INVESTMENT
ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, dated this 14th day of September,
2010, by and between MFS SERIES TRUST
XII, a Massachusetts business trust (the "Trust"), on behalf of its series
of shares (each a "Fund") listed on
Appendix A attached hereto, and MASSACHUSETTS FINANCIAL SERVICES COMPANY, a
Delaware corporation (the "Adviser").
WITNESSETH:
WHEREAS, the Trust is engaged in business as an investment
company registered under the Investment
Company Act of 1940; and
WHEREAS, the Adviser is willing to provide services to the Fund on
the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants
and agreements of the parties hereto as herein
set forth, the parties covenant and agree as follows:
Article 1. Duties of the Adviser. (a) The Adviser shall provide
the Fund with such investment advice
and supervision as the latter may from time to time consider necessary for
the proper supervision of its assets.
The Adviser shall act as investment adviser to the Fund and as such shall
furnish continuously an investment
program and shall determine from time to time what securities or other
instruments shall be purchased, sold or
exchanged and what portion of the assets of the Fund shall be held uninvested,
subject always to the restrictions
of the Trust's Declaration of Trust, dated June 29, 2005, and By-Laws,
each as amended from time to time
(respectively, the "Declaration" and the "By-Laws"), to the provisions of the
Investment Company Act of 1940 and
the Rules, Regulations and orders thereunder and to a Fund's then-current
Prospectus and Statement of Additional
Information. The Adviser also shall exercise voting rights, rights to consen
t to corporate actions and any other
rights pertaining to a Fund's portfolio securities in accordance with the
Advisers policies and procedures as
presented to the Trustees of the Trust from time to time. Should the
Trustees at any time, however, make any
definite determination as to the investment policy and notify the Adviser
thereof in writing, the Adviser shall
be bound by such determination for the period, if any, specified in such
notice or until similarly notified that
such determination shall be revoked.
(b) The Adviser shall take, on behalf of the Fund, all actions which
it deems necessary to implement the
investment policies determined as provided above, and in particular to place
all orders for the purchase or sale
of portfolio securities or other instruments for the Funds account with
brokers or dealers selected by it, and
to that end, the Adviser is authorized as the agent of the Fund to give
instructions to the Custodian of the Fund
as to the deliveries of securities or other instruments and payments of
cash for the account of the Fund. In
connection with the selection of such brokers or dealers and the placing of
such orders, the Adviser is directed
to seek for the Fund the best overall price and execution available from
responsible brokerage firms, taking
account of all factors it deems relevant, including by way of illustration:
price; the size of the transaction;
the nature of the market for the security; the amount of the commission; the
timing and impact of the transaction
taking into account market prices and trends; the reputation, experience and
financial stability of the broker or
dealer involved; and the quality of services rendered by the broker or
dealer in other transactions. In
fulfilling this requirement, the Adviser shall not be deemed to have acted
unlawfully or to have breached any
duty, created by this Agreement or otherwise, solely by reason of its
having caused a Fund to pay a broker or
dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission
another broker or dealer would have charged for effecting that transaction,
if the Adviser determined in good
faith that such amount of commission was reasonable in relation to the
value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either
that particular transaction or the
Adviser's overall responsibilities with respect to the Fund and to other
clients of the Adviser as to which the
Adviser exercises investment discretion. Subject to seeking the best price
and execution as described above, and
in accordance with applicable rules and regulations, the Adviser also is
authorized to consider sales of shares
of the Fund or of other funds or accounts of the Adviser as a factor in the
selection of brokers and dealers.
(c) The Adviser may from time to time enter into sub-investment
advisory agreements with respect to a
Fund with one or more investment advisers with such terms and conditions as
the Adviser may determine, provided
that such sub-investment advisory agreements have been approved in
accordance with applicable provisions of the
Investment Company Act of 1940 and any rules, regulations or orders of the
Securities and Exchange Commission
thereunder. Subject to the provisions of Article 6, the Adviser shall not be
liable for any error of judgment or
mistake of law by any sub-adviser or for any loss arising out of any
investment made by any sub-adviser or for
any act or omission in the execution and management of a Fund by any
sub-adviser.
