Trust"), on
behalf of its series of shares (each a "Fund") listed on Appendix A attached
hereto, 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 each Fund 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 each Fund
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 each Fund 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 each Fund shall be held uninvested, subject always to the
restrictions of the Trust's Amended and Restated Declaration of Trust, dated
July 24, 2007, 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 a
Fund'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 a Fund'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 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 or other instruments for each Fund's 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 the
deliveries of securities or other instruments 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
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 a 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 the Fund and to other clients of the Adviser as to which the
Adviser exercises investment discretion.
(c) Subject to the general supervision and control of the Trustees of the
Trust and under the terms and conditions set forth in this Agreement, the Trust
acknowledges and agrees that it is contemplated that Adviser will, at its own
expense, select and contract with one or more investment advisers
("Sub-Advisers") to manage the investment operations and composition of each
Fund and render investment advice for each Fund, including the purchase,
retention, and disposition of the investments, securities and cash contained in
each Fund, subject always to the restrictions of the Trust's Declaration and
the By-Laws, to the provisions of the Investment Company Act of 1940 and the
Rules, Regulations and orders thereunder and to a Fund's then-current
Prospectus and Statement of Additional Information; provided, that any contract
with an Sub-Adviser (a "Sub-Advisory Agreement") shall be in compliance with
and approved as required by the Investment Company Act of 1940 and the Rules,
Regulations and orders thereunder or in accordance with exemptive relief
granted by the Securities and Exchange Commission ("SEC") under the Investment
Company Act of 1940.
(d) Subject always to the direction and control of the Trustees of the
Trust, Adviser will have (i) overall supervisory responsibility for the general
management and investment of each Fund's assets; (ii) full discretion to select
new or additional Sub-Advisers for each Fund; (iii) full discretion to enter
into and materially modify existing Sub-Advisory Agreements with Sub-Advisers;
(iv) full discretion to terminate and replace any Sub-Adviser; and (v) full
investment discretion to make all determinations with respect to the investment
of a Fund's assets not then managed by a Sub-Adviser. In connection with
Adviser's responsibilities herein, Adviser will assess each Fund's investment
focus and will seek to implement decisions with respect to the allocation and
reallocation of each Fund's assets among one or more current or additional
Sub-Advisers from time to time, as Adviser deems appropriate, to implement each
Fund's investment policies determined as provided above. In addition, Adviser
(in conjunction with the Fund's Independent Chief Compliance Officer) will
oversee (or, in the event that the Adviser does not require a Sub-Advisor to
assume responsibility therefore under the Sub-Advisory Agreement, shall be
responsible for) compliance of each Sub-Adviser with the investment objectives,
policies and restrictions of any Fund (or portions of any Fund) under the
management of such Sub-Adviser, and review and report to the Trustees of the
Trust on the performance of each Sub-Adviser.
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Adviser will furnish, or cause the appropriate Sub-Adviser(s) to furnish, to
the Trust such statistical information, with respect to the investments that a
Fund (or portions of any Fund) may hold or contemplate purchasing, as the Trust
may reasonably request. Further, Adviser (in conjunction with the Fund's
Independent Chief Compliance Officer) will oversee compliance of each
Sub-Adviser with the compliance program of any Fund (or portions of any Fund)
under the management of such Sub-Adviser, as well as the compliance program of
the Sub-Adviser as such program relates to the Sub-Adviser's management of the
Fund. On Adviser's own initiative, Adviser will apprise, or cause the
appropriate Sub-Adviser(s) to apprise, the Trust of important developments
materially affecting each Fund (or any portion of a Fund that they advise) and
will furnish the Trust, from time to time, with such information as may be
appropriate for this purpose. Further, Adviser agrees to furnish, or cause the
appropriate Sub-Adviser(s) to furnish, to the Trustees of the Trust such
periodic and special reports as the Trustees of the Trust may reasonably
request. In addition, Adviser agrees to cause the appropriate Sub-Adviser(s) to
furnish to third-party data reporting services all currently available
standardized performance information and other customary data as may be
appropriate.
(e) 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 a Fund 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 each Fund and maintaining its 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.
