<PAGE>
As filed with the Securities and Exchange Commission on October 13, 1995
1933 Act File No. 33-7637
1940 Act File No. 811-4775
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POST-EFFECTIVE AMENDMENT NO. 17
AND
REGISTRATION STATEMENT
UNDER
THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 19
MFS SERIES TRUST II
(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 on behalf of all of its series
for its fiscal year ended November 30, 1994 on January 30, 1995.
<PAGE>
PART C
Item 24. Financial Statements and Exhibits
(a) Financial Statements Included in Part A:
For the period from the commencement of investment
operations (December 29, 1986 for MFS Emerging Growth Fund and MFS Capital
Growth Fund and August 1, 1988 for MFS Intermediate Income Fund and MFS Gold &
Natural Resources Fund) to November 30, 1994:
Financial Highlights*
Financial Statements Included in Part B:
At November 30, 1994
Portfolio of Investments*
Statement of Assets and Liabilities*
For each of the two years ended November 30, 1993 and
November 30, 1994
Statement of Changes in Net Assets*
For the year ended November 30, 1994
Statement of Operations*
- ------------------------------
* Incorporated herein by reference to the Fund's Annual Report to
Shareholders dated November 30, 1994 filed with the SEC on January 27,
1995.
(b) Exhibits
1 Amended and Restated Declaration of Trust, dated February 3,
1995. (3)
2 Amended and Restated By-Laws, dated December 14, 1994. (3)
3 Not Applicable.
4 (a) Form of Share Certificate (for certificates produced prior
to DST system); filed herewith.
(b) Form of Share Certificate for Class A and Class B Shares.(4)
5 (a) Investment Advisory Agreement for MFS Emerging Growth Fund,
dated August 1, 1993. (3)
<PAGE>
(b) Investment Advisory Agreement for MFS Capital Growth Fund,
dated September 1, 1993. (3)
(c) Investment Advisory Agreement for MFS Intermediate Income
Fund, dated September 1, 1993. (3)
(d) Investment Advisory Agreement for MFS Gold & Natural
Resources Fund, dated September 1, 1993. (3)
6 (a) Distribution Agreement between the Trust and MFS Fund
Distributors, Inc., 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)
7 Retirement Plan for Non-Interested Person Trustees, dated
January 1, 1991; filed herewith.
8 (a) Custodian Agreement, dated January 28, 1988; filed herewith.
(b) Amendment to Custodian Agreement, dated February 29, 1988;
filed herewith.
(c) Amendment to Custodian Agreement, dated October 1, 1989;
filed herewith.
(d) Amendment to the Custodian Agreement, dated October 9,
1991; filed herewith.
9 (a) Shareholder Servicing Agent Agreement, dated September 10,
1986; filed herewith.
(b) Amendment to Shareholder Servicing Agent Agreement, dated
September 7, 1993; filed herewith.
(c) Exchange Privilege Agreement, dated 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 Agent Agreement, dated February 1,
1986. (4)
<PAGE>
10 Consent and Opinion of Counsel for the fiscal year ended
November 30, 1994, filed with the Rule 24f-2 Notice on
January 30, 1995. (3)
11 Consent of Deloitte & Touche. (3)
12 Not Applicable.
13 Investment Representation Letter; filed herewith.
14(a) Forms for Individual Retirement Account Disclosure
Statement as currently in effect. (5)
(b) Forms for MFS 403(b) Custodial Account Agreement as
currently in effect. (5)
(c) Forms for MFS Prototype Paired Defined Contribution Plans
as Trust Agreement as currently in effect. (5)
15(a) Distribution Plan for Class A shares of MFS Emerging Growth
Fund, dated December 14, 1994. (3)
(b) Distribution Plan for Class B shares of MFS Emerging Growth
Fund, dated December 14, 1994. (3)
(c) Distribution Plan for Class A shares of MFS Capital Growth
Fund, dated December 14, 1994. (3)
(d) Distribution Plan for Class B shares of MFS Capital Growth
Fund, dated December 14, 1994. (3)
(e) Distribution Plan for Class A shares of MFS Intermediate
Income Fund, dated December 14, 1994. (3)
(f) Distribution Plan for Class B shares of MFS Intermediate
Income Fund, dated December 14, 1994. (3)
(g) Distribution Plan for Class A shares of MFS Gold & Natural
Resources Fund, dated December 14, 1994. (3)
(h) Distribution Plan for Class B shares of MFS Gold & Natural
Resources Fund, dated December 14, 1994. (3)
<PAGE>
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 of each series. (3)
18 Not Applicable.
Power of Attorney, dated August 11, 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.
16 filed with the SEC via EDGAR on March 30, 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
For MFS Emerging Growth Fund
(1) (2)
Title of Class Number of Record Holders
Class A Shares of Beneficial Interest 96,448
(without part value) (as of August 31, 1995)
Class B Shares of Beneficial Interest 124,325
(without part value) (as of August 31, 1995)
For MFS Capital Growth Fund
(1) (2)
Title of Class Number of Record Holders
Class A Shares of Beneficial Interest 7,281
(without part value) (as of August 31, 1995)
<PAGE>
Class B Shares of Beneficial Interest 35,320
(without part value) (as of August 31, 1995)
For MFS Intermediate Income Fund
(1) (2)
Title of Class Number of Record Holders
Class A Shares of Beneficial Interest 687
(without part value) (as of August 31, 1995)
Class B Shares of Beneficial Interest 12,498
(without part value) (as of August 31, 1995)
For MFS Gold & Natural Resources Fund
(1) (2)
Title of Class Number of Record Holders
Class A Shares of Beneficial Interest 804
(without part value) (as of August 31, 1995)
Class B Shares of Beneficial Interest 18,669
(without part value) (as of August 31, 1995)
Item 27. Indemnification
The Trustees and officers of the Trust and the personnel of the Trust's
investment adviser and principal underwriter are insured under an errors and
omissions liability insurance policy. The Trust and its officers are also
insured under the fidelity bond required by Rule 17g-1 under the Investment
Company Act of 1940, as amended.
Reference is hereby made to (a) Article V of the Trust's Declaration of
Trust, incorporated by reference to Post-Effective Amendment No. 16, filed with
the SEC on March 30, 1995 and (b) Section 8 of the Shareholder Servicing Agent
Agreement, filed herewith.
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
<PAGE>
Intermediate Income Fund and MFS Gold & Natural Resources Fund), MFS Series
Trust III (which has two series: MFS High Income Fund and MFS Municipal High
Income Fund), MFS Series Trust IV (which has four series: MFS Money Market Fund,
MFS Government Money Market Fund, MFS Municipal Bond Fund and MFS OTC Fund), MFS
Series Trust V (which has two series: MFS Total Return Fund and MFS Research
Fund), MFS Series Trust VI (which has three series: MFS World Total Return Fund,
MFS Utilities Fund and MFS World Equity Fund), MFS Series Trust VII (which has
two series: MFS World Governments Fund and MFS Value Fund), MFS Series Trust
VIII (which has two series: MFS Strategic Income Fund and MFS World Growth
Fund), MFS Series Trust IX (which has three series: MFS Bond Fund, MFS Limited
Maturity Fund and MFS Municipal Limited Maturity Fund), MFS Series Trust X
(which has four series: MFS Government Mortgage Fund, MFS/Foreign & Colonial
Emerging Markets Equity Fund, MFS/Foreign and Colonial International Growth Fund
and MFS/Foreign and Colonial International Growth & Income Fund), and MFS
Municipal Series Trust (which has 19 series: MFS Alabama Municipal Bond Fund,
MFS Arkansas Municipal Bond Fund, MFS California Municipal Bond Fund, MFS
Florida Municipal Bond Fund, MFS Georgia Municipal Bond Fund, MFS Louisiana
Municipal Bond Fund, MFS Maryland Municipal Bond Fund, MFS Massachusetts
Municipal Bond Fund, MFS Mississippi Municipal Bond Fund, MFS New York Municipal
Bond Fund, MFS North Carolina Municipal Bond Fund, MFS Pennsylvania Municipal
Bond Fund, MFS South Carolina Municipal Bond Fund, MFS Tennessee Municipal Bond
Fund, MFS Texas Municipal Bond Fund, MFS Virginia Municipal Bond Fund, MFS
Washington Municipal Bond Fund, MFS West Virginia Municipal Bond Fund and MFS
Municipal Income Fund) (the "MFS Funds"). The principal business address of each
of the aforementioned Funds is 500 Boylston Street, Boston, Massachusetts 02116.
