<PAGE>
As filed with the Securities and Exchange Commission on October 3, 1995
1933 Act File No. 2-36431
1940 Act File No. 811-2032
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM N-1A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POST-EFFECTIVE AMENDMENT NO. 34
AND
REGISTRATION STATEMENT
UNDER
THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 24
MFS GROWTH OPPORTUNITIES FUND
(formerly known as MFS Capital Development Fund)
(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 December 31, 1994 on February 28, 1995. <PAGE>
PART C
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
(A) FINANCIAL STATEMENTS INCLUDED IN PART A:
For the ten years ended December 31, 1994:
Financial Highlights*
FINANCIAL STATEMENTS INCLUDED IN PART B:
At December 31, 1994:
Portfolio of Investments*
Statement of Assets and Liabilities*
For the year ended December 31, 1994:
Statement of Operations*
For the two years in the period ended December 31, 1994:
Statement of Changes in Net Assets*
- --------------------------
* Incorporated herein by reference to the Fund's Annual Report to
shareholders dated December 31, 1994 which was filed via EDGAR with the SEC
on March 6, 1995.
(B) EXHIBITS
1 Amended and Restated Declaration of Trust, dated
February 17, 1995. (3)
2 Amended and Restated By-Laws, dated December 21,
1994. (3)
3 Not Applicable.
4 Form of Share Certificate for Class A and Class B
shares. (4)
5 Investment Advisory Agreement dated July 19,
1985, by and between the Registrant and
Massachusetts Financial Services Company; filed
herewith.
6(a) Distribution Agreement, dated January 1, 1995.(3)
(b) 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. (1)
<PAGE>
7 Retirement Plan for Non-Interested Person
Trustees, dated January 1, 1991; filed herewith.
8(a) Custodian Contract between Registrant and State
Street Bank and Trust Company, dated April 25,
1988; filed herewith.
(b) Amendment to Custodian Contract, dated April 25,
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
between Registrant and Massachusetts
Financial Service Center, dated August 1,
1985; filed herewith.
(b) Amendment to Shareholder Servicing Agent
Agreement, dated September 7, 1993; filed
herewith.
(c) Exchange Privilege Agreement, dated February 8,
1989 as amended through September 1, 1993. (4)
(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. (2)
(e) Dividend Disbursing Agency Agreement among MFS
Funds and State Street Bank and Trust Company,
dated February 1, 1986. (4)
10 Opinion and Consent of Counsel for the fiscal
year ended December 31, 1994, filed with the Rule
24f-2 Notice on February 28, 1995. (3)
11 Consent of Deloitte & Touche. (3)
12 Not Applicable.
13 Not Applicable.
14(a) Forms for Individual Retirement Account
Disclosure Statement as currently in effect. (5)
<PAGE>
(b) Forms for MFS 403(b) Custodial Account Agreement
as currently in effect. (5)
(c) Forms for MFS Prototype Paired Defined
Contribution Plans and Fund Agreement as
currently in effect. (5)
15(a) Amended and Restated Distribution Plan for Class
A Shares, dated December 21, 1994. (3)
(b) Distribution Plan for Class B Shares, dated
December 21, 1994. (3)
16 Schedule for Computation of Performance
Quotations - Average Annual Total Rate of Return,
Aggregate Total Rate of Return and Standardized
Yield. (1)
17 Financial Data Schedules for each class. (3)
18 Not Applicable.
Power of Attorney, dated September 21, 1994. (3)
-----------------------------
(1) 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.
(2) 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.
(3) Incorporated by reference to Registrant's Post-Effective Amendment No. 33
filed with the SEC via EDGAR on April 28, 1995.
(4) 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.
(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
(1) (2)
TITLE OF CLASS NUMBER OF RECORD HOLDERS
Class A Shares of Beneficial Interest 45,435
(without par value) (as of August 31, 1995)
Class B Shares of Beneficial Interest 780
(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 the Registrant's
Post-Effective Amendment No. 33, filed with the SEC on April 28, 1995; (b) the
undertaking of the Registrant regarding indemnification set forth in its
Registration Statement on Form S-5 and (c) 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 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
<PAGE>
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 ("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.
