<PAGE>
As filed with the Securities and Exchange Commission on October 13, 1995
1933 Act File No. 2-60491
1940 Act File No. 811-2794
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM N-1A
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
POST-EFFECTIVE AMENDMENT NO. 21
AND
REGISTRATION STATEMENT UNDER
THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 23
MFS SERIES TRUST III
(Exact name of Registrant as Specified in Charter)
500 Boylston Street, Boston, Massachusetts 02116
(Address of Principal Executive Offices)
Registrant's Telephone Number, including Area Code: (617) 954-5000
Stephen E. Cavan, Massachusetts Financial Services Company
500 Boylston Street, Boston, Massachusetts 02116
(Name and Address of Agent for Service)
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING:
It is proposed that this filing will become effective (check appropriate box)
|X| immediately upon filing pursuant to paragraph (b)
|_| on [DATE] pursuant to paragraph (b)
|_| 60 days after filing pursuant to paragraph (a)(i)
|_| on [DATE] pursuant to paragraph (a)(i)
|_| 75 days after filing pursuant to paragraph (a)(ii)
|_| on [DATE] pursuant to paragraph (a)(ii) of rule 485.
If appropriate, check the following box:
|_| this post-effective amendment designates a new effective date for a
previously filed post-effective amendment
Pursuant to Rule 24f-2, the Registrant has registered an indefinite number of
its Shares of Beneficial Interest (without par value), under the Securities Act
of 1933. The Registrant filed a Rule 24f-2 Notice with respect to its fiscal
year ended January 31, 1995 on March 30, 1995.
<PAGE>
PART C
Item 24. Financial Statements and Exhibits
(a) Financial Statements Included in Part A:
For each of the years in the ten-year period ended January
31, 1995:
Financial Highlights*
Financial Statements Included in Part B:
At January 31, 1995:
Statement of Assets and Liabilities*
Portfolio of Investments*
For the year ended January 31, 1995:
Statement of Operations*
For the two years ended January 31, 1995:
Statement of Changes in Net Assets*
- -----------------------------
* Incorporated herein by reference to the Fund's Annual Report to shareholders
dated January 31, 1995, filed via EDGAR with the SEC on March 28, 1995.
(b) Exhibits
1 Amended and Restated Declaration of Trust, dated February
17, 1995. (1)
2 Amended and Restated By-Laws, dated December 21, 1994. (1)
3 Not Applicable.
4 Form of Share Certificate for Class A, Class B and Class C
Shares. (3)
5 (a) Investment Advisory Agreement for MFS High Income Fund,
dated May 20, 1987. (1)
(b) Investment Advisory Agreement for MFS Municipal High Income
Fund dated September 1, 1993; filed herewith.
6 (a) Dealer Agreement between MFS Fund Distributors, Inc.
("MFD"), and a dealer dated December 28, 1994 and the
Mutual Fund Agreement between MFD and a bank or NASD
affiliate, dated December 28, 1994. (2)
<PAGE>
(b) Distribution Agreement, dated January 1, 1995. (1)
7 Retirement Plan for Non-Interested Person Trustees, dated
February 1, 1991; filed herewith.
8 (a) Custodian Agreement, dated May 24, 1988; filed herewith.
(b) Amendment to Custodian Agreement, dated May 24, 1988;
filed herewith.
(c) Amendment to Custodian Agreement, dated October 1, 1989;
filed herewith.
(d) Amendment to Custodian Agreement, dated September 17, 1991;
filed herewith.
9 (a) Shareholder Servicing Agent Agreement, dated August 1,
1985; filed herewith.
(b) Amendment to the Shareholder Servicing Agreement dated
December 28, 1993; filed herewith.
(c) Exchange Privilege Agreement, dated February 8, 1989 as
amended through September 1, 1993. (3)
(d) Loan Agreement by and among the Banks named therein, the
MFS Funds named therein, and The First National Bank of
Boston, dated as of February 21, 1995. (4)
(e) Dividend Disbursing Agency Agreement, dated February 1,
1986. (3)
10 Consent and Opinion of Counsel filed with Registrant's Rule
24f-2 Notice for the fiscal year ended January 31, 1995 on
March 30, 1995.
11 (a) Consent of Deloitte & Touche - MFS High Income Fund. (1)
(b) Consent of Ernst & Young - MFS Municipal High Income
Fund. (1)
<PAGE>
(c) Consent of Coopers & Lybrand - MFS Municipal High Income
Fund. (1)
12 Not Applicable.
13 Not Applicable.
14 (a) Forms for Individual Retirement Account Disclosure
Statement as currently in effect. (5)
(b) Forms for MFS 403(b) Custodial Account Agreement as
currently in effect. (5)
(c) Forms for MFS Prototype Paired Defined Contribution Plans
and Trust Agreement as currently in effect. (5)
15 (a) Amended and Restated Distribution Plan for Class A shares
of MFS High Income Fund, dated December 21, 1994. (1)
(b) Distribution Plan for Class B shares of MFS High Income
Fund, dated December 21, 1994. (1)
(c) Distribution Plan for Class C shares of MFS High Income
Fund, dated December 21, 1994. (1)
(d) Distribution Plan for Class B shares of MFS Municipal High
Income Fund, dated December 21, 1994. (1)
16 Schedule of Computation for Performance Quotations - Yield,
Distribution Rate, Total Rate of Return - MFS High Income
Fund; and Yield, Distribution Rate, Tax-Equivalent Yield
and Total Return - MFS Municipal High Income Fund. (2)
17 Financial Data Schedules for each class of each series. (1)
<PAGE>
Power of Attorney, dated September 21, 1994. (1)
- -----------------------------
(1) Incorporated by reference to the Registrant's Post-Effective Amendment
No. 20 filed with the SEC via EDGAR on May 31, 1995.
(2) Incorporated by reference to MFS Municipal Series Trust (File Nos.
2-92915 and 811-4096) Post-Effective Amendment No. 26 filed with the
SEC via EDGAR on February 22, 1995.
(3) Incorporated by reference to MFS Municipal Series Trust (File Nos.
2-92915 and 811-4096) Post-Effective Amendment No. 28 filed with the
SEC via EDGAR on July 28, 1995.
(4) Incorporated by reference to Amendment No. 8 on Form N-2 for MFS
Municipal Income Trust (File No. 811-4841) filed with the SEC via EDGAR
on February 28, 1995.
(5) Incorporated by reference to MFS Series Trust IX (File Nos. 2-50409 and
811-2464) Post-Effective Amendment No. 32 filed with the SEC via EDGAR
on August 28, 1995.
Item 25. Persons Controlled by or under Common Control with Registrant.
Not Applicable.
Item 26. Number of Holders of Securities
For MFS High Income Fund
(1) (2)
Title of Class Number of Record Holders
Class A Shares of Beneficial Interest 32,629
(without par value) (as of August 31, 1995)
Class B Shares of Beneficial Interest 13,665
(without par value) (as of August 31, 1995)
Class C Shares of Beneficial Interest 289
(without par value) (as of August 31, 1995)
For MFS Municipal High Income Fund
(1) (2)
Title of Class Number of Record Holders
Class A Shares of Beneficial Interest 31,153
(without par value) (as of August 31, 1995)
Class B Shares of Beneficial Interest 2,592
(without par value) (as of August 31, 1995)
<PAGE>
Item 27. Indemnification
Reference is hereby made to (a) Article V of Registrant's Declaration
of Trust, incorporated by reference to Post-Effective Amendment No. 20, filed
with the SEC on May 31, 1995 and (b) Section 9 of the Shareholder Servicing
Agent Agreement; filed herewith.
The Trustees and Officers of the Registrant and the personnel of the
Registrant's investment adviser and principal underwriter are insured under an
errors and omissions liability insurance policy. The Registrant and its officers
are also insured under the fidelity bond required by Rule 17g-1 under the
Investment Company Act of 1940.
Item 28. Business and Other Connections of Investment Adviser
MFS serves as investment adviser to the following open-end Funds
comprising the MFS Family of Funds: Massachusetts Investors Trust, Massachusetts
Investors Growth Stock Fund, MFS Growth Opportunities Fund, MFS Government
Securities Fund, MFS Government Limited Maturity Fund, MFS Series Trust I (which
has three series: MFS Managed Sectors Fund, MFS Cash Reserve Fund and MFS World
Asset Allocation Fund), MFS Series Trust II (which has four series: MFS Emerging
Growth Fund, MFS Capital Growth Fund, MFS Intermediate Income Fund and MFS Gold
& Natural Resources Fund), MFS Series Trust III (which has two series: MFS High
Income Fund and MFS Municipal High Income Fund), MFS Series Trust IV (which has
four series: MFS Money Market Fund, MFS Government Money Market Fund, MFS
Municipal Bond Fund and MFS OTC Fund), MFS Series Trust V (which has two series:
MFS Total Return Fund and MFS Research Fund), MFS Series Trust VI (which has
three series: MFS World Total Return Fund, MFS Utilities Fund and MFS World
Equity Fund), MFS Series Trust VII (which has two series: MFS World Governments
Fund and MFS Value Fund), MFS Series Trust VIII (which has two series: MFS
Strategic Income Fund and MFS World Growth Fund), MFS Series Trust IX (which has
three series: MFS Bond Fund, MFS Limited Maturity Fund and MFS Municipal Limited
Maturity Fund), MFS Series Trust X (which has four series: MFS Government
Mortgage Fund, MFS/Foreign & Colonial Emerging Markets Equity Fund, MFS/Foreign
and Colonial International Growth Fund and MFS/Foreign and Colonial
International Growth & Income Fund), and MFS Municipal Series Trust (which has
19 series: MFS Alabama Municipal Bond Fund, MFS Arkansas Municipal Bond Fund,
MFS California Municipal Bond Fund, MFS Florida Municipal Bond Fund, MFS Georgia
Municipal Bond Fund, MFS Louisiana Municipal Bond Fund, MFS Maryland Municipal
Bond Fund, MFS Massachusetts Municipal Bond Fund, MFS Mississippi Municipal Bond
Fund, MFS New York Municipal Bond Fund, MFS North Carolina Municipal Bond Fund,
MFS Pennsylvania Municipal Bond Fund, MFS South Carolina Municipal Bond Fund,
MFS Tennessee Municipal Bond Fund, MFS Texas Municipal Bond Fund, MFS Virginia
Municipal Bond Fund, MFS Washington Municipal Bond Fund, MFS West Virginia
Municipal Bond Fund and MFS Municipal Income Fund) (the "MFS Funds"). The
principal business address of each of the aforementioned Funds is 500 Boylston
Street, Boston, Massachusetts 02116.
MFS also serves as investment adviser of the following no-load,
open-end Funds: MFS Institutional Trust ("MFSIT") (which has seven series), MFS
Variable Insurance Trust
<PAGE>
("MVI") (which has twelve series) and MFS Union Standard Trust ("UST")
(which has two series). The principal business address of each of the
aforementioned Funds is 500 Boylston Street, Boston, Massachusetts 02116.
In addition, MFS serves as investment adviser to the following
closed-end Funds: MFS Municipal Income Trust, MFS Multimarket Income Trust, MFS
Government Markets Income Trust, MFS Intermediate Income Trust, MFS Charter
Income Trust and MFS Special Value Trust (the "MFS Closed-End Funds"). The
principal business address of each of the aforementioned Funds is 500 Boylston
Street, Boston, Massachusetts 02116.
Lastly, MFS serves as investment adviser to MFS/Sun Life Series Trust
("MFS/SL"), Sun Growth Variable Annuity Funds, Inc. ("SGVAF"), Money Market
Variable Account, High Yield Variable Account, Capital Appreciation Variable
Account, Government Securities Variable Account, World Governments Variable
Account, Total Return Variable Account and Managed Sectors Variable Account. The
principal business address of each is One Sun Life Executive Park, Wellesley
Hills, Massachusetts 02181.
MFS International Ltd. ("MIL"), a limited liability company organized
under the laws of the Republic of Ireland and a subsidiary of MFS, whose
principal business address is 41-45 St. Stephen's Green, Dublin 2, Ireland,
serves as investment adviser to and distributor for MFS International Fund
(which has four portfolios: MFS International Funds-U.S. Equity Fund, MFS
International Funds-U.S. Emerging Growth Fund, MFS International
Funds-International Government Fund and MFS International Funds-Charter Income
Fund) (the "MIL Funds"). The MIL Funds are organized in Luxembourg and qualify
as an undertaking for collective investments in transferable securities (UCITS).
The principal business address of the MIL Funds is 47, Boulevard Royal, L-2449
Luxembourg.
MIL also serves as investment adviser to and distributor for MFS
Meridian U.S. Government Bond Fund, MFS Meridian Charter Income Fund, MFS
Meridian Global Government Fund, MFS Meridian U.S. Emerging Growth Fund, MFS
Meridian Global Equity Fund, MFS Meridian Limited Maturity Fund, MFS Meridian
World Growth Fund, MFS Meridian Money Market Fund, MFS Meridian World Total
Return Fund and MFS Meridian U.S. Equity Fund (collectively the "MFS Meridian
Funds"). Each of the MFS Meridian Funds is organized as an exempt company under
the laws of the Cayman Islands. The principal business address of each of the
MFS Meridian Funds is P.O. Box 309, Grand Cayman, Cayman Islands, British West
Indies.
MFS International (U.K.) Ltd. ("MIL-UK"), a private limited company
registered with the Registrar of Companies for England and Wales whose current
address is 4 John Carpenter Street, London, England ED4Y 0NH, is involved
primarily in marketing and investment research activities with respect to
private clients and the MIL Funds and the MFS Meridian Funds.
MFS Fund Distributors, Inc. ("MFD"), a wholly owned subsidiary of
MFS, serves as distributor for the MFS Funds, MVI, UST and MFSIT.
<PAGE>
Clarendon Insurance Agency, Inc. ("CIAI"), a wholly owned subsidiary
of MFS, serves as distributor for certain life insurance and annuity contracts
issued by Sun Life Assurance Company of Canada (U.S.).
MFS Service Center, Inc. ("MFSC"), a wholly owned subsidiary of MFS,
serves as shareholder servicing agent to the MFS Funds, the MFS Closed-End
Funds, MFSIT, MVI and UST.
MFS Asset Management, Inc. ("AMI"), a wholly owned subsidiary of MFS,
provides investment advice to substantial private clients.
MFS Retirement Services, Inc. ("RSI"), a wholly owned subsidiary of
MFS, markets MFS products to retirement plans and provides administrative and
record keeping services for retirement plans.