MFS also serves as investment adviser of the following no-load,
open-end Funds: MFS Institutional Trust ("MFSIT") (which has seven series), MFS
Variable Insurance Trust ("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-
<PAGE>
45 St. Stephen's Green, Dublin 2, Ireland, serves as investment adviser to
and distributor for MFS International Fund (which has four portfolios: MFS
International Funds-U.S. Equity Fund, MFS International Funds-U.S. Emerging
Growth Fund, MFS International Funds-International Government Fund and MFS
International Funds-Charter Income Fund) (the "MIL Funds"). The MIL Funds are
organized in Luxembourg and qualify as an undertaking for collective investments
in transferable securities (UCITS). The principal business address of the MIL
Funds is 47, Boulevard Royal, L-2449 Luxembourg.
MIL also serves as investment adviser to and distributor for MFS
Meridian U.S. Government Bond Fund, MFS Meridian Charter Income Fund, MFS
Meridian Global Government Fund, MFS Meridian U.S. Emerging Growth Fund, MFS
Meridian Global Equity Fund, MFS Meridian Limited Maturity Fund, MFS Meridian
World Growth Fund, MFS Meridian Money Market Fund, MFS Meridian World Total
Return Fund and MFS Meridian U.S. Equity Fund (collectively the "MFS Meridian
Funds"). Each of the MFS Meridian Funds is organized as an exempt company under
the laws of the Cayman Islands. The principal business address of each of the
MFS Meridian Funds is P.O. Box 309, Grand Cayman, Cayman Islands, British West
Indies.
MFS International (U.K.) Ltd. ("MIL-UK"), a private limited company
registered with the Registrar of Companies for England and Wales whose current
address is 4 John Carpenter Street, London, England ED4Y 0NH, is involved
primarily in marketing and investment research activities with respect to
private clients and the MIL Funds and the MFS Meridian Funds.
MFS Fund Distributors, Inc. ("MFD"), a wholly owned subsidiary of
MFS, serves as distributor for the MFS Funds, MVI, UST and MFSIT.
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.
<PAGE>
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.
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
<PAGE>
Scozzafava, Vice President of MFS, and Matthew Fontaine, Assistant Vice
President of MFS, are Vice Presidents, Sheila Burns-Magnan and Daniel E.
McManus, Assistant Vice Presidents of MFS, are Assistant Vice Presidents,
Stephen E. Cavan is the Secretary, W. Thomas London is the Treasurer, James O.
Yost is the Assistant Treasurer, and James R. Bordewick, Jr., is the Assistant
Secretary.
MFS Series Trust IV
MFS Series Trust IX
A. Keith Brodkin is the Chairman and President, Robert A. Dennis and
Geoffrey L. Kurinsky, Senior Vice Presidents of MFS, are Vice Presidents,
Stephen E. Cavan is the Secretary, W. Thomas London is the Treasurer, James O.
Yost is the Assistant Treasurer and James R. Bordewick, Jr., is the Assistant
Secretary.
MFS Series Trust VII
A. Keith Brodkin is the Chairman and President, Leslie J. Nanberg and
Stephen C. Bryant, Senior Vice Presidents of MFS, are Vice Presidents, Stephen
E. Cavan is the Secretary, W. Thomas London is the Treasurer, James O. Yost is
the Assistant Treasurer and James R. Bordewick, Jr., is the Assistant
Secretary.
MFS Series Trust VIII
A. Keith Brodkin is the Chairman and President, Jeffrey L. Shames,
Leslie J. Nanberg, Patricia A. Zlotin, James T. Swanson and John D.
Laupheimer, Jr., Vice President of MFS, are Vice Presidents, Stephen E. Cavan
is the Secretary, W. Thomas London is the 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.
<PAGE>
MFS Municipal Income Trust
A. Keith Brodkin is the Chairman and President, Cynthia M. Brown and
Robert J. Manning are Vice Presidents, Stephen E. Cavan is the Secretary, W.
Thomas London is the Treasurer, James O. Yost, is the Assistant Treasurer and
James R. Bordewick, Jr., is the Assistant Secretary.
MFS Multimarket Income Trust
MFS Charter Income Trust
A. Keith Brodkin is the Chairman and President, Patricia A. Zlotin,
Leslie J. Nanberg and James T. Swanson are Vice Presidents, Stephen E. Cavan
is the Secretary, W. Thomas London is the Treasurer, James O. Yost, Vice
President of MFS, is the Assistant Treasurer and James R. Bordewick, Jr., is
the Assistant Secretary.
MFS Special Value Trust
A. Keith Brodkin is the Chairman and President, Jeffrey L. Shames,
Patricia A. Zlotin and Robert J. Manning are Vice Presidents, Stephen E. Cavan
is the Secretary, W. Thomas London is the Treasurer, and James O. Yost, is the
Assistant Treasurer and James R. Bordewick, Jr., is the Assistant Secretary.
SGVAF
W. Thomas London is the Treasurer.
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.
<PAGE>
MIL Fund
A. Keith Brodkin is the Chairman, President and a Director, Richard
B. Bailey, John A. Brindle and Richard W. S. Baker are Directors, Stephen E.
Cavan is the Secretary, W. Thomas London is the Treasurer, James O. Yost is
the Assistant Treasurer and James R. Bordewick, Jr., is the Assistant
Secretary, and Ziad Malek is a Senior Vice President.
MFS Meridian Fund
A. Keith Brodkin is the Chairman, President and a Director, Richard
B. Bailey, John A. Brindle, Richard W. S. Baker, Arnold D. Scott and Jeffrey
L. Shames are Directors, Stephen E. Cavan is the Secretary, W. Thomas London
is the Treasurer, James R. Bordewick, Jr., is the Assistant Secretary, James
O. Yost is the Assistant Treasurer, and Ziad Malek is a Senior Vice President.
MFD
A. Keith Brodkin is the Chairman and a Director, Arnold D. Scott and
Jeffrey L. Shames are Directors, William W. Scott, Jr., an Executive Vice
President of MFS, is the President, Stephen E. Cavan is the Secretary, Robert
T. Burns is the Assistant Secretary, Joseph W. Dello Russo is the Treasurer,
and James E. Russell is the Assistant Treasurer.
CIAI
A. Keith Brodkin is the Chairman and a Director, Arnold D. Scott and
Jeffrey L. Shames are Directors, Cynthia Orcott is President, Bruce C. Avery
is the Vice President, Joseph W. Dello Russo is the Treasurer, James E.
Russell is the Assistant Treasurer, Stephen E. Cavan is the Secretary, and
Robert T. Burns is the Assistant Secretary.
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.
