EXHIBIT NO. 99.6(a)
MFS FUND DISTRIBUTORS, INC.
000 XXXXXXXX XXXXXX x XXXXXX x XXXXXXXXXXXXX 00000
617 o 954-5000
DEALER AGREEMENT
Dear Sirs:
We are the distributor of the shares of each of the funds from time to
time in the MFS Family of Funds (collectively, the "Funds"). Shares are offered
pursuant to the then current prospectus, including any supplements or amendments
thereto, of each of the Funds (the "Prospectus"). To the extent that a
Prospectus contains provisions that are inconsistent with the terms of this
agreement, the terms of the Prospectus shall be controlling. We have the
exclusive right to distribute shares of the Funds (the "Shares"). In addition,
we are the distributor of the units of participation (the "Units") of the MFS
Fixed Fund, a bank collective investment fund (the "MFS Fixed Fund"). The Units
are offered pursuant to the then-current Description of the MFS Fixed Fund,
including any supplements or amendments thereto (the "Description"). All offers
for sale of the Units shall be subject to the terms of, and effected in
accordance with, the terms of the Description. To the extent that the
Description contains provisions that are inconsistent with the terms of this
agreement, the terms of the Description shall be controlling. As agent for the
Funds and the MFS Fixed Fund, we hereby offer to sell Shares of the Funds and
make available the Units to you, acting as principal (in the case of the Funds)
or as agent (in the case of the MFS Fixed Fund) and not as broker or agent for,
or employee of, us or any of the Funds or the MFS Fixed Fund, upon the following
terms and conditions:
1. In all sales of the Shares to the public, you shall act as dealer
for your own account.
2. We will not accept from you any conditional orders for the purchase,
sale or redemption of Shares or Units. All orders to purchase Shares received
from you will be accepted by us only based on the public offering price
applicable to each order, as established by the Prospectus of the Fund for whose
Shares the order is placed. All orders to purchase Units received from you will
be received by us and accepted by SEI Trust Company ("SEI"), as trustee of the
MFS Fixed Fund, only based on the Unit Value applicable to each order, as
established by the Description. The procedure relating to the handling of orders
shall be subject to instructions which we shall forward from time to time to
you. All orders are subject to acceptance or rejection by us in our sole
discretion and, in the case of the Units, by SEI in its sole discretion.
3. On the purchase by you through us to cover a single transaction
involving Shares of the Funds, the applicable offering price and dealer discount
therefrom or commission, as applicable, which you will receive will be
determined in accordance with the provisions of the Prospectus of the applicable
Fund. In addition, certain of the Funds have adopted Distribution Plans pursuant
to which we, on behalf of each such Fund, will pay a service fee to dealers in
accordance with the provisions of such Funds' Distribution Plans. (The service
fee is paid to you as additional consideration for all personal services and/or
account maintenance services provided by you to shareholders of the applicable
Fund.) The provisions and terms of these Funds' Distribution Plans are described
in their respective Prospectuses, and you hereby agree that we have made no
representations to you with respect to the Distribution Plans of such Funds in
addition to, or conflicting with, the description set forth in their respective
Prospectuses. No dealer discount or commission is applicable to Shares
representing reinvested dividends and distributions. No interest will accrue on
amounts represented by uncashed dealer discount, commission or service fee
checks.
You acknowledge and agree that you shall not be entitled to receive any
such service fees unless: (i) you are the holder or dealer of record for
accounts in the applicable Fund, or all Funds together, having an aggregate net
asset value of at least the minimum amount established by us from time to time
in accordance with the terms of the Funds' Distribution Plans or (ii) you
satisfy each of the following conditions, as determined from time to time by us
in our sole discretion: (a) you include all Funds on your product list and, as
requested by us from time to time, one or more of the Funds on your "approved",
"preferred" or other similar product list; provided, however, that the MFS Fixed
Fund shall be included only on such product lists as are specifically directed
to eligible qualified retirement plans described in the Description; (b) you
grant reasonable requests from time to time for visits to your offices
(including branch offices) by our sales and marketing representatives; (c) you
provide satisfactory product, marketing and sales support, as requested by us
from time to time; and (d) you assign one of your registered representatives to
each Fund shareholder account on your records and reassign the Fund account
should that representative leave your firm; provided, however, that you will not
be paid any service fee in any event if the redemption levels of Fund
shareholder accounts for which you are the holder or dealer of record are above
normal as compared to other dealers, as determined by us from time to time in
our sole discretion. In addition, you acknowledge and agree that (y) you shall
not be paid any service fee with respect to a specific time period unless and
until we are in receipt of the service fee from the Fund for such period and (z)
our liability to you for the payment of any such service fee is limited solely
to the amount of the applicable Fund's service fee received by us.
4. You agree that all purchases of Shares or Units through us shall be
made only to cover orders already received by you.
5. All sales of the Shares to your customers shall be at the public
offering price as established by the Prospectus and shall comply with all such
multiple class pricing guidelines as we may from time to time furnish to you.
All sales of the Units to your customers shall be at the Unit Value and upon the
terms established by the Description.
6. You shall not withhold placing orders received from your customers
so as to profit yourself as a result of such withholding.
7. If any Shares sold to you by us under the terms of this agreement
are repurchased by the issuer or by us as agent for the issuer or are tendered
for redemption within seven business days after the date of your original
purchase, it is agreed that you shall forfeit your right to any discount or
commission received by or allowed to you on such Shares hereunder.
We will notify you of any such repurchase or redemption within ten days
from the date on which a stock power or letter of instructions, if no
certificate has been issued, or the certificate is delivered to us or to the
issuer, and you shall forthwith refund to us the full discount or commission
received by or allowed to you.
8. Payment for Shares or Units ordered from us shall be in New York or
Boston clearinghouse funds received by us by the later of: (i) the end of the
third business day following your receipt of the customer's order to purchase
such Shares or Units or (ii) the end of one business day following your receipt
of the customer's payment for such Shares or Units, but in no event later than
the end of the sixth business day following your receipt of the customer's
order. If such payment is not received by us, we reserve the right, without
notice, forthwith to cancel the sale, or, in the case of Shares, at our option,
to sell the Shares ordered back to the issuer, in which case we may hold you
responsible for any loss, including loss of profit, suffered by us resulting
from your failure to make payment as aforesaid.
9. You agree to provide all necessary information to comply properly
with all federal, state and local reporting requirements and backup and
nonresident alien withholding requirements for your customer accounts including,
without limitation, those requirements that apply by treating Shares issued by
the Funds as readily tradable instruments. You represent and agree that all
Taxpayer Identification Numbers ("TINS") provided are certified, and that no
account which requires a certified TIN will be established without such
certified TIN. You agree to perform all federal, state and local tax reporting
with respect to sales of Shares through the National Securities Clearing
Corporation ("NSCC") Fund/Serv program, including without limitation redemptions
and exchanges.
10. In connection with purchases by you as principal of Shares of any
of the Funds from others, you agree that you will pay to the seller a price
which is not less than the net asset value next quoted by us as agent for the
Fund. Nothing in this agreement shall prevent you from selling Shares for the
account of a record owner to the issuer at the net asset value next quoted by us
as agent for the issuer and charging your customer a fair commission for
handling the transaction.
11. Shares sold by us to you hereunder shall be available to you for
delivery against payment at the office of our agent, MFS Service Center, Inc.
("MFSC"), 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, unless other
arrangements are made with us for delivery and payment.
12. No person is authorized to make any representations concerning
Shares except those contained in the Prospectus and in such printed information
and information stored on computer diskettes (illustrating hypothetical
investments in the Funds) as issued by us for use as information supplemental to
the Prospectus. Supplemental information relating to hypothetical investments
may be used only in one-on-one presentations. In purchasing Shares from us, you
shall rely solely on the representations contained in the Prospectus and in the
above-mentioned supplemental information. Qualification of Shares in the various
states, including the filing of any state or further state notices respecting
such Shares, and any printed information or information stored on computer
diskettes which we furnish you other than the Prospectuses and periodic reports
are our sole responsibility and not the responsibility of the respective Funds,
and you agree that the Funds shall have no liability or responsibility to you in
these respects. No person is authorized to make any representations concerning
the Units except those contained in the Description and in such printed
information as issued by us for use as information supplemental to the
Description. In offering Units for sale, you shall rely solely on the
representations contained in the Description and in the above-mentioned
supplemental information.