MFS
The Directors of MFS are A. Keith Brodkin, Jeffrey L. Shames, Arnold
D. Scott, John R. Gardner and John D. McNeil. Mr. Brodkin is the Chairman,
Mr. Shames is the President, Mr. Scott is a Senior Executive Vice President
and Secretary, Bruce C. Avery, William S. Harris, William W. Scott, Jr., and
Patricia A. Zlotin are Executive Vice Presidents, James E. Russell is a Senior
Vice President and the Treasurer, Stephen E. Cavan is a Senior Vice President,
General Counsel and an Assistant Secretary, Joseph W. Dello Russo is a Senior
Vice President and Chief Financial Officer, Robert T. Burns is a Vice
President and an Assistant Secretary of MFS, and Mary Kay Doherty is a Vice
President and Assistant Treasurer.
Massachusetts Investors Trust
Massachusetts Investors Growth Stock Fund
MFS Growth Opportunities Fund
MFS Government Securities Fund
MFS Series Trust I
MFS Series Trust V
MFS Series Trust VI
MFS Series Trust X
MFS Government Limited Maturity Fund
A. Keith Brodkin is the Chairman and President, Stephen E. Cavan is
the Secretary, W. Thomas London is the Treasurer, James O. Yost, Vice
President of MFS, is the Assistant Treasurer, James R. Bordewick, Jr., Vice
President and Associate General Counsel of MFS, is the Assistant Secretary.
<PAGE>
MFS Series Trust II
A. Keith Brodkin is the Chairman and President, Leslie J. Nanberg,
Senior Vice President of MFS, is a Vice President, Stephen E. Cavan is the
Secretary, W. Thomas London is the Treasurer, James O. Yost is the Assistant
Treasurer, and James R. Bordewick, Jr., is the Assistant Secretary.
MFS Government Markets Income Trust
MFS Intermediate Income Trust
A. Keith Brodkin is the Chairman and President, Patricia A. Zlotin,
Executive Vice President of MFS and Leslie J. Nanberg, Senior Vice President
of MFS, are Vice Presidents, Stephen E. Cavan is the Secretary, W. Thomas
London is the Treasurer, James O. Yost is the Assistant Treasurer, and James
R. Bordewick, Jr., is the Assistant Secretary.
MFS Series Trust III
A. Keith Brodkin is the Chairman and President, James T. Swanson,
Robert J. Manning, Cynthia M. Brown and Joan S. Batchelder, Senior Vice
Presidents of MFS, Bernard Scozzafava, Vice President of MFS, and Matthew
Fontaine, Assistant Vice President of MFS, are Vice Presidents, Sheila
Burns-Magnan and Daniel E. McManus, Assistant Vice Presidents of MFS, are
Assistant Vice Presidents, Stephen E. Cavan is the Secretary, W. Thomas London
is the Treasurer, James O. Yost is the Assistant Treasurer, and James R.
Bordewick, Jr., is the Assistant Secretary.
MFS Series Trust IV
MFS Series Trust IX
A. Keith Brodkin is the Chairman and President, Robert A. Dennis and
Geoffrey L. Kurinsky, Senior Vice Presidents of MFS, are Vice Presidents,
Stephen E. Cavan is the Secretary, W. Thomas London is the Treasurer, James O.
Yost is the Assistant Treasurer and James R. Bordewick, Jr., is the Assistant
Secretary.
MFS Series Trust VII
A. Keith Brodkin is the Chairman and President, Leslie J. Nanberg and
Stephen C. Bryant, Senior Vice Presidents of MFS, are Vice Presidents, Stephen
E. Cavan is the Secretary, W. Thomas London is the Treasurer, James O. Yost is
the Assistant Treasurer and James R. Bordewick, Jr., is the Assistant
Secretary.
MFS Series Trust VIII
A. Keith Brodkin is the Chairman and President, Jeffrey L. Shames,
Leslie J. Nanberg, Patricia A. Zlotin, James T. Swanson and John D.
Laupheimer, Jr., Vice President of MFS, are Vice Presidents, Stephen E. Cavan
is the Secretary, W. Thomas London is the
<PAGE>
Treasurer, James O. Yost is the Assistant Treasurer and James R. Bordewick,
Jr., is the Assistant Secretary.
MFS Municipal Series Trust
A. Keith Brodkin is the Chairman and President, Cynthia M. Brown and
Robert A. Dennis are Vice Presidents, David B. Smith, Geoffrey L. Schechter
and David R. King, Vice Presidents of MFS, are Vice Presidents, Stephen E.
Cavan is the Secretary, W. Thomas London is the Treasurer, James O. Yost is
the Assistant Treasurer and James R. Bordewick, Jr., is the Assistant
Secretary.
MFS Variable Insurance Trust
MFS Union Standard Trust
MFS Institutional Trust
A. Keith Brodkin is the Chairman and President, Stephen E. Cavan is
the Secretary, W. Thomas London is the Treasurer, James O. Yost is the
Assistant Treasurer and James R. Bordewick, Jr., is the Assistant Secretary.
MFS Municipal Income Trust
A. Keith Brodkin is the Chairman and President, Cynthia M. Brown and
Robert J. Manning are Vice Presidents, Stephen E. Cavan is the Secretary, W.
Thomas London is the Treasurer, James O. Yost, is the Assistant Treasurer and
James R. Bordewick, Jr., is the Assistant Secretary.
MFS Multimarket Income Trust
MFS Charter Income Trust
A. Keith Brodkin is the Chairman and President, Patricia A. Zlotin,
Leslie J. Nanberg and James T. Swanson are Vice Presidents, Stephen E. Cavan
is the Secretary, W. Thomas London is the Treasurer, James O. Yost, Vice
President of MFS, is the Assistant Treasurer and James R. Bordewick, Jr., is
the Assistant Secretary.
MFS Special Value Trust
A. Keith Brodkin is the Chairman and President, Jeffrey L. Shames,
Patricia A. Zlotin and Robert J. Manning are Vice Presidents, Stephen E. Cavan
is the Secretary, W. Thomas London is the Treasurer, and James O. Yost, is the
Assistant Treasurer and James R. Bordewick, Jr., is the Assistant Secretary.
SGVAF
W. Thomas London is the Treasurer.
<PAGE>
MIL
A. Keith Brodkin is a Director and the Chairman, Arnold D. Scott and
Jeffrey L. Shames are Directors, Ziad Malek, Senior Vice President of MFS, is
the President, Thomas J. Cashman, Jr., a Senior Vice President of MFS, is a
Senior Vice President, Stephen E. Cavan is a Director, Senior Vice President
and the Clerk, James R. Bordewick, Jr. is a Director, Vice President and an
Assistant Clerk, Robert T. Burns is an Assistant Clerk, Joseph W. Dello Russo
is the Treasurer and James E. Russell is the Assistant Treasurer.
MIL-UK
A. Keith Brodkin is a Director and the Chairman, Arnold D. Scott,
Jeffrey L. Shames, and James R. Bordewick, Jr., are Directors, Stephen E.
Cavan is a Director and the Secretary, Ziad Malek is the President, Joseph W.
Dello Russo is the Treasurer, and Robert T. Burns is the Assistant Secretary.
MIL Fund
A. Keith Brodkin is the Chairman, President and a Director, Richard
B. Bailey, John A. Brindle and Richard W. S. Baker are Directors, Stephen E.
Cavan is the Secretary, W. Thomas London is the Treasurer, James O. Yost is
the Assistant Treasurer and James R. Bordewick, Jr., is the Assistant
Secretary, and Ziad Malek is a Senior Vice President.
MFS Meridian Fund
A. Keith Brodkin is the Chairman, President and a Director, Richard
B. Bailey, John A. Brindle, Richard W. S. Baker, Arnold D. Scott and Jeffrey
L. Shames are Directors, Stephen E. Cavan is the Secretary, W. Thomas London
is the Treasurer, James R. Bordewick, Jr., is the Assistant Secretary, James
O. Yost is the Assistant Treasurer, and Ziad Malek is a Senior Vice President.
MFD
A. Keith Brodkin is the Chairman and a Director, Arnold D. Scott and
Jeffrey L. Shames are Directors, William W. Scott, Jr., an Executive Vice
President of MFS, is the President, Stephen E. Cavan is the Secretary, Robert
T. Burns is the Assistant Secretary, Joseph W. Dello Russo is the Treasurer,
and James E. Russell is the Assistant Treasurer.
CIAI
A. Keith Brodkin is the Chairman and a Director, Arnold D. Scott and
Jeffrey L. Shames are Directors, Cynthia Orcott is President, Bruce C. Avery
is the Vice President, Joseph W. Dello Russo is the Treasurer, James E.
Russell is the Assistant Treasurer, Stephen E. Cavan is the Secretary, and
Robert T. Burns is the Assistant Secretary.
<PAGE>
MFSC
A. Keith Brodkin is the Chairman and a Director, Arnold D. Scott and
Jeffrey L. Shames are Directors, Joseph A. Recomendes, a Senior Vice President
of MFS, is Vice Chairman and a Director, Janet A. Clifford is the Executive
Vice President, Joseph W. Dello Russo is the Treasurer, James E. Russell is
the Assistant Treasurer, Stephen E. Cavan is the Secretary, and Robert T.
Burns is the Assistant Secretary.
AMI
A. Keith Brodkin is the Chairman and a Director, Jeffrey L. Shames,
and Arnold D. Scott are Directors, Thomas J. Cashman, Jr., is the President
and a Director, Leslie J. Nanberg is a Senior Vice President, a Managing
Director and a Director, George F. Bennett, Carol A. Corley, John A. Gee,
Brianne Grady and Kevin R. Parke are Senior Vice Presidents and Managing
Directors, Joseph W. Dello Russo is the Treasurer, James E. Russell is the
Assistant Treasurer and Robert T. Burns is the Secretary.
RSI
William W. Scott, Jr., Joseph A. Recomendes and Bruce C. Avery are
Directors, Arnold D. Scott is the Chairman and a Director, Douglas C. Grip, a
Senior Vice President of MFS, is the President, Joseph W. Dello Russo is the
Treasurer, James E. Russell is the Assistant Treasurer, Stephen E. Cavan is
the Secretary, Robert T. Burns is the Assistant Secretary and Sharon A.
Brovelli is a Senior Vice President.
In addition, the following persons, Directors or officers of MFS, have
the affiliations indicated:
A. Keith Brodkin Director, Sun Life Assurance Company of
Canada (U.S.), One Sun Life Executive Park,
Wellesley Hills, Massachusetts
Director, Sun Life Insurance and Annuity
Company of New York, 67 Broad Street,
New York, New York
John R. Gardner President and a Director, Sun Life Assurance
Company of Canada, Sun Life Centre,
150 King Street West, Toronto, Ontario,
Canada (Mr. Gardner is also an officer and/or
Director of various subsidiaries and
affiliates of Sun Life)
John D. McNeil Chairman, Sun Life Assurance Company of
Canada, Sun Life Centre, 150 King Street
West, Toronto, Ontario, Canada (Mr. McNeil
is also an officer and/or Director of various
subsidiaries and affiliates of Sun Life)
<PAGE>
Joseph W. Dello Russo Director of Mutual Fund Operations, The
Boston Company, Exchange Place, Boston,
Massachusetts (until August, 1994)
Item 29. Distributors
(a) Reference is hereby made to Item 28 above.
(b) Reference is hereby made to Item 28 above; the principal business
address of each of these persons is 500 Boylston Street, Boston, Massachusetts
02116.
(c) Not applicable.
Item 30. Location of Accounts and Records
The accounts and records of the Registrant are located, in whole or in
part, at the office of the Registrant and the following locations:
NAME ADDRESS
Massachusetts Financial Services 500 Boylston Street
Company (investment adviser) Boston, MA 02116
MFS Fund Distributors, Inc. 500 Boylston Street
(principal underwriter) Boston, MA 02116
State Street Bank and Trust Company State Street South
(custodian) 5-West
North Quincy, MA 02171
MFS Service Center, Inc. 500 Boylston Street
(transfer agent) Boston, MA 02116
Item 31. Management Services
Not Applicable.
Item 32. Undertakings
(a) Not Applicable.
(b) Not Applicable.
<PAGE>
(c) Registrant undertakes to furnish each person to whom a prospectus
is delivered with a copy of its latest annual report to shareholders upon
request and without charge.
(d) Insofar as indemnification for liability arising under the
Securities Act of 1933 may be permitted to trustees, officers and controlling
persons of the Registrant pursuant to the provisions set forth in Item 27 of
this Part C, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a trustee, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the Securities being Registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 and the
Investment Company Act of 1940, the Registrant certifies that it meets all of
the requirements for effectiveness of this Registration Statement pursuant to
Rule 485(b) under the Securities Act of 1933 and has duly caused this
Post-Effective Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereto duly authorized, in the City of Boston and
The Commonwealth of Massachusetts on the 5th day of October, 1995.
MFS SERIES TRUST III
By: JAMES R. BORDEWICK, JR.
Name: James R. Bordewick, Jr.
Title: Assistant Secretary
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment to its Registration Statement has been signed
below by the following persons in the capacities indicated on October 5, 1995.
SIGNATURE TITLE
A. KEITH BRODKIN* Chairman, President (Principal Executive
A. Keith Brodkin Officer) and Trustee
W. THOMAS LONDON* Treasurer (Principal Financial Officer
W. Thomas London and Principal Accounting Officer)
RICHARD B. BAILEY* Trustee
Richard B. Bailey
PETER G. HARWOOD* Trustee
Peter G. Harwood
J. ATWOOD IVES* Trustee
J. Atwood Ives
<PAGE>
LAWRENCE T. PERERA* Trustee
Lawrence T. Perera
WILLIAM J. POORVU* Trustee
William J. Poorvu
CHARLES W. SCHMIDT* Trustee
Charles W. Schmidt
ARNOLD D. SCOTT* Trustee
Arnold D. Scott
JEFFREY L. SHAMES* Trustee
Jeffrey L. Shames
ELAINE R. SMITH* Trustee
Elaine R. Smith
DAVID B. STONE* Trustee
David B. Stone
*By: JAMES R. BORDEWICK, JR.
Name: James R. Bordewick, Jr.
as Attorney-in-fact
Executed by James R. Bordewick, Jr. on
behalf of those indicated pursuant to a
Power of Attorney dated September 21,
1994, incorporated by reference to the
Registrant's Post-Effective Amendment
No. 20 filed with the Securities and
Exchange Commission on May 31, 1995.