<PAGE>
RSI
William W. Scott, Jr., Joseph A. Recomendes and Bruce C. Avery are
Directors, Arnold D. Scott is the Chairman and a Director, Douglas C. Grip, a
Senior Vice President of MFS, is the President, Joseph W. Dello Russo is the
Treasurer, James E. Russell is the Assistant Treasurer, Stephen E. Cavan is
the Secretary, Robert T. Burns is the Assistant Secretary and Sharon A.
Brovelli is a Senior Vice President.
In addition, the following persons, Directors or officers of MFS, have
the affiliations indicated:
A. Keith Brodkin Director, Sun Life Assurance Company of Canada
(U.S.), One Sun Life Executive Park, Wellesley
Hills, Massachusetts
Director, Sun Life Insurance and Annuity
Company of New York, 67 Broad Street, New York,
New York
John R. Gardner President and a Director, Sun Life Assurance
Company of Canada, Sun Life Centre, 150 King
Street West, Toronto, Ontario, Canada (Mr.
Gardner is also an officer and/or Director
of various subsidiaries and affiliates of
Sun Life)
John D. McNeil Chairman, Sun Life Assurance Company of Canada,
Sun Life Centre, 150 King Street West, Toronto,
Ontario, Canada (Mr. McNeil is also an
officer and/or Director of various subsidiaries
and affiliates of Sun Life)
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.
<PAGE>
Item 30. Location of Accounts and Records
The accounts and records of the Registrant are located, in whole or in
part, at the office of the Registrant and the following locations:
NAME ADDRESS
Massachusetts Financial Services 500 Boylston Street
Company (investment adviser) Boston, MA 02116
MFS Fund Distributors, Inc. 500 Boylston Street
(principal underwriter) Boston, MA 02116
State Street Bank and State Street South
Trust Company (custodian) 5 - West
North Quincy, MA 02171
MFS Service Center, Inc. 500 Boylston Street
(transfer agent) Boston, MA 02116
Item 31. Management Services
Not applicable.
Item 32. Undertakings
(a) Not applicable.
(b) Not applicable.
(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 SERIES TRUST II
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 (Principal Executive
A. Keith Brodkin Officer) and Trustee
W. THOMAS LONDON* Treasurer (Principal Financial Officer
W. Thomas London and Principal Accounting Officer)
RICHARD B. BAILEY* Trustee
Richard B. Bailey
MARSHALL N. COHAN* Trustee
Marshall N. Cohan
LAWRENCE H. COHN, M.D.* Trustee
Lawrence H. Cohn, M.D.
SIR J. DAVID GIBBONS* Trustee
Sir J. David Gibbons
<PAGE>
ABBY M. O'NEILL* Trustee
Abby M. O'Neill
WALTER E. ROBB, III* Trustee
Walter E. Robb, III
ARNOLD D. SCOTT* Trustee
Arnold D. Scott
JEFFREY L. SHAMES* Trustee
Jeffrey L. Shames
J. DALE SHERRATT* Trustee
J. Dale Sherratt
WARD SMITH* Trustee
Ward Smith
*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 August 11,
1994, incorporated by reference to the
Registrant's Post-Effective Amendment
No. 16 filed with the Securities and
Exchange Commission on
March 30, 1995.
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4 (a) Form of Share Certificate (for
certificates produced prior to DST system).
7 Retirement Plan for Non-Interested
Person Trustees, dated January 1, 1991.
8 (a) Custodian Agreement, dated January
28, 1988.
(b) Amendment to Custodian Agreement,
dated February 29, 1988.
(c) Amendment to Custodian Agreement,
dated October 1, 1989.
(d) Amendment to the Custodian
Agreement, dated October 9, 1991.
9 (a) Shareholder Servicing Agent
Agreement, dated September 10, 1986.
(b) Amendment to Shareholder Servicing
Agent Agreement, dated September 7, 1993.
13 Investment Representation Letter.
<PAGE>
EXHIBIT NO. 99.4(a)
SHARE CERTIFICATE
[NAME OF FUND]
ORGANIZED AS A BUSINESS TRUST UNDER THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFIES THAT
is the holder of
FULLY PAID AND NON-ASSESSABLE SHARES OF BENEFICIAL INTEREST WITHOUT PAR VALUE,
OF THE TRUST OR SERIES OF THE TRUST IDENTIFIED ABOVE,
transferable only on the books of the Trust, by the holder hereof, in person or
by duly authorized attorney, upon surrender of this Certificate properly
endorsed. The aforesaid holder is entitled to require the Trust to purchase all
or any part of the Shares represented by this Certificate at net asset value,
all as more fully set forth on the reverse of this Certificate. This Certificate
is not valid until countersigned by the Transfer Agent.
IN WITNESS WHEREOF, the said Trust has caused this Certificate to be
signed by its duly authorized officers and its Seal to be hereunto affixed.
Dated:
COUNTERSIGNED:
Massachusetts Financial Services
Service Center, Inc.
(Boston) Transfer Agent
RICHARD B. BAILEY
CHAIRMAN
SEAL
W. THOMAS LONDON
TREASURER BY:
AUTHORIZED SIGNATURE
<PAGE>
MFS LIFETIME INVESTMENT PROGRAM
The registered holder of this certificate is entitled to all the rights,
interest and privileges of a shareholder as provided by the Declaration of Trust
and By-Laws of the Trust, as amended, which are incorporated by reference
herein. In particular the shares represented by this certificate are
transfereable by the holder, in person or by his duly authorized attorney, but
only on surrender of this certificate properly endorsed and when the transfer is
made on the books of the Trust.
The holder of this certificate, as provided in said Declaration of Trust
and By-Laws, as amended, shall not in any wise be personally liable for any
debt, obligation or act of Trust.
Any shareholder desiring to dispose of his shares may deposit his
certificate, duly endorsed in blank or accompanied by an instrument of transfer
executed in blank, at the office of Massachusetts Financial Service Center, Inc.
or any successor Transfer Agent of the Trust, together with an irrevocable offer
in writing to sell the shares represented thereby at the net asset value thereof
and the Trust will thereafter purchase said shares for cash at net asset value.
The computation of net asset value, the limitations upon the date of payment and
provisions dealing with suspension of this right in certain emergencies are
fully described in said Declaration of Trust and By-Laws, as amended.
SEE CURRENT PROSPECTUS FOR FURTHER INFORMATION CONCERNING REPURCHASES
OF SHARES BY THE TRUST.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws:
TEN IN COM - as tenants in common
TEN BY ENT - as tenants by the entireties
JTWROS - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFTS TO M/A - Uniform Gifts to Minors Act
Additional abbreviations may also be used though
not in the above list.
FOR VALUE RECEIVED __________________________ HEREBY SELL, ASSIGN AND
TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________ SHARES
OF THE TRUST OR SERIES OF THE TRUST IDENTIFIED ON THE REVERSE SIDE, REPRESENTED
BY THE WITHIN CERTIFICATE AND DO HEREBY IRREVOCABLY CONSTITUTE AND APPOINT
_________ ATTORNEY
TO TRANSFER THE SAID SHARES ON THE BOOKS OF THE SAID TRUST WITH FULL POWER OF
SUBSTITUTION IN THE PREMISES
Dated, _________________________ 19
(SIGN HERE)
SIGNATURE GUARANTEED by NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE MUST BE GUARANTEED BY A COMMERCIAL BANK (NOT A SAVINGS BANK) WHICH IS
A MEMBER OF THE FDIC OR A MEMBER FIRM OF THE NEW YORK, AMERICAN, BOSTON,
MIDWEST, PHILADELPHIA OR PACIFIC COAST STOCK EXCHANGE OR, IN CERTAIN CASES, BY A
SECURITIES DEALER WHICH HAS ENTERED INTO AN INDEMNIFICATION AGREEMENT WITH THE
TRUST'S PRINCIPAL UNDERWRITER.