13. Additional copies of any Prospectus or the Description and any
printed information or information stored on computer diskettes issued
supplementing the Prospectus or the Description will be supplied by us in
reasonable quantities upon request; provided, however, that we reserve the right
to charge a nominal fee, disclosed in advance, for computer diskettes.
14. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Shares or Units entirely. Except as provided
in paragraph 15, each party hereto has the right to cancel this agreement upon
ten days' notice to the other party. We reserve the right to amend this
agreement, or to assign this agreement to an affiliate, at any time and you
agree that an order to purchase Shares of any one of the Funds or of the Units
placed by you after notice of any such amendment or assignment has been sent to
you shall constitute your agreement to any such amendment or assignment.
15. You represent that you are a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD"). You agree that
you will not make available Shares of any Fund or the Units in any state or
other jurisdiction in which we inform you that such Shares or Units may not be
lawfully offered for sale. You agree (notwithstanding the provisions of
paragraph 14 hereof) that this agreement shall automatically terminate without
notice upon your: (a) filing of a petition in bankruptcy or a petition seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future bankruptcy,
reorganization, insolvency or similar statute, law or regulation; or (b) seeking
the appointment of any trustee, conservator, receiver, custodian or liquidator
for you or for all or substantially all of your properties. Likewise, you agree
(notwithstanding the provisions of paragraph 14 hereof) that: (w) if a
proceeding is commenced against you seeking relief or an appointment of a type
described in the immediately preceding two sentences; or (x) if a trustee,
conservator, receiver, custodian or liquidator is appointed for you or for all
or substantially all of your properties; or (y) if an application for a
protective decree under the provisions of the Securities Investor Protection Act
of 1970 shall have been filed against you; or (z) if you are a registered
broker-dealer and (i) the Securities and Exchange Commission (the "SEC") shall
revoke or suspend your registration as a broker-dealer, (ii) any national
securities exchange or national securities association shall revoke or suspend
your membership, or (iii) under any applicable net capital rule of the SEC or of
any national securities exchange, your aggregate indebtedness shall exceed
1,000% of your net capital, this agreement shall automatically terminate. You
agree that you will immediately advise us of any such proceeding, appointment,
application, revocation, suspension or indebtedness level. You further agree
that if you are a foreign dealer (a) you are registered under the Securities
Exchange Act of 1934 and you agree that in making sales of Shares to purchasers
within the United States you will conform to the Conduct Rules, including the
Interpretation with Respect to Free-Riding and Withholding, of the NASD, or (b)
if you are not so registered, you will make sales of Shares only outside of the
jurisdiction of the United States to persons who are not citizens or residents
of the United States. You also represent that you have complied, and will
continue to comply, with any other state or federal registration requirements
(and any other applicable securities, tax and other laws) related to the offer
and sale of the Shares of any of the Funds or the offer for sale of the Units.
16. You may send exchange requests to MFSC via facsimile, subject to
the following requirements: (a) All exchange transactions must be received, and
confirmed by a telephone call from you to MFSC, by 4:00 p.m. Boston time in
order to receive the day's closing price. Transactions received after 4:00 p.m.
will be processed the following business day. If the impact of processing
exchange transactions received from all sources is deemed to be injurious to one
of the Funds or the MFS Fixed Fund, we in our sole discretion may elect to delay
the purchase side of the transaction for up to seven days. In such a
circumstance, the exchange redemption would be made at the price or Unit Value
in effect on the first day and the exchange purchase would use the price or Unit
Value of a date not more than seven days later. This arrangement will be
governed by and superseded by changes in the Prospectuses or the Description
without terminating this arrangement. All exchange transactions involving the
MFS Fixed Fund are subject to the terms of the Description. (b) All exchange
transactions must be sent by facsimile machine to MFSC at (000) 000-0000 or
(000) 000-0000 and confirmed by telephone at (000) 000-0000. No other medium of
delivery will be acceptable, except as provided by the Prospectuses or the
Description. (c) You hereby warrant that each exchange transaction which you
initiate will have been authorized by the shareholder or Unitholder prior to
initiation, and that each such shareholder has received, read and understood the
Prospectus for each Fund to be purchased. (d) We or MFSC may terminate your
participation in the transactions contemplated by this paragraph at any time if
either of us believes or has reason to believe that you have failed or may fail
to comply with any of the conditions set forth herein, or, in any event, with 10
days' written notice. Such termination will not affect your responsibilities
under paragraph 27 with respect to such transactions.
17. We agree to accept orders, including wire orders, placed by you for
the purchase of Shares for MFS (Prototype) Individual Retirement Account Plans
("XXX Plan"), subject to the following:
(a) We will provide you with XXX Adoption Agreements and/or
Applications ("XXX Agreements") solely for the purpose of allowing you
to accept initial and subsequent contributions (other than trustee to
trustee transfers) from any individual who has created an XXX Plan by
execution of such XXX Agreement, invested in shares of a Fund and
designated by the individual, provided that the XXX Plan investment is
permitted under the terms of the Fund Prospectus.
(b) You hereby represent and warrant to us, The First National
Bank of Boston (the "Trustee") and each Fund that you are fully
informed and knowledgeable as to the requirements imposed under the
Internal Revenue Code of 1986, as amended (the "Code"), and the rules,
regulations and rulings adopted pursuant thereto, on and in respect to
individual retirement accounts ("IRAs"), as defined under the Code. You
further represent that for all XXX Plan orders placed hereunder, you:
(a) will require receipt of a properly completed and signed XXX
Agreement before placing such order; (b) will deliver to the
participant the appropriate MFS XXX Trust and Disclosure Statement
before placing such order; and (c) will ensure that the contribution
from the participant is properly designated as to the year of
contribution. Your placement of an order under this paragraph 17 shall
serve as a warranty that such order complies with all such rules,
regulations, rulings and procedures.
(c) You shall promptly upon the receipt of any XXX Plan
contribution from a participant, and only if in possession of an XXX
Agreement signed by the participant, place an order with us through
MFSC for shares of a Fund in accordance with the instructions of the
participant. If the order placed by you represents a new account, you
shall furnish us with an executed XXX Agreement promptly after the
order is placed.
(d) You understand that we, MFSC, the Trustee and the Funds
shall not be responsible for monitoring orders placed by you with
regard to compliance with Internal Revenue Service (the "IRS") and
other rules and regulations, including, but not limited to, those
related to over-contributions, eligibility, income restrictions,
timeliness of contribution, or any other matters related to the status
of any XXX Plan, nor for your compliance with procedures established by
us or our agents with respect to such XXX orders.
(e) We, for ourself and our agents, and the Trustee reserve the
right, at each of our sole option, and without liability or obligation
so to act, to cancel or re-register any trade or not to settle any
trade which does not comply with the terms of this paragraph 17 or the
procedures established by us or our agents. We will use reasonable
efforts to notify you of such actions.
(f) The remittance of the annual service fee cannot be combined
with or made via a wire order purchase. Wire redemption requests will
not be accepted. Any purchase hereunder must be made in accordance with
the terms of the pertinent Prospectus.
(g) We may terminate your participation in the transactions
contemplated by this paragraph at any time if you fail to comply with
any of the conditions set forth herein, or, in any event, with 10 days'
written notice. Such termination will not affect your responsibilities
under paragraph 27 with respect to such transactions.