<PAGE>
MFS SERIES TRUST III
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
5 (b) Investment Advisory Agreement for MFS Municipal High Income
Fund dated September 1, 1993.
7 Retirement Plan for Non-Interested
Person Trustees, dated February 1, 1991.
8 (a) Custodian Agreement, dated May 24, 1988.
(b) Amendment to Custodian Agreement, dated May 24, 1988.
(c) Amendment to Custodian Agreement, dated October 1, 1989.
(d) Amendment to Custodian Agreement, dated September 17, 1991.
9 (a) Shareholder Servicing Agent Agreement, dated August 1, 1985.
(b) Amendment to the Shareholder Servicing Agreement dated
December 28, 1993.
<PAGE>
EXHIBIT NO. 99.5(b)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, made this 1st day of September, 1993 by and between MFS SERIES
TRUST III, a Massachusetts business trust (the "Trust"), on behalf of MFS
MUNICIPAL HIGH INCOME FUND, a series of the Trust (the "Fund"), and
MASSACHUSETTS FINANCIAL SERVICES COMPANY, a Delaware corporation (the
"Adviser").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end investment company
registered under the Investment Company Act of 1940;
WHEREAS, the Adviser is willing to provide business management services to the
Fund on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties hereto as herein set forth, the parties covenant and agree as follows:
Article 1: Duties of the Adviser. The Adviser shall provide the Fund with such
investment advice and supervision as the latter may from time to time consider
necessary for the proper supervision its funds. The Adviser shall act as Adviser
to the Fund and as such shall furnish continuously an investment program and
shall determine from time to time what securities shall be purchased, sold or
exchanged and what portion of the assets of the Fund shall be held uninvested,
subject always to the restrictions of the Trust's Declaration of Trust, dated
December 15, 1977, and By-Laws, as each may be amended from time to time
(respectively, the "Declaration" and the "By-Laws"), to the provisions of the
Investment Company Act of 1940 and the Rules, Regulations and orders thereunder
and to the Fund's then-current Prospectus. The Adviser shall also make
recommendations as to the manner in which voting rights, rights to consent to
corporate action and any other rights pertaining to the Fund's portfolio
securities shall be exercised. Should the Trustees at any time, however, make
any definite determination as to the investment policy and notify the Adviser
thereof in writing, the Adviser shall be bound by such determination for the
period, if any, specified in such notice or until similarly notified that such
determination has been revoked. The Adviser shall take, on behalf of the Fund,
all actions which it deems necessary to implement the investment policies
determined as provided above, and in particular to place all orders for the
purchase or sale of portfolio securities for the Fund's account with brokers or
dealers selected by it, and to that end the Adviser is authorized as the agent
of the Fund to give instructions to the Custodian of the Fund as to deliveries
of securities and payments of cash for the account of the Fund. In connection
with the selection of such brokers or dealers and the placing of such orders,
the Adviser is directed to seek for the Fund
<PAGE>
execution at the best available price. Subject to this requirement of
seeking the best available price, securities may be bought from or sold to
broker dealers who have furnished statistical, research and other information or
services to the Adviser.
Article 2: Allocation of Charges and Expenses. The Adviser shall furnish at its
own expense investment advisory and administrative services, office space,
equipment and clerical personnel necessary for servicing the investments of the
Fund and maintaining the its organization and investment advisory facilities and
executive and supervisory personnel for managing the investments, effecting the
portfolio transactions of the Fund. The Adviser shall arrange, if desired by the
Trust, for Directors, officers and employees of the Adviser to serve as
Trustees, officers or agents of the Trust if duly elected or appointed to such
positions and subject to their individual consent and to any limitations imposed
by law. It is understood that the Fund will pay all of its own expenses
including, without limitation, compensation of Trustees not "affiliated" with
the Adviser, governmental fees, interest charges, taxes, membership dues in the
Investment Company Institute allocable to the Fund, fees and expenses of
independent auditors, of legal counsel and of any transfer agent, registrar or
dividend disbursing agent of the Fund; expenses of repurchasing and redeeming
shares, expenses of preparing, printing and mailing stock certificates,
prospectuses, shareholder reports, notices, proxy statements and reports to
governmental officers and commissions; brokerage and other expenses connected
with the execution, recording and settlement of portfolio security transactions;
insurance premiums; fees and expenses of the custodian for all services to the
Fund, including safekeeping of funds and securities and maintaining required
books and accounts; expenses of calculating the net asset value of shares of the
Fund, expenses of shareholder meetings; and expenses relation to the issuance,
registration and qualification of shares of the Fund and the preparation,
printing and mailing of prospectuses for such purposes (except to the extent
that any Distribution Agreement to which the Trust is a party provides that
another party is to pay some or all of such expenses).
ARTICLE 3: COMPENSATION OF THE ADVISER. FOR THE SERVICES TO BE rendered and for
the facilities to be provided, the Fund shall pay to the Adviser an investment
advisory fee computed and paid monthly in an amount equal to the sum of .30% of
the Fund's average daily net assets plus 4.75% of the Fund's gross income (I.E.,
income other than from the sale of securities), in each case on an annualized
basis for the Fund's then current fiscal year. Payment of the foregoing fee is
subject to the provision that within 30 days following the close of any fiscal
year of the Fund, the Adviser will pay to the Fund a sum equal to the amount by
which the aggregate expenses of the Fund, but excluding interest, taxes,
brokerage commissions and extraordinary expenses, incurred during such fiscal
year exceed (a) 1 1/2% of the Fund's average daily net assets during such fiscal
year up to and including $40 million, and (b) 1% of its average daily net assets
such fiscal year in excess of $40 million. The obligation of the Adviser to
reimburse the Fund for expenses incurred during any year may be terminated or
revised at any time by the Adviser without the consent of the Fund by notice in
writing from the Adviser to the Fund. If the Adviser shall serve for less than
the whole of any period specified in this Section 3, the compensation to the
Adviser will be prorated.
Article 4: Covenants of the Adviser. The Adviser agrees that it will not deal
with itself, or with the Trustees of the Trust or the Trust's principal
underwriter, if any, as principals in making
<PAGE>
purchases or sales of securities or other property for the account of the
Fund, except as permitted by the Investment Company Act of 1940 and the Rules,
Regulations or orders thereunder, will not take a long or short position in the
shares of the Fund except as provided by the Declaration, and will comply with
all other provisions of the Declaration and the By-Laws and the then-current
Prospectus of the Fund relative to the Adviser and its Directors and officers.
Article 5: Limitation of Liability of the Adviser. The Adviser shall not be
liable for any error of judgment or mistake of law or for any loss arising out
of any investment or for any act or omission in the execution and management of
the Fund, except for willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties hereunder. As used in this Section 5, the term "Adviser" shall
include Directors, officers and employees of the Adviser as well as the
corporation itself.
Article 6: Activities of the Adviser. The services of the Adviser to the Fund
are not to be deemed to be exclusive, the Adviser being free to render services
to others. The Adviser may permit other fund clients to use the initials "MFS"
in their names. The Fund agrees that if the Adviser shall for any reason no
longer serve as the Adviser to the Fund, the Fund will change its name so as to
delete the initials "MFS". It is understood that the Trustees, officers, and
shareholders of the Trust are or may be or become interested in the Adviser, as
Directors, officers, employees, or otherwise and that Directors, officers and
employees of the Adviser are or may become similarly interested in the Fund as a
shareholder or otherwise.
Article 7: Duration, Termination and Amendments of this Agreement. This
Agreement shall become effective as of the day and year first above written and
shall govern the relations between the parties hereto thereafter, and shall
remain in force until August 1, 1995 on which date it will terminate unless its
continuance after August 1, 1995 is "specifically approved at least annually"
(i) by the vote of a majority of the Trustees of the Trust who are not
"interested persons" of the Trust or of the Adviser at a meeting specifically
called for the purpose of voting on such approval, and (ii) by the Board of
Trustees of the Trust, or by "vote of a majority of the outstanding voting
securities" of the Fund.
This Agreement may be terminated at any time without the payment of any penalty
by the Trustees or by "vote of a majority of the outstanding voting securities"
of the Fund, or by the Adviser, in each case on not more than 60 days' nor less
than 30 days' written notice to the other party. This Agreement shall
automatically terminate in the event of its "assignment".
This Agreement may be amended only if such agreement is approved by vote of a
majority of the outstanding voting securities of the Fund. The terms
"specifically approved at least annually", "vote of a majority of the
outstanding voting securities", "assignment", "affiliated person", and
"interested person", when used in this Agreement, shall have the respective
meanings specified in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under said Act.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered in their names and on their behalf by the undersigned, thereunto duly
authorized, and their respective seals to be hereto affixed, all as of the day
and year first above written. The undersigned Trustee of the Fund has executed
this Agreement not individually, but as Trustee under the Declaration and the
obligations of this Agreement are not binding upon any of the Trustees or
shareholders of the Fund, individually, but bind only the trust estate
applicable to the Fund.
MFS SERIES TRUST III on behalf of
MFS MUNICIPAL HIGH INCOME FUND
By: A. KEITH BRODKIN
A. Keith Brodkin
Chairman and Trustee
MASSACHUSETTS FINANCIAL
SERVICES COMPANY
By: A. KEITH BRODKIN
A. Keith Brodkin
Chairman
<PAGE>
EXHIBIT NO. 99.7
MASSACHUSETTS FINANCIAL HIGH INCOME TRUST
RETIREMENT PLAN FOR NON-INTERESTED PERSON TRUSTEES
Massachusetts Financial High Income Trust (the "Fund") has adopted this
Retirement Plan for Non-Interested Person Trustees (the "Plan"). The Plan has
been established for the purpose of providing certain benefits to eligible
Independent Trustees of the Fund, or their beneficiaries, after termination of
the Independent Trustees' services as such.
1. DEFINITIONS
The following terms shall have the following meanings:
Accrued Benefit: A benefit which is equal to the Normal Retirement
Benefit calculated using an Independent Trustee's Years of Service and Annual
Compensation as of the determination date.
Actuarial Equivalent: A benefit equal in value, based on (a) an
interest rate equal to the immediate annuity rate published by the Pension
Guaranty Corporation for the January of the Plan Year of calculation and (b) the
1983 Individual Annuity Mortality Tables for Males.
Annual Compensation: The average of the total compensation (retainer
and meeting fees) received by an Independent Trustee during each of the last
three Plan Years preceding his termination of services as such for which he
served either as an Independent Trustee or a Nonaffiliated Trustee for the
entire year; provided, that if an Independent Trustee served as an Independent
Trustee and/or a Nonaffiliated Trustee for fewer than three full Plan Years
prior to his termination of services, there shall be taken into account his
annualized compensation for the one or more most recent partial Plan Years (if
any) for which he served as an Independent Trustee or a Nonaffiliated Trustee
that, when aggregated with his full Plan Years, does not exceed three Plan
Years.
Disability: Disability as defined in ss.22(e)(3) of the Internal
Revenue Code of 1986, as amended.
Independent Trustee: A Trustee of the Fund who is not an "interested
person" (as defined in Section 2(a)(19) of the Investment Company Act of 1940,
as amended) of the Fund, Lifetime Advisers, Inc. ("Lifetime"), Massachusetts
Financial Services Company ("MFS") or MFS Financial Services, Inc. ("FSI").
<PAGE>
Nonaffiliated Trustee: A Trustee of the Fund who has no material
business or professional relationship with the Fund, Lifetime, MFS or FSI and
who is subject to being declared an "interested person" solely by reason of his
relationship with the Fund, Lifetime, MFS or FSI during the two most recently
completed fiscal years of the Fund.
Normal Retirement Benefit: An annual benefit at Normal Retirement Date
equal to 5% of an Independent Trustee's Annual Compensation multiplied by the
Independent Trustee's whole Years of Service, up to a maximum of ten Years of
Service, payable in the Normal Form of Benefit, as defined in ss.3(g).
Normal Retirement Date: December 31 of the Plan Year in which an
Independent Trustee attains age 73.
Plan Year: January 1 through December 31.
Retirement: Termination of service of an Independent Trustee after
having completed at least Five Years of Service and having attained age 62,
other than: (1) any termination by reason of death; (ii) any termination by
reason of Disability, provided that any Independent Trustee who suffers a
Disability and who has otherwise satisfied the requirements for Retirement shall
have the right to elect whether his termination is by reason of Retirement or by
reason of Disability; or (iii) any termination resulting from the Independent
Trustee's willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of Independent Trustee
("Misconduct").
Year of Service: A Plan Year during which an Independent Trustee
completed at least six months of service as either a Nonaffiliated Trustee or an
Independent Trustee.
2. ELIGIBILITY
No Trustee of the Fund shall be eligible to participate in the Plan or
be entitled to any rights or benefits hereunder until the Trustee becomes an
Independent Trustee. Each individual who completes any service as an Independent
Trustee on or after the Effective Date of this Plan, and who so elects in such
manner as the Committee determines from time to time, will be eligible to
participate in the Plan.
3. RETIREMENT DATE; AMOUNT OF BENEFIT
(a) Retirement. Each Independent Trustee shall retire on that
Independent Trustee's Normal Retirement Date, if he has not previously ceased
to perform services as an Independent Trustee. Each retired Independent
Trustee is referred to as a "Retired Trustee".
<PAGE>
(b) Normal Retirement Benefit. Upon an Independent Trustee's
Retirement on his Normal Retirement Date, the Independent Trustee shall
receive, commencing on his Normal Retirement Date, his Normal Retirement
Benefit.
(c) Early Retirement Benefit. Upon an Independent Trustee's Retirement
prior to his Normal Retirement Date, the Independent Trustee shall receive an
Early Retirement Benefit commencing on the Independent Trustee's date of
Retirement. The benefit payable on an Independent Trustee's early Retirement
shall be his Accrued Benefit reduced by 5% for every year that payment of an
Early Retirement Benefit precedes that Trustee's Normal Retirement Date.
(d) Deferred Termination Benefit. If an Independent Trustee's service
as such terminates, other than (i) termination as a result of his Misconduct or
(ii) termination that constitutes termination by reason of his Retirement,
Disability or death, after he has completed at least five Years of Service, he
shall receive, commencing on the date he attains age 62, his Accrued Benefit
reduced by 55%.
(e) Disability Benefit. If an Independent Trustee's service as such
terminates by reason of his Disability and, if the Independent Trustee is
eligible for Retirement, he elects that his termination be treated as being by
reason of Disability, he shall receive his Accrued Benefit paid for the one
hundred twenty (120) months immediately following the month in which his service
so terminates. In the event the Independent Trustee dies before he has received
one hundred twenty (120) payments, monthly payments in the same amount shall be
paid to his beneficiary until the number of payments to the Independent Trustee
plus the number of payments to the beneficiary equal one hundred twenty (120)
payments.