TO ASSIST YOU IN MAINTENANCE OF TAX COST RECORDS, FILL IN IMMEDIATELY
DATE ACQUIRED
-------------------------------
PRICE PER SHARE
------------------------------
BROKER
------------------------------
SALESPERSON
------------------------------
CITY ____________ STATE_______
<PAGE>
EXHIBIT NO. 99.7
MFS LIFETIME EMERGING GROWTH FUND
RETIREMENT PLAN FOR NON-INTERESTED PERSON TRUSTEES
MFS Lifetime Emerging Growth 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 ss.22(e)(3) of the
Internal Revenue Code of 1986, as amended.
Independent Trustee: A Trustee of the Fund who is not an
"interested person" (as defined in Section 2(a)(19) of the Investment Company
Act of 1940, as amended) of the Fund, Lifetime Advisers, Inc. ("Lifetime"),
Massachusetts Financial Services Company ("MFS") or MFS Financial Services,
Inc. ("FSI").
<PAGE>
Nonaffiliated Trustee: A Trustee of the Fund who has no
material business or professional relationship with the Fund, Lifetime, MFS or
FSI and who is subject to being declared an "interested person" solely by reason
of his relationship with the Fund, Lifetime, MFS or FSI during the two most
recently completed fiscal years of the Fund.
Normal Retirement Benefit: An annual benefit at Normal
Retirement Date equal to 5% of an Independent Trustee's Annual Compensation
multiplied by the Independent Trustee's whole Years of Service, up to a maximum
of ten Years of Service, payable in the Normal Form of Benefit, as defined in
ss.3(g).
Normal Retirement Date: The later of December 31 of the
Plan Year in which an Independent Trustee attains age 75 or December 31, 1992.
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 3% 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 39%.
(e) Disability Benefit. If an Independent Trustee's service as
such terminates by reason of his Disability and, if the Independent Trustee is
eligible for Retirement, he elects that his termination be treated as being by
reason of Disability, he shall receive his Accrued Benefit paid for the one
hundred twenty (120) months immediately following the month in which his service
so terminates. In the event the Independent Trustee dies before he has received
one hundred twenty (120) payments, monthly payments in the same amount shall be
paid to his beneficiary until the number of payments to the Independent Trustee
plus the number of payments to the beneficiary equal one hundred twenty (120)
payments.
(f) Death Benefit. Each Independent Trustee who elects to
participate in this Plan shall designate a beneficiary in such form as the
Committee approves from time to time to receive any benefits payable under this
Plan in the event of his death. In the event there is no validly designated
beneficiary in existence on the date of an Independent Trustee's death, his
beneficiary shall be his surviving spouse, if any, or if none, his estate. The
beneficiary of an Independent Trustee who dies during service, and with respect
to whom benefit payments have not commenced, shall be entitled to that
Independent Trustee's Accrued Benefit paid for the one hundred twenty (120)
months immediately following death.
(g) Form of Benefit. Except as otherwise provided in this
ss.3, benefits payable under this ss.3 shall be payable in the form of a monthly
annuity for the life of the Independent Trustee, and, if the Independent Trustee
dies before he has received one hundred twenty (120) payments, monthly payments
in the same amount shall be payable to his beneficiary until the number of
payments to the
<PAGE>
Independent Trustee plus the number of payments to the beneficiary equal
one hundred twenty (120) payments (the "Normal Form of Benefit"). However,
notwithstanding any other provision of this Section 3 to the contrary, if an
Independent Trustee's beneficiary is entitled to payments under this Plan upon
the Independent Trustee's death, then (i) if the Independent Trustee's
beneficiary is his estate, the lump sum Actuarial Equivalent present value of
those payments shall be paid to the estate in a single lump sum as soon as
administratively reasonable following the Independent Trustee's death, and (ii)
if the Independent Trustee's beneficiary is other than his estate, the Committee
in its sole discretion may direct that the Actuarial Equivalent value of those
payments be paid in such form other than the Normal Form of Benefit (including
without limitation a lump sum) as it determines.
4. PAYMENT OF BENEFIT; ALLOCATION OF COSTS
The Fund is responsible for the payment of the benefits, as
well as all expenses of administration of the Plan, including without limitation
all accounting, legal and actuarial fees and expenses. The obligations of the
Fund to pay such benefits and expenses will not be secured or funded in any
manner, and the obligations will not have any preference over the lawful claims
of the Fund's creditors and shareholders. The Fund shall be under no obligation
to segregate any assets for the purpose of providing retirement benefits
pursuant to this Plan, and to the extent that any Independent Trustee or
beneficiary acquires a right to receive a benefit under the Plan, such right
shall be limited to that of a recipient of an unfunded, unsecured promise to pay
amounts in the future and such person's position with respect to such amounts
shall be that of a general unsecured creditor of the Fund. To the extent that
the Fund consists of one or more separate portfolios, costs and expenses will be
allocated among the portfolios by the Board of Trustees of the Fund (the
"Board") in a manner that is determined by the Board to be fair and equitable
under the circumstances.
5. ADMINISTRATION
(a) The Committee. Any question involving entitlement to
payments under or the interpretation or administration of the Plan will be
referred to a committee (the "Committee") of Independent Trustees designated by
the Board. Except as otherwise provided herein, the Committee will make all
interpretations and determinations necessary or desirable for the Plan's
administration, and such interpretations and determinations will be final and
conclusive.
(b) Powers of the Committee. The Committee will represent and
act on behalf of the Fund in respect of the Plan and, subject to the other
provisions of the Plan, the Committee may adopt, amend or repeal by-laws or
other regulations, relating to the administration of the Plan, the conduct of
the Committee's affairs, its rights or powers or the rights or powers of its
members or of the
<PAGE>
Board. The Committee will report to the Board from time to time on its
activities in respect of the Plan. The Committee or persons designated by it
will cause such records to be kept as may be necessary for the administration of
the Plan.
6. MISCELLANEOUS PROVISIONS
(a) Rights Not Assignable. The right to receive any
payment under the Plan may not be transferred, assigned, pledged or otherwise
alienated.
(b) Amendment, etc. The Committee, with the concurrence of the
Board, may at any time amend or terminate the Plan or waive any provision of the
Plan, provided that no amendment, termination or waiver will impair the rights
of an Independent Trustee to receive upon Retirement the payments which would
have been made to that Independent Trustee had there been no such amendment,
termination or waiver (based upon that Independent Trustee's Years of Service to
the date of such amendment, termination or waiver) or the rights of a former
Independent Trustee or Retired Trustee to receive any benefit due under the
Plan, without the consent of such present or former Independent Trustee or
Retired Trustee, as the case may be. A present or former Independent Trustee or
Retired Trustee may elect to waive receipt of his benefit by so advising the
Committee.
Notwithstanding any provision of this Plan to the
contrary, however, in the event of the sale of all or substantially all of the
assets of the Fund, the liquidation or dissolution of the Fund, or any merger or
other similar reorganization of the Fund that the Fund does not survive:
(i) if although the Fund does not survive
there is a surviving entity, all rights and benefits (including without
limitation those of Retired Trustees) under the Plan shall cease upon
consummation of such transaction, unless, and only to the extent that, the board
of trustees (or other similar governing body) of the surviving entity agrees to
assume the Plan and/or to provide any such rights or benefits; and
(ii) if there is no surviving entity, the Board
shall have the right to take specific action to terminate the Plan and/or to
cause any or all rights and benefits (including without limitation those of
Retired Trustees) under the Plan to cease as of the date of such event but, in
the absence of any such specific action, the lump sum Actuarial Equivalent
present value of the Accrued Benefit of each present or former Independent
Trustee or Retired Trustee (or beneficiary thereof) who on the date of
liquidation is receiving or entitled to receive a benefit under the Plan or
would be entitled to receive a benefit under the Plan based on
<PAGE>
his actual or deemed termination of service as of the date of such
liquidation shall be paid to such person.