18. You may enter via a remote terminal, and we will accept, the
following clerical changes and corrections relating to any account of your
customers: dividend and/or capital gain distribution election as to cash or
reinvestment; TINs; account executive's number and/or name; branch office city,
state and related dealer branch number; and shareholder address changes, subject
to the following: (a) You hereby represent and warrant to us, MFSC and the
Fund(s) that each change made pursuant to this paragraph has been authorized by
your customer prior to its initiation and that you have internal procedures in
place to assure that the changes described herein are authorized only by
appropriate persons. (b) This arrangement will be governed by and subject to
rules and procedures established by us and MFSC for effecting such changes. (c)
We or MFSC may terminate your participation in the transactions contemplated by
this paragraph at any time if either of us believes or has reason to believe
that you have failed or may fail to comply with any of the conditions set forth
herein or, in any event, with 10 days' prior written notice. Such termination
will not affect your responsibilities under paragraph 27 with respect to such
transactions.
19. You may settle redemptions of shares of the Funds held in
individual accounts of your customers or in accounts registered in your name,
via NSCC Fund/Serv and without a guaranteed endorsement on the certificates
representing such shares, or, if no certificates for such shares have been
issued, without a guaranteed endorsement, and we agree to allow such redemptions
subject to the following: (a) The wire order redemption request is placed
through NSCC Fund/Serv. (b) In the case of certificated shares, the appropriate
certificate(s) are received as settlement and the reverse of such certificate(s)
is not completed or signed in a manner deemed inconsistent by MFSC in its sole
judgment. (c) You hereby warrant to us, MFSC and the Fund(s) that each
redemption has been authorized by your customer prior to initiation and that you
have internal procedures in place to assure that the instructions described
herein are authorized only by appropriate persons. (d) This arrangement will be
governed by and subject to rules and procedures established by us and MFSC for
effecting such transactions. (e) We or MFSC may terminate your participation in
the transactions described in this paragraph at any time if either of us
believes or has reason to believe that you have failed or may fail to comply
with any of the conditions set forth herein or, in any event, with 24 hours'
notice. Such termination shall not affect your responsibilities under paragraph
27 with respect to such transactions.
20. Should we agree to participate with you in the NSCC program known
as "Networking" in one or more of its "Matrix Levels," which agreement will be
evidenced by the execution by us and you of an agreement, we thereby agree to
accept from you electronically through MFSC and through Networking channels and
Fund/Serv without supporting documentation from shareholders in the Funds for
whom you are the dealer of record or with respect to which you are the clearing
broker to the dealer of record ("originating firm") which is in turn a party to
a Dealer or Mutual Fund Agreement with us (your "client"), the instructions,
communication and actions specified in such agreement, subject to and in
reliance upon the following requirements and representations.
A. Requirements. 1. You will provide all necessary, requested, updating
and reconciling information to ensure the accuracy of records and to enable MFSC
to create and maintain an accurate cross-reference file between client records
and the Fund account records that shall remain the official records of all Fund
shareholder accounts. You agree that MFSC will not be responsible for changes to
the file until a reasonable time after receipt thereof. 2. You will provide in a
timely fashion all necessary and relevant information regarding adverse claims,
governmental and legal inquiries and correspondence to us, MFSC, the Fund or its
adviser, as appropriate, in connection with its handling of and responding to
such notices, inquiries, correspondence and claims, which may include its or
their placing restrictions on the redemption, transfer or exchange of Shares and
disclosing that you control accounts pursuant to this paragraph. 3. You will, on
behalf of each Fund, report to your clients, all information which is required
to be reported by the Fund on Shareholder confirmations or otherwise under any
applicable statute, rule or regulation or under the terms of the Prospectus, or
which is provided by us, MFSC, the Fund or the Fund's adviser to you and other
shareholders of the Fund and such information shall be complete, accurate and
timely. 4. You will ensure that cash distributions are accurately paid to your
client at the time specified by the Fund, and, as among the Funds, MFSC, you and
us, you shall be solely responsible for any liabilities arising from payments
reported by clients as lost, stolen or forged.
B. Representations and Warranties. You represent and warrant to, and
agree with us, MFSC and the Funds that: you have and will continue to have the
necessary facilities, equipment and personnel to allow you to perform, and that
you will so perform, all duties, functions, procedures or responsibilities
described herein and in the Networking agreement between you and us, each as
from time to time in effect, in a businesslike and competent manner, in
conformance with all applicable laws, rules and regulations (including without
limitation, all rules and requirements of the IRS and the Code, with respect to
tax reporting; with Rule 10b-10 under the Securities Exchange Act of 1934, with
respect to confirmation statements; and with all rules applicable to registered
transfer agents, with respect to duties generally hereunder), with the
Prospectuses and with all applicable rules and procedures of the NSCC and NASD
Regulation, Inc.; you or the originating firm has the prior sufficient consent
of each client whose account is to be placed in or transferred to a Networking
account, having first informed each such client in writing of all material facts
relating to such arrangement; all your instructions, communications and actions
regarding Networked accounts, including all transfers, will be rightful, will
have been duly and sufficiently authorized by your client, will be accurate and
complete and will be in the appropriate NSCC/DST Systems, Inc. format; if you
are acting as a clearing broker, you have obtained the prior written consent of
each originating firm to your entering into, and to all the terms of, this
paragraph and the Networking agreement and that all actions taken hereunder will
have been approved in advance by the applicable originating firm; the taking of
any action as to which MFSC normally requires a signature guarantee shall be
deemed to constitute your guarantee in proper order of your client's signature;
you will obtain and maintain, and upon request provide to MFSC, for each
Networking account all forms, applications, waivers, exemptions, certifications
or other documents or information required by applicable laws, rules or
regulations including, without limitation, state and federal securities and tax
laws, rules and regulations; you do not act as our agent under this paragraph;
and you have and will maintain adequate insurance coverage as is appropriate for
your duties and obligations hereunder, and will, upon request, provide us or
MFSC with a certificate of insurance evidencing your compliance.
Nothing herein shall prohibit us, any Fund, the advisers of the Funds
or MFSC from mailing or otherwise distributing to Shareholders any material
concerning the Funds or other funds or services now or hereafter offered by any
of us. We may terminate your participation in the transactions contemplated by
this paragraph and the Networking agreement at any time if you fail to comply
with any of the conditions set forth herein or, with respect to accounts of an
originating firm, the termination of our Dealer or Mutual Fund Agreement with
such firm, or in any event, or with respect to any accounts, with 30 days' prior
written notice. Such termination will not affect your responsibilities under
paragraph 27 with respect to such transactions.
21. You may purchase shares of the Funds for sale to your clients
(including without limitation Bank Trust Department clients) in a fee-based
program made available by you to your clients (the "Fee-Based Program"), and
afford your fee-based clients the opportunity to purchase such shares at net
asset value, subject to the following terms and conditions:
A. You must first notify us of your desire to include the Funds in the
Fee-Based Program and to institute the necessary operational procedures and
requirements as established by us from time to time.
B. You may, in connection with the Fee-Based Program, sell shares of
any Funds made available by us, from time to time, at net asset value to your
bona fide clients participating in the Fee-Based Program. You will receive no
discount, commission or other concession with respect to any such sale, but will
be entitled to receive any service fees otherwise payable with respect thereto
to the extent provided from time to time in the applicable Funds' Prospectuses
and in this Agreement.
C. For any Fee-Based Program customer eligible to purchase Fund shares
at net asset value, you shall charge an annual fee to such customer of not more
than 2.50% of such customer's average net assets included in the Fee-Based
Program, nor less than 0.50% of such assets. You shall send to us upon request
from time to time the then-current standard fee schedule for the Fee-Based
Program. Brochures, written materials or advertising relating to the Fee-Based
Program may refer to the Funds as available at net asset value if the fees and
expenses of the Fee-Based Program are given at least equal prominence.
D. You will (i) provide us with continuous reasonable access to your
offices, representatives and mutual fund and Fee-Based Program sales support
personnel, to meetings, including national and regional sales conferences and
training programs, of your representatives and sales personnel, and include our
representatives on your internal sales lines and conference calls on a regular
basis, (ii) include descriptions of all Funds offered through the Fee-Based
Program in internal sales materials and electronic information displays used in
conjunction with the Fee-Based Program, (iii) use reasonable efforts to motivate
your representatives to recommend suitable Funds for clients of the Fee-Based
Program, (iv) provide us with sales information in reasonable Fund-by-Fund
detail, including identification of offices and representatives that account for
the most significant sales of shares of the Funds through the Fee-Based Program,
and (v) include the Funds on any approved, preferred or other similar list of
mutual fund products offered through the Fee-Based Program.