(f) Death Benefit. Each Independent Trustee who elects to participate
in this Plan shall designate a beneficiary in such form as the Committee
approves from time to time to receive any benefits payable under this Plan in
the event of his death. In the event there is no validly designated beneficiary
in existence on the date of an Independent Trustee's death, his beneficiary
shall be his surviving spouse, if any, or if none, his estate. The beneficiary
of an Independent Trustee who dies during service, and with respect to whom
benefit payments have not commenced, shall be entitled to that Independent
Trustee's Accrued Benefit paid for the one hundred twenty (120) months
immediately following death.
(g) Form of Benefit. Except as otherwise provided in this ss.3,
benefits payable under this ss.3 shall be payable in the form of a monthly
annuity for the life of the Independent Trustee, and, if the Independent Trustee
dies before he has received one hundred twenty (120) payments, monthly payments
in the same amount shall be payable to his beneficiary until the number of
payments to the
<PAGE>
Independent Trustee plus the number of payments to the beneficiary equal
one hundred twenty (120) payments (the "Normal Form of Benefit"). However,
notwithstanding any other provision of this Section 3 to the contrary, if an
Independent Trustee's beneficiary is entitled to payments under this Plan upon
the Independent Trustee's death, then (i) if the Independent Trustee's
beneficiary is his estate, the lump sum Actuarial Equivalent present value of
those payments shall be paid to the estate in a single lump sum as soon as
administratively reasonable following the Independent Trustee's death, and (ii)
if the Independent Trustee's beneficiary is other than his estate, the Committee
in its sole discretion may direct that the Actuarial Equivalent value of those
payments be paid in such form other than the Normal Form of Benefit (including
without limitation a lump sum) as it determines.
4. PAYMENT OF BENEFIT; ALLOCATION OF COSTS
The Fund is responsible for the payment of the benefits, as well as all
expenses of administration of the Plan, including without limitation all
accounting, legal and actuarial fees and expenses. The obligations of the Fund
to pay such benefits and expenses will not be secured or funded in any manner,
and the obligations will not have any preference over the lawful claims of the
Fund's creditors and shareholders. The Fund shall be under no obligation to
segregate any assets for the purpose of providing retirement benefits pursuant
to this Plan, and to the extent that any Independent Trustee or beneficiary
acquires a right to receive a benefit under the Plan, such right shall be
limited to that of a recipient of an unfunded, unsecured promise to pay amounts
in the future and such person's position with respect to such amounts shall be
that of a general unsecured creditor of the Fund. To the extent that the Fund
consists of one or more separate portfolios, costs and expenses will be
allocated among the portfolios by the Board of Trustees of the Fund (the
"Board") in a manner that is determined by the Board to be fair and equitable
under the circumstances.
5. ADMINISTRATION
(a) The Committee. Any question involving entitlement to payments under
or the interpretation or administration of the Plan will be referred to a
committee (the "Committee") of Independent Trustees designated by the Board.
Except as otherwise provided herein, the Committee will make all interpretations
and determinations necessary or desirable for the Plan's administration, and
such interpretations and determinations will be final and conclusive.
(b) Powers of the Committee. The Committee will represent and act on
behalf of the Fund in respect of the Plan and, subject to the other provisions
of the Plan, the Committee may adopt, amend or repeal by-laws or other
regulations, relating to the administration of the Plan, the conduct of the
Committee's affairs, its rights or powers or the rights or powers of its members
or of the
<PAGE>
Board. The Committee will report to the Board from time to time on its
activities in respect of the Plan. The Committee or persons designated by it
will cause such records to be kept as may be necessary for the administration of
the Plan.
6. MISCELLANEOUS PROVISIONS
(a) Rights Not Assignable. The right to receive any payment
under the Plan may not be transferred, assigned, pledged or otherwise
alienated.
(b) Amendment, etc. The Committee, with the concurrence of the Board,
may at any time amend or terminate the Plan or waive any provision of the Plan,
provided that no amendment, termination or waiver will impair the rights of an
Independent Trustee to receive upon Retirement the payments which would have
been made to that Independent Trustee had there been no such amendment,
termination or waiver (based upon that Independent Trustee's Years of Service to
the date of such amendment, termination or waiver) or the rights of a former
Independent Trustee or Retired Trustee to receive any benefit due under the
Plan, without the consent of such present or former Independent Trustee or
Retired Trustee, as the case may be. A present or former Independent Trustee or
Retired Trustee may elect to waive receipt of his benefit by so advising the
Committee.
Notwithstanding any provision of this Plan to the contrary,
however, in the event of the sale of all or substantially all of the assets of
the Fund, the liquidation or dissolution of the Fund, or any merger or other
similar reorganization of the Fund that the Fund does not survive:
(i) if although the Fund does not survive there is a surviving
entity, all rights and benefits (including without limitation those of Retired
Trustees) under the Plan shall cease upon consummation of such transaction,
unless, and only to the extent that, the board of trustees (or other similar
governing body) of the surviving entity agrees to assume the Plan and/or to
provide any such rights or benefits; and
(ii) if there is no surviving entity, the Board shall have the
right to take specific action to terminate the Plan and/or to cause any or all
rights and benefits (including without limitation those of Retired Trustees)
under the Plan to cease as of the date of such event but, in the absence of any
such specific action, the lump sum Actuarial Equivalent present value of the
Accrued Benefit of each present or former Independent Trustee or Retired Trustee
(or beneficiary thereof) who on the date of liquidation is receiving or entitled
to receive a benefit under the Plan or would be entitled to receive a benefit
under the Plan based on his actual or deemed
<PAGE>
termination of service as of the date of such liquidation shall be paid to
such person.
(c) No Right to Re-election. Nothing in the Plan will create
any obligation on the part of the Board to nominate any Independent Trustee
for re-election.
(d) Vacancies. Although the Board will retain the right to increase or
decrease its size, it shall be the general policy of the Board to replace each
person who ceases to serve as an Independent Trustee by selecting a new
Independent Trustee from candidates duly proposed.
(e) Consulting. Each Retired Trustee may render such services for the
Fund, for such compensation, as may be agreed upon from time to time by such
Trustee and the Board of the Fund.
(f) Construction. Whenever any masculine terminology is used in this
Plan, it shall be taken to include the feminine, unless the context otherwise
indicates. The titles and headings included herein are for convenience only and
shall not be construed as in any way affecting or modifying the text of this
Plan, which text shall control. This Plan shall be construed and regulated in
accordance with the laws of The Commonwealth of Massachusetts, except to the
extent such state law is preempted by federal law.
(g) Effective Date. This Plan will become effective on February
1, 1991 (the "Effective Date").
<PAGE>
EXHIBIT NO. 99-8(a)
CUSTODIAN CONTRACT
Between
MASSACHUSETTS FINANCIAL HIGH INCOME TRUST
and
STATE STREET BANK AND TRUST COMPANY
<PAGE>
TABLE OF CONTENTS
PAGE
1. Employment of Custodian and Property to be Held By It............ 1
2. Duties of the Custodian with Respect to Property of the Trust
Held by the Custodian............................................ 2
2.1. Holding Securities..................................... 2
2.2. Delivery of Securities................................. 2
2.3. Registration of Securities............................. 5
2.4. Bank Accounts.......................................... 6
2.5. Payments for Shares.................................... 6
2.6. Investment and Availability of Federal Funds........... 6
2.7. Collection of Income................................... 7
2.8. Payment of Trust Monies................................ 7
2.9. Liability for Payment in Advance of Receipt of
Securities Purchased................................... 9
2.10. Appointment of Agents.................................. 9
2.11 Deposit of Trust Assets in Securities System........... 10
2.11A. Trust Assets Held in the Custodian's Direct Paper
System................................................. 11
2.12. Segregated Account..................................... 13
2.13. Ownership Certificates for Tax Purposes................ 13
2.14. Proxies................................................ 14
2.15. Communications Relating to Trust Portfolio Securities.. 14
2.16. Reports to Trust by Independent Public Accountants..... 14
3. Duties of the Custodian with Respect to Property of the Fund
Held Outside the United States................................... 15
3.1 Appointment of Chase as Subcustodian................... 15
3.2 Standard of Care; Liability............................ 15
3.3 Trust's Responsibility for Rules and Regulations....... 16
4. Payments for Repurchases or Redemptions of Shares of the Trust... 16
5. Proper Instructions.............................................. 16
6. Actions Permitted Without Express Authority...................... 17
7. Evidence of Authority............................................ 17
8. Duties of Custodian With Respect to the Books of Account and
Calculation of Net Asset Value and Net Income.................... 18
9. Records.......................................................... 18
10. Opinion of Trust Independent Accountants......................... 19
11. Compensation of Custodian........................................ 19
12. Responsibility of Custodian...................................... 19
13. Effective Period, Termination and Amendment...................... 20
<PAGE>
TABLE OF CONTENTS (CONTINUED)
PAGE
14. Successor Custodian.............................................. 21
15. Interpretive and Additional Provisions........................... 22
16. Additional Funds................................................. 22
17. Massachusetts Law to Apply....................................... 23
18. Prior Contracts.................................................. 23
<PAGE>
CUSTODIAN CONTRACT
This Contract between Massachusetts Financial High Income Trust, a
business trust organized and existing under the laws of Massachusetts, having
its principal place of business at 200 Berkeley Street, Boston, Massachusetts,
hereinafter called the "Trust", and State Street Bank and Trust Company, a
Massachusetts trust company, having its principal place of business at 225
Franklin Street, Boston, Massachusetts, 02110, hereinafter called the
"Custodian",
WITNESSETH:
WHEREAS, the Trust is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Trust intends to offer shares in two series, the Series I
and Series II (Such series together with all other series subsequently
established b y the Trust and made subject to this Contract in accordance with
paragraph 12, being herein referred to as the "Portfolio(s)");
NOW therefor, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
The Trust hereby employs the Custodian as the custodian of the assets
of the Portfolios of the Trust pursuant to the provisions of the Declaration of
Trust including securities and cash it desires to be held within the United
States (collectively "domestic securities") and securities and cash it desires
to be held outside the United States (collectively "foreign securities"),
subject to the terms of Article 3 hereof. The Trust agrees, on behalf of the
Portfolios, agrees to deliver to the Custodian all securities and cash of the
Portfolios, and all payments of income, payments of principal or capital
distributions received by it with respect to all securities owned by the
Portfolios from time to time, and the cash consideration received by it for such
new or treasury shares of beneficial interest of the Trust representing
interests in the Portfolios ("Shares") as may
<PAGE>
be issued or sold from time to time. The Custodian shall not be responsible
for any property of a Portfolio held or received by the Portfolio and not
delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Section
2.17), the Custodian shall on behalf of the applicable Portfolio(s) from time to
time employ one or more sub-custodians, but only in accordance with an
applicable vote by the Board of Trustees of the Trust, and provided that the
Custodian shall have no more or less responsibility or liability to the Trust on
account of any actions or omissions of any subcustodian so employed than any
such subcustodian has to the Custodian.
2. Duties of the Custodian with Respect to Property of the Trust Held By
the Custodian.
2.1. Holding Securities. The Custodian shall hold and physically
segregate for the account of each Portfolio all non-cash property, including all
securities owned by such Portfolio, other than (a) securities which are
maintained pursuant to Section 2.12 in a clearing agency which acts as a
securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury, collectively referred to herein as a "Securities
System" and (b) commercial paper of an issuer for which State Street Bank and
Trust Company acts as issuing and paying agent ("Direct Paper") which is
deposited and/or maintained in the Direct Paper System of the Custodian pursuant
to Section 2.12.A.
2.2. Delivery of Securities. The Custodian shall release and deliver
securities owned by a Portfolio held by the Custodian or in a Securities System
account of the Custodian or in the Custodian's Direct Paper book entry system
account ("Direct Paper System Account") only upon receipt of Proper Instructions
from the Trust on behalf of the applicable Portfolio, which may be continuing
instructions when deemed appropriate by the parties, and only in the following
cases:
1) Upon sale of such securities for the account of the
Portfolio and receipt of payment therefor;
2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities entered into by the Portfolio;
<PAGE>
3) In the case of a sale effected through a Securities
System, in accordance with the provisions of Section 2.12 hereof;
4) To the depository agent in connection with tender
or other similar offers for securities of the Portfolio;
5) To the issuer thereof or its agent when such
securities are called, redeemed, retired or otherwise become payable; provided
that, in any such case, the cash or other consideration is to be delivered to
the Custodian;
6) To the issuer thereof, or its agent, for transfer into the
name of the Portfolio or into the name of any nominee or nominees of the
Custodian or into the name or nominee name of any agent appointed pursuant to
Section 2.11 or into the name or nominee name of any sub-custodian appointed
pursuant to Article l; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new securities are to be
delivered to the Custodian;
7) Upon the sale of such securities for the account of the
Portfolio, to the broker or its clearing agent, against a receipt, for
examination in accordance with "street delivery" custom; provided that in any
such case, the Custodian shall have no responsibility or liability for any loss
arising from the delivery of such securities prior to receiving payment for such
securities except as may arise from the Custodian's own negligence or willful
misconduct;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant to provisions for
conversion contained in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or similar securities
or the surrender of
<PAGE>
interim receipts or temporary securities for definitive securities;
provided that, in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
10) For delivery in connection with any loans of securities
made by the Portfolio, but only against receipt of adequate collateral as agreed
upon from time to time by the Custodian and the Trust on behalf of the
Portfolios, which may be in the form of cash or obligations issued by the United
States government, its agencies or instrumentalities, except that in connection
with any loans for which collateral is to be credited to the Custodian's account
in the book-entry system authorized by the U.S. Department of the Treasury, the
Custodian will not be held liable or responsible for the delivery of securities
owned by the Portfolio prior to the receipt of such collateral;
11) For delivery as security in connection with any borrowings
by the Trust on behalf of the Portfolio requiring a pledge of assets by the
Trust on behalf of the Portfolio, but only against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any
agreement among the Trust on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the Securities Exchange Act of 1934 (the
"Exchange Act") and a member of The National Association of Securities Dealers,
Inc. ("NASD"), relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange, or of any
similar organization or organizations, regarding escrow or other arrangements in
connection with transactions by the Portfolio of the Trust;
13) For delivery in accordance with the provisions of any
agreement among the Trust on behalf of the Portfolio, the Custodian, and a
Futures Commission Merchant registered under the Commodity Exchange Act,
relating to compliance with the rules of the Commodity Futures Trading
Commission
<PAGE>
and/or any Contract Market, or any similar organization or organizations,
regarding account deposits in connection with transactions by the Portfolio of
the Trust;
14) Upon receipt of instructions from the transfer agent
("Transfer Agent") for the Trust, for delivery to such Transfer Agent or to the
holders of shares in connection with distributions in kind, as may be described
from time to time in the currently effective prospectus and statement of
additional information of the Trust related to the Portfolio ("Prospectus"), in
satisfaction of requests by holders of Shares for repurchase or redemption; and
15) For any other proper corporate purpose, but only upon
receipt of, in addition to Proper Instructions from the Trust on behalf of the
applicable Portfolio, a certified copy of a resolution of the Board of Trustees
or of the Executive Committee signed by an officer of the Trust and certified by
the Secretary or an Assistant Secretary, setting forth the purpose for which
such delivery is to be made, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom delivery of such securities
shall be made.