(c) No Right to Re-election. Nothing in the Plan will
create any obligation on the part of the Board to nominate any Independent
Trustee for re-election.
(d) Vacancies. Although the Board will retain the right to
increase or decrease its size, it shall be the general policy of the Board to
replace each person who ceases to serve as an Independent Trustee by selecting a
new Independent Trustee from candidates duly proposed.
(e) Consulting. Each Retired Trustee may render such services
for the Fund, for such compensation, as may be agreed upon from time to time by
such Trustee and the Board of the Fund.
(f) Construction. Whenever any masculine terminology is used
in this Plan, it shall be taken to include the feminine, unless the context
otherwise indicates. The titles and headings included herein are for convenience
only and shall not be construed as in any way affecting or modifying the text of
this Plan, which text shall control. This Plan shall be construed and regulated
in accordance with the laws of The Commonwealth of Massachusetts, except to the
extent such state law is preempted by federal law.
(g) Effective Date. This Plan will become effective on
January 1, 1991 (the "Effective Date").
<PAGE>
EXHIBIT NO. 99.8(a)
CUSTODIAN CONTRACT
BETWEEN
LIFETIME EMERGING GROWTH TRUST
AND
STATE STREET BANK AND TRUST COMPANY
<PAGE>
TABLE OF CONTENTS PAGE
1. Employment of Custodian and Property to be Held By It.............. 1
2. Duties of the Custodian with Respect to Property of the Trust Held
by the Custodian 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............................................ 5
2.5. Payments for Shares...................................... 6
2.6. Investment and Availability of Federal Funds............. 6
2.7. Collection of Income..................................... 7
2.8. Payment of Trust Monies.................................. 7
2.9. Liability for Payment in Advance of Receipt of Securities
Purchased................................................ 9
2.10. Appointment of Agents.................................... 9
2.11. Deposit of Trust Assets in Securities System............. 9
2.11A. Trust Assets Held in the Custodian's Direct Paper System. 11
2.12. Segregated Account....................................... 12
2.13. Ownership Certificates for Tax Purposes.................. 13
2.14. Proxies.................................................. 13
2.15. Communications Relating to Trust Portfolio Securities.... 13
2.16. Reports to Trust by Independent Public Accountants....... 14
3. Duties of the Custodian with Respect to Property of the Trust Held
Outside of the United States....................................... 14
3.1 Appointment of Chase as Subcustodian..................... 14
3.2 Standard of Care; Liability.............................. 15
3.3 Trust's Responsibillity for Rules and Regulations........ 15
4. Payments for Repurchases or Redemptions of Shares of the Trust..... 15
5. Proper Instructions................................................ 16
6. Actions Permitted Without Express Authority........................ 17
7. Evidence of Authority.............................................. 17
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income...................... 17
9. Records............................................................ 18
10. Opinion of Trust's Independent Accountants ........................ 18
11. Compensation of Custodian.......................................... 18
12. Responsibility of Custodian........................................ 18
13. Effective Period, Termination and Amendment........................ 20
14. Successor Custodian................................................ 21
15. Interpretive and Additional Provisions............................. 22
16. Massachusetts Law to Apply......................................... 22
17. Prior Contracts.................................................... 22
<PAGE>
CUSTODIAN CONTRACT
This Contract between Lifetime Emerging Growth Trust, a business trust
organized and existing under the laws of The Commmonwealth 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 Declaration of Trust including securities and
cash it desires to be held within the United States (collectively "domestic
securities") and securities and cash it desires to be held outside the United
States (collectively "foreign securities"), subject to the terms of Article 3
hereof. The Trust agrees 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 subcustodians, but
only in accordance with an applicable vote by the Board of Trustees of the
Trust, and provided that, except as expressly provided in Article 3 hereof, the
Custodian shall have no more or less responsibility or liability to the Trust on
account of any actions or omissions of any subcustodian so employed than any
such subcustodian has to the Custodian.
<PAGE>
2. Duties of the Custodian with Respect to Property of the Trust 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 Trust all non-cash property, including all domestic
securities owned by the Trust 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 State Street Bank and Trust Company's
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 Trust 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 Trust
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 Trust;
3) In the case of a sale effected through a Securities System,
in accordance with the provisions of Section 2.11 hereof;
4) To the depository agent in connection with tender or other
similar offers for portfolio securities of the Trust;
<PAGE>
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 Trust 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 Trust, to
the broker or its clearing agent, against a receipt, for examination in
accordance with "street delivery" custom; provided that in any such case, the
Custodian shall have no responsibility or liability for any loss arising from
the delivery of such securities prior to receiving payment for such securities
except as may arise from the Custodian's own negligence or willful misconduct;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant to provisions for
conversion contained in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities or the
surrender of interim receipts or temporary securities for definitive securities;
provided
<PAGE>
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
Trust, but only against receipt of adequate collateral as agreed upon from time
to time by the Custodian and the Trust, 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 Trust prior to the
receipt of such collateral;
11) For delivery as security in connection with any borrowings by the
Trust requiring a pledge of assets by the Trust, but only against receipt of
amounts borrowed;
12) For delivery in accordance with the provisions of any agreement
among the Trust, 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 Trust;
13) For delivery in accordance with the provisions of any agreement
among the Trust, 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
<PAGE>
any similar organization or organizations, regarding account deposits in
connection with transactions by the Trust;
14) Upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Trust, for delivery to such Transfer Agent or to the holders of
shares in connection with distributions in kind, as may be described from time
to time in the Trust'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 Trustees or of the Executive Committee signed by an officer of the
Trust and certified by the Secretary or an Assistant Secretary, setting forth
the purpose for which such delivery is to be made, declaring such purpose to be
a proper corporate purpose, and naming the person or persons to whom delivery of
such securities shall be made.
2.3 Registration of Securities. Domestic securities held by the Custodian (other
than bearer securities) in the United States shall be registered in the name of
the Trust or in the name of any nominee of the Trust or of any nominee of the
Custodian which nominee shall be assigned exclusively to the Trust, unless the
Trust has authorized in writing the appointment of a nominee to be used in
common with other registered investment companies having the same investment
adviser as the Trust, 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 subcustodian
appointed pursuant to Article 1. All domestic securities accepted by the
Custodian on behalf of the Trust under the terms of this Contract shall be in
"street name" or other good delivery form.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank account
or accounts (the "Trust's Account or Accounts") in the name of the Trust,
subject only to
<PAGE>
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 Trust, other than
cash maintained by the Trust 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 Trust 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 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 Trustees of the Trust. Such funds shall be
deposited by the Custodian in its capacity as Custodian and shall be
withdrawable by the Custodian only in that capacity.
2.5 Payments for Shares. The Custodian shall receive from the distributor for
the Trust's Shares or from the Transfer Agent of the Trust and deposit into the
Trust's account such payments as are received for Shares of the Trust issued or
sold from time to time by the Trust. The Custodian will provide timely
notification to the Trust and the Transfer Agent of any receipt by it of
payments for Shares of the Trust.
2.6 Investment and Availability of Federal Funds. Upon mutual agreement
between the Trust 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 Trust; and
2) make federal funds available to the Trust as of specified times
agreed upon from time to time by the Trust and the Custodian in the amount of
checks received in payment for Shares of the Trust which are deposited into the
Trust's account.
<PAGE>
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 Trust 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 domestic securities are held by the
Custodian or its agent thereof and shall credit such income, as collected, to
the Trust'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 Trust on
domestic securities loaned pursuant to the provisions of Section 2.2 (10) shall
be the responsibility of the Trust. The Custodian will have no duty or
responsibility in connection therewith, other than to provide the Trust with
such information or data as may be necessary to assist the Trust in arranging
for the timely delivery to the Custodian of the income to which the Trust is
properly entitled.
2.8 Payment of Trust Monies. Upon receipt of Proper Instructions, which
may be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out monies of the Trust in the following cases only:
1) Upon the purchase of domestic securities for the account of the
Trust 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 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; (c) in the case
of a purchase involving the Direct Paper System, in
<PAGE>
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;
2) In connection with conversion, exchange or surrender of
domestic securities owned by the Trust as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued by the
Trust as set forth in Article 4 hereof;
4) For the payment of any expense or liability incurred by the Trust,
including but not limited to the following payments for the account of the
Trust: interest, taxes, management, accounting, transfer agent and legal fees,
and operating expenses of the Trust whether or not such expenses are to be in
whole or part capitalized or treated as deferred expenses;
5) For the payment of any dividends declared pursuant to the
governing documents of the Trust;
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
Trustees or of the Executive Committee of the Trust signed by an officer of the
Trust and certified by its Secretary or an Assistant Secretary, setting forth
the purpose for which such payment is to be made, declaring such purpose to be a
proper
<PAGE>
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 Trust is made by the Custodian in advance of receipt of the securities
purchased in the absence of specific written instructions from the Trust to so
pay in advance, the Custodian shall be absolutely liable to the Trust for such
securities to the same extent as if the securities had been received by the
Custodian, except that in the case of repurchase agreements entered into by the
Trust 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 Trust Assets in Securities Systems. The Custodian may
deposit and/or maintain domestic securities owned by the Trust 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 Trust 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 Trust which are maintained in a Securities System shall
identify by book-entry those securities belonging to the Trust;
3) The Custodian shall pay for domestic securities purchased for the
account of the Trust 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 Trust. The Custodian shall transfer domestic
securities sold for the account of the Trust 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 Trust.
Copies of all advices from the Securities System of transfers of domestic
securities for the account of the Trust shall identify the Trust, be maintained
for the Trust by the Custodian and be provided to the Trust at its request. Upon
request, 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 and
shall furnish to the Trust copies of daily transaction sheets reflecting each
day's transactions in the Securities System for the account of the Trust.
<PAGE>
4) The Custodian shall provide the Trust with any report
obtained by the Custodian on the Securities System's accounting system,
internal accounting control and procedures for safeguarding domestic
securities deposited in the Securities System;
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 Trust for any loss or damage to the Trust
resulting from use of the Securities System by reason of any negligence,
misfeasance or misconduct of the Custodian or any of its agents or of any of its
or their employees or from failure of the Custodian or any such agent to enforce
effectively such rights as it may have against the Securities System; at the
election of the Trust, it shall be entitled to be subrogated to the rights of
the Custodian with respect to any claim against the Securities System or any
other person which the Custodian may have as a consequence of any such loss or
damage if and to the extent that the Trust has not been made whole for any such
loss or damage.
2.11A Trust Assets Held in the Custodian's Direct Paper System. The Custodian
may deposit and/or maintain domestic securities owned by the Trust 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 Trust 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 Trust which are maintained in the Direct Paper System shall
identify by book-entry those securities belonging to the Trust;
4) The Custodian shall furnish the Trust confirmation of each transfer
of Direct Paper to or from the account of the Trust, in the form of a written
advice or notice 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 Direct Paper System for the account of the Trust;
5) The Custodian shall pay for domestic 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;
6) The Custodian shall provide the Trust with any report on the
system of internal accounting control for the Direct Paper System that the
Custodian receives and as the Trust 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
Trust, 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 Trust, the Custodian and a broker-dealer registered under
the Exchange Act and a member of the NASD (or any futures commission merchant
registered under the Commodity Exchange Act), relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or the Commodity Futures Trading Commission or any
registered contract market), or of any similar organization or organizations,
regarding
<PAGE>
escrow or other arrangements in connection with transactions by the Trust,
(ii) for purposes of segregating cash or government securities in connection
with options purchased, sold or written by the Trust or commodity futures
contracts or options thereon purchased or sold by the Trust, (iii) for the
purpose of compliance by the Trust 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 Trustees
or of the Executive Committee signed by an officer of the Trust and certified by
the Secretary or an Assistant Secretary, setting forth the purpose or purposes
of such segregated account and declaring such purposes to be proper corporate
purposes.
2.13 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and state tax
purposes in connection with receipt of income or other payments with respect to
domestic securities of the Trust 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
securities, if the domestic securities are registered otherwise than in the name
of the Trust or a nominee of the Trust, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Trust such proxies, all proxy soliciting materials and all notices relating to
such securities.
2.15 Communications Relating to Trust Portfolio Securities. The Custodian shall
transmit promptly to the Trust 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 Trust and the maturity of futures contracts
purchased or sold by the Trust) received by the Custodian
<PAGE>
from issuers of the domestic securities being held for the Trust. With
respect to tender or exchange offers, the Custodian shall transmit promptly to
the Trust all written information received by the Custodian from issuers of the
securities whose tender or exchange is sought and from the party (or his agents)
making the tender or exchange offer. If the Trust desires to take action with
respect to any tender offer, exchange offer or any other similar transaction,
the Trust 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 Trust by Independent Public Accountants The Custodian shall
provide the Trust, at such times as the Trust may reasonably require, with
reports by independent public accountants on the accounting system, internal
accounting control and procedures for safeguarding securities, futures contracts
and options on futures contracts, including securities deposited and/or
maintained in a Securities System, relating to the services provided by the
Custodian under this Contract; such reports, which shall be of sufficient scope
and in sufficient detail, as may reasonably be required by the Trust to provide
reasonable assurance that any material inadequacies would be disclosed by such
examination, and, if there are no such inadequacies, shall so state.
3. Duties of the Custodian with Respect to Property of the Trust Held
Outside of the United States.
The provisions of this Article 3 shall apply to the duties of the
Custodian as they relate to foreign securities held outside the United States.
3.1 Appointment of Chase as Subcustodian. The Custodian is authorized and
instructed by the Trust to employ Chase Manhattan Bank N.A. ("Chase") as
subcustodian for the Trust's foreign securities (including cash incidental to
transactions in such securities) on the terms and conditions set forth in the
Subcustody Contract between the Custodian and Chase which is attached hereto as
Exhibit A (the "Subcustody Contract"). The Custodian acknowledges that it has
entered into the Subcustody Contract and hereby agrees to
<PAGE>
provide such services to the Trust and in accordance with such Subcustody
Contract as necessary for foreign custody services to be provided pursuant
thereto.
3.2 Standard of Care; Liability. Notwithstanding anything to the contrary in
this Contract, the Custodian shall not be liable to the Trust for any loss,
damage, cost, expense, liability or claim arising out of or in connection with
the maintenance of custody of the Trust's foreign securities by Chase or by any
other banking institution or securities depository employed pursuant to the
terms of the Subcustody Contract, except that the Custodian shall be liable for
any such loss, damage, cost, expense, liability or claim directly resulting from
the failure of the Custodian to exercise reasonable care in the performance of
its duties hereunder. At the election of the Trust, the Trust shall be entitled
to be subrogated to the rights of the Custodian under the Subcustody Contract
with respect to any claim arising hereunder against Chase or any other banking
institution or securities depository employed by Chase if and to the extent that
the Trust has not been made whole therefor.
