INSTITUTIONAL FORM
SERVICE AGREEMENT
This Agreement is entered into as of December 1, 1995 between The
Equitable Life Assurance Society of the United States ("Equitable"), a New
York corporation, and MFS Fund Distributors, Inc., a Delaware corporation
("MFS"), with respect to those registered investment companies distributed by
MFS that are identified on Schedule A attached hereto (the "Funds").
Equitable provides administrative services comprised of, but not limited
to, recordkeeping, reporting and processing services (the "Administrative
Services") to the American Dental Association Members Retirement Program,
consisting of tax-qualified employee benefit plans (the "Plans").
Administrative Services for each Plan include processing and transfer
arrangements for the investment and reinvestment of Plan assets in investment
media specified by the Trustees of the Plans' trusts generally upon the
direction of Plan beneficiaries (the "Participants"). The Administrative
Services are provided by Equitable under an administrative agreement with the
Plans' Trustees.
The Plans' Trustees have directed Equitable to establish separate account
No. 200 (the "Account") for the exclusive use of the Plans' trusts. The
contributions to the Account will be invested exclusively in Class A shares of
the MFS Emerging Growth Fund or such other Fund or Funds as the Plans'
Trustees may designate (the "Shares").
Equitable and MFS desire to facilitate the purchase and redemption of the
Shares on behalf of the Plans and their Participants through the Account,
subject to the terms and conditions of this Agreement.
Accordingly, the parties hereto agree as follows:
1. Performance of Services. Equitable agrees to perform
the administrative services and functions specified in Schedule B
attached hereto (the "Services") with respect to Shares owned by
Plans and included in the Account.
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2. Pricing Information. MFS or its designee will furnish Equitable,
subject to availability, on each business day that the New York Stock Exchange
is open for business ("Business Day"), with (i) net asset value information
for each Fund as at the close of regular trading (currently 4:00 p.m. Eastern
Time) on the New York Stock Exchange or at such other times at which a Fund's
net asset value is calculated as specified in such Fund's prospectus (the
"Close of Trading"), and (ii) dividend and capital gains information for each
Fund as it becomes available. MFS or its designee shall provide such
information, subject to availability, to Equitable by 6:30 p.m. Eastern Time
on the same Business Day. In the event that MFS or its designee furnishes to
Equitable a net asset value for a Fund which is thereafter determined to be
incorrect, the price correction for the Account will be effected by MFS or its
designee on the same basis as the price correction for any other shareholder
of the affected Fund. However, to the extent Participants had received Fund
redemption proceeds from the Account in excess of the amounts which should
have been paid as a result of such incorrect price, MFS agrees not to reduce
the number of Shares credited to the Account as a result of such overpayment,
and MFS agrees not to seek reimbursement from such Participants.
3. Orders; Distributions. Upon the receipt of instructions from
Participants, Equitable will transmit to MFS or its designee orders to
purchase or redeem Shares for the Account on the basis of those instructions.
Equitable agrees that orders for net purchases or net redemptions of Shares
for the Account derived from instructions received in proper form by
Equitable from Participants prior to the Close of Trading on any given
Business Day will be processed that same evening and transmitted to MFS or
its designee by 9:00 a.m. Eastern Time on the next Business Day. Equitable
agrees that payment for net purchases of Shares attributable to all orders
executed for the Account on a given Business Day will be wired by Equitable
or its designee on the same Business Day such purchase orders are transmitted
to MFS or its designee no later than 12:00 p.m. to a custodial account
designated by MFS. Subject to Equitable's compliance with the foregoing,
Equitable will be considered limited agent for the Funds for the purpose of
accepting purchase or redemption orders from Participants, and the Business
Day on which instructions are received in proper form by Equitable from
Participants by the Close of Trading will be the date as of which Shares will
be purchased and redeemed as a result of such instructions. Instructions
received in proper form by Equitable from Participants after the Close of
Trading on any given Business Day shall be treated as if received on the next
following Business Day. Dividends and capital gains
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distributions will be issued in additional shares of the applicable Fund at
net asset value in accordance with each Fund's then current prospectus.
It is acknowledged and agreed that decisions to allocate Plan assets to
the Account are made solely by Participants and, accordingly, no
representation is, or can be, made by Equitable or the Plans' Trustees
concerning a minimum aggregate investment in the Funds by the Account.
4. Maintenance of Records. Each party or its designee shall maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the Services and in making Shares available to the
Plans. Upon the reasonable request of MFS, Equitable shall provide copies of
all the historical records relating to transactions between the Funds and the
Plans, written communications regarding the Funds to or from such Plans and
other materials, in each case (i) as are maintained by Equitable in the
ordinary course of its business and in compliance with applicable laws and
regulations, and (ii) as may reasonably be requested to enable MFS or its
representatives, including without limitation its auditors or legal counsel,
to (a) monitor and review the Services, (b) comply with any request of a
governmental body or self-regulatory organization or a Plan, (c) verify
compliance by Equitable with the terms of this Agreement, (d) make required
regulatory reports, or (e) perform general customer supervision. Equitable
agrees that it will permit MFS or such representatives to have reasonable
access to its personnel and records in order to facilitate the monitoring of
the quality of the Services.