<PAGE>
MFS Fund Distributors, Inc. ("MFD"), a wholly owned
subsidiary of MFS, serves as distributor for the MFS Funds, MVI, UST and MFSIT.
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.
<PAGE>
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 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.
<PAGE>
SGVAF
W. Thomas London is the Treasurer.
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 FUNDS
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 FUNDS
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.
<PAGE>
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.
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, Carol A. Corley, John A. Gee and Brianne
Grady 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)
<PAGE>
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)
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
(investment adviser) Boston, Mass. 02116
MFS Fund Distributors, Inc. 500 Boylston Street
(principal underwriter) Boston, Mass. 02116
State Street Bank and State Street South
Trust Company 5 - West
(custodian) North Quincy, Mass.
02171
MFS Service Center, Inc. 500 Boylston Street
(transfer agent) Boston, Mass. 02116
<PAGE>
ITEM 31. MANAGEMENT SERVICES
Not Applicable.
ITEM 32. UNDERTAKINGS
(a) Not Applicable.
(b) Not Applicable.
(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 29th day of September, 1995.
MFS GROWTH OPPORTUNITIES FUND
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 September 29, 1995.
SIGNATURE TITLE
A. KEITH BRODKIN* Chairman, President
A. Keith Brodkin (Principal Executive
Officer) and Trustee
W. THOMAS LONDON* Treasurer (Principal
W. Thomas London Financial Officer
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. 33 filed with the Securities and
Exchange Commission on April 28, 1995.
<PAGE>
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
<S> <C> <C>
5 Investment Advisory Agreement dated July 19, 1985, by and
between the Registrant and Massachusetts Financial Services
Company.
7 Retirement Plan for Non-Interested Person Trustees, dated
January 1, 1991.
8 (a) Custodian Contract between Registrant and State Street Bank
and Trust Company, dated April 25, 1988.
(b) Amendment to Custodian Contract, dated April 25, 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 between Registrant and
Massachusetts Financial Service Center, dated August 1, 1985.
(b) Amendment to Shareholder Servicing Agent Agreement, dated
September 7, 1993.
</TABLE>
<PAGE>
Exhibit No. 99.5
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, made this 19th day of July, 1985, by and between MASSACHUSETTS
CAPITAL DEVELOPMENT FUND, a Massachusetts business trust (the "Fund"), and
MASSACHUSETTS FINANCIAL SERVICES COMPANY, a Delaware corporation (the
"Adviser").
WITNESSETH:
WHEREAS, the Fund 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 management of 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 its Declaration of Trust,
dated February 20, 1985, and By-Laws, each as amended from time to time
(respectively, the "Declaration" and "By-Laws"), to the provisions of the
Investment Company Act of 1940. 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 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 execution at the most favorable price by
responsible brokerage firms at reasonably competitive commission rates. In
<PAGE>
fulfilling this requirement the Adviser shall not be deemed to have acted
unlawfully or to have breached any duty, created by this Agreement or otherwise,
solely by reason of its having caused the Fund to pay a broker or dealer an
amount of commission for effecting a securities transaction in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction, if the Adviser determined in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Adviser's overall responsibilities with respect to
the Fund and to other clients of the Adviser as to which the Adviser exercises
investment discretion.
Article 2. Allocation of Charges and Expenses. The Adviser shall furnish at its
own expense all necessary administrative services, office space, equipment and
clerical personnel, investment advisory facilities and executive and supervisory
personnel for managing the investments, effecting the portfolio transactions,
and in general administering the affairs of the Fund. The Adviser shall arrange,
if desired by the Fund, for Directors, officers and employees of the Adviser to
serve as Trustees, officers or agents of the Fund 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 and
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 of portfolio security transactions, insurance premiums, fees
and expenses of the custodian for all services to the Fund, including
safekeeping of funds and securities, keeping of books and accounts and
calculation of the net asset value of shares of the Fund, expenses of
shareholders' meetings, and expenses relating to the issuance, registration and
qualification of shares of the Fund.