3.3 Trust's Responsibility for Rules and Regulations. As between the Custodian
and the Trust, the Trust shall be solely responsible to assure that the
maintenance of foreign securities and cash pursuant to the terms of the
Subcustody Contract comply with all applicable rules, regulations,
interpretations and orders of the Securities and Exchange Commission, and the
Custodian assumes no responsibility and makes no representations as to such
compliance.
4. Payments for Repurchases or Redemptions of Shares of the Trust. From such
funds as may be available for the purpose but subject to the limitations of the
Declaration of Trust and any applicable votes of the Board of Trustees of the
Trust pursuant thereto, the Custodian shall, upon receipt of instructions from
the Transfer Agent, make funds available for payment to holders of Shares who
have delivered to the Transfer Agent a request for redemption or repurchase of
their Shares. In connection with the redemption or repurchase of Shares of the
Trust, the Custodian is authorized upon receipt of
<PAGE>
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 Trust, the Custodian shall honor
checks drawn on the Custodian by a holder of Shares, which checks have been
furnished by the Trust to the holder of Shares, when presented to the Custodian
in accordance with such procedures and controls as are mutually agreed upon from
time to time between the Trust and the Custodian.
5. Proper Instructions. Proper Instructions as used throughout this Contract
means a writing signed or initialed by one or more person or persons as the
Board of Trustees shall have from time to time authorized. Each such writing
shall set forth the specific transaction or type of transaction involved,
including a specific statement of the purpose for which such action is
requested. Oral instructions will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a person authorized to
give such instructions with respect to the transaction involved. The Trust shall
cause all oral instructions to be confirmed in writing. Upon receipt of a
certificate of the Secretary or an Assistant Secretary as to the authorization
by the Board of Trustees of the Trust accompanied by a detailed description of
procedures approved by the Board of Trustees, Proper Instructions may include
communications effected directly between electro-mechanical or electronic
devices provided that the Board of Trustees and the Custodian are satisfied that
such procedures afford adequate safeguards for the Trust's assets.
6. Actions Permitted without Express Authority. The Custodian may in
its discretion, without express authority from the Trust:
1) make payments to itself or others for minor expenses of
handling securities or other similar items relating to its duties under this
Contract, provided that all such payments shall be accounted for to the Trust;
2) surrender securities in temporary form for securities in
definitive form;
<PAGE>
3) endorse for collection, in the name of the Trust, 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 Trust except as otherwise directed by
the Board of Trustees of the Trust.
7. Evidence of Authority. The Custodian shall be protected in acting upon any
instructions, notice, request, consent, certificate or other instrument or paper
believed by it to be genuine and to have been properly executed by or on behalf
of the Trust. The Custodian may receive and accept a certified copy of a vote of
the Board of Trustees of the Trust as conclusive evidence (a) of the authority
of any person to act in accordance with such vote or (b) of any determination or
of any action by the Board of Trustees pursuant to the Declaration of Trust as
described in such vote, and such vote may be considered as in full force and
effect until receipt by the Custodian of written notice to the contrary.
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Trustees of the Trust to keep
the books of account of the Trust and/or compute the net asset value per share
of the outstanding shares of the Trust or, if directed in writing to do so by
the Trust, 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 Trust as described in the Trust's currently effective
prospectus and shall advise the Trust and the Transfer Agent daily of the total
amounts of such net income and, if instructed in writing by an officer of the
Trust to do so, shall advise the Transfer Agent periodically of the division of
such net income among its various components. The calculations of the net asset
value per share and the daily
<PAGE>
income of the Trust shall be made at the time or times described from time
to time in the Trust'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 Trust under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Trust. All such records shall be
the property of the Trust and shall at all times during the regular business
hours of the Custodian be open for inspection by duly authorized officers,
employees or agents of the Trust and employees and agents of the Securities and
Exchange Commission. The Custodian shall, at the Trust's request, supply the
Trust with a tabulation of securities owned by the Trust and held by the
Custodian and shall, when requested to do so by the Trust and for such
compensation as shall be agreed upon between the Trust and the Custodian,
include certificate numbers in such tabulations.
10. Opinion of Trust's Independent Accountant
The Custodian shall take all reasonable action, as the Trust may from
time to time request, to obtain from year to year favorable opinions from the
Trust's independent accountants with respect to its activities hereunder in
connection with the preparation of the Trust's Form N-lA, and Form N-SAR or
other annual reports to the Securities and Exchange Commission and with respect
to any other requirements of such Commission.
11. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Trust 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
<PAGE>
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 indemnified by the
Trust for any action taken or omitted by it in the proper execution of
instructions from the Trust. It shall be entitled to rely on and may act upon
advice of counsel for the Trust on all matters and shall be without liability
for any action reasonably taken or omitted pursuant to such advice.
Notwithstanding the foregoing, the responsibility of the Custodian with respect
to redemptions effected by check shall be in accordance with a separate
agreement entered into between the Custodian and the Trust.
The 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 Trust 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
Trust 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 Trust for any purpose which results in the Trust incurring an overdraft at
the end of any business day or for extraordinary or emergency purposes during
any business day, the Trust 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 Trust's gross assets, the specific
securities to be designated in writing from time to time by the Trust or its
investment adviser (the "Pledged Securities"). Should the Trust 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.
<PAGE>
13. Effective Period, Termination and Amendment
This Contract shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than thirty (30) days after the date of such delivery or mailing; provided,
however that the Custodian shall not 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 2.11.A 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 (b) 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 or upon the happening of a like event
at the direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the Contract, the Trust shall pay to the Custodian
such compensation as may be due as of the date of such termination and shall
likewise reimburse the Custodian for its costs, expenses and disbursements.
<PAGE>
14. Successor Custodian
If a successor custodian shall be appointed by the Board of Trustees of
the Trust, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities then held by it hereunder and shall transfer to an
account of the successor custodian all of the Trust'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
Trustees of the Trust, deliver at the office of the Custodian and transfer such
securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Trustees shall have been delivered to
the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver 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 Trust'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 Trust to procure the certified copy of the vote referred to or of
the Board of Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties and
the provisions of this Contract relating to the duties and obligations of the
Custodian shall remain in full force and effect.
<PAGE>
15. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and
the Trust may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Declaration of Trust of the Trust. No interpretive or additional provisions
made as provided in the preceding sentence shall be deemed to be an amendment of
this Contract.
16. 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 Trust and the Custodian. Any reference
to the custodian contract between the Trust and the Custodian in documents
executed prior to the date hereof shall be deemed to refer to this Contract.
<PAGE>
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 28th day of January, 1988.
ATTEST LIFETIME EMERGING GROWTH TRUST
ARNOLD D. SCOTT By: RICHARD B. BAILEY
Arnold D. Scott Richard B. Bailey
ATTEST STATE STREET BANK &
TRUST COMPANY
J. FARRELL By: ILLEGIBLE
J. Farrell (Illegible)
Assistant Secretary Vice President
<PAGE>
EXHIBIT NO. 99.8(b)
AMENDMENT TO
CUSTODIAN CONTRACT
Amendment to Custodian Contract between Lifetime Emerging Growth Trust,
a business trust organized and existing under the laws of Massachusetts, having
a principal place of business at 200 Berkeley Street, Boston, Massachusetts
02116 (hereinafter called the "Fund"), and State Street Bank and Trust Company,
a Massachusetts trust company, having its principal place of business at 225
Franklin Street, Boston, Massachusetts 02110 (hereinafter called the
"Custodian").