5. Compliance with Laws: Prospectuses. Proxy Statements, etc. At all times,
Equitable shall comply with all applicable laws, rules and regulations under
the Federal securities laws, including without limitation requirements for
delivery of prospectuses (which term includes prospectus supplements). MFS
agrees to provide to Equitable, at MFS' or the Funds' expense, whatever
quantities of Fund prospectuses, prospectus supplements, Statements of
Additional Information, annual and semi-annual reports that Equitable
reasonably determines it requires in connection with meeting its or the Plans'
Trustees' Fund communication and disclosure statement and delivery
requirements for Participants invested in the Funds. With regard to Fund proxy
statements for Fund shareholders, Equitable agrees to furnish MFS with a list
of the names and addresses, in a format reasonably acceptable to MFS and
Equitable, of all Participants
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investing in the applicable Fund through the Account, and will update such
list as of certain Fund shareholder record dates provided by MFS for such
purposes. MFS or its affiliates or agents will use such information to forward
Fund proxy statements to such Participants, and MFS or its affiliates or
agents shall solicit the return of such proxies as appropriate.
6. Representations With Respect to Funds.
(a) Equitable and its agents and representatives shall not make any
representations concerning a Fund or the Shares except those contained in the
then current prospectus of such Fund and in current sales literature prepared
by MFS.
(b) MFS agrees to provide reasonable assistance to Equitable in the
preparation of any sales literature, articles or advertising for the Account
describing investment in the Funds. Any sales material, articles, advertising,
registration statements (including any prospectuses, prospectus supplements or
Statements of Additional Information), annual and semi-annual reports or other
promotional materials prepared by Equitable which refer to any Fund, MFS or
the Funds' investment adviser will be subject to prior review and written
approval by MFS. MFS agrees to review all such materials promptly.
(c) MFS will provide reasonable training for Equitable's marketing and
operations staff, at the regular place of business of such staffs, concerning
the Funds in connection with Equitable's offering the Account to Participants.
(d) MFS will provide such periodic written reports as may reasonably be
requested by the Plan's Trustees and will arrange to send a representative of
MFS, the Funds or the Funds' investment adviser to meetings of the Plans'
Trustees, as may reasonably be requested from time to time.
(e) The parties acknowledge and agree that the Boards of Trustees of the
Funds retain control over whether or not the Shares will continue to be made
available for purchase by current or new investors. MFS agrees that, even if
the Shares are not generally made available for purchase by new investors, it
will recommend to the Boards of Trustees of the Funds that the Shares continue
to be made available for purchase by the Account in accordance with the terms
of this Agreement.
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7. Relationship of Parties. Except to the limited extent provided in
Section 3, it is understood and agreed that all Services performed hereunder
by Equitable shall be as an independent contractor and not as an employee or
agent of MFS or any of the Funds, and none of the parties shall hold itself
out as an agent of any other party with the authority to bind such party.
8. Use of MFS' Name. Except as otherwise expressly provided for in this
Agreement, Equitable shall not use, nor shall it allow its employees or agents
to use, any name, logo, trademark, service xxxx or other proprietary
designation of MFS, any affiliate of MFS, or any funds, products or services
sponsored, managed, advised, administered, or distributed by MFS or any of its
affiliates, in any advertisement, sales literature or prospectus without the
express prior written consent of MFS.
9. Fees: Expenses.
(a) In consideration of Equitable's performance of the Services, MFS
agrees to pay Equitable the Administrative Fees described in Schedule C (the
"Administrative Fees").
(b) The parties agree that the Administrative Fees are for administrative
services only and do not constitute payment in any manner for investment
advisory or distribution services.
(c) Equitable will calculate the Administrative Fees at the end of each
quarter, and MFS will make payment to Equitable within 30 days after its
receipt of an invoice therefor. Each invoice will be accompanied by a
statement showing the calculation of the Administrative Fees, together with
documentation sufficient for MFS to verify such calculation.
(d) Except as otherwise provided in this Agreement, each party shall bear
all expenses incidental to the performance of its obligations under this
Agreement.