Article 3. Compensation of the Adviser. For the services to be rendered and for
the facilities to be furnished as provided in Articles 1 and 2 above, the Fund
shall pay to the Adviser a fee computed and paid monthly at the annual rate .5%
of average daily net assets of the Fund not in excess of $200,000,000 and .4% of
average daily net assets in excess of $200,000,000, provided that within thirty
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
incurred during such fiscal year, but excluding interest, taxes and brokerage
commissions, exceed the sum of (a) 1 1/2% of the average daily net assets of the
preceding year up to and including $30,000,000 and (b) 1% of any excess of
average daily net assets of the preceding year over $30,000,000. The obligation
of the Adviser to reimburse the Fund for expenses incurred for 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, provided, however, that
termination or revision of the Adviser's obligation to reimburse for expenses is
not to be effective with respect to the fiscal year within which such notice is
given. If the Adviser shall serve for less than the whole of any period
specified in this Article 3, the compensation to the Adviser shall be prorated.
<PAGE>
Article 4. Covenants of the Adviser. The Adviser agrees that it will not deal
with itself, or with the Trustees of the Fund or the Underwriter, as principals
in making 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 By-Laws 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 duties and
obligations hereunder. As used in this Article 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. It is understood that Trustees, officers, and shareholders of the
Fund 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 be or become similarly interested in the Fund, and that the
Adviser may be or become interested in the Fund as a shareholder or otherwise.
Article 7. Duration, Termination and Amendments of this Agreement. This
Agreement shall become effective on the date of its execution and shall govern
the relations between the parties hereto thereafter, and shall remain in force
until August 1, 1986 on which date it will terminate unless its continuance
after August 1, 1986 is specifically approved at least annually (i) by the vote
of a majority of the Trustees of the Fund who are not interested persons of the
Fund or of the Adviser at a meeting specifically called for the purpose of
voting on such approval, and (ii) by the Trustees of the Fund, or by vote of a
majority of the outstanding voting securities of the Fund. The aforesaid
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the Investment
Company Act of 1940 and the Rules and Regulations thereunder.
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, on not more than sixty days' nor less than thirty
days' written notice to the other party. This Agreement shall automatically
terminate in the event of its assignment.
This Agreement may be amended only if such amendment is approved by vote of a
majority of the outstanding voting securities of the Fund.
The terms "vote of a majority of the outstanding voting securities",
"assignment," "affiliated person," and "interested persons," 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,
<PAGE>
to such exemptions as may be granted by the Securities and Exchange Commission
under said Act and the term "brokerage and research services" shall have the
meaning given in the Securities Exchange Act of 1934 and Rules and Regulations
thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered in their names and on their behalf by the undersigned officers
thereunto duly authorized, 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.
MASSACHUSETTS CAPITAL
DEVELOPMENT FUND
By: RICHARD B. BAILEY
Richard B. Bailey
Chairman and Trustee
MASSACHUSETTS FINANCIAL
SERVICES COMPANY
By: H. ALDEN JOHNSON, JR.
H. Alden Johnson, Jr.
President
<PAGE>
Exhibit No. 99.7
MFS CAPITAL DEVELOPMENT FUND
RETIREMENT PLAN FOR NON-INTERESTED PERSON TRUSTEES
MFS Capital Development Fund (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 Section 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 Section 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
Section 3, benefits payable under this Section 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
<PAGE>
amount shall be payable 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 (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
<PAGE>
the Committee's affairs, its rights or powers or the
rights or powers of its members or of the 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 termination
<PAGE>
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 January 1, 1991 (the "Effective Date").
<PAGE>
EXHIBIT 99-8(a)
CUSTODIAN CONTRACT
BETWEEN
MASSACHUSETTS CAPITAL DEVELOPMENT FUND
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 Fund Held
by the Custodian in the United States............................. 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............. 7
2.7. Collection of Income..................................... 7
2.8. Payment of Fund Monies................................... 8
2.9. Liability for Payment in Advance of Receipt of Securities
Purchased............................................. 9
2.10. Appointment of Agents.................................... 10
2.11. Deposit of Fund Assets in Securities System.............. 10
2.11A. Fund Assets Held in the Custodian's Direct Paper System.. 12
2.12. Segregated Account....................................... 13
2.13. Ownership Certificates for Tax Purposes.................. 14
2.14. Proxies.................................................. 14
2.15. Communications Relating to Fund Portfolio Securities..... 15
2.16. Reports to Fund by Independent Public Accountants........ 15
3. Duties of the Custodian with Respect to Property of the Fund Held
Outside of the United States..................................... 16
3.1 Appointment of Chase as Subcustodian..................... 16
3.2 Standard of Care; Liability.............................. 16
3.3 Fund's Responsibility for Rules and Regulations.......... 17
4. Payments for Repurchases or Redemptions of Shares of the Fund..... 17
5. Proper Instructions............................................... 17
6. Actions Permitted Without Express Authority....................... 18
7. Evidence of Authority............................................. 18
8. Duties of the Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income..................... 19
9. Records ......................................................... 19
10. Opinion of Fund Independent Accountants .......................... 20
11. Compensation of Custodian......................................... 20
<PAGE>
TABLE OF CONTENTS (CONTINUED)
PAGE
12. Responsibility of Custodian...................................... 20
13. Effective Period, Termination and Amendment...................... 21
14. Successor Custodian.............................................. 22
15. Interpretive and Additional Provisions........................... 24
16. Massachusetts Law to Apply....................................... 24
17. Prior Contracts.................................................. 24
<PAGE>
CUSTODIAN CONTRACT
This Contract between Massachusetts Capital Development Fund, 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: That 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 its assets pursuant to the provisions
of the Articles of Incorporation 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 to deliver to the Custodian all securities and cash owned by
it, and all payments of income, payments of principal or capital distributions
received by it with respect to all securities owned by the Trust from time to
time, and the cash consideration received by it for such new or treasury shares
of beneficial interest ("Shares") of the Trust as may be issued or sold from
time to time. The Custodian shall not be responsible for any property of the
Trust held or received by the Trust and not delivered to the Custodian. Upon
receipt of "Proper Instructions" (within the meaning of Article 5), the
Custodian shall from time to time employ one or more sub-custodians, but only in
accordance with an applicable vote by the Board of Directors of the Fund, and
provided that, the Custodian shall have no more or less responsibility or
liability to the Fund on account of any actions or omissions of any
sub-custodian so employed than any such sub-custodian has to the Custodian.
<PAGE>
2. Duties of the Custodian with Respect to Property of the Fund Held By the
Custodian in the United States. The provisions of this Article 2 shall apply to
the duties of the Custodian as they relate to domestic securities, held in the
United States.
2.1. Holding Securities. The Custodian shall hold and physically segregate for
the account of the Fund all non-cash property, including all domestic securities
owned by the Fund to be held in the United States, 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 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 Book-Entry System ("Direct Paper
System") pursuant to Section 2.11.A.
2.2. Delivery of Securities. The Custodian shall release and deliver securities
owned by the Fund held by the Custodian or in a Securities System account of the
Custodian or in the Direct Paper System only upon receipt of Proper
Instructions, 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 Fund 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 Fund;
3) In the case of a sale effected through a Securities System, in accordance
with the provisions of Section 2.11 hereof;
<PAGE>
4) To the depository agent in connection with tender or other similar offers for
portfolio securities of the Fund;
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 Fund
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 2.10 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 Fund, 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;
<PAGE>
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 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 Fund,
but only against receipt of adequate collateral as agreed upon from time to time
by the Custodian and the Fund, 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 Fund prior to the receipt of such
collateral;
11) For delivery as security in connection with any borrowings by the Fund
requiring a pledge of assets by the Fund, but only against receipt of amounts
borrowed;
12) For delivery in accordance with the provisions of any agreement among the
Fund, 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 Fund;
<PAGE>
13) For delivery in accordance with the provisions of any agreement among the
Fund, 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 and/or any Contract Market, or any similar
organization or organizations, regarding account deposits in connection with
transactions by the Fund;
14) Upon receipt of instructions from the transfer agent ("Transfer Agent") for
the Fund, 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 Fund's currently effective prospectus and statement of additional
information ("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, a certified copy of a resolution of the Board
of Directors or of the Executive Committee signed by an officer of the Fund 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. Domestic securities held by the Custodian
(other than bearer securities) in the United States shall be registered in the
name of the Fund or in the name of any nominee of the Fund or of any nominee of
the Custodian which nominee shall be assigned exclusively to the Fund, unless
the Fund 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 Fund, or in the name or nominee name of any agent appointed
pursuant to Section 2.10 or in the name or nominee name of any sub-custodian
appointed pursuant to Article 1. All domestic securities accepted by the
Custodian on behalf of the Fund 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 "Fund's Account or Accounts") in the name of the Fund,
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 Fund,
other than cash maintained by the Fund 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 the Fund 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 be approved by vote of majority of the Board of Directors of the Fund.
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 Fund's Shares or from the Transfer Agent of the Fund and deposit into the
Fund's account such payments as are received for Shares of the Fund issued or
sold from time to time by the Fund. The Custodian will provide timely
notification to the Fund and the Transfer Agent of any receipt by it of payments
for Shares of the Fund. <PAGE>
2.6. Investment and Availability of Federal Funds. Upon mutual agreement between
the Fund and the Custodian, the Custodian shall, upon the receipt of Proper
Instructions, 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 between the Custodian and
the Fund; and 2) Make federal funds available to the Fund as of specified times
agreed upon from time to time by the Fund and the Custodian in the amount of
checks received in payment for Shares of the Fund which are deposited into the
Fund's account.
2.7. Collection of Income. The Custodian shall collect on a timely basis all
income and other payments with respect to registered domestic securities held
hereunder to which the Fund 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 domestic 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 the Fund'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 domestic securities held hereunder. Income due the Fund on
domestic securities loaned pursuant to the provisions of Section 2.2 (10) shall
be the responsibility of the Fund. The Custodian will have no duty or
responsibility in connection therewith, other than to provide the Fund with such
information or data as may be necessary to assist the Fund in arranging for the
timely delivery to the Custodian of the income to which the Fund is properly
entitled.
<PAGE>
2.8. Payment of Fund 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 Fund in the following cases only:
1) Upon the purchase of domestic securities for the account of the Fund 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 Fund 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 Fund 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 Fund of securities owned by the Custodian
along with written evidence of the agreement by the Custodian to repurchase such
securities from the Fund;
2) In connection with conversion, exchange or surrender of domestic securities
owned by the Fund as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued by the Fund as set forth in
Article 4 hereof;
<PAGE>
4) For the payment of any expense or liability incurred by the Fund, including
but not limited to the following payments for the account of the Fund: interest,
taxes, management, accounting, transfer agent and legal fees, and operating
expenses of the Fund 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 declared pursuant to the governing documents
of the Fund;
6) For payment of the amount of dividends received in respect of domestic
securities sold short;
7) For any other proper purpose, but only upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of the Board of Directors or of
the Executive Committee of the Fund signed by an officer of the Fund 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 domestic securities for the account
of the Fund is made by the Custodian in advance of receipt of the securities
purchased in the absence of specific written instructions from the Fund to so
pay in advance, the Custodian shall be absolutely liable to the Fund 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
Fund 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.
2.11. Deposit of Fund Assets in Securities Systems. The Custodian may deposit
and/or maintain domestic securities owned by the Fund 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 domestic securities of the Fund 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;
<PAGE>
2) The records of the Custodian with respect to domestic securities of the Fund
which are maintained in a Securities System shall identify by book-entry those
securities belonging to the Fund;
3) The Custodian shall pay for domestic securities purchased for the account of
the Fund 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 Fund. The Custodian shall transfer domestic securities
sold for the account of the Fund 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 Fund. Copies of all
advices from the Securities System of transfers of domestic securities for the
account of the Fund shall identify the Fund, be maintained for the Fund by the
Custodian and be provided to the Fund at its request. Upon request, the
Custodian shall furnish the Fund confirmation of each transfer to or from the
account of the Fund in the form of a written advice or notice and shall furnish
to the Fund copies of daily transaction sheets reflecting each day's
transactions in the Securities System for the account of the Fund.
4) The Custodian shall provide the Fund 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;
<PAGE>
5) The Custodian shall have received the initial or annual certificate, as the
case may be, required by Article 10 hereof;
6) Anything to the contrary in this Contract notwithstanding, the Custodian
shall be liable to the Fund for any loss or damage to the Fund 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 Fund, 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 Fund has not been made whole for any such loss or
damage.
2.11A. Fund Assets Held in the Custodian's Direct Paper System. The Custodian
may deposit and/or maintain domestic securities owned by the Fund in the Direct
Paper System subject to the following provisions:
1.) No transaction relating to domestic securities in the Direct Paper System
will be effected in the absence of Proper Instructions;
2) The Custodian may keep domestic securities of the Fund in the Direct Paper
System only if such securities are represented in an 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;
<PAGE>
3) The records of the Custodian with respect to domestic securities of the Fund
which are maintained in the Direct Paper System shall identify by book-entry
those securities belonging to the Fund;
4) The Custodian shall furnish the Fund confirmation of each transfer of Direct
Paper to or from the account of the Fund, in the form of a written advice or
notice on the next business day following such transfer and shall furnish to the
Fund copies of daily transaction sheets reflecting each day's transaction in the
Direct Paper System for the account of the Fund;
5) The Custodian shall pay for domestic securities purchased for the account of
the Fund 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 Fund. The
Custodian shall transfer securities sold for the account of the Fund 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 Fund;
6) The Custodian shall provide the Fund with any report on its system of
internal accounting control for the Direct Paper System that the Custodian
receives and as the Fund may reasonably request from time to time;
2.12. Segregated Account. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for and on
behalf of the Fund, into which account or accounts may be transferred cash
and/or domestic securities, including securities maintained in an account by the
Custodian pursuant to Section 2.11 hereof, (i) in accordance with the provisions
of any agreement among the Fund, the Custodian and a broker-dealer registered
under the Exchange Act and a member of the NASD (or any futures commission
<PAGE>
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
Fund, (ii) for purposes of segregating cash or government securities in
connection with options purchased, sold or written by the Fund or commodity
futures contracts or options thereon purchased or sold by the Fund, (iii) for
the purpose of compliance by the Fund 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, a certified copy of a resolution of the Board of Directors
or of the Executive Committee signed by an officer of the Fund 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
domestic securities of the Fund held by it and in connection with transfers of
domestic securities.
2.14. Proxies. The Custodian shall, with respect to the domestic securities held
hereunder, cause to be promptly executed by the registered holder of such
<PAGE>
securities, if the domestic securities are registered otherwise than in the name
of the Fund or a nominee of the Fund, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Fund such proxies, all proxy soliciting materials and all notices relating to
such securities.
2.15. Communications Relating to Fund Portfolio Securities. The Custodian shall
transmit promptly to the Fund all written information (including, without
limitation, pendency of calls and maturities of domestic securities and
expirations of rights in connection therewith and notices of exercise of call
and put options written by the Fund and the maturity of futures contracts
purchased or sold by the Fund) received by the Custodian from issuers of the
domestic securities being held for the Fund. With respect to tender or exchange
offers, the Custodian shall transmit promptly to the Fund all written
information received by the Custodian from issuers of the domestic securities
whose tender or exchange is sought and from the party (or his agents) making the
tender or exchange offer. If the Fund desires to take action with respect to any
tender offer, exchange offer or any other similar transaction, the Fund 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 Fund, at such times as the Fund 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; such reports, which shall be of sufficient scope and in
sufficient detail,
<PAGE>
as may reasonably be required by the Fund to provide reasonable assurance that
any material inadequacies would be disclosed by such examination, and, if there
are no such inadequacies, shall so state.
3. Duties of the Custodian with Respect to Property of the Fund 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 Fund to employ Chase Manhattan Bank N.A. ("Chase") as
subcustodian for the Fund'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 Fund 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 Fund for any loss,
damage, cost, expense, liability or claim arising out of or in connection with
the maintenance of custody of the Fund'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.
<PAGE>
At the election of the Fund, the Fund 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
depository employed by Chase if and to the extent that the Fund has not been
made whole therefor.
3.3 Fund's Responsibility for Rules and Regulations. As between the Custodian
and the Fund, the Fund 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 Fund. From such
funds as may be available for the purpose but subject to the limitations of the
Articles of Incorporation and any applicable votes of the Board of Directors of
the Fund 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
the Fund, 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 the Fund, the Custodian shall honor checks drawn on the Custodian by a
holder of Shares, which checks have been furnished by the Fund 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 Fund and the
Custodian.
5. Proper Instructions. Proper Instructions as used throughout this Contract
means a writing signed or initialed by one or more person or persons as the
Board of Directors 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 <PAGE>
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 involved. The Fund 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 Directors of the Fund accompanied by a detailed description of
procedures approved by the Board of Directors, Proper Instructions may include
communications effected directly between electro-mechanical or electronic
devices provided that the Board of Directors and the Custodian are satisfied
that such procedures afford adequate safeguards for the Fund's assets.