2.3. Registration of Securities. Securities held by the Custodian
(other than bearer securities) shall be registered in the name of the Portfolio
or in the name of any nominee of the Trust on behalf of the Portfolio or of any
nominee of the Custodian which nominee shall be assigned exclusively to the
Portfolio, unless the Trust has authorized in writing the appointment of a
nominee to be used in common with other registered investment companies having
the same investment adviser as the Portfolio, or in the name or nominee name of
any agent appointed pursuant to Section 2.11 or in the name or nominee name of
any sub-custodian appointed pursuant to Article 1. All securities accepted by
the Custodian on behalf of the Portfolio under the terms of this Contract shall
be in "street name" or other good delivery form.
<PAGE>
2.4. Bank Accounts. The Custodian shall open and maintain a separate
bank account or accounts (the "Portfolio's Account or Accounts") in the name of
each Portfolio of the Trust, subject only to draft or order by the Custodian
acting pursuant to the terms of this Contract, and shall hold in such account or
accounts, subject to the provisions hereof, all cash received by it from or for
the account of the Portfolio, other than cash maintained by the Portfolio in a
bank account established and used in accordance with Rule 17f-3 under the
Investment Company Act of 1940. Funds held by the Custodian for a Portfolio may
be deposited by it to its credit as Custodian in the Banking Department of the
Custodian or in such other banks or trust companies as it may in its discretion
deem necessary or desirable; provided, however, that every such bank or trust
company shall be qualified to act as a custodian under the Investment Company
Act of 1940 and that each such bank or trust company and the funds to be
deposited with each such bank or trust company shall on behalf of each
applicable Portfolio be approved by vote of a majority of the Board of Trustees
of the Trust. Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that capacity.
2.5. Payments for Shares. The Custodian shall receive from the
distributor for the Shares or from the Transfer Agent of the Trust and deposit
into the Portfolio's account such payments as are received for Shares of that
Portfolio issued or sold from time to time by the Trust. The Custodian will
provide timely notification to the Trust on behalf of each such Portfolio and
the Transfer Agent of any receipt by it of payments for Shares of such
Portfolio.
2.6. Investment and Availability of Federal Funds. Upon mutual
agreement between the Trust on behalf of each applicable Portfolio and the
Custodian, the Custodian shall, upon the receipt of Proper Instructions from the
Trust on behalf of a Portfolio, 1) invest in such instruments as may be set
forth in such instruments as may be set forth in such instructions on the same
day as received all federal funds received after a time agreed upon the
Custodian and the Trust; and 2) make federal funds available to such Portfolio
<PAGE>
as of specified times agreed upon from time to time by the Trust and the
Custodian in the amount of checks received in payment for Shares of such
Portfolio which are deposited into the Portfolio's account.
2.7. Collection of Income. The Custodian shall collect on a timely
basis all income and other payments with respect to registered securities held
hereunder to which each Portfolio shall be entitled either by law or pursuant to
custom in the securities business, and shall collect on a timely basis all
income and other payments with respect to bearer securities if, on the date of
payment by the issuer, such securities are held by the Custodian or its agent
thereof and shall credit such income, as collected, to such Portfolio's
custodian account. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and other income
items requiring presentation as and when they become due and shall collect
interest when due on securities held hereunder. Income due each Portfolio on
securities loaned pursuant to the provisions of Section 2.2 (10) shall be the
responsibility of the Trust. The Custodian will have no duty or responsibility
in connection therewith, other than to provide the Trust with such information
or data as may be necessary to assist the Trust in arranging for the timely
delivery to the Custodian of the income to which the Portfolio properly
entitled.
2.8. Payment of Trust Monies. Upon receipt of Proper
Instructions from the Trust on behalf of the applicable Portfolio, which may
be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out monies of a Portfolio in the following cases only:
1) Upon the purchase of securities for the account of the
Portfolio but only (a) against the delivery of such securities to the Custodian
(or any bank, banking firm or trust company doing business in the United States
or abroad which is qualified under the Investment Company Act of 1940, as
amended, to act as a custodian and has been designated by the Custodian as its
agent for this purpose) registered in the name of the Portfolio or in the name
of a nominee of
<PAGE>
the Custodian referred to in Section 2.3 hereof or in proper form for
transfer; (b) in the case of a purchase effected through a Securities System, in
accordance with the conditions set forth in Section 2.12 hereof; or (c) in the
case of a purchase involving the Direct Paper System, in accordance with the
conditions set forth in Section 2.12A; or (d) in the case of repurchase
agreements entered into between the Trust on behalf of the Portfolio and the
Custodian, or another bank, or a broker-dealer which is a member of NASD, (i)
against delivery of the securities either in certificate form or through an
entry crediting the Custodian's account at the Federal Reserve Bank with such
securities or (ii) against delivery of the receipt evidencing purchase by the
Portfolio of securities owned by the Custodian along with written evidence of
the agreement by the Custodian to repurchase such securities from the Portfolio;
2) In connection with conversion, exchange or
surrender of securities owned by the Portfolio as set forth in Section 2.2
hereof;
3) For the redemption or repurchase of Shares issued
by the Portfolio as set forth in Section 2.10 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments for the account
of the Portfolio: interest, taxes, management, accounting, transfer agent and
legal fees, and operating expenses of the Trust whether or not such expenses are
to be in whole or part capitalized or treated as deferred expenses;
5) For the payment of any dividends on Shares of the
Portfolio declared pursuant to the governing documents of the Trust;
6) For payment of the amount of dividends received in
respect of securities sold short;
<PAGE>
7) For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions from the Trust on behalf of the Portfolio, a
certified copy of a resolution of the Board of Trustees or of the Executive
Committee of the Trust signed by an officer of the Trust and certified by its
Secretary or an Assistant Secretary, setting forth the purpose for which such
payment is to be made, declaring such purpose to be a proper purpose, and naming
the person or persons to whom such payment is to be made.
2.9. Liability for Payment in Advance of Receipt of Securities
Purchased. In any and every case where payment for purchase of securities for
the account of a Portfolio is made by the Custodian in advance of receipt of the
securities purchased in the absence of specific written instructions from the
Trust on behalf of such Portfolio to so pay in advance, the Custodian shall be
absolutely liable to the Trust for such securities to the same extent as if the
securities had been received by the Custodian, except that in the case of
repurchase agreements entered into by the Trust on behalf of a Portfolio with a
bank which is a member of the Federal Reserve System, the Custodian may transfer
funds to the account of such bank prior to the receipt of written evidence that
the securities subject to such repurchase agreement have been transferred by
book-entry into a segregated non-proprietary account of the Custodian maintained
with the Federal Reserve Bank of Boston or of the safekeeping receipt, provided
that such securities have in fact been so transferred by book-entry.
2.10. Appointment of Agents. The Custodian may at any time or times in
its discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of 1940, as
amended, to act as a custodian, as its agent to carry out such of the provisions
of this Article 2 as the Custodian may from time to time direct; provided,
however, that the appointment of any agent shall not relieve the Custodian of
its responsibilities or liabilities hereunder.
<PAGE>
2.11 Deposit of Trust Assets in Securities Systems. The Custodian may
deposit and/or maintain securities owned by a Portfolio in a clearing agency
registered with the Securities and Exchange Commission under Section 17A of the
Securities Exchange Act of 1934, which acts as a securities depository, or in
the book-entry system authorized by the U.S. Department of the Treasury and
certain federal agencies, collectively referred to herein as "Securities System"
in accordance with applicable Federal Reserve Board and Securities and Exchange
Commission rules and regulations, if any, and subject to the following
provisions:
1) The Custodian may keep securities of the Portfolio in a
Securities System provided that such securities are represented in an account
("Custodian's Account") of the Custodian in the Securities System which shall
not include any assets of the Custodian other than assets held as a fiduciary,
custodian or otherwise for customers;
2) The records of the Custodian with respect to
securities of the Portfolios which are maintained in a Securities System shall
identify by book-entry those securities belonging to the Portfolio;
3) The Custodian shall pay for securities purchased for the
account of the Portfolio upon (i) receipt of advice from the Securities System
that such securities have been transferred to the Custodian's Account, and (ii)
the making of an entry on the records of the Custodian to reflect such payment
and transfer for the account of the Portfolio. The Custodian shall transfer
securities sold for the account of the Portfolio upon (i) receipt of advice from
the Securities System that payment for such securities has been transferred to
the Custodian's Account, and (ii) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account of the Portfolio.
Copies of all advices from the Securities System of transfers of securities for
the account of the Portfolio shall identify the Portfolio, be maintained for the
<PAGE>
Portfolio by the Custodian and be provided to the Trust at its request. Upon
request, the Custodian shall furnish the Trust on behalf of the Portfolio
confirmation of each transfer to or from the account of the Portfolio in the
form of a written advice or notice and shall furnish to the Portfolio copies of
daily transaction sheets reflecting each day's transactions in the Securities
System for the account of the Portfolio.
4) The Custodian shall provide the Trust for the
Portfolio with any report obtained by the Custodian on the Securities System's
accounting system, internal accounting control and procedures for safeguarding
securities deposited in the Securities System;
5) The Custodian shall have received from the Trust on
behalf of the Portfolio the initial or annual certificate, as the case may be,
required by Article 9 hereof;
6) Anything to the contrary in this Contract notwithstanding,
the Custodian shall be liable to the Trust for the benefit of the Portfolio for
any loss or damage to the Portfolio resulting from use of the Securities System
by reason of any negligence, misfeasance or misconduct of the Custodian or any
of its agents or of any of its or their employees or from failure of the
Custodian or any such agent to enforce effectively such rights as it may have
against the Securities System; at the election of the Trust, it shall be
entitled to be subrogated to the rights of the Custodian with respect to any
claim against the Securities System or any other person which the Custodian may
have as a consequence of any such loss or damage if and to the extent that the
Trust has not been made whole for any such loss or damage.
2.11A. Trust Assets Held in the Custodian's Direct Paper System.
The Custodian may deposit and/or maintain securities owned by a Portfolio in
the Direct Paper System of the
<PAGE>
Custodian subject to the following provisions:
1) No transaction relating to securities in the Direct
Paper System will be effected in the absence of Proper Instructions from the
Trust on behalf of the Portfolio;
2) The Custodian may keep securities of the Portfolio in the
Direct Paper System only if such securities are represented in an account
("Account") of the Custodian in the Direct Paper System which shall not include
any assets of the Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
3) The records of the Custodian with respect to
securities of the Portfolio which are maintained in the Direct Paper System
shall identify by book-entry those securities belonging to the Portfolio;
4) The Custodian shall pay for securities purchased for the
account of the Portfolio upon the making of an entry on the records of the
Custodian to reflect such payment and transfer of securities to the account of
the Portfolio. The Custodian shall transfer securities sold for the account of
the Portfolio upon the making of an entry on the records of the Custodian to
reflect such transfer and receipt of payment for the account of the Portfolio;
5) The Custodian shall furnish the Trust on behalf of the
Portfolio confirmation of each transfer to or from the account of the Portfolio,
in the form of a written advice or notice, of Direct Paper on the next business
day following such transfer and shall furnish to the Trust on behalf of the
Portfolio copies of daily transaction sheets reflecting each day's transaction
in the System for the account of the Portfolio;
6) The Custodian shall provide the Trust on behalf of the
Portfolio with any report on its system of internal accounting control as the
Trust may reasonably request from time to time.
<PAGE>
2.12. Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Trust on behalf of each applicable Portfolio establish and
maintain a segregated account or accounts for and on behalf of each such
Portfolio, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by the Custodian
pursuant to Section 2.12 hereof, (i) in accordance with the provisions of any
agreement among the Trust on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the Exchange Act and a member of the NASD (or any
futures commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange (or the Commodity Futures Trading
Commission or any registered contract market), or of any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions by the Trust, (ii) for purposes of segregating cash or government
securities in connection with options purchased, sold or written by the
Portfolio or commodity futures contracts or options thereon purchased or sold by
the Portfolio, (iii) for the purpose of compliance by the Portfolio with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and Exchange Commission
relating to the maintenance of segregated accounts by registered investment
companies and (iv) for other proper corporate purposes, but only, in the case of
clause (iv), upon receipt of, in addition to Proper Instructions from the Trust
on behalf of the applicable Portfolio, a certified copy of a resolution of the
Board of Trustees or of the Executive Committee signed by an officer of the
Trust and certified by the Secretary or an Assistant Secretary, setting forth
the purpose or purposes of such segregated account and declaring such purposes
to be proper corporate purposes.
2.13. Ownership Certificates for Tax Purposes. The Custodian shall
execute ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other payments with
respect to securities of each Portfolio held by it and in connection with
<PAGE>
transfers of securities.
2.14. Proxies. The Custodian shall, with respect to the securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of the
Portfolio or a nominee of the Portfolio, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Portfolio such proxies, all proxy soliciting materials and all notices relating
to such securities.
2.15. Communications Relating to Trust Portfolio Securities. The
Custodian shall transmit promptly to the Trust for each Portfolio all written
information (including, without limitation, pendency of calls and maturities of
securities and expirations of rights in connection therewith and notices of
exercise of call and put options written by the Trust on behalf of the Portfolio
and the maturity of futures contracts purchased or sold by the Portfolio)
received by the Custodian from issuers of the securities being held for the
Portfolio. With respect to tender or exchange offers, the Custodian shall
transmit promptly to the Portfolio all written information received by the
Custodian from issuers of the securities whose tender or exchange is sought and
from the party (or his agents) making the tender or exchange offer. If the
Portfolio desires to take action with respect to any tender offer, exchange
offer or any other similar transaction, the Portfolio shall notify the Custodian
at least three business days prior to the date on which the Custodian is to take
such action.