E. You may maintain with the Funds' shareholder servicing agent either
(I) one or more omnibus accounts solely for the clients of your Fee-Based
Program or (ii) separate accounts for each client of your Fee-Based Program. If
one or more omnibus accounts are maintained, you shall, among other things, be
responsible for forwarding proxies, annual and semi-annual reports and other
materials to each beneficial owner in a timely manner.
F. We are not endorsing, recommending or otherwise involved in
providing any investment product of yours, including but not limited to the
Fee-Based Program. We are merely affording you the opportunity to use shares of
the Funds as an investment medium for the Fee-Based Program. You acknowledge and
agree that you are solely responsible for the Fee-Based Program, and you hereby
authorize and instruct us, the Funds and our respective affiliates to accept,
rely upon and carry out instructions received from you or your affiliates with
respect to any purchase, redemption (including any redemption to pay fees),
exchange, account maintenance, request for information, or other matter
concerning any accounts maintained by you in connection with the Fee-Based
Program. You represent and warrant that all such instructions will be rightful
and will have been duly and sufficiently authorized by your clients.
22. Units of the MFS Fixed Fund may be offered for sale by you only to
retirement plans which have been determined by the IRS to be qualified for tax
exemption under sections 401 and 501 of the Code, to governmental plans within
the meaning of section 414(d) of the Code or to financial institutions which are
acting as trustee, custodian or agent for any such plan, excluding, however,
certain retirement plans which cover individuals some or all of whom are
self-employed, as further described in the Description (such eligible investors
are collectively referred to as "Qualified Investors"). With respect to Units
offered for sale by you to Qualified Investors, we will pay to you a periodic
distribution fee as described in the Description. No dealer discount or
commission is applicable to sales of the Units. All offers and sales of the
Units shall be subject to the terms of the Description. You agree that we have
made no representation to you with respect to the Units or the MFS Fixed Fund in
addition to, or conflicting with, the description set forth in the Description.
We may terminate your ability to purchase and sell the Units at any time if we
believe or have reason to believe that you have failed or may fail to comply
with any of the conditions set forth herein or, in any event, upon 10 days'
prior written notice. Such termination will not affect your responsibilities
under paragraph 27 with respect to any transactions affecting the Units.
23. We and you agree that all disputes between us of whatever subject
matter, whether existing on the date hereof or arising hereafter, shall be
submitted to arbitration in accordance with the Code of Arbitration Procedure of
the NASD, or similar rules or code, in effect at the time of the submission of
any such dispute.
24. All communications to us should be sent to the above address. Any
notice to you shall be duly given if mailed, telegraphed or sent by facsimile
machine to you at the address specified by you below. This agreement shall be
governed by and construed in accordance with the internal laws of The
Commonwealth of Massachusetts.
25. This agreement shall become effective upon receipt by us of your
acceptance hereof and supersedes any prior agreement between us with respect to
the sale of Shares of any of the Funds or the Units or any other subject covered
by this agreement.
26. You appoint MFSC, the transfer agent for each Fund, as your agent
to execute the purchase transactions of Shares of such Fund in accordance with
the terms and provisions of any account, program, plan or service established or
used by your customers and to confirm each purchase to your customers on your
behalf, except as modified in writing by the transfer agent, and you represent
and guarantee to us, the Fund and the MFS Fixed Fund the legal capacity of your
customers purchasing such Shares or Units (including the satisfaction of the
eligibility requirements in the Description) and any other person in whose name
the Shares or Units are to be registered.
27. You agree that you shall indemnify and hold harmless us, MFSC, the
Funds, the MFS Fixed Fund and our and their affiliates, SEI (individually and as
trustee of the MFS Fixed Fund), Xxxxxx Asset Management Company ("Xxxxxx")
(individually and as investment adviser to the MFS Fixed Fund), and our and
their affiliates, officers, trustees, directors, employees, shareholders and
agents (collectively, the "Indemnitees") from and against any claims, losses,
costs or liabilities, including attorneys' fees, that may be assessed against,
or suffered or incurred by any of them, howsoever they arise, and as they are
incurred, which relate in any way to: (1) any use of supplemental hypothetical
information provided on computer diskettes other than in one-on-one
presentations or any misuse of or alteration to any supplemental information;
provided, however, that the addition of the name of a customer or other
identifying or variable information expressly authorized by us within such
supplemental information which calls for the addition of such information is
expressly permitted; (2) any transactions or other activity processed through
NSCC programs, including: the automated mutual fund order entry, settlement and
registration verification system known as Fund/Serv; if an agreement has been
signed by you and us so to permit, the program known as Networking; and the
redemption of shares pursuant to paragraph 19; (3) any exchange requests
initiated by you via facsimile; (4) any contribution accepted or order placed by
you pursuant to paragraph 17 hereof, including, but not limited to, any claims,
losses or liabilities relating to the loss of favorable tax status of an XXX
Plan or contribution, any XXX revocation by an individual in connection with an
XXX Plan, and any failed trades for XXX Plans hereunder, or any contribution
accepted in violation of the terms of paragraph 17 hereof (the indemnification
provided under this subparagraph (4) will extend to the Trustee as well as the
parties listed above); (5) any account established by your firm, or for which
your firm is broker-dealer of record, with a "transfer on death," "payable on
death" or other similar registration; (6) improper compliance with federal,
state or local reporting requirements or backup or nonresident alien withholding
requirements, including losses resulting from omitted, incorrect or uncertified
TINS or the failure to provide an accurate tax residence status; (7) any account
changes made pursuant to paragraph 18 thereof; (8) the Fee-Based Program,
including without limitation any brochures, written materials or advertising in
any form that refers to the Funds or the Fee-Based Program, and any Indemnitee's
acceptance, reliance upon or carrying out of instructions received from you or
your affiliates in connection with the Fee-Based Program; and (9) any breach of
your representations or warranties, or failure to comply with your obligations,
set forth in this agreement, in any event whether such action, failure, error,
omission, misconduct, or breach is committed by you or by your employee, agent
or clearing broker, whether or not acting within the scope of his employment,
agency or authority (the indemnification provided under this subparagraph (9)
will extend to the Trustee as well as the parties listed above).
You agree to notify us within a reasonable time of any claim against
you or any person who controls you within the meaning of Section 15 of the
Securities Act of 1933 with respect to securities offered hereunder.
Nothing in this paragraph 27 shall be deemed to preclude the
Indemnitees and the Trustee (with respect to subparagraph (4) or (9) above) from
seeking monetary damages and/or injunctive relief in connection with such
claims, losses and liabilities. This paragraph 27 will survive termination of
this agreement or any provision hereof.
MFS FUND DISTRIBUTORS, INC.
Dated: By: ----------------------------
XXXXXXX X. XXXXX, XX.,
President
The undersigned hereby accepts the offer set forth in the above letter
Firm: ------------------------ Address: -----------------------
By: -------------------------- --------------------------------
Authorized Representative
MFS FUND DISTRIBUTORS, INC.