6. Actions Permitted without Express Authority. The Custodian may in its
discretion, without express authority from the Fund:
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 Fund;
2) surrender securities in temporary form for securities in definitive form;
3) endorse for collection, in the name of the Fund, 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 Fund except as otherwise directed by the Board of
Directors of the Fund.
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 Fund. The Custodian may receive and
<PAGE>
accept a certified copy of a vote of the Board of Directors of the Fund 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 Directors
pursuant to the Articles of Incorporation 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.
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
Directors of the Fund to keep the books of account of the Fund and/or compute
the net asset value per share of the outstanding shares of the Fund or, if
directed in writing to do so by the Fund, 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 Fund as described in
the Fund's currently effective prospectus and shall advise the Fund and the
Transfer Agent daily of the total amounts of such net income and, if instructed
in writing by an officer of the Fund 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 the
Fund shall be made at the time or times described from time to time in the
Fund's currently effective prospectus.
9. Records. The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Fund 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 Fund. All such records shall be the
property of the Fund and shall at all times during the regular business hours of
the Custodian be open for
<PAGE>
inspection by duly authorized officers, employees or agents of the Fund and
employees and agents of the Securities and Exchange Commission. The Custodian
shall, at the Fund's request, supply the Fund with a tabulation of securities
owned by the Fund and held by the Custodian and shall, when requested to do so
by the Fund and for such compensation as shall be agreed upon between the Fund
and the Custodian, include certificate numbers in such tabulations.
10. Opinion of Fund's Independent Accountant. The Custodian shall take all
reasonable action, as the Fund may from time to time request, to obtain from
year to year favorable opinions from the Fund's independent accountants with
respect to its activities hereunder in connection with the preparation of the
Fund'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 Fund 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, but shall be
kept indemnified by the Fund for any action taken or omitted by it in the proper
execution of instructions from the Fund. It shall be entitled to rely on and may
act upon advice of counsel for the Fund on all matters and shall be without
liability for
<PAGE>
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 Fund.
The Custodian shall be liable for the acts and omissions of Chase appointed as
its subcustodian pursuant to the provision of Article 3 to the extent set forth
in Sections 3.2 and 3.3 hereof.
The Fund 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 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
Fund 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
the Fund for any purpose which results in the Fund incurring an overdraft at the
end of any business day or for extraordinary or emergency purposes during any
business day, the Fund 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 Fund's gross assets, the specific
securities to be designated in writing from time to time by the Fund or its
investment adviser (the "Pledged Securities"). Should the Fund 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
<PAGE>
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 Directors of the Fund 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 Directors has reviewed the use the Fund 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 2.11.A hereof in the absence of receipt of an initial certificate of the
Secretary or an Assistant Secretary that the Board of Directors 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 Directors has
reviewed the use by the Fund of the Direct Paper System; provided further,
however, (a) that the Fund shall not amend or terminate this Contract in
contravention of any applicable federal or state regulations, or any provision
of the Articles of Incorporation, and (b) that the Fund may at any time by
action of its Board of Directors (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 Fund 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 shall be appointed by the
Board of Directors of the Fund, the Custodian shall, upon termination, deliver
to such successor custodian
<PAGE>
at the office of the Custodian, duly endorsed and in the form for transfer, all
securities then held by it hereunder and shall transfer to an account of the
successor custodian all of the Fund's securities 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 Directors of
the Fund, 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 Directors 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 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 and all instruments
held by the Custodian relative thereto and all other property held by it under
this Contract and to transfer to an account of such successor custodian all of
the Fund's securities 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 Fund to procure the certified copy of the vote referred to or of
the Board of Directors 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.
<PAGE>
15. Interpretive and Additional Provisions. In connection with the operation of
this Contract, the Custodian and the Fund 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 Articles of Incorporation of the Fund.
No interpretive or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Contract.
16. 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.
17. Prior Contracts. This Contract supersedes and terminates, as of the date
hereof, the existing custodian contract between the Fund and the Custodian. Any
reference to the custodian contract between the Fund 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 25th day of April, 1988.