Article 2. Allocation of Charges and Expenses. (a) The Adviser
shall furnish at its own expense
investment advisory and administrative services, office space, equipment
and clerical personnel necessary for
servicing the investments of the Fund and maintaining its organization, and
investment advisory facilities and
executive and supervisory personnel for managing the investments and
effecting the portfolio transactions of the
Fund. The Adviser shall arrange, if desired by the Trust, for directors,
officers and employees of the Adviser
to serve as Trustees, officers or agents of the Trust if duly elected or
appointed to such positions and subject
to their individual consent and to any limitations imposed by law.
(b) It is understood that the Trust and the Fund will pay all of
their own expenses incurred in their
operations and the offering of a Funds shares, unless specifically
provided otherwise in this Agreement or
except to the extent that the Adviser agrees in a written instrument
executed by the Adviser (specifically
referring to this Article 2(b)) to assume or otherwise pay for
specified expenses of the Trust or a Fund,
including, without limitation: compensation of Trustees "not affiliated"
with the Adviser; governmental fees;
interest charges; taxes; membership dues in the Investment Company
Institute allocable to a Fund; fees and
expenses of independent auditors, of legal counsel, and of any transfer
agent, registrar or dividend disbursing
agent of a Fund; expenses of repurchasing and redeeming shares and servicing
shareholder accounts; expenses of
preparing, printing and mailing stock certificates, shareholder reports,
notices, proxy statements and reports
to governmental officers and commissions; brokerage and other expenses
connected with the execution, recording
and settlement of portfolio security transactions; insurance premiums;
fees and expenses of the custodian for
all services to a Fund, including safekeeping of funds and securities
and maintaining required books and
accounts; expenses of calculating the net asset value of shares of a Fund;
organizational and start up costs;
such non-recurring or extraordinary expenses as may arise, including
those relating to actions, suits or
proceedings to which a Fund is a party or otherwise may have an exposure,
and the legal obligation which a Fund
may have to indemnify the Trusts Trustees and officers with respect
thereto; and expenses relating to the
issuance, registration and qualification of shares of a Fund and the
preparation, printing and mailing of
prospectuses for such purposes (except to the extent that any
Distribution Agreement to which the Trust is a
party provides that another party is to pay some or all of such expenses).
(c) The payment or assumption by the Adviser of any expenses of the
Trust or a Fund that the Adviser is
not obligated by this Agreement or otherwise to pay or assume shall not
obligate the Adviser to pay or assume the
same or any similar expenses of the Trust or a Fund on any subsequent occasion.
Article 3. Compensation of the Adviser. For the services to be
rendered and the facilities provided,
the Fund shall pay to the Adviser an investment advisory fee computed and
paid monthly as set forth in Appendix B
attached hereto. If the Adviser shall serve for less than the whole of any
period specified in this Article 3,
the compensation paid to the Adviser will be prorated.
Article 4. Additional Services. Should the Trust have occasio
to request the Adviser or its
affiliates to perform administrative or other additional services not
herein contemplated or to request the
Adviser or its affiliates to arrange for the services of others, the Adviser
or its affiliates will act for the
Trust on behalf of a Fund upon request to the best of its ability, with
compensation for the services to be
agreed upon with respect to each such occasion as it arises. No such
agreement for additional services shall
expand, reduce or otherwise alter the obligations of the Adviser, or the
compensation that the Adviser is due,
under this Agreement.
Article 5. Covenants of the Adviser. The Adviser agrees that it
will not deal with itself, or with the
Trustees of the Trust or the Trust's distributor, if any, as principals
in making purchases or sales of
securities or other property for the account of a Fund, except as permitted by
the Investment Company Act of 1940
and any rules, regulations or orders of the Securities and Exchange
Commission thereunder, will not take a long
or short position in the shares of a Fund except as permitted by the
applicable law, and will comply with all
other provisions of the Declaration and the By-Laws and the then-current
Prospectus and Statement of Additional
Information of a Fund relative to the Adviser and its directors and officers.