000 XXXXXXXX XXXXXX x XXXXXX x XXXXXXXXXXXXX 00000
617 o 954-5000
MUTUAL FUND AGREEMENT
(for use by Banks or their affiliated NASD member firms)
1. MFS Fund Distributors, Inc., or its successors or assigns, offers to
make available to your customers shares of each of the funds from time to time
in the MFS Family of Funds (collectively, the "Funds"), for which MFS Fund
Distributors, Inc. is the distributor and from which MFS Fund Distributors, Inc.
has the exclusive right to distribute shares (the "Shares"). Shares are offered
pursuant to the then current prospectus, including any supplements or amendments
thereto, of each of the Funds (the "Prospectus"). To the extent that a
Prospectus contains provisions that are inconsistent with the terms of this
Agreement the terms of the Prospectus shall be controlling. In addition, MFS
Fund Distributors, Inc. is the distributor of the units of participation (the
"Units") of the MFS Fixed Fund, a bank collective investment fund (the "MFS
Fixed Fund"). The Units are offered pursuant to the then-current Description of
the MFS Fixed Fund, including any supplements or amendments thereto (the
"Description"). All offers for sale of the Units shall be subject to the terms
of, and effected in accordance with, the terms of the Description. To the extent
that the Description contains provisions that are inconsistent with the terms of
this Agreement, the terms of the Description shall be controlling. MFS Fund
Distributors, Inc. offers to make the Units available to your customers. In all
transactions covered by this Agreement you shall act only as agent for your
customers and in no transaction shall you have authority to act as agent for any
Fund, the MFS Fixed Fund, MFS Fund Distributors, Inc., or any representative
agent thereof.
2. Orders to purchase Shares received from you will be accepted by us
only at the public offering price applicable to each order, as established by
the Prospectus. Orders to purchase Units received from you will be received by
us and accepted by SEI Trust Company ("SEI"), as trustee of the MFS Fixed Fund,
only at the Unit Value applicable to each order, and upon the terms established
by the Description. Upon receipt from you of any order to purchase Shares we
will send a written confirmation of such trade (indicating that the trade was on
a fully disclosed basis and accompanied by an appropriate Prospectus in the case
of any initial purchase of Shares) to your customer. All orders are subject to
acceptance or rejection at our Boston office in our sole discretion, and, in the
case of the Units, by SEI in its sole discretion, and all orders for Shares
which are accepted by us will be deemed to have been consummated in our Boston
office. We will not accept from you any conditional orders for Shares or Units.
It is agreed and understood that, whether Shares or Units are registered in the
purchaser's name, in your name or in the name of your nominee (in the case of
Shares), the customer will have full beneficial ownership of the Shares or
Units, as applicable.
3. On the purchase by you through us to cover a single transaction
involving Shares of the Funds, the applicable offering price and agency
commission therefrom which you will receive will be determined in accordance
with the terms of the Prospectus of the applicable Fund. In addition, certain of
the Funds have adopted Distribution Plans pursuant to which we, on behalf of
each such Fund, will pay a service fee to dealers in accordance with the
provisions of such Funds' Distribution Plans. (The service fee is paid to you as
additional consideration for all personal services and/or account maintenance
services provided by you to shareholders of me applicable Fund.) The provisions
and terms of these Funds' Distribution Plans are described in their respective
Prospectuses, and you hereby agree that we have made no representations to you
with respect to the Distribution Plans of such Funds in addition to, or
conflicting with, the description set forth in their respective Prospectuses. No
dealer discount or commission is applicable to Shares representing reinvested
dividends and distributions. No interest will accrue on amounts represented by
uncashed agency commission or service fee checks.
You acknowledge and agree that you shall not be entitled to receive any
such service fees unless: (i) you are the holder or dealer of record for
accounts in the applicable Fund, or all Funds together, having an aggregate net
asset value of at least the minimum amount established by us from time to time
in accordance with the terms of the Funds' Distribution Plans or (ii) you
satisfy each of the following conditions, as determined from time to time by us
in our sole discretion: (a) you include all Funds on your product list and, as
requested by us from time to time, one or more of the Funds on your "approved",
"preferred" or other similar product lists; provided, however, that the MFS
Fixed Fund shall be included only on such product lists as are specifically
directed to eligible qualified retirement plans described in the Description;
(b) you grant reasonable requests from time to time for visits to your offices
(including branch offices) by our sales and marketing representatives; (c) you
provide satisfactory product, marketing and sales support, as requested by us
from time to time; and (d) you assign one of your registered representatives to
each Fund shareholder account on your records and reassign the Fund account
should that representative leave your firm; provided; however, that you will not
be paid any service fee in any event if the redemption levels of Fund
shareholder accounts for which you are the holder or dealer of record are above
normal as compared to other dealers, as determined by us from time to time in
our sole discretion. In addition, you acknowledge and agree that (y) you shall
not be paid any service fee with respect to a specific time period unless and
until we are in receipt of the service fee from the Fund for such period and (z)
our liability to you for the payment of any such service fee is limited solely
to the amount of the applicable Fund's service fee received by us.
4. By accepting this Agreement, you agree:
(a) That you will order Shares of the Funds or Units for your
customers only through us.
(b) That you will order Shares of the Funds or Units for your
customers through us only to cover purchase orders already
received from your customers.
(c) That you will not withhold placing orders received from your
customers so as to profit yourself as a result of such
withholding, and you will place orders for purchases and
redemptions promptly upon receipt from your customers.
(d) That you shall comply with all such multiple class pricing
guidelines as we may from time to time furnish to you.
5. Payment for Shares or Units ordered by you shall be in New York or
Boston clearing house funds and must be received by us by the later of (i) the
end of the third business day following your receipt of the customer's order to
purchase such Shares or Units or (ii) the end of one business day following
receipt of the customer's payment for such Shares or Units, but in no event
later than the end of the sixth business day following your receipt of the
customer's order. If such payment is not received by us, we reserve me right,
without notice, forthwith to cancel the sale or, in the case of Shares, at our
option, to sell the Shares ordered back to the issuer, in which case we may hold
you responsible for any loss, including loss of profit, suffered by us resulting
from your failure to make payment as aforesaid.
6. You agree to provide all necessary information to comply properly
with all federal, state and local reporting requirements and backup and
nonresident alien withholding requirements for your customer accounts including
without limitation, those requirements that apply by treating Shares issued by
the Funds as readily tradable instruments. You represent and agree that all
Taxpayer Identification Numbers ("TINS") provided are certified, and that no
account which requires a certified TIN will be established without such
certified TIN. You agree to perform all federal, state and local tax reporting
with respect to sales of Shares through the National Securities Clearing
Corporation ("NSCC") Fund/Serv program, including without limitation redemptions
and exchanges.
7. Shares sold through you hereunder shall be available to you for
delivery against payment at the office of our agent, MFS Service Center, Inc.
("MFSC"), 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 021 16, unless other
arrangements are made with us for delivery and payment.
8. If any Shares confirmed to you and your customer under the terms of
this Agreement are repurchased by the issuing Fund, or are tendered to a Fund
for redemption or repurchase, within seven (7) business days after the date of
your original purchase, you shall forthwith refund to us the full agency
commission paid or allowed to you on such Shares. We will notify you of any such
repurchase or redemption within ten days from the date on which a stock power or
letter of instruction, if no certificate has been issued, or the certificate is
delivered to us or to the issuer, and you shall forthwith refund to us the full
agency commission received by or allowed to you.
9. No person is authorized to make any representations concerning
Shares of any Fund except those contained in the Prospectus of such Fund and in
printed information and information stored on computer diskettes (illustrating
hypothetical investments in the Funds) as issued by us for use as information
supplemental to the Prospectus. Supplemental information relating to
hypothetical investments may be used only in one-on-one presentations. In
purchasing Shares from us, you shall rely solely on the representations
contained in the Prospectus and in the above-mentioned supplemental information.
We will furnish additional copies of each Fund's Prospectus and sales literature
and other information issued by it, in reasonable quantities upon request,
provided, however, that we reserve the right to charge a nominal fee, disclosed
in advance, for computer diskettes. If you are exempt from registration under
the Securities Exchange Act of 1934 and you wish to use your own advertising
with respect to the Funds, all such advertising must be submitted to us for
review and approval prior to use, we shall file Fund advertising material with
the National Association of Securities Dealers, Inc. (the "NASD") and the
Securities and Exchange Commission (the "SEC") as required; you will, however,
be responsible for any required filing of such material with other regulatory
authorities. Qualifications of Shares in the various states, including the
filing of any state or further state notices respecting such Shares, and any
printed information or information stored on computer diskettes which we furnish
you other than the Prospectuses and periodic reports are our sole responsibility
and not me responsibility of me respecting Funds, and you agree that the Funds
shall have no liability or responsibility to you in these respects. No person is
authorized to make any representations concerning the Units except those
contained in the Description and in such printed information as issued by us for
use as information supplemental to the Description. In offering Units for sale,
you shall rely solely on the representations contained in the Description and in
the above-mentioned supplemental information. We will furnish additional copies
of the Description and sales literature, in reasonable quantities upon request.