2.16. Reports to Fund by Independent Public Accountants The Custodian
shall provide the Trust, on behalf of each of the Portfolios, at such times as
the Trust may reasonably require, with reports by independent public accountants
on the accounting system, internal accounting control and procedures for
safeguarding securities, futures contracts and options on futures contracts,
including securities deposited and/or maintained in a Securities System,
relating to the services provided by the Custodian under this Contract;
<PAGE>
such reports, which shall be of sufficient scope and in sufficient detail,
as may reasonably be required by the Trust to provide reasonable assurance that
any material inadequacies would be disclosed by such examination, and, if there
are no such inadequacies, the reports shall so state.
3. Duties of the Custodian with Respect to Property of the Trust Held
Outside of the United States.
The provisions of this Article 3 shall apply to the duties of the
Custodian as they relate to foreign securities held outside the United States.
3.1. Appointment of Chase as Subcustodian. The Custodian is authorized
and instructed by the Trust to employ Chase Manhattan Bank N.A. ( "Chase") as
subcustodian for the Trust's foreign securities (including cash incidental to
transactions in such securities) on the terms and conditions set forth in the
Subcustody Contract between the Custodian and Chase which is attached hereto as
Exhibit A (the "Subcustody Contract"). The Custodian acknowledges that it has
entered into the Subcustody Contract and hereby agrees to provide such services
to the Trust and in accordance with such Subcustody Contract as necessary for
foreign custody services to be provided pursuant thereto.
3.2. Standard of Care; Liability. Notwithstanding anything to the
contrary in this Contract, the Custodian shall not be liable to the Trust for
any loss, damage, cost, expense, liability or claim arising out of or in
connection with the maintenance of custody of the Trust's foreign securities by
Chase or by any other banking institution or securities depository employed
pursuant to the terms of the Subcustody Contract, except that the Custodian
shall be liable for any such loss, damage, cost, expense, liability or claim
directly resulting from the failure of the Custodian to exercise reasonable care
in the performance of its duties hereunder. At the election of the Trust, the
Trust shall be entitled to be subrogated to the rights of the Custodian under
the Subcustody Contract with respect to any claim arising hereunder against
Chase or any other banking institution or securities
<PAGE>
depository employed by Chase if and to the extent that the Trust has not
been made whole therefor.
3.3. Trust's Responsibility for Rules and Regulations. As between the
Custodian and the Trust, the Trust shall be solely responsible to assure that
the maintenance of foreign securities and cash pursuant to the terms of the
Subcustody Contract comply with all applicable rules, regulations,
interpretations and orders of the Securities and Exchange Commission, and the
Custodian assumes no responsibility and makes no representations as to such
compliance.
4. Payments for Repurchases or Redemptions of Shares of the Trust. From such
funds as may be available for the purpose but subject to the limitations of the
Declaration of Trust and any applicable votes of the Board of Trustees of the
Trust pursuant thereto, the Custodian shall, upon receipt of instructions from
the Transfer Agent, make funds available for payment to holders of Shares who
have delivered to the Transfer Agent a request for redemption or repurchase of
their Shares. In connection with the redemption or repurchase of Shares of a
Portfolio, the Custodian is authorized upon receipt of instructions from the
Transfer Agent to wire funds to or through a commercial bank designated by the
redeeming shareholders. In connection with the redemption or repurchase of
Shares of a Portfolio, the Custodian shall honor checks drawn on the Custodian
by a holder of Shares, which checks have been furnished by the Trust to the
holder of Shares, when presented to the Custodian in accordance with such
procedures and controls as are mutually agreed upon from time to time between
the Trust and the Custodian.
5. Proper Instructions
Proper Instructions as used throughout this Article 2 means a writing
signed or initialed by one or more person or persons as the Board of Trustees
shall have from time to time authorized. Each such writing shall set forth the
specific transaction or type of transaction involved, including a specific
statement of the purpose for which such action is requested. Oral instructions
will be considered Proper Instructions if the Custodian reasonably believes them
to have been given by a person authorized to give such instructions with respect
to the transaction
<PAGE>
involved. The Trust shall cause all oral instructions to be confirmed in
writing. Upon receipt of a certificate of the Secretary or an Assistant
Secretary as to the authorization by the Board of Trustees of the Trust
accompanied by a detailed description of procedures approved by the Board of
Trustees, Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Board of
Trustees and the Custodian are satisfied that such procedures afford adequate
safeguards for the Portfolio's assets.
6. Actions Permitted without Express Authority. The Custodian may in
its discretion, without express authority from the Trust on behalf of each
applicable Portfolio:
1) make payments to itself or others for minor expenses of
handling securities or other similar items relating to its duties under this
Contract, provided that all such payments shall be accounted for to the Trust
on behalf of the Portfolio;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of the Portfolio,
checks, drafts and other negotiable instruments; and
4) in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other dealings
with the securities and property of the Portfolio except as otherwise directed
by the Board of Trustees of the Trust.
7. Evidence of Authority. The Custodian shall be protected in acting upon any
instructions, notice, request, consent, certificate or other instrument or paper
believed by it to be genuine and to have been properly executed by or on behalf
of the Trust. The Custodian may receive and accept a certified copy of a vote of
the Board of Trustees of the Trust as conclusive evidence (a) of the authority
of any person to act in accordance with such vote or (b) of any determination or
of any action by the Board of Trustees pursuant to the Declaration of Trust as
described in such vote, and such vote may be considered as in full force and
effect until receipt by the Custodian of written notice to the contrary.
<PAGE>
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income.
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Trustees of the Trust to keep
the books of account of each Portfolio and/or compute the net asset value per
share of the outstanding shares of each Portfolio or, if directed in writing to
do so by the Trust on behalf of the Portfolios, shall itself keep such books of
account and/or compute such net asset value per share. If so directed, the
Custodian shall also calculate daily the net income of the Portfolio as
described in the Trust's currently effective prospectus related to such
Portfolio and shall advise the Trust and the Transfer Agent daily of the total
amounts of such net income and, if instructed in writing by an officer of the
Trust to do so, shall advise the Transfer Agent periodically of the division of
such net income among its various components. The calculations of the net asset
value per share and the daily income of each Portfolio shall be made at the time
or times described from time to time in the Trust's currently effective
prospectus related to such Portfolio.
9. Records.
The Custodian shall with respect to each Portfolio create and maintain
all records relating to its activities and obligations under this Contract in
such manner as will meet the obligations of the Trust under the Investment
Company Act of 1940, with particular attention to Section 31 thereof and Rules
31a-1 and 31a-2 thereunder, applicable federal and state tax laws and any other
law or administrative rules or procedures which may be applicable to the Trust.
All such records shall be the property of the Trust and shall at all times
during the regular business hours of the Custodian be open for inspection by
duly authorized officers, employees or agents of the Trust and employees and
agents of the Securities and Exchange Commission. The Custodian shall, at the
Trust's request, supply the Trust with a tabulation of securities owned by the
Trust and held by the Custodian and shall, when requested to do so by the Trust
and for such compensation as shall be agreed upon between the Trust and the
Custodian, include certificate numbers in such tabulations.
<PAGE>
10. Opinion of Trust's Independent Accountant
The Custodian shall take all reasonable action, as the Trust on behalf
of each applicable Portfolio may from time to time request, to obtain from year
to year favorable opinions from the Trust's independent accountants with respect
to its activities hereunder in connection with the preparation of the Trust's
Form N-lA, and Form N-SAR or other annual reports to the Securities and Exchange
Commission and with respect to any other requirements of such Commission.
11. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Trust on behalf of each applicable Portfolio and the Custodian.
12. Responsibility of Custodian
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Contract and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties.
The Custodian shall be held to the exercise of reasonable care in carrying out
the provisions of this Contract and shall be indemnified by the Trust for any
action taken or omitted by it in the proper execution of instructions from the
Trust. It shall be entitled to rely on and may act upon advice of counsel for
the Trust on all matters and shall be without liability for any action
reasonably taken or omitted pursuant to such advice. Notwithstanding the
foregoing, the responsibility of the Custodian with respect to redemptions
effected by check shall be in accordance with a separate Agreement entered into
between the Custodian and the Trust.
The Trust on behalf of a Portfolio agrees to indemnify and hold
harmless the Custodian and its nominee from and against all taxes, charges,
expenses, assessments, claims and liabilities (including counsel fees) incurred
or assessed against it or its nominee in connection with the
<PAGE>
performance of this Contract, except such as may arise from it or its
nominee's own negligent action, negligent failure to act or willful misconduct.
The Custodian is authorized to charge any account of the applicable
Portfolio for such items and its fees. To secure any such authorized charges and
any advances of cash or securities made by the Custodian to or for the benefit
of a Portfolio for any purpose which results in the Portfolio incurring an
overdraft at the end of any business day or for extraordinary or emergency
purposes during any business day, the Trust on behalf of the Portfolio hereby
grants to the Custodian a security interest in and pledges to the Custodian
securities held for it by the Custodian, in an amount not to exceed five percent
of the applicable Portfolio's gross assets, the specific securities to be
designated in writing from time to time by the Trust on behalf of the Portfolio
or its investment adviser (the "Pledged Securities"). Should the Trust on behalf
of the Portfolio fail to repay promptly any advances of cash or securities, the
Custodian shall be entitled to use available cash and to dispose of the Pledged
Securities as is necessary to repay any such advances.
13. Effective Period. Termination and Amendment
This Contract shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than thirty (30) days after the date of such delivery or mailing; provided,
however that the Custodian shall not with respect to a Portfolio act under
Section 2.12 hereof in the absence of receipt of an initial certificate of the
Secretary or an Assistant Secretary that the Board of Trustees of the Trust has
approved the initial use of a particular Securities System by such Portfolio and
the receipt of an annual certificate of the Secretary or an Assistant Secretary
that the Board of Trustees has reviewed the use by such Portfolio of such
Securities System, as required in each case by Rule 17f-4 under the Investment
Company Act of 1940, as amended and that the Custodian shall not act under
Section 2.12.A hereof in the absence of receipt of an initial certificate of the
Secretary
<PAGE>
or an Assistant Secretary that the Board of Trustees has approved the
initial use of the Direct Paper System by such Portfolio and the receipt of an
annual certificate of the Secretary or an Assistant Secretary that the Board of
Trustees has reviewed the use by such Portfolio of the Direct Paper System;
provided further, however, (a) that the Trust shall not amend or terminate this
Contract in contravention of any applicable federal or state regulations, or any
provision of the Declaration of Trust, and (b) that the Trust on behalf of one
or more of the Portfolios may at any time by action of its Board of Trustees (i)
substitute another bank or trust company for the Custodian by giving notice as
described above to the Custodian, or (ii) immediately terminate this Contract in
the event of the appointment of a conservator or receiver for the Custodian or
upon the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
Upon termination of the Contract, the Trust on behalf of each
applicable Portfolio shall pay to the Custodian such compensation as may be due
as of the date of such termination and shall likewise reimburse the Custodian
for its costs, expenses and disbursements.
14. Successor Custodian
If a successor custodian for the assets of one or more of the
Portfolios shall be appointed by the Board of Trustees of the Trust, the
Custodian shall, upon termination, deliver to such successor custodian at the
office of the Custodian, duly endorsed and in the form for transfer, all
securities of each applicable Portfolio then held by it hereunder and shall
transfer to an account of the successor custodian all of the securities of each
such Portfolio held in a Securities System.
If no such successor custodian shall be appointed, the Custodian shall,
in like manner, upon receipt of a certified copy of a vote of the Board of
Trustees of the Trust, deliver at the office of the Custodian and transfer such
securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Trustees shall have been delivered to
the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver
<PAGE>
to a bank or trust company, which is a "bank" as defined in the Investment
Company Act of 1940, of its own selection, having an aggregate capital, surplus,
and undivided profits, as shown by its last published report, of not less than
$25,000,000, all securities, funds and other properties held by the Custodian on
behalf of each applicable Portfolio and all instruments held by the Custodian
relative thereto and all other property held by it under this Contract and on
behalf of each applicable Portfolio transfer to an account of such successor
custodian all of the securities of each such Portfolio held in any Securities
System. Thereafter, such bank or trust company shall be the successor of the
Custodian under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Trust to procure the certified copy of the vote referred to or of
the Board of Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties and
the provisions of this Contract relating to the duties and obligations of the
Custodian shall remain in full force and effect.
15. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and
the Trust on behalf of each of the Portfolios may from time to time agree on
such provisions interpretive of or in addition to the provisions of this
Contract as may in their joint opinion be consistent with the general tenor of
this Contract. Any such interpretive or additional provisions shall be in a
writing signed by both parties and shall be annexed hereto, provided that no
such interpretive or additional provisions shall contravene any applicable
federal or state regulations or any provision of the Declaration of Trust of the
Trust. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Contract.
16. Additional Funds
In the event that the Trust establishes one or more series of Shares in
addition to Series I and Series II with respect to which it desires to have the
Custodian render services as custodian
<PAGE>
under the terms hereof, it shall so notify the Custodian in writing, and if
the Custodian agrees in writing to provide such services, such series of Shares
shall become a Portfolio hereunder.
17. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
18. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, the
existing custodian contracts between the Trust on behalf of each of the
Portfolios and the Custodian. Any reference to the custodian contract between
the Trust and the Custodian in documents executed prior to the date hereof shall
be deemed to refer to this Contract.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 24th day of May, 1988.
ATTEST MASSACHUSETTS FINANCIAL HIGH INCOME TRUST
ILLEGIBLE By: RICHARD B. BAILEY
(Illegible) Richard B. Bailey
ATTEST STATE STREET BANK & TRUST COMPANY
J. FARRELL By: ILLEGIBLE
J. Farrell, Assistant Secretary (Illegible), Vice President
<PAGE>
EXHIBIT NO. 99.8(b)
AMENDMENT TO CUSTODIAN CONTRACT
Amendment to Custodian Contract between Massachusetts Financial High
Income Trust, a business trust organized and existing under the laws of
Massachusetts, having a principal place of business at 200 Berkeley Street,
Boston, Massachusetts 02116 (hereinafter called the "Fund"), and State Street
Bank and Trust Company, a Massachusetts trust company, having its principal
place of business at 225 Franklin Street, Boston, Massachusetts 02110
(hereinafter called the "Custodian").