Article 6. Limitation of Liability of the Adviser. The Adviser
shall not be liable for any error of
judgment or mistake of law or for any loss arising out of any investment
or for any act or omission in the
execution and management of a Fund, except for willful misfeasance, bad
faith, gross negligence or reckless
disregard of its duties and obligations hereunder. As used in this Article
6, the term "Adviser" shall include
directors, officers and employees of the Adviser as well as that corporation
itself.
Article 7. Activities of the Adviser. (a) The Trust acknowledges
that the services of the Adviser to
a Fund are not exclusive, the Adviser being free to render investment
advisory and/or other services to others.
The Trust further acknowledges that it is possible that, based on their
investment objectives and policies,
certain funds or accounts managed by the Adviser or its affiliates may at
times take investment positions or
engage in investment techniques which are contrary to positions taken or
techniques engaged in on behalf of a
Fund. Notwithstanding the foregoing, the Adviser will at all times
endeavor to treat all of its clients in a
fair and equitable manner.
(b) The Trust acknowledges that whenever a Fund and one or more
other funds or accounts advised by the
Adviser have available monies for investment, investments suitable and
appropriate for each shall be allocated in
a manner believed by the Adviser to be fair and equitable to each entity.
Similarly, opportunities to sell
securities or other investments shall be allocated in a manner believed by
the Adviser to be fair and equitable
to each entity. The Trust acknowledges that in some instances this may
adversely affect the size of the position
that may be acquired or disposed of for a Fund.
(c) It is understood that the Trustees, officers and shareholders
of the Trust are or may be or become
interested in the Adviser, as directors, officers, employees, or otherwise
and that directors, officers and
employees of the Adviser are or may become similarly interested in the
Trust, and that the Adviser may be or
become interested in a Fund as a shareholder or otherwise.
Article 8. MFS Name. The Trust acknowledges that the names
"Massachusetts Financial Services," "MFS"
or any derivatives thereof or logos associated with those names
(collectively, the MFS Marks) are the valuable
property of the Adviser and its affiliates. The Adviser grants the
Trust and the Fund a non-exclusive and
non-transferable right and sub-license to use the MFS Marks only so long as
the Adviser serves as investment
adviser to the Trust and the Fund. The Trust agrees that if the Adviser
for any reason no longer serves as
investment adviser to a Fund, and the Adviser so requests, that Fund
promptly shall cease to use the MFS Marks
and promptly shall amend its registration statement to delete any
references to the MFS Marks. Likewise, the
Trust agrees that if the Adviser for any reason no longer serves as
investment adviser to any Fund of the Trust,
and the Adviser so requests, the Trust promptly shall cease to use the MFS
Marks and promptly shall amend its
Declaration of Trust to delete any references to the MFS Marks. The Trust
acknowledges that the Adviser may
permit other clients to use the MFS Marks in their names or other material.
For purposes of this Article, the
Trust shall be deemed to have taken the required action promptly if such
action is taken within 90 days of the
Adviser no longer serving as the investment adviser to a Fund of the Trust,
or from the date of the Advisers
request, as the case may be.
Article 9. Duration, Termination and Amendment of this
Agreement. (a) This Agreement shall become
effective with respect to the Trust on the date first written above,
and shall become effective with respect to a
Fund, if approved by the shareholders of such Fund, on the Effective Date for
such Fund, as set forth in Appendix
A attached hereto. Thereafter, this Agreement will remain in effect with
respect to a Fund for a period of two
years from that Fund's Effective Date as set forth in Appendix A, on which
date it will terminate for that Fund
unless its continuance is "specifically approved at least annually" (i) by
the vote of a majority of the Trustees
of the Trust who are not "interested persons" of the Trust or of the Adviser
at a meeting specifically called for
the purpose of voting on such approval, and (ii) by the Board of Trustees of
the Trust, or by "vote of a majority
of the outstanding voting securities" of the applicable Fund.
(b) This Agreement may be terminated as to the Trust or as to any
Fund at any time without the payment
of any penalty by the Trustees or by "vote of a majority of the outstanding
voting securities" of the applicable
Fund, or by the Adviser, in each case on not more than sixty days' nor less
than thirty days' written notice to
the other party. This Agreement shall automatically terminate in the event of
its "assignment".