10. We reserve the right, in our discretion, without notice, to suspend
sales or withdraw the offering of Shares or Units entirely. Except as provided
in paragraph 11, each party hereto has the right to cancel this Agreement upon
ten days' notice to the other party. We reserve the right to amend this
Agreement, or to assign this Agreement to an affiliate, at any time and you
agree that an order to purchase Shares of any one of the Funds or of the Units
placed by you after notice of any such amendment or assignment has been sent to
you shall constitute your agreement to any such amendment or assignment. This
Agreement shall supersede any prior Agreement between us regarding the Shares,
the Units or any other subject covered by this Agreement.
11. Your acceptance of this Agreement constitutes a representation (i)
that you are a securities broker/dealer registered with the SEC and a member in
good standing of the NASD, and you agree to comply with the Conduct Rules of the
NASD or that you are exempt from registration under the Securities Exchange Act
of 1934; (ii) that you will maintain adequate records with respect to your
customers; (iii) that such transactions are without recourse against you by your
customers; and (iv) that you have been duly authorized to enter into this
Agreement and perform your obligations hereunder. You likewise agree that you
will not make available Shares of any Fund or the Units in any state or other
jurisdiction in which we inform you such Shares or Units may not lawfully be
offered for sale. You also representthat you have complied, and will continue to
comply, with any other state or federal registration requirements (and any other
applicable securities, tax and other laws) related to the offer and sale of the
Shares of any of the Funds or the offer for sale of the Units. You agree
(notwithstanding the provisions of paragraph 10 hereof) that this Agreement
shall automatically terminate without notice upon your: (a) filing of a petition
in bankruptcy or a petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future bankruptcy, reorganization, insolvency or similar statute, law
or regulation; or (b) seeking the appointment of any trustee, conservator,
receiver, custodian or liquidator for you or for all or substantially all of
your properties. Likewise, you agree (notwithstanding the provisions of
paragraph 10 hereof) that: (w) if a proceeding is commenced against you seeking
relief or an appointment of a type described in the immediately preceding two
sentences; or (x) if a trustee, conservator, receiver, custodian or liquidator
is appointed for you or for all or substantially all of your properties; or (y)
if an application for a protective decree under the provisions of the Securities
Investor Protection Act of 1970 shall have been filed against you; or (z) if you
are a registered broker-dealer and (i) me SEC shall revoke or suspend your
registration as a broker-dealer, (ii) any national securities exchange or
national securities association shall revoke or suspend your membership, or
(iii) under any applicable net capital rule of the SEC or of any national
securities exchange, your aggregate indebtedness shall exceed 1,000% of your net
capital, this Agreement shall automatically terminate. You further agree that
you will immediately advise us of any such proceeding, appointment, application,
revocation, suspension or indebtedness level.
12. You may send exchange requests to MFSC via facsimile, subject to
the following requirements: (a) All exchange transactions must be received, and
confirmed by a telephone call from you to MFSC, by 4:00 p.m. Boston time in
order to receive the day's closing price. Transactions received after 4:00 p.m.
will be processed the following business day. If the impact of processing
exchange transactions received from all sources is deemed to be injurious to one
of the Funds or the MFS Fixed Fund we in our sole discretion may elect to delay
the purchase side of-the transaction for up to seven days. In such a
circumstance, the exchange redemption would be made at the price or Unit Value
in effect on the first day and the exchange purchase would use the price or Unit
Value of a date not more than seven days later. This arrangement will be
governed by and superseded by changes in me Prospectuses or the Description
without terminating this arrangement. All exchange transactions involving the
MFS Fixed Fund are subject to the terms of the Description. (b) Ail exchange
transactions must be sent by facsimile machine to MFSC at (000) 000-0000 or
(000) 000-0000 and confirmed by telephone at (000) 000-0000. No other medium of
delivery will be acceptable, except as provided by the Prospectuses or the
Description. (c) You hereby warrant that each exchange transaction which you
initiate will have been authorized by the shareholder or Unitholder prior to
initiation, and that each such shareholder has received, read and understood the
Prospectus for each Fund to be purchased. (d) We may terminate your
participation in the transactions contemplated by this paragraph at any time if
you fail to comply with any of the conditions set forth herein, or, in any
event, with 10 days' written notice. Such termination will not affect your
responsibilities under paragraph 24 with respect to such transactions.
13. We agree to accept orders including wire orders placed by you for
the purchase of Shares for MFS (Prototype) Individual Retirement Account Plans
("XXX Plan"), subject to the following:
(a) We will provide you with XXX Adoption Agreements and
Applications ("XXX Agreements") solely for the purpose of allowing you
to accept initial and subsequent contributions (other than trustee to
trustee transfers) from any individual who has created an XXX Plan by
execution of such XXX Agreement, invested in shares of a Fund and
designated by the individual, provided that the XXX Plan investment is
permitted under the terms of the Fund Prospectus.
(b) You hereby represent and warrant to us, The First National
Bank of Boston (the "Trustee") and each Fund that you are fully
informed and knowledgeable as to the requirements imposed under the
Internal Revenue Code of 1986, as amended (the "Code") and the rules,
regulations and rulings adopted pursuant thereto, on and in respect to
individual retirement accounts, as defined under the Code. You further
represent that for all XXX Plan orders placed hereunder, you will
require: (a) receipt of a properly completed and signed XXX Agreement
before placing such order; (b) that the participant has received the
appropriate MFS XXX Trust and Disclosure Statement; and (c) that the
contribution from the participant is properly designated as to the year
of contribution. Your placement of an order under this paragraph 13
shall serve as a warranty that such order complies with all such rules,
regulations, rulings and procedures.
(c) You shall promptly upon the receipt of any XXX Plan
contribution from a participant, and only if in possession of an XXX
Agreement signed by the participant, place an order with us through
MFSC for shares of a Fund in accordance with the instructions of the
participant. If the order placed by you represents a new account, you
shall furnish us with an executed XXX Agreement promptly after the
order is placed.
(d) You understand that we, MFSC, the Trustee and the Funds
shall not be responsible for monitoring orders placed by you with
regard to compliance with Internal Revenue Service (the "IRS") and
other rules and regulations, including, but not limited to, those
related to over-contributions, eligibility, income restrictions,
timeliness of contribution, or any other matters related to the status
of any XXX Plan, nor for your compliance with procedures established by
us or our agents with respect to such XXX orders.
(e) We, for ourself and our agents, and the Trustee reserve the
right, at each of our sole option, and without liability or obligation
so to act, to cancel or re-register any trade or not to settle any
trade which does not comply with the terms of this paragraph 13 or the
procedures established by us or our agents. We will use reasonable
efforts to notify you of such actions.
(f) The remittance of the annual service fee cannot be combined
with or made via a wire order purchase. Wire redemption requests will
not be accepted. Any purchase hereunder must be made in accordance with
the terms of the pertinent Prospectus.
(g) We may terminate your participation in the transactions
contemplated by this paragraph at any time if you fail to comply with
any of the conditions set forth herein, or, in any event, with 10 days'
written notice. Such termination will not affect your responsibilities
under paragraph 24 with respect to such transactions.