WHEREAS: The Fund and the Custodian are parties to a Custodian
Contract dated May 24, l988 (the "Custodian Contract");
WHEREAS: The Fund desires that the Custodian issue a letter of credit
(the "Letter of Credit") on behalf of the Fund for the benefit of ICI Mutual
Insurance Company (the "Company") in accordance with the Continuing Letter of
Credit and Security Agreement and that the Fund's obligations to the Custodian
with respect to the Letter of Credit shall be fully collateralized at all times
while the Letter of Credit is outstanding by, among other things, segregated
assets of the Fund equal to 125% of the face amount to the amount of the Letter
of Credit;
WHEREAS: The Custodian Contract provides for the establishment of
segregated accounts for proper Fund purposes upon Proper Instructions (as
defined in the Custodian Contract); and
WHEREAS: The Fund and the Custodian desire to establish a segregated
account to hold the collateral for the Fund's obligations to the Custodian
with respect to the Letter of Credit and to amend the Custodian Contract to
provide for the establishment and maintenance thereof;
WITNESSETH: That in consideration of the mutual covenants and
agreements
<PAGE>
hereinafter contained, the parties hereto hereby amend the Custodian
Contract as follows:
1. Capitalized terms used herein without definition shall have
the meanings ascribed to them in the Custodian Contract.
2. The Fund hereby instructs the Custodian to establish and maintain a
segregated account (the "Letter of Credit Custody Account") for and in behalf of
the Fund as contemplated by Section 2.13(iv) for the purpose of collateralizing
the Fund's obligations under this Amendment to the Custodian Contract.
3. The Fund shall deposit with the Custodian and the Custodian shall
hold in the Letter of Credit Custody Account cash, U.S. government securities
and other high-grade debt securities owned by the Fund acceptable to the
Custodian (collectively "Collateral Securities") equal to 125% of the face
amount to the amount which the Company may draw under the Letter of Credit. Upon
receipt of such Collateral Securities in the Letter of Credit Custody Account,
the Custodian shall issue the Letter of Credit to the Company.
4. The fund hereby grants to the Custodian a security interest in the
Collateral Securities from time to time in the Letter of Credit Custody Account
(the "Collateral") to secure the performance of the Fund's obligations to the
Custodian with respect to the Letter of Credit, including, without limitation,
under Section 5-114(3) of the Uniform Commercial Code. The Fund shall register
the pledge of Collateral and execute and deliver to the Custodian such powers
and instruments of assignment as may be requested by the Custodian to evidence
and perfect the limited interest in the Collateral granted hereby.
5. The Collateral Securities in the Letter of Credit Custody Account
may be substituted or exchanged (including substitutions or exchanges which
increase or decrease the aggregate value of the Collateral) only pursuant to
Proper Instructions from the Fund after the Fund notifies the Custodian of the
contemplated substitution or exchange and the Custodian agrees that such
substitution or exchange is acceptable to the Custodian.
<PAGE>
6. Upon any payment made pursuant to the Letter of Credit by the
Custodian to the Company, after notice to the company, the Custodian may
withdraw from the Letter of Credit Custody Account Collateral Securities in an
amount equal in value to the amount actually so paid. The Custodian shall have
with respect to the Collateral so withdrawn all of the rights of a secured
creditor under the Uniform Commercial Code as adopted in the Commonwealth of
Massachusetts at the time of such withdrawal and all other rights granted or
permitted to it under law.
7. The Custodian will transfer upon receipt all income earned on the
Collateral to the Fund custody account unless the Custodian receives Proper
Instructions from the Fund to the contrary.
8. Upon the drawing by the Company of all amounts which may become
payable to it under the Letter of Credit and the withdrawal of all Collateral
Securities with respect thereto by the Custodian pursuant to Section 6 hereof,
or upon the termination of the Letter of Credit by the Fund with the written
consent of the Company, the Custodian shall transfer any Collateral Securities
then remaining in the Letter of Credit Custody Account to another fund custody
account.
9. Collateral held in the Letter of Credit Custody Account shall be
released only in accordance with the provisions of this Amendment to Custodian
Contract. The Collateral shall at all times until withdrawn pursuant to Section
6 hereof remain the property of the Fund, subject only to the extent of the
interest granted herein to the Custodian.
10. Notwithstanding any other termination of the Custodian Contract,
the Custodian Contract shall remain in full force and effect with respect to the
Letter of Credit Custody Account until transfer of all Collateral Securities
pursuant to Section 8 hereof.
11. The Custodian shall be entitled to reasonable compensation for its
issuance of the Letter of Credit and for its services in connection with the
Letter of Credit Custody Account as agreed upon from time to time between the
Fund and the Custodian.
<PAGE>
12. The Custodian Contract as amended hereby, shall be governed
by, and construed and interpreted under, the laws of the Commonwealth of
Massachusetts.
13. The parties agree to execute and deliver all such further documents
and instruments and to take such further action as may be required to carry out
the purposes of the Custodian Contract, as amended hereby.
14. Except as provided in this Amendment to Custody Contract, the
Custodian Contract shall remain in full force and effect, without amendment or
modification, and all applicable provisions of the Custodian Contract, as
amended hereby, including, without limitation, Section 8 thereof, shall govern
the Letter of Credit Custody Account and the rights and obligations of the Fund
and the Custodian under this Amendment to Custodian Contract. No provision of
this Amendment to Custodian Contract shall be deemed to constitute a waiver of
any rights of the Custodian under the Custodian Contract or under law.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to
Custodian Contract to be executed in its name and behalf by its duly authorized
representatives and its seal to be hereunder affixed as of the 24th day of May,
1988.
ATTEST:
By: DAN JAFFEE By: W. THOMAS LONDON
Dan Jaffee W. Thomas London, Treasurer
ATTEST: STATE STREET BANK & TRUST COMPANY
By: ILLEGIBLE By: ILLEGIBLE
(Illegible) Assistant Secretary (Illegible) Vice President
<PAGE>
EXHIBIT NO. 99.8(c)
AMENDMENT TO CUSTODIAN CONTRACT
Agreement made as of this 1st day of October, 1989 by and between State
Street Bank and Trust Company (the "Custodian") and Massachusetts Financial High
Income Trust ("Trust").
WHEREAS, the Custodian and the Trust are parties to a Custodian
Contract dated 19 (the "Custodian Contract") which governs the terms and
conditions under which the Custodian maintains custody of the securities and
other assets of the Trust;
WHEREAS, the Custodian may delegate to Massachusetts Financial Services
Company ("MFS") the performance of certain duties the Custodian would otherwise
be obligated to perform pursuant to the Custodian Agreement;
WHEREAS, the Trust agrees to any such delegation of certain Custodian
duties;
NOW THEREFORE, the Custodian and the Trust hereby amend the terms of
the Custodian Contract and mutually agree to the following:
1) Add new Section 19 which shall read as follows:
19. Delegation of Certain Custodian Duties to MFS.
The Custodian may delegate to MFS the performance of any or
all of its duties hereunder relating to (i) accounting for investments in
currency and for financial instruments (including, without limitation, options,
contracts, futures contracts, options on futures contracts, options on foreign
currency and forward foreign currency exchange contracts and (ii) federal and
state regulatory compliance. The Custodian shall compensate MFS for the
performance of such duties at such fee or fees as MFS shall determine to be
equal to MFS's cost for performing such duties (the "MFS Fees"). Following its
payment of the MFS Fees to MFS, the Custodian shall recover the amount of the
MFS Fees and from the Trust on such terms as the Custodian and the Trust shall
agree. MFS assumes responsibility for all duties delegated to it by the
Custodian pursuant to this Section 19, and the Custodian may rely on MFS for the
accuracy and correctness of the accounting information provided by MFS to the
Custodian pursuant to this Section .
IN WITNESS WHEREOF, each of the parties hereto have caused this
instrument to be executed in its name and on its behalf by a duly authorized
representative as of the aforementioned day and year.
ATTEST MASSACHUSETTS FINANCIAL HIGH INCOME TRUST
LINDA J. HOARD By: A. KEITH BRODKIN
Linda J. Hoard A. Keith Brodkin
ATTEST STATE STREET BANK & TRUST COMPANY
ILLEGIBLE By: ILLEGIBLE
(Illegible) Assistant Secretary (Illegible) Vice President
<PAGE>
EXHIBIT NO. 99.8(d)
AMENDMENT
The Custodian Contract dated May 24, 1988 between Massachusetts
Financial High Income Trust (referred to herein as the "Trust") and State Street
Bank and Trust Company (the "Custodian") is hereby amended as follows:
I. Section 2.1 is amended to read as follows:
"Holding Securities. The Custodian shall hold and physically segregate
for the account of the Trust all non-cash property, including all securities
owned by the Trust, other than (a) securities which are maintained pursuant to
Section 2.11 in a clearing agency which acts as a securities depository or in a
book-entry system authorized by the U.S. Department of the Treasury,
collectively referred to herein as "Securities System" and (b) commercial paper
of an issuer for which State Street Bank and Trust Company acts as issuing and
paying agent ("Direct Paper") which is deposited and/or maintained in the Direct
Paper System of the Custodian pursuant to Section 2.11A.
II. Section 2.2 is amended to read, in relevant part as follows:
"Delivery of Securities. The Custodian shall release and deliver
securities owned by the Trust held by the Custodian or in a Securities System
account of the Custodian or in the Custodian's Direct Paper book entry system
account ("Direct Paper System Account") only upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, and only in following cases:
1. . . . .
.
.
.
15. . . . ."
<PAGE>
III. Section 2.8(1) is amended to read in relevant part as follows:
"Payment of Trust Monies. Upon receipt of Proper Instructions, which
may be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out monies of the Trust in the following cases only:
1) Upon the purchase of securities, options, futures contracts or
options on futures contracts for the account of the Trust but only (a) against
the delivery of such securities or evidence of title to such options, futures
contracts or options on futures contracts, to the Custodian (or any bank,
banking firm or trust company doing business in the United States or abroad
which is qualified under the Investment Company Act of 1940, as amended, to act
as a custodian and has been designated by the Custodian as its agent for this
purpose) registered in the name of the Trust or in the name of a nominee of the
Custodian referred to in Section 2.3 hereof or in proper form for transfer; (b)
in the case of a purchase effected through a Securities System, in accordance
with the conditions set forth in Section 2.11 hereof or (c) in the case of a
purchase involving the Direct Paper System, in accordance with the conditions
set forth in Section 2.11A; or (d) in the case of repurchase agreements entered
into between the Trust and the Custodian, or another bank, or a broker-dealer
which is a member of NASD, (i) against delivery of the securities either in
certificate form or through an entry crediting the Custodian's account at the
Federal Reserve Bank with such securities or (ii) against delivery of the
receipt evidencing purchase by the Trust of securities owned by the Custodian
along with written evidence of the agreement by the Custodian to repurchase such
securities from the Trust or (e) for transfer to a time deposit account of the
Trust in any bank, whether domestic or foreign; such transfer may be effected
prior to receipt of a confirmation from a broker and/or the applicable bank
pursuant to Proper Instructions from the Trust as defined in Section 5;"
<PAGE>
IV. Following Section 2.11 there is inserted a new Section 2.11.A to read
as follows:
2.11.A "Trust Assets Held in the Custodian's Direct Paper System.
The Custodian may deposit and/or maintain securities owned by the Trust in the
Direct Paper System of the Custodian subject to the following provisions:
1) No transaction relating to securities in the Direct Paper System
will be effected in the absence of Proper Instructions;
2) The Custodian may keep securities of the Trust in the
Direct Paper System only if such securities are represented in an account
("Account") of the Custodian in the Direct Paper System which shall not include
any assets of the Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
3) The records of the Custodian with respect to
securities of the Trust which are maintained in the Direct Paper System shall
identify by book-entry those securities belonging to the Trust;
4) The Custodian shall pay for securities purchased for the
account of the Trust upon the making of an entry on the records of the Custodian
to reflect such payment and transfer of securities to the account of the Trust.
The Custodian shall transfer securities sold for the account of the Trust upon
the making of an entry on the records of the Custodian to reflect such transfer
and receipt of payment for the account of the Trust:
5) The Custodian shall furnish the Trust confirmation of each
transfer to or from the account of the Trust, in the form of a written advice or
notice, of Direct Paper on the next business day following such transfer and
shall furnish to the Trust copies of daily transaction sheets reflecting each
day's transaction in the Securities System for the account of the Trust;
6) The Custodian shall provide the Trust with any report on its
system of internal accounting control as the Trust may reasonably request
from time to time."
<PAGE>
V. Section 13 is hereby amended to read as follows:
"Effective Period. Termination and Amendment.
This Contract shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than thirty (30) days after the date of such delivery or mailing; provided,
however that the Custodian shall not act under Section 2.11 hereof in the
absence of receipt of an initial certificate of the Secretary or an Assistant
Secretary that the Board of Trustees of the Trust has approved the initial use
of a particular Securities System and the receipt of an annual certificate of
the Secretary or an Assistant Secretary that the Board of Trustees has reviewed
the use by the Trust of such Securities System, as required in each case by Rule
17f-4 under the Investment Company Act of 1940, as amended and that the
Custodian shall not act under Section 2.11A hereof in the absence of receipt of
an initial certificate of the Secretary or an Assistant Secretary that the Board
of Trustees has approved the initial use of the Direct Paper System and the
receipt of an annual certificate of the Secretary or an Assistant Secretary that
the Board of Trustees has reviewed the use by the Trust of the Direct Paper
System; provided further, however, that the Trust shall not amend or terminate
this Contract in contravention of any applicable federal or state regulations,
or any provision of the Declaration of Trust, and further provided, that the
Trust may at any time by action of its Board of Trustees (i) substitute another
bank or trust company for the Custodian by giving notice as described above to
the Custodian, or (ii) immediately terminate this Contract in the event of the
appointment of a conservator or receiver for the Custodian by the Comptroller of
the Currency or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Upon termination of the Contract, the Trust shall pay to the Custodian
such compensation as may be due as of the date of such termination and shall
likewise reimburse the Custodian for its costs, expenses and disbursements."
<PAGE>
Except as otherwise expressly amended and modified herein, the
provisions of the Custodian Contract shall remain in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed in its name and on its behalf by its duly authorized
representatives and its Seal to be hereto affixed as of the 17th day of
September, 1991.