10. Termination. This Agreement shall terminate,
(a) at the option of Equitable or MFS upon 30 days' advance
written notice to the other party hereto; or
(b) at the option of Equitable or of MFS, as the case may be, upon
written notice to the other party hereto of (i) the institution of formal
proceedings against the Funds or MFS, or
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against Equitable, as the case may be, by the National Association of
Securities Dealers, Inc., the Securities and Exchange Commission or any other
regulatory body; or (ii) MFS, or Equitable, as the case may be, being in
material breach of this Agreement, unless the party in breach cures the breach
to the reasonable satisfaction of the party alleging breach within 10 days
following such notice.
Nothing in this Agreement shall be construed to create an obligation on
the part of the Plans' Trustees or Equitable to maintain the Account as an
investment option for Participants or to prevent Equitable or the Plans'
Trustees from terminating the Account or changing its investment objective or
policies so as to no longer permit or require investment in the Funds.
11. Indemnification.
(a) Equitable agrees to indemnify and hold harmless MFS, the Funds and
their affiliates, the Funds' investment advisers, the Funds' administrators,
and each of their directors, trustees, officers, employees, agents and each
person, if any, who controls them within the meaning of the Securities Act,
against any losses, claims, damages, liabilities or expenses to which an
indemnitee may become subject insofar as those losses, claims, damages,
liabilities or expenses (or actions in respect thereof), arise out of or are
based upon: (i) the performance of Administrative Services by Equitable,
except for any loss, claim, damage, liability or expense arising out of the
execution or delivery by MFS of this Agreement or the performance by MFS of
its duties hereunder; (ii) Equitable's negligence or willful misconduct in
performing the Services; or (iii) any breach by Equitable of any material
representation, warranty or covenant made in this Agreement; and Equitable
will reimburse the indemnitees for any legal or other expenses reasonably
incurred, as incurred, by them in connection with investigating or defending
such loss, claim or action.
(b) MFS agrees to indemnify and hold harmless Equitable, the American
Dental Association and the Plans' Trustees, and each of their directors,
trustees, officers, employees, agents and each person, if any, who controls
them within the meaning of the Securities Act, against losses, claims,
damages, liabilities or expenses to which an indemnitee may become subject
insofar as those losses, claims, damages, liabilities or expenses (or actions
in respect thereof), arise out of or are based upon: (i) any failure by MFS to
respond in a reasonably timely manner to
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any reasonable request by Equitable for any Fund prospectus, prospectus
supplement, Statement of Additional Information, or annual or semi-annual
report relating to any Fund; (ii) any untrue statement of a material fact, or
omission to state a material fact required to be stated to make the statements
not misleading in any Funds' prospectus, prospectus supplement, Statement of
Additional Information, annual or semi-annual report, proxy statement, sales
literature, advertisement, article or other material prepared by MFS or the
Funds, or any description of the Funds, MFS or the Funds' investment adviser
set forth in a registration statement relating to the Plans filed by Equitable
or in any other document prepared by Equitable, in either case if such
description has been pre-approved in writing by MFS or the Funds; or (iii)
MFS' negligence or willful misconduct in performing its duties under this
Agreement; or (iii) any breach by MFS of any material representation, warranty
or covenant made in this Agreement; and MFS will reimburse the indemnitees for
any legal or other expenses reasonably incurred, as incurred, by them in
connection with investigating or defending such loss, claim or action.
(c) Nothing in this Section 11 or any other Section of this Agreement
shall be construed to require an indemnitor to indemnify any indemnitee for
any special, consequential or indirect damages.
12. Additional Representations. Warranties and Covenants.
Each party represents that (a) it is free to enter into this
Agreement and that by doing so it will not breach or otherwise
impair any other agreement or understanding with any other
person, corporation or other entity and (b) it has full power and
authority under applicable law, and has taken all action
necessary, to enter into and perform this Agreement. Equitable
further represents, warrants and covenants that:
i) the arrangements provided for in this Agreement
will be disclosed to the Plans through their representatives or
in a prospectus delivered to each Participant;
ii) it will not be a "fiduciary" of any Plan with respect to the
provision of the Administrative Services, the Services or with respect to a
Plan's purchase of Shares, as such term is defined in Section 3(21) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code");
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iii) the receipt of the Administrative Fees described in Section 9
hereof by Equitable will not constitute a non-exempt "prohibited transaction"
as such term is defined in Section 406 of ERISA and Section 4975 of the Code;
iv) it is not required to be registered as a broker-dealer or a
transfer agent under the 1934 Act or any applicable state securities laws as a
result of entering into and performing the Services set forth in this
Agreement; and
v) the Account is not required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the units of interest in
the Account will be registered under the Securities Act prior to offering such
units to Participants, and such registration will remain in effect as long as
units of the Account are offered to Participants.