WHEREAS: The Fund and the Custodian are parties to a Custodian
Contract dated January 28, 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 29th day of
Febuary, 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 By: (ILLEGIBLE)
K. M. Kneeland (illegible)
Assistant Secretary Vice President
<PAGE>
EXHIBIT NO. 99.8(c)
AMENDMENT TO CUSTODIAN CONTRACT
Agreement made as of this 1st day of October, 1989 by and between State
Street Bank and Trust Company (the "Custodian") and Lifetime Emerging
Growth Trust (the "Trust").
WHEREAS, the Custodian and the Trust are parties to a Custodian
Contract dated January 28, 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 LIFETIME EMERGING GROWTH TRUST
JOAN R. GULINELLO By: A. KEITH BRODKIN
Joan R. Gulinello A. Keith Brodkin
ATTEST STATE STREET BANK &
TRUST COMPANY
MARK MORGAN By: PHYLLIS A. SCHROEDER
Mark Morgan Phyllis A. Schroeder
Assistant Secretary Vice President
<PAGE>
EXHIBIT NO. 99.8(d)
AMENDMENT
The Custodian Contract dated January 28, 1988 between Lifetime Emerging
Growth Trust (referred to herein as the "Trust") and State Street Bank and Trust
Company (the "Custodian") is hereby amended as follows:
I. Section 2.1 is amended to read as follows:
"Holding Securities. The Custodian shall hold and physically
segregate for the account of the Trust all non-cash property, including all
securities owned by the Trust, other than (a) securities which are maintained
pursuant to Section 2.11 in a clearing agency which acts as a securities
depository or in a book-entry system authorized by the U.S. Department of the
Treasury, collectively referred to herein as "Securities System" and (b)
commercial paper of an issuer for which State Street Bank and Trust Company acts
as issuing and paying agent ("Direct Paper") which is deposited and/or
maintained in the Direct Paper System of the Custodian pursuant to Section
2.11A.
II. Section 2.2 is amended to read, in relevant part as follows:
"Delivery of Securities. The Custodian shall release and
deliver securities owned by the Trust held by the Custodian or in a Securities
System account of the Custodian or in the Custodian's Direct Paper book entry
system account ("Direct Paper System Account") only upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, and only in following cases:
1) . . . .
.
.
.
15) . . . ."
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 9th day of October,
1991.
ATTEST: LIFETIME EMERGING GROWTH TRUST
JOAN R. GULINELLO By: W. T. LONDON
Joan R. Gulinello 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 NO. 99.9(a)
LIFETIME MONEY MARKET TRUST
LIFETIME MANAGED MUNICIPAL BOND TRUST
LIFETIME GOVERNMENT INCOME PLUS TRUST
LIFETIME HIGH INCOME TRUST
LIFETIME CAPITAL GROWTH TRUST
LIFETIME EMERGING GROWTH TRUST
LIFETIME MANAGED SECTORS TRUST
LIFETIME GLOBAL EQUITY TRUST
LIFETIME CONSERVATIVE EQUITY TRUST
200 Berkeley Street
Boston, Massachusetts 02116
September 10, 1986
Massachusetts Financial Service Center, Inc.
200 Berkeley Street
Boston, Massachusetts 02116
Shareholder Servicing Agent Agreement
Dear Sir:
Each of Lifetime Money Market Trust, Lifetime Managed Municipal Bond
Trust, Lifetime Government Income Plus Trust, Lifetime High Income Trust,
Lifetime Capital Growth Trust, Lifetime Emerging Growth Trust, Lifetime Managed
Sectors Trust, Lifetime Global Equity Trust, Lifetime Conservative Equity Trust,
each of which is a Massachusetts business trust (the "Fund"), is an open-end
registered investment company. The Fund has selected you to act as the
Shareholder Servicing Agent and you hereby agree to act as such Agent and
perform the duties and functions thereof in the manner and on the conditions
hereinafter set forth. Accordingly, the Fund hereby agrees with you as follows:
1. The Facility. You represent that you have the necessary computer
equipment, software and other office equipment ("Facility") adequate to perform
the services contemplated hereby for the Fund as well as for other investment
companies (such investment companies, together with the other Funds listed
above, are herein collectively referred to as the "MFS and Lifetime Funds") for
which Massachusetts Financial Services Company ("MFS") or Lifetime Advisers,
Inc. ("LAI") 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 and Lifetime Funds, provided that the
Facility may be utilized to perform services for others with the permission of
the MFS and Lifetime 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 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.
<PAGE>
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:
(a) Prompt reconciliation of any differences as to the
number of outstanding shares between various Facility records or between
Facility records and records of a 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, MFS or LAI.
If any Lifetime 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 Lifetime 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 of such Lifetime Fund
or Funds who are not interested persons of MFS or LAI), 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. 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 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.
6. Fees. The fee per Fund shareholder account for your 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.
<PAGE>
7. 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.
8. 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 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.
9. 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.
10. 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.
11. Further Assurances. Each party agrees to perform such
further acts and execute such further documents as are necessary to effectuate
the purposes hereof.
12. 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
<PAGE>
your duties hereunder to employ, from time to time, one or more Sub-Transfer
Agents and/or Co-Transfer Agents.
13. 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. 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.
14. 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.
15. 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 the provisions hereof or otherwise affect
their construction or effect. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. This
Agreement has been executed on behalf of the Fund by the undersigned not
individually, but in the capacity indicated, and the obligations of this
Agreement are not binding upon any of the Trustees or shareholders of the Fund
individually, but bind only the trust estate.
Very truly yours,
LIFETIME MONEY MARKET TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
<PAGE>
LIFETIME MANAGED MUNICIPAL BOND TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
LIFETIME GOVERNMENT INCOME PLUS TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
LIFETIME HIGH INCOME TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
LIFETIME CAPITAL GROWTH TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
LIFETIME EMERGING GROWTH TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
LIFETIME MANAGED SECTORS TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
LIFETIME GLOBAL EQUITY TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
LIFETIME CONSERVATIVE EQUITY TRUST RICHARD B. BAILEY
Richard B. Bailey
Chairman
The foregoing is hereby accepted as of the date thereof.
MASSACHUSETTS FINANCIAL
SERVICES COMPANY
H. ALDEN JOHNSON, JR.
H. Alden Johnson, Jr.
President
The foregoing is hereby accepted as of the date thereof.
LIFETIME ADVISERS, INC.
H. ALDEN JOHNSON, JR.
H. Alden Johnson, Jr.
President
<PAGE>
The foregoing is hereby accepted as of the date thereof.
MASSACHUSETTS FINANCIAL
SERVICE CENTER, INC.
BRUCE C. AVERY
Bruce C. Avery
President
<PAGE>
EXHIBIT NO. 99.9(b)
MFS SERIES TRUST II
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 September 10, 1986, 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 SERIES TRUST II
(f\k\a MFS Lifetime Emerging
Growth 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 SERIES TRUST II (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.
<PAGE>
EXHIBIT N0. 99.13
LIFETIME ADVISERS, INC.
200 BERKELEY STREET
BOSTON, MASSACHUSETTS 02116
Lifetime Emerging Growth Trust
200 Berkeley Street
Boston, MA 02116
Gentlemen:
In connection with my purchase of 18,182 Shares of Beneficial Interest (without
par value) of Lifetime Emerging Growth Trust, I hereby represent and warrant to
you that I am purchasing said shares as an investment with no intention of
redeeming or reselling said shares until a date at least two years hereafter.
Very truly yours,
JAMES E. RUSSELL
James E. Russell