(b) It is understood that the Trust and each Fund will pay all of their own
expenses incurred in their operations and the offering of a Fund's 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 or a Fund, 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 a Fund; fees and expenses of independent auditors, of legal
counsel, and of any transfer agent, registrar or dividend disbursing agent of a
Fund; 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 a
Fund, including safekeeping of funds and securities and maintaining required
books and accounts; expenses of calculating the net asset value of shares of a
Fund; organizational and start up costs; such non-recurring or
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extraordinary expenses as may arise, including those relating to actions, suits
or proceedings to which a Fund is a party or otherwise may have an exposure,
and the legal obligation which a Fund 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 a Fund 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 or
a Fund 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 or a Fund on any subsequent occasion.
ARTICLE 3. COMPENSATION OF THE ADVISER. For the services to be rendered and
the facilities provided, each Fund shall pay to the Adviser an investment
advisory fee computed and paid monthly as set forth in Appendix B 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 on behalf of a Fund 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 a Fund, 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 a Fund 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 a Fund
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
a Fund, 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 to a Fund are not exclusive, the Adviser being free to
render investment advisory and/or
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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 a Fund. 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 a Fund 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 a Fund.
(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 a Fund 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 and each Fund 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 and each
Fund. The Trust agrees that if the Adviser for any reason no longer serves as
investment adviser to a Fund, and the Adviser so requests, that Fund promptly
shall cease to use the MFS Marks and promptly shall amend its registration
statement to delete any references to the MFS Marks. Likewise, the Trust agrees
that if the Adviser for any reason no longer serves as investment adviser to
any Fund of the Trust, and the Adviser so requests, the Trust promptly shall
cease to use the MFS Marks and promptly shall amend its Declaration of Trust 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 a Fund of 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, and shall become effective with respect to a Fund, if approved
by the shareholders of such Fund, on the Effective Date for such Fund, as set
forth in Appendix A attached hereto. Thereafter, this Agreement will remain in
effect with respect to a Fund for a period of two years from that Fund's
Effective Date as set forth in Appendix A, on which date it will terminate for
that Fund 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
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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 applicable Fund.
(b) This Agreement may be terminated as to the Trust or 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 the applicable Fund, 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 a Fund 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
applicable Fund (if such shareholder approval is required by the Investment
Company Act of 1940).
(d) Any approval, renewal or amendment of this Agreement with respect to a
Fund by "vote of a majority of the outstanding voting securities" of that Fund,
by the Trustees of the Trust, or by a majority of the Trustees of the Trust who
are not "interested persons" of the Trust or the Adviser, shall be effective to
approve, renew or amend the Agreement with respect to that Fund notwithstanding
(i) that the approval, renewal or amendment has not been so approved as to any
other Fund, or (ii) that the approval, renewal or amendment has not been
approved by the vote of a majority of the outstanding voting securities of the
Trust as a whole.
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. If this Agreement is executed by the Trust on
behalf of one or more Funds, the Adviser further acknowledges that the assets
and liabilities of each Fund are separate and distinct and that the obligations
of or arising out of this Agreement concerning a Fund are binding solely upon
the assets or property of such Fund and not upon the assets or property of any
other Fund.
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
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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.
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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 a Fund, individually, but bind only the trust estate.
MFS SERIES TRUST XV,
on behalf of its series set forth in
Appendix A attached hereto
By:
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary and
Assistant Clerk
MASSACHUSETTS FINANCIAL SERVICES
COMPANY
By:
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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APPENDIX A
FUNDS AND EFFECTIVE DATES
FUND EFFECTIVE DATE
---- ----------------
MFS Diversified Target Return Fund November 7, 0000
XXXXXXXX X
COMPENSATION TO THE ADVISER
The investment advisory fee payable by each Fund shall be computed and paid
monthly at the annual rate equal to that Fund's average daily net assets for
its then current fiscal year noted below:
FUND ANNUAL RATE
---- -------------------------------------------
MFS Diversified Target Return Fund 0.90% of the first $1 billion in average
daily net assets
0.75% of average daily net assets in excess
of $1 billion and less than $2.5 billion
0.65% of average daily net assets in excess
of $2.5 billion