14. You may enter via a remote terminal, and we will accept, the
following clerical changes and corrections relating to any account of your
customers: dividend and/or capital gain distribution election as to cash or
reinvestment, TINS; account executive's number and/or name; branch office city,
state and related dealer branch number, and shareholder address changes, subject
to the following: (a) You hereby represent and warrant to us, MFSC and the
Fund(s) that each change made pursuant to this paragraph has been authorized by
your customer prior to its initiation and that you have internal procedures in
place to assure mat the changes described herein are authorized only by
appropriate persons. (b) This arrangement will be governed by and subject to
rules and procedures established by us and MFSC for effecting such changes. (c)
We or MFSC may terminate your participation in the transactions contemplated by
this paragraph at any time if either of us believes or has reason to believe
that you have failed or may fail to comply with any of the conditions set forth
herein or, in any event, with 10 days' prior written notice. Such termination
will not affect your responsibilities under paragraph 24 with respect to such
transactions.
15. You may settle redemptions of shares of the Funds held in
individual accounts of your customers or in accounts registered in your name,
via NSCC Fund/Serv and without a guaranteed endorsement on the certificates
representing such shares, or, if no certificates for such shares have been
issued, without a guaranteed endorsement, and we agree to allow such redemptions
subject to the following: (a) The wire order redemption request is placed
through NSCC Fund/Serv. (b) In the case of certificated shares, the appropriate
certificate(s) are received as settlement and the reverse of such certificate(s)
is not completed or signed in a manner deemed inconsistent by MFSC in its sole
judgment. (c) You hereby warrant to us, MFSC and the Fund(s) that each
redemption has been authorized by your customer prior to initiation and that you
have internal procedures in place to assure that the instructions described
herein are authorized only by appropriate persons. (d) This arrangement will be
governed by and subject to ruses and procedures established by us and MFSC for
effecting such transactions. (e) We or MFSC may terminate your participation in
the transactions described in this paragraph at any time if either of us
believes or has reason to believe that you have failed or may fail to comply
with any of the conditions set forth herein or, in any event, with 24 hours
notice. Such termination shall not affect your responsibilities under paragraph
24 with respect to such transactions.
16. Should we agree to participate with you in the NSCC program known
as "Networking" in one or more of its "Matrix Levels," which agreement will be
evidenced by the execution by us and you of an agreement, we thereby agree to
accept from you electronically through MFSC and through Networking channels and
Fund/Serv without supporting documentation from shareholders in the Funds for
whom you are the dealer of record or with respect to which you are the clearing
broker to the dealer of record ("originating firm") which is in turn a party to
a Dealer or Mutual Fund Agreement with us (your "client"), the instructions
communication and actions specified in such agreement, subject to and in
reliance upon the following requirements and representations.
A. Requirements. 1. You will provide all necessary, requested, updating
and reconciling information to ensure the accuracy of records and to enable MFSC
to create and maintain an accurate cross-reference file between client records
and the Fund account records that shall remain the official records of all Fund
shareholder accounts. You agree that MFSC will not be responsible for changes to
the file until a reasonable time after receipt thereof. 2. You will provide in a
timely fashion all necessary and relevant information regarding adverse claims,
governmental and legal inquiries and correspondence to us, MFSC, the Fund or its
adviser, as appropriate, in connection with its handling of and responding to
such notices, inquiries, correspondence and claims, which may include its or
their placing restrictions on the redemption, transfer or exchange of Shares and
disclosing that you control accounts pursuant to this paragraph. 3. You will, on
behalf of each Fund, report to your clients all information which is required to
be-reported by the Fund on Shareholder confirmations or otherwise under any
applicable statute, rule or regulation or under the terms of the Prospectus, or
which is provided by us, MFSC, the Fund or the Fund's adviser to you and other
shareholders of the Fund and such information shall be complete, accurate and
timely. 4. You will ensure that cash distributions are accurately paid to your
client at the time specified by the Fund, and, as among the Funds, MFSC, you and
us you shall be solely responsible for any liabilities arising from payments
reported by clients as lost, stolen or forged.
B. Representations and Warranties. You represent and warrant to, and
agree with us, MFSC and the Funds that: you have and will continue to have the
necessary facilities, equipment and personnel to allow you to perform, and that
you will so perform all duties, functions, procedures or responsibilities
described herein and in the Networking agreement between you and us, each as
from time to time in effect, in a businesslike and competent manner, in
conformance with all applicable laws, rules and regulations (including without
limitation, all rules and requirements of the IRS and the Code, with respect to
tax reporting; with Rule 10b-10 under the Securities Exchange Act of 1934, with
respect to confirmation statements; and with all rules applicable to registered
transfer agents, with respect to duties generally hereunder), with the
Prospectuses and with all applicable rules and procedures of the NSCC and NASD
Regulation, Inc.; you or the originating firm has the prior sufficient consent
of each client whose account is to be placed in or transferred to a Networking
account, having first informed each such client in writing of all material facts
relating to such arrangement; all your instructions, communications and actions
regarding Networked accounts, including all transfers, will be rightful, will
have been duly and sufficiently authorized by your client, will be accurate and
complete and will be in the appropriate NSCC/DST Systems, Inc. format; if you
are acting as a clearing broker, you have obtained the prior written consent of
each originating firm to your entering into, and to all the terms of, this
paragraph and the Networking agreement and that all actions taken hereunder will
have been approved in advance by the applicable originating firm; the taking of
any action as to which MFSC normally requires a signature guarantee shall be
deemed to constitute your guarantee in proper order of your client's signature;
you will obtain and maintain, and upon request provide to MFSC, for each
Networking account all forms, applications, waivers, exemptions, certifications
or other documents or information required by applicable laws, rules or
regulations including, without limitation, state and federal securities and tax
laws, rules and regulations; you do not act as our agent under this paragraph;
and you have and will maintain adequate insurance coverage as is appropriate for
your duties and obligations hereunder, and will, upon request, provide us or
MFSC with a certificate of insurance evidencing your compliance.
Nothing herein shall prohibit us, any Fund, the advisers of the Funds
or MFSC from mailing or otherwise distributing to Shareholders any material
concerning the Funds or other funds or services now or hereafter offered by any
of us. We may terminate your participation in the transactions contemplated by
this paragraph and the Networking agreement at any time if you fail to comply
with any of the conditions set forth herein or, with respect to accounts of an
originating firm, the termination of our Dealer or Mutual Fund Agreement with
such firm, or in any event, or with respect to any accounts, with 30 days' prior
written notice. Such termination will not affect your responsibilities under
paragraph 24 with respect to such transactions.
17. You may purchase shares of the Funds for sale to your clients
(including without limitation Bank Trust Department clients) in a fee-based
program made available by you to your clients (the "Fee-Based Program"), and
afford your fee-based clients the opportunity to purchase such shares at net
asset value, subject to the following terms and conditions:
A. You must first notify us of your desire to include the Funds in the
Fee-Based Program and to institute the necessary operational procedures and
requirements as established by us from time to time.
B. You may in connection with the Fee-Based Program, sell shares of any
Funds made available by us, from time to time, at net asset value to your bona
fide clients participating in the Fee-Based Program. You will receive no
discount, commission or other concession with respect to any such sale, but will
be entitled to receive any service fees otherwise payable with respect thereto
to the extent provided from time to time in the applicable Funds' Prospectuses
and in this Agreement.
C. For any Fee-Based Program customer eligible to purchase Fund shares
at net asset value, you shall charge an annual fee to such customer of not more
than 2.50% of such customer's average net assets included in the Fee-Based
Program, nor less than 0.50% of such assets. You shall send to us upon request
from time to time the then-current standard fee schedule for the Fee-Based
Program. Brochures, written materials or advertising relating to the Fee-Based
Program may refer to the Funds as available at net asset value if the fees and
expenses of the Fee-Based Program are given at least equal prominence.
D. You will (i) provide us with continuous reasonable access to your
offices, representatives and mutual fund and Fee-Based Program sales support
personnel, to meetings, including national and regional sales conferences and
training programs, of your representatives and sales personnel, and include our
representatives on your internal sales lines and conference calls on a regular
basis, (ii) include descriptions of all Funds offered through the Fee-Based
Program in internal sales materials and electronic information displays used in
conjunction with the Fee-Based Program, (iii) use reasonable efforts to motivate
your representatives to recommend suitable Funds for clients of the Fee-Based
Program, (iv) provide us with sales information in reasonable Fund-by-Fund
detail, including identification of offices and representatives that account for
the most significant sales of shares of the Funds through the Fee-Based Program,
and (v) include the Funds on any approved, preferred or other similar list of
mutual fund products offered through the Fee-Based Program.