MFS further represents, warrants and covenants that:
i) it is registered as a broker-dealer under the 1934
Act and any applicable state securities laws;
ii) each Fund is registered as an investment company under the 1940
Act, and its Shares are registered under the Securities Act, and such
registrations will remain in effect as long as the Account holds Shares;
iii) it shall treat as confidential the information provided by
Equitable and the Plans' Trustees concerning the American Dental Association
Members Retirement Program, the Plans' Trusts and the Participants and shall
not use such information for any purposes except those specified in this
Agreement; and
iv) during the term of this Agreement, it will not impose a
front-end sales charge or a contingent deferred sales charge on purchases or
redemptions of Shares for the Account.
13. Notice. Each notice required by this Agreement shall be given in
writing and delivered personally or mailed by certified mail or courier
service to the other party at the following address or such other address as
each party may give notice to the other:
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If to Equitable to:
The Equitable Life Assurance
Society of the United States
000 Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
with a copy to:
The Equitable Life Assurance
Society of the United States
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
to MFS:
MFS Fund Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Grip
with a copy to:
Massachusetts Financial Services Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
A notice given pursuant to this Section 13 shall be deemed given immediately
when delivered personally, three days after the date of certified mailing, or
one day after delivery by courier service.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts.
15. General Provisions. This Agreement contains the full and complete
understanding of the parties and supersedes all prior representations,
promises, statements, arrangements, agreements, warranties and understandings
between the parties with respect to the subject matter hereof, whether oral or
written, express or implied. This Agreement may be modified or
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amended, and the terms of this Agreement may be waived, only by a writing
signed by each of the parties. This Agreement shall not be assigned by either
party hereto, without the prior written consent of the other party hereto. The
provisions of Sections 4 and 11 shall survive termination of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the 1st day of December, 1995.
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:
-----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
MFS FUND DISTRIBUTORS, INC.
By:
----------------------
Name: Xxxxxxx Xxxxx, Jr.
Title: President
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SCHEDULE A
AVAILABLE MFS FUNDS
Massachusetts Investors Trust
Massachusetts Investors Growth Stock Fund
MFS Capital Growth Fund
MFS Emerging Growth Fund
MFS Gold & Natural Resources Fund
MFS Growth Opportunities Fund
MFS Managed Sectors Fund
MFS OTC Fund
MFS Research Fund
MFS Value Fund
MFS Total Return Fund
MFS Utilities Fund
MFS Bond Fund
MFS Government Mortgage Fund
MFS Government Securities Fund
MFS High Income Fund
MFS Intermediate Income Fund
MFS Strategic Income Fund
MFS Government Limited Maturity Fund
MFS Limited Maturity Fund
MFS World Asset Allocation Fund
MFS World Equity Fund
MFS World Governments Fund
MFS World Growth Fund
MFS World Total Return Fund
MFS Cash Reserve Fund
MFS Government Money Market Fund
MFS Money Market Fund
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SCHEDULE B
The Services
Equitable shall perform the following services, all in accordance with the
terms of this Agreement (in performing the following services, it is understood
that the only investment in the Account are the Shares, and that Participants
receive reports indicating the number of Account units of interest
(representing Shares) which are credited to their account under the Plan):
1. Maintain separate records for each Plan, which records shall reflect
Shares purchased and redeemed, including the date and price for all
transactions, and Share balances.
2. Disburse or credit to the Plans, and maintain records of, all proceeds
of redemptions of shares and all other distributions not reinvested in Shares.
3. Prepare, and transmit to the Plans periodic account statements showing
the total number of Shares owned by each Plan as of the statement closing
date, purchases and redemptions of Shares by the Plan during the period
covered by the statement, and the dividends and other distributions paid to
the Plan during the statement period (whether paid in cash or reinvested in
Shares)
4. Transmit to the transfer agent of each Fund aggregate purchase orders
and redemption requests placed by the Plans.
5. Transmit to MFS or the Funds or any of the agents designated by any of
them such periodic reports as MFS or any Fund shall reasonably conclude is
necessary to enable MFS or such Fund to comply with federal or state Blue Sky
requirements.
6. Transmit to the Plans confirmations of purchase orders and redemption
requests placed by the Plans.
7. Maintain all account balance information for the Plans and daily and
monthly purchase summaries expressed in Shares and dollar amounts.
8. Reconcile purchase order and redemption requests placed by Equitable
on behalf of the Plans in accordance with the terms of each Fund's prospectus.
9. Prepare, file or transmit all Federal, state and local government
reports and returns, if any, as required by law with respect to the Account.
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SCHEDULE C
THE ADMINISTRATIVE FEES
The Administrative Fees payable each quarter with respect to a Fund shall
be in an amount equal to the average daily net assets invested in such Fund
during the quarter multiplied by the applicable per annum rate (i.e. from 0.0%
up to, but not necessarily all of, 0.25% of the average daily net asset value
of Shares of the Funds held by a Plan during each quarter, as specified in
writing from time to time by MFS) by a fraction the numerator of which is the
number of days in the quarter and the denominator of which is 365.
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