ATTEST MASSACHUSETTS CAPITAL
DEVELOPMENT FUND
ARNOLD D. SCOTT By: RICHARD B. BAILEY
Arnold D. Scott Richard B. Bailey
ATTEST STATE STREET BANK &
TRUST COMPANY
J. FARRELL By: ILLEGIBLE
J. Farrel Illegible
Assistant Secretary Vice President
<PAGE>
EXHIBIT NO. 99-8(B)
AMENDMENT TO CUSTODIAN CONTRACT
Amendment to Custodian Contract between Massachusetts Capital Development
Fund, 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 April 25, 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
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
<PAGE>
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.
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
<PAGE>
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.
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 25th day of
April, 1988.
ATTEST:
By: D.M. JAFFE By: W.T. LONDON
D. M. Jaffe W. T. London
Treasurer
ATTEST: STATE STREET BANK &
TRUST COMPANY
By: K.M. KNEELAND (?ILLEGIBLE) By: (ILLEGIBLE)
K. M. Kneeland (?illegible) (illegible)
Assistant Secretary Vice President
<PAGE>
EXHIBIT 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 Capital
Development Fund (the "Trust").
WHEREAS, the Custodian and the Trust are parties to a Custodian Contract
dated April 25, 1988 (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 18 which shall read as follows:
18 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 18, 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 18.
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 CAPITAL
DEVELOPMENT FUND
LINDA J. HOARD By: A. KEITH BRODKIN
Linda J. Hoard A. Keith Brodkin
ATTEST STATE STREET BANK &
TRUST COMPANY
MARK MORGAN (?ILLEGIBLE) By: PHYLLIS A. SCHROEDER
Mark Morgan (?illegible) Phyllis A. Schroeder
Assistant Secretary Vice President
<PAGE>
EXHIBIT 99.8(d)
AMENDMENT
The Custodian Contract dated April 25, 1988 between Massachusetts Capital
Development Fund (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) . . . ."
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:
<PAGE>
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;"
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;
<PAGE>
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."
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.
<PAGE>
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."
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 CAPITAL
DEVELOPMENT FUND
LINDA J. HOARD By: W. T. LONDON
Linda J. Hoard W. T. London
Assistant Secretary Treasurer
ATTEST: STATE STREET BANK &
TRUST COMPANY
JOE KENNALLY By: JOHN HENRICH
Joe Kennally John Henrich
Assistant Secretary Vice President
<PAGE>
EXHIBIT 99.9(a)
MASSACHUSETTS CAPITAL DEVELOPMENT FUND
200 BERKELEY STREET
BOSTON, MASSACHUSETTS 02116
August 1, 1985
Massachusetts Financial Service Center, Inc.
200 Berkeley Street
Boston, Massachusetts 02116
Shareholder Servicing Agent Agreement
Dear Sirs:
Massachusetts Capital Development Fund (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.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying two counterparts of this letter and return such
counterparts to the Fund whereupon this letter shall become a binding contract
among the Fund, you and MFS, MFS having already executed this letter.
Very truly yours,
MASSACHUSETTS CAPITAL
DEVELOPMENT FUND
By: RICHARD B. BAILEY
Richard B. Bailey
Title: Chairman
The foregoing is hereby accepted as of the date thereof.
MASSACHUSETTS FINANCIAL
SERVICES COMPANY
By: H. ALDEN JOHNSON, JR.
H. Alden Johnson, Jr.
Title: President
The foregoing is hereby accepted as of the date thereof.
MASSACHUSETTS FINANCIAL
SERVICE CENTER, INC.
By: BRUCE C. AVERY
Bruce C. Avery
Title: President
<PAGE>
EXHIBIT 99.9(b)
MFS GROWTH OPPORTUNITIES FUND
500 BOYLSTON STREET o BOSTON o MASSACHUSETTS o 02116
September 7, 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 modified by a
letter agreement dated December 31, 1992, 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 GROWTH OPPORTUNITIES
FUND (f/k/a MFS Capital
Development Fund)
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
SEPTEMBER 7, 1993
EXHIBIT B TO THE SHAREHOLDER
SERVICING AGENT AGREEMENT BETWEEN
MFS SERVICE CENTER, INC. ("MFSC")
AND MFS GROWTH OPPORTUNITIES FUND (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.