E. You may maintain with the Funds' shareholder servicing agent either
(i) one or more omnibus accounts solely for the clients of your Fee-Based
Program or (ii) separate accounts for each client of your Fee-Based Program. If
one or more omnibus accounts are maintained, you shall, among other things, be
responsible for forwarding proxies, annual and semi-annual reports and other
materials to each beneficial owner in a timely manner.
F. We are not endorsing, recommending or otherwise involved in
providing any investment product of yours, including but not limited to the
Fee-Based Program. We are merely affording you the opportunity to use shares of
the Funds as an investment medium for the Fee-Based Program. You acknowledge and
agree that you are solely responsible for the Fee-Based Program, and you hereby
authorize and instruct us, the Funds and our respective affiliates to accept,
rely upon and carry out instructions received from you or your affiliates with
respect to any purchase, redemption (including any redemption to pay fees),
exchange, account maintenance, request for information, or other matter
concerning any accounts maintained by you in connection with the Fee-Based
Program. You represent and warrant that all such instructions will be rightful
and will have been duly and sufficiently authorized by your clients.
18. Units of the MFS Fixed Fund may be offered for sale by you only to
retirement plans which have been determined by the IRS to be qualified for tax
exemption under sections 401 and 501 of the Code, to governmental plans within
the meaning of section 414(d) of the Code or to financial institutions which are
acting as trustee, custodian or agent for any such plan; excluding, however,
certain retirement plans which cover individuals some or all of whom are
self-employed, as further described in the Description (such eligible investors
are collectively referred to as "Qualified Investors"). With respect to Units
offered for sale by you to Qualified Investors, we will pay to you a periodic
distribution fee as described in the Description. No dealer discount or
commission is applicable to sales of the Units. All offers for sale of the Units
shall be subject to the terms of the Description. You agree that we have made no
representation to you with respect to the Units or the MFS Fixed Fund in
addition to, or conflicting with, the Description. We may terminate your ability
to offer the Units at any time if we believe or have reason to believe that you
have failed or may fail to comply with any of the conditions set forth herein
or, in any event, upon 10 days' prior written notice. Such termination will not
affect your responsibilities under paragraph 24 with respect to any transactions
affecting the Units.
19. We and you agree that all disputes between us of whatever subject
matter, whether existing on the date hereof or arising hereafter, shall be
submitted to arbitration in accordance with the Code of Arbitration Procedure of
the NASD, or similar rules or code, in effect at the time of the submission of
any such dispute.
20. You shall make available for your customers such administrative
services as are necessary or appropriate for providing information and services
to your customers. Such services and assistance may include, but not be limited
to, establishment and maintenance of accounts and records, processing purchase
and redemption transactions, answering routine inquiries, and such other
services as may be agreed upon from time to time and as may be permitted by
applicable statute, rule or regulation. You shall promptly answer all written
complaints received by you relating to Fund accounts or forward such complaints
to us.
21. The customers in question are your customers and MFS Fund
Distributors, Inc. will not engage in any activity which would interfere with
such relationship. The names of your customers shall remain your sole property
and shall not be used by MFS Fund Distributors, Inc. for any purpose except for
servicing and informational mailings in the normal course of business. This
confidentiality of customer information shall survive the termination of this
Agreement.
22. All communications to us shall be sent to MFS Service Center, Inc.,
000 Xxxxxxxx Xxxxxx, Xxxxxx XX 00000. Any notice to you shall be duly given if
mailed, telegraphed or sent by facsimile machine to you at the address specified
by you below. This Agreement shall be governed by and construed in accordance
with the internal laws of The Commonwealth of Massachusetts.
23. You appoint MFSC, the transfer agent for each Fund, as your agent
to execute the purchase transactions of Shares of such Fund in accordance with
the terms and provisions of any account, program, plan or service established or
used by your customers and to confirm each purchase to your customers on your
behalf, except as modified in writing by the transfer agent, and you represent
and guarantee to us, the Fund and the MFS Fixed Fund the legal capacity of your
customers purchasing such Shares or Units (including the satisfaction of the
eligibility requirements in the Description) and any other person in whose name
the Shares or Units are to be registered.
24. You agree that you shall indemnify and hold harmless us, MFSC, the
Funds, the MFS Fixed Fund and their affiliates, SEI (individually and as trustee
of the MFS Fixed Fund), Xxxxxx Asset Management Company ("Xxxxxx") (individually
and as investment adviser to the MFS Fixed Fund), and our and their affiliates,
officers, trustees, directors, employees, shareholders and agents (collectively,
the "Indemnitees") against any claims, losses, costs or liabilities, including
attorneys' fees, that may be assessed against, or suffered or incurred by any of
them, howsoever they arise, and as they are incurred, which relate in any way to
(1) any use of supplemental hypothetical information provided on computer
diskettes other than in one-on-one presentations or any misuse of or alteration
to any supplemental information; provided, however, that the addition of the
name of a customer or other identifying or variable information expressly
authorized by us within such supplemental information which calls for the
addition of such information is expressly permitted; (2) any transactions or
other activity processed through NSCC programs, including the automated mutual
fund order entry, settlement and registration verification system known as
Fund/Serv; if an agreement has been signed by you and us so to permit, the
program known as Networking; and the redemption of shares pursuant to paragraph
15; (3) any exchange requests initiated by you via facsimile (4) any
contribution accepted or order placed by you pursuant to paragraph 13 hereof,
including, but not limited to, any claims, losses or liabilities relating to the
loss of favorable tax status of an XXX Plan or contribution, any XXX revocation
by an individual in connection with an XXX Plan, and any failed trades for XXX
Plans hereunder, or any contribution accepted in violation of the terms of
paragraph 13 hereof (the indemnification provided under this subparagraph (4)
will extend to the Trustee as well as the parties listed above); (5) any account
established by your firm, or for which your firm is financial intermediary of
record, with a "transfer on death," "payable on death" or other similar
registration; (6) improper compliance with federal, state or local reporting
requirements or backup or nonresident alien withholding requirements, including
losses resulting from omitted, incorrect or uncertified TINS or the failure to
provide an accurate tax residence status; (7) any account changes made pursuant
to paragraph 14 thereof; (8) the Fee-Based Program, including without limitation
any brochures, written material or advertising in any form that refers to the
Funds or the Fee-Based Program, and any Indemnitee's acceptance, reliance upon
or carrying out of instructions received from you or your affiliates in
connection with the Fee-Based Program; and (9) any breach of your
representations or warranties, or failure to comply with your obligations, set
forth in this Agreement, in any event whether such action, failure, error,
omission, misconduct, or breach is committed by you or by your employee, agent
or clearing broker, whether or not acting within the scope of his employment,
agency or authority (the indemnification provided under this subparagraph (9)
will extend to the Trustee as well as the parties listed above).
You agree to notify us within a reasonable time of any claim against
you or any person who controls you within the meaning of Section 15 of the
Securities Act of 1933 with respect to securities offered hereunder.
Nothing in this paragraph 24 shall be deemed to preclude the
Indemnitees and the Trustee (with respect to subparagraph (4) or (9) above) from
seeking monetary damages and/or injunctive relief in connection with such
claims, losses and liabilities. This paragraph 24 will survive termination of
this Agreement or any provision hereof.
MFS FUND DISTRIBUTORS, INC.
By: ----------------------------
XXXXXXX X. XXXXX, XX.,
President
We have read the foregoing Agreement and accept and agree to the terms and
conditions thereof.
FIRM: -------------------------------------------------------------------------
By: ---------------------------------------------------------------------------
(Authorized Representative)
Title: ------------------------------------------------------------------------
Address: ----------------------------------------------------------------------
The above Agreement should be executed in duplicate and one copy resumed to us:
MFS Fund Distributors, Inc.
Banking Industry Marketing
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