ATTEST: MASSACHUSETTS FINANCIAL HIGH INCOME TRUST
LINDA J. HOARD By: W. THOMAS LONDON
Linda J. Hoard, Assistant Secretary W. Thomas London, Treasurer
ATTEST: STATE STREET BANK & TRUST COMPANY
ILLEGIBLE By: ILLEGIBLE
(Illegible) Assistant Secretary (Illegible) Vice President
<PAGE>
EXHIBIT NO. 99.9(a)
MASSACHUSETTS FINANCIAL HIGH INCOME TRUST
200 Berkeley Street
Boston, Massachusetts 02116
Date August 1, 1985
Massachusetts Financial Service Center, Inc.
200 Berkeley Street
Boston, Massachusetts 02116
Shareholder Servicing Agent Agreement
Dear Sirs:
Massachusetts Financial High Income Trust (the "Fund") is an open-end
registered investment company. The Fund has selected you to act as the
Shareholder Servicing Agent and you hereby agree to act as such Agent and
perform the duties and functions thereof in the manner and on the conditions
hereinafter set forth. Accordingly, the Fund hereby agrees with you as follows:
1. The Facility. You represent that you have the necessary computer
equipment, software and other office equipment ("Facility") adequate to perform
the services contemplated hereby as well as for other investment companies (such
investment companies, together with the Fund, are herein collectively referred
to as the "MFS Funds") for which Massachusetts Financial Services Company
("MFS") acts as investment adviser. The Facility is presently located at 50 Milk
Street, Boston, Massachusetts, and is to be dedicated solely to the performance
of services for the MFS Funds, provided that the Facility may be utilized to
perform services for others with the prior written permission of the MFS Funds.
2. Name. Unless otherwise directed in writing by MFS, you shall perform
the services contemplated hereby under the name "Massachusetts Financial Service
Center, Inc.", which name, any similar names and any logos of which shall remain
the property and under the control of MFS. Upon termination of this Agreement,
you shall cease to use such name or any similar name within a reasonable period
of time.
3. Services to be Performed. As Shareholder Servicing Agent ("Agent"),
you shall be responsible for administering and performing transfer and dividend
and distribution disbursing and plan agent functions in connection with the
issuance, transfer and redemption of the shares of beneficial interest
("Shares"). The details of the operating standards and procedures to be followed
by you shall be determined from time to time by agreement between you and the
Fund.
4. Standard of Service. As Agent for the Fund, you agree to provide
service equal to or better than that provided by you or others furnishing
shareholder services to other open-end investment companies ("Standard") at a
fee comparable to the fee paid you for your services hereunder. The Standard
shall include at least the following:
<PAGE>
(a) Prompt reconciliation of any differences as to the number of
outstanding shares between various Facility records or between Facility records
and records of an MFS Fund's Custodian;
(b) Prompt processing of shareholder correspondence and of other
matters requiring action by you;
(c) Prompt clearance of any daily volume backlog;
(d) Providing innovative services and technological improvements;
(e) Meeting the requirements of any governmental authority
having jurisdiction over you or the Fund; and
(f) Prompt reconciliation of all bank accounts under your
control belonging to the Fund or MFS.
If any MFS Fund serviced by you is reasonably of the view that the
service provided by you does not meet the Standard, it shall give you written
notice specifying the particulars, and you then shall have 120 days in which to
restore the service so that it meets the Standard, except that such period shall
be 180 days with respect to meeting that portion of the Standard described above
in item (d) of this paragraph 4. If at the end of such period the Fund remains
reasonably of the view that the service provided by you, in the particulars
specified, does not meet the Standard, then the MFS Fund or Funds having a
majority of the accounts for which you are then Agent may, by appropriate action
(including the concurrence of a majority of the Trustees or Directors, as the
case may be, of such MFS Fund or Funds who are not interested persons of MFS),
elect to terminate this Agreement for cause as to all such Funds upon 90 days
notice to you. Upon termination hereof, the Fund shall pay you such compensation
as may be due to you as of the date of such termination, and shall likewise
reimburse you for any costs, expenses, and disbursements reasonably incurred by
you to such date in the performance of your duties hereunder.
5. Purchase of Facility. In the event that notice of termination of
this Agreement has been given pursuant to the provisions of paragraph 14 hereof,
for cause as defined in paragraph 4 hereof, the MFS Funds have the right, but
shall not be required (a) to purchase the Facility and assume the unexpired
portion of any leases of equipment or real estate relating to the Facility from
you at a price equal to your unrecovered acquisition value (as supported by the
schedules and records used in determining monthly billings) of the machinery,
equipment, software, furniture, fixtures and leasehold improvements included in
the Facility, and (b) to negotiate with persons then employed by you in the
operation of the Facility and to hire all of them in connection with the
purchase of the Facility from you by the MFS Funds. You agree to release each
such employee from any contractual obligations such person may have to you that
may interfere with such person's being hired at such time by the MFS Funds and
agree not to interfere with the negotiation and hiring of any such persons at
such time. In the event that the MFS Funds have given notice of termination of
this Agreement pursuant to the provisions of paragraph 14 hereof for reasons
other than cause as defined in paragraph 4 hereof, the MFS Funds shall purchase
the Facility under the terms and conditions set forth in subsections (a) and (b)
of this paragraph 5.
You shall effect the transfer of the Facility pursuant to this
paragraph 5 upon the termination date specified in the notice, or at such other
time as shall be agreed upon by the parties hereto.
6. Rights in Data and Confidentiality. You agree that all records,
data, files, input materials, reports, forms and other data received, computed
or stored in the performance of this
<PAGE>
Agreement are the exclusive property of the Fund and that all such records
and other data shall be furnished without additional charge, except for actual
processing costs, to the Fund in machine readable as well as printed form
immediately upon termination of this Agreement or at the Fund's request. You
shall safeguard and maintain the confidentiality of the Fund's data and
information supplied to you by the Fund and you shall not transfer or disclose
the Fund's data to any third party without the Fund's prior written consent
unless compelled to do so by order of a court or regulatory authority.
7. Fees. The fee per Fund shareholder account for your shareholder
services hereunder shall not be in excess of such amount as shall be agreed in
writing between us. Such fee shall be payable in monthly installments of
one-twelfth of the annual fee. Such fee shall be subject to review at least
annually and fixed by the parties in good faith negotiation on the basis of a
statement of the expenses of the Facility prepared by you, which either you or
the Fund may require to be certified by a major accounting firm acceptable to
the parties. The party or parties requesting such certification shall bear all
expenses thereof. In addition to the foregoing fee, you will be reimbursed by
the Fund for out-of-pocket expenses reasonably incurred by you on behalf of the
Fund, including but not limited to expenses for stationery (including business
forms and checks), postage, telephone and telegraph line and toll charges, and
premiums for negotiable instrument insurance and similar items.
8. Record Keeping. You will maintain records in a form acceptable to
the Fund and in compliance with the rules and regulation of the Securities and
Exchange Commission, including, but not limited to, records required to be
maintained by Section 31(a) of the Investment Company Act of 1940 and the rules
thereunder, which at all times will be the property of the Fund and will be
available for inspection and use by the Fund.
9. Duty of Care and Indemnification. You will at all times act in good
faith in performing your duties hereunder. You will not be liable or responsible
for delays or errors by reason of circumstances beyond your control, including
acts of civil or military authority, national emergencies, labor difficulties,
fire, mechanical breakdown beyond your control, flood or catastrophe, acts of
God, insurrection, war, riots or failure beyond your control of transportation,
communication or power supply. The Fund will indemnify you against and hold you
harmless from any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from any claim,
demand, action or suit not resulting from your bad faith or negligence, and
arising out of, or in connection with, your duties on behalf of the Fund
hereunder. In addition, the Fund will indemnify you against and hold you
harmless from any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from any claim,
demand, action or suit as a result of your acting in accordance with any
instructions reasonably believed by you to have been executed or orally
communicated by any person duly authorized by the Fund or its Principal
Underwriter, or as a result of acting in accordance with written or oral advice
reasonably believed by you to have been given by counsel for the Fund, or as a
result of acting in accordance with any instrument or share certificate
reasonably believed by you to have been genuine and signed, countersigned or
executed by any person or persons authorized to sign, countersign or execute the
same (unless contributed to by your gross negligence or bad faith). In any case
in which the Fund may be asked to indemnify you or hold you harmless, the Fund
shall be advised of all pertinent facts concerning the situation in question and
you will use reasonable care to identify and notify the Fund promptly concerning
any situation which presents or appears likely to present a claim for
indemnification against the Fund. The Fund shall have the option to defend you
against any claim which may be the subject of this indemnification, and in the
event that the Fund so elects such defense shall be conducted by counsel chosen
by the Fund and satisfactory to you and it will so notify you, and thereupon the
Fund shall take over complete defense of the claim and you shall sustain no
further legal or other expenses in such situation for which you seek
indemnification under this paragraph, except the expense of any additional
counsel retained by you. You will in no case confess any claim or make any
compromise in any case in which the
<PAGE>
Fund will be asked to indemnify you except with the Fund's prior written
consent. The obligations of the parties hereto under this paragraph shall
survive the termination of this Agreement.
If any officer of the Fund shall no longer be vested with authority to
sign for the Fund, written notice thereof shall forthwith be given to you by the
Fund and until receipt of such notice by it, you shall be fully indemnified and
held harmless by the Fund in recognizing and acting upon certificates or other
instruments bearing the signatures or facsimile signatures of such officer.
10. Insurance. You will notify the Fund should any of your
insurance coverage, as set forth on Exhibit A hereto, be changed for any
reason, such notification to include the date of change and reason or reasons
therefor.
11. Notices. All notices or other communications hereunder
shall be in writing and shall be deemed sufficient if mailed to either party
at the addresses set forth in this Agreement, or at such other addresses as
the parties hereto may designate by notice to each other.
12. Further Assurances. Each party agrees to perform such
further acts and execute such further documents as are necessary to effectuate
the purposes hereof.
13. Use of a Sub- or Co-Transfer Agent. Notwithstanding any other
provision of this Agreement, it is expressly understood and agreed that you are
authorized in the performance of your duties hereunder to employ, from time to
time, one or more Sub-Transfer Agents and/or Co-Transfer Agents.
14. Termination. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing, which, except in the case of termination, shall be signed by the party
against which enforcement of such change waiver or discharge is sought. Except
as otherwise provided in paragraph 4 hereof, this Agreement shall continue
indefinitely until terminated by 90 days' written notice given by the Fund to
you or by you to the Fund, provided that the Fund may terminate this Agreement
upon 15 days' written notice of termination and election of the right to
purchase the Facility pursuant to the provisions of paragraph 5 hereof. Upon
termination hereof, the Fund shall pay you such compensation as may be due to
you as of the date of such termination, and shall likewise reimburse you for any
costs, expenses, and disbursements reasonably incurred by you to such date in
the performance of your duties hereunder. You agree to cooperate with the Fund
and provide all necessary assistance in effectuating an orderly transition upon
termination of this Agreement.
15. Successor. In the event that in connection with termination a
successor to any of your duties or responsibilities hereunder is designated by
the Fund by written notice to you, you will, promptly upon such termination and
at the expense of the Fund, transfer to such successor a certified list of the
shareholders of the Fund (with name, address and tax identification or Social
Security number) an historical record of the account of each shareholder and the
status thereof, and all other relevant books, records, correspondence, and other
data established or maintained by you under this Agreement in form reasonably
acceptable to the Fund (if such form differs from the form in which you have
maintained the same, the Fund shall pay any expenses associated with
transferring the same to such form), and will cooperate in the transfer of such
duties and responsibilities, including provision for assistance from your
cognizant personnel in the establishment of books, records and other data by
such successor.
16. Miscellaneous. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the Commonwealth of Massachusetts.
The captions in this Agreement are included for convenience of reference only
and in no way define or delimit any of
<PAGE>
the provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument. This Agreement has been executed on
behalf of the Fund by the undersigned not individually, but in the capacity
indicated, and the obligations of this Agreement are not binding upon any of the
Trustees or shareholders of the Fund individually, but bind only the trust
estate.
Very truly yours,
MASSACHUSETTS FINANCIAL HIGH INCOME TRUST
By: ILLEGIBLE
Title: Chairman
The foregoing is hereby accepted as of the date thereof.
MASSACHUSETTS FINANCIAL SERVICES COMPANY
By: ILLEGIBLE
Title: President
The foregoing is hereby accepted as of the date thereof.
MASSACHUSETTS FINANCIAL SERVICE
CENTER, INC.
By: ILLEGIBLE
Title: President
<PAGE>
EXHIBIT NO. 99.9(b)
MFS SERIES TRUST III
500 Boylston Street o Boston o Massachusetts o 02116
(617) o 954-5000
December 28, 1993
MFS Service Center, Inc.
500 Boylston Street
Boston, MA 02116
Dear Sir/Madam:
This will confirm our understanding that Exhibit B to the Shareholder
Servicing Agent Agreement between us, dated August 1, 1985, as amended, is
hereby amended, effective immediately, to read in its entirety as set forth on
Attachment 1 hereto.
Please indicate your acceptance of the foregoing by signing below.
Sincerely,
MFS SERIES TRUST III
By: W. THOMAS LONDON
W. Thomas London
Treasurer
Accepted and Agreed:
MFS SERVICE CENTER, INC.
By: JAMES E. RUSSELL
James E. Russell
Treasurer
<PAGE>
ATTACHMENT 1
December 28, 1993
EXHIBIT B TO THE SHAREHOLDER
SERVICING AGENT AGREEMENT BETWEEN
MFS SERVICE CENTER, INC. ("MFSC")
AND MFS SERIES TRUST III (the "Fund")
1. The fees to be paid by the Fund on behalf of its series with respect to
Class A shares of each series of the Fund to MFSC, for MFSC's services as
shareholder servicing agent, shall be:
0.15% of the first $500 million of the assets of the series attributable to
such class;
0.12% of the second $500 million of the assets of the series
attributable to such class; 0.09% over $1 billion of the assets of the
series attributable to such class.
2. The fees to be paid by the Fund on behalf of its series with respect to
Class B shares of each series of the Fund to MFSC, for MFSC's services as
shareholder servicing agent, shall be:
0.22% of the first $500 million of the assets of the series attributable
to such class;
0.18% of the second $500 million of the assets of the series attributable
to such class;
0.13% over $1 billion of the assets of the series attributable to
such class.
3. The fees to be paid by the Fund on behalf of its series with respect to
Class C shares of each series of the Fund to MFSC, for MFSC's services as
shareholder servicing agent, shall be:
0.15% of the first $500 million of the assets of the series attributable
to such class;
0.12% of the second $500 million of the assets of the series attributable
to such class;
0.09% over $1 billion of the assets of the series attributable to such
class.