(c) This Agreement may be amended with respect to a Fund only if such
amendment is in writing signed by
or on behalf of the Trust and the Adviser and is approved by "vote of a
majority of the outstanding voting
securities" of the applicable Fund (if such shareholder approval is
required by the Investment Company Act of
1940).
(d) Any approval, renewal or amendment of this Agreement with
respect to a Fund by "vote of a majority
of the outstanding voting securities" of that Fund, by the Trustees of
the Trust, or by a majority of the
Trustees of the Trust who are not "interested persons" of the Trust or
the Adviser, shall be effective to
approve, renew or amend the Agreement with respect to that Fund
notwithstanding (i) that the approval, renewal or
amendment has not been so approved as to any other Fund, or (ii) that the
approval, renewal or amendment has not
been approved by the vote of a majority of the outstanding voting securities of
the Trust as a whole.
Article 10. Scope of Trusts Obligations. A copy of the Trusts
Declaration of Trust is on file with the Secretary of State of
The Commonwealth of Massachusetts. The Adviser acknowledges that the
obligations of or arising out of this
Agreement are not binding upon any of the Trusts Trustees, officers,
employees, agents or shareholders
individually, but are binding solely upon the assets and property of the Trust.
If this Agreement is executed by
the Trust on behalf of one or more Funds, the Adviser further acknowledges that
the assets and liabilities of the
Fund are separate and distinct and that the obligations of or arising out of
this Agreement concerning a Fund are
binding solely upon the assets or property of such Fund and not upon the assets
or property of any other Fund.
Article 11. Definitions and Interpretations. The terms
"specifically approved at least annually,"
"vote of a majority of the outstanding voting securities," "assignment,"
"affiliated person," and "interested
person," when used in this Agreement, shall have the respective meanings
specified, and shall be construed in a
manner consistent with, the Investment Company Act of 1940 and the rules and
regulations promulgated thereunder.
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise
derived from a term or provision of the Investment Company Act of 1940, the
Investment Advisers Act of 1940, the
Securities Act of 1933, or the Securities Exchange Act of 1934
(collectively, the "Federal Securities Acts")
shall be resolved by reference to such term or provision of the Federal
Securities Acts and to interpretations
thereof, if any, by United States federal courts or, in the absence of any
controlling decisions of any such
court, by rules or regulations of the Securities and Exchange Commission.
Where the effect of a requirement of
the Federal Securities Acts reflected in any provision of this Agreement is
revised by rule or regulation of the
Securities and Exchange Commission, such provisions shall be deemed to
incorporate the effect of such rule or
regulation.
Article 12. Record Keeping. The Adviser will maintain records in a
form acceptable to the Trust and in compliance with the rules
and regulations 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 Trust and will be available for inspection and use
by the Trust.
Article 13. Miscellaneous. (a) This Agreement contains the entire
understanding and agreement of the
parties with respect to the subject matter hereof.
(b) Headings in this Agreement are for ease of reference only and
shall not constitute a part of the
Agreement.
(c) Should any portion of this Agreement for any reason be held void
in law or equity, the remainder of
the Agreement shall be construed to the extent possible as if such voided
portion had never been contained herein.
(d) This Agreement shall be governed by the laws of the
CityPlaceTypeplaceCommonwealth of
PlaceNameMassachusetts, without giving effect to the choice of laws
provisions thereof, except that questions of
interpretation shall be resolved in accordance with the provisions of Article
11 above.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered in their
names and on their behalf by the undersigned officers thereunto duly
authorized, all as of the day and year first
above written. The undersigned officer of the Trust has executed this
Agreement not individually, but as an
officer under the Declaration and the obligations of this Agreement are
not binding upon any of the Trustees,
officers or shareholders of a Fund, individually, but bind only the trust
estate.
MFS SERIES TRUST XII,
on behalf of its series set forth in
Appendix A attached hereto
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
Citycountry-regionplaceStateMASSACHUSETTS
FINANCIAL SERVICES COMPANY
By:▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer