Exhibit (8)(a)
DELEGATION AGREEMENT
AGREEMENT, dated as of __________________, 1999 by and between INVESTORS
BANK & TRUST COMPANY, a Massachusetts trust company (the "Delegate"), and LSA
VARIABLE SERIES TRUST, a business trust organized under the laws of the state of
Delaware (the "Trust").
WHEREAS, pursuant to the provisions of Rule 17f-5(b) under the Investment
Company Act of 1940, and subject to the terms and conditions set forth herein,
the Board of Trustees of the Trust desires to delegate to the Delegate, and the
Delegate hereby agrees to accept and assume, certain responsibilities described
herein concerning Assets held outside of the United States.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. Definitions
Capitalized terms in this Agreement have the following meanings:
a. Assets
Assets means any of Trust's investments (including foreign currencies) for
which the primary market is outside the United States, and such cash and cash
equivalents as are reasonably necessary to effect Trust's transactions in such
investments.
b. Authorized Representative
Authorized Representative means any one of the persons who are empowered,
on behalf of the parties to this Agreement, to receive notices from the other
party and to send notices to the other party.
c. Board
Board means the Board of Trustees (or the body authorized to exercise
authority similar to that of the board of directors of a corporation) of Trust.
d. Compulsory Securities Depository
Compulsory Securities Depository means a Securities Depository the use of
which is mandatory (i) by law or regulation; (ii) because securities cannot be
withdrawn from the depository; or (iii) because maintaining securities outside
the Securities Depository is not consistent with prevailing custodial practices.
e. Country Risk
Country Risk means all factors reasonably related to the systemic risk of
holding assets in a particular country including, but not limited to, such
country's financial infrastructure (including any Securities Depositories
operating in such country); prevailing custody and settlement practices; and
laws applicable to the safekeeping and recovery of Assets held in custody.
f. Eligible Foreign Custodian
Eligible Foreign Custodian has the meaning set forth in Rule 17f-5(a)(1)
and shall also include foreign branches of U.S. Banks (as the term "U.S. Bank"
is defined in Rule 17f-5).
g. Foreign Custody Manager
Foreign Custody Manager has the meaning set forth in Rule 17f-5(a)(2).
h. Monitor
Monitor means to re-assess or re-evaluate, at reasonable intervals, a
decision or determination previously made.
i. Securities Depository
Securities Depository has the meaning set forth in Rule 17f-5(a)(6).
2. Representations
a. Delegate's Representations
Delegate represents that it is a trust company chartered under the laws of
the Commonwealth of Massachusetts. Delegate further represents that the persons
executing this Agreement and any amendment or appendix hereto on its behalf are
duly authorized to so bind the Delegate with respect to the subject matter of
this Agreement.
b. Trust's Representations
Trust represents that the Board has determined that it is reasonable to
rely on Delegate to perform the responsibilities delegated by this Agreement.
Trust further represents that the persons executing this Agreement and any
amendment or appendix hereto on its behalf are duly authorized to so bind the
Trust with respect to the subject matter of this Agreement.
3. Jurisdictions Covered
a. Initial Jurisdictions
The authority delegated by this Agreement applies only with respect to
Assets held in the jurisdictions listed in Appendix A.
b. Added Jurisdictions
Jurisdictions may be added to Appendix A by written agreement in the form
of Appendix B. Delegate's responsibility and authority with respect to any
jurisdiction so added will commence at the later of (i) the time that Delegate's
Authorized Representative and Board's Authorized Representative have both
executed a copy of Appendix B listing such jurisdiction, or (ii) the time that
Delegate's Authorized Representative receives a copy of such fully executed
Appendix B.
c. Withdrawn Jurisdictions
Board may withdraw its delegation with respect to any jurisdiction upon
written notice to Delegate. Delegate may withdraw its acceptance of delegated
authority with respect to any jurisdiction upon written notice to Board. Ten
days (or such longer period as to which the parties agree) after receipt of any
such notice by the Authorized Representative of the party other than the party
giving notice, Delegate shall have no further responsibility or authority under
this Agreement with respect to the jurisdiction or jurisdictions is to which
authority is withdrawn.
4. Delegation of Authority to Act as Foreign Custody Manager
a. Selection of Eligible Foreign Custodians
Subject to the provisions of this Agreement and the requirements of Rule
17f-5 (and any other applicable law), Delegate is authorized and directed to
place and maintain Assets in the care of any Eligible Foreign Custodian or
Custodians selected by Delegate in each jurisdiction to which this Agreement
applies, except that Delegate does not accept such authorization and direction
with regard to Securities Depositories.
b. Contracts With Eligible Foreign Custodians
Subject to the provisions of this Agreement and the requirements of Rule
17f-5 (and any other applicable law), Delegate is authorized to enter into, on
behalf of Trust, such written contracts governing Trust's foreign custody
arrangements with such Eligible Foreign Custodians as Delegate deems
appropriate.
5. Monitoring of Eligible Foreign Custodians and Contracts
In each case in which Delegate has exercised the authority delegated under
this Agreement to place Assets with an Eligible Foreign Custodian, Delegate is
authorized to, and shall, on behalf of Trust, establish a system to Monitor the
appropriateness of maintaining Assets with such Eligible Foreign Custodian. In
each case in which Delegate has exercised the authority delegated under this
Agreement to enter into a written contract governing Trust's foreign custody
arrangements, Delegate is authorized to, and shall, on behalf of Trust,
establish a system to Monitor the appropriateness of such contract.
6. Guidelines and Procedures for the Exercise of Delegated Authority
a. Board's Conclusive Determination Regarding Country Risk
In exercising its delegated authority under this Agreement, Delegate may
assume, for all purposes, that Board (or Trust's investment advisor, pursuant to
authority delegated by Board) has considered, and pursuant to its fiduciary
duties to Trust and Trust's shareholders, determined to accept, such Country
Risk as is incurred by placing and maintaining Assets in the jurisdictions to
which this Agreement applies. In exercising its delegated authority under this
Agreement, Delegate may also assume that Board (or Trust's investment advisor,
pursuant to authority delegated by Board) has, and will continue to, Monitor
such Country Risk to the extent Board deems necessary or appropriate.
Nothing in this Agreement shall require Delegate to make any selection or
to engage in any Monitoring on behalf of Trust that would entail consideration
of Country Risk.
b. Selection of Eligible Foreign Custodians
In exercising the authority delegated under this Agreement to place Assets
with an Eligible Foreign Custodian, Delegate shall determine that Assets will be
subject to reasonable care, based on the standards applicable to custodians in
the market in which the Assets will be held, after considering all factors
relevant to the safekeeping of such assets, including, without limitation;
i. The Eligible Foreign Custodian's practices, procedures, and
internal controls, including, but not limited to, the physical protections
available for certificated securities (if applicable), the method of
keeping custodial records, and the security and data protection practices;
ii. Whether the Eligible Foreign Custodian has the financial strength
to provide reasonable care for Assets;
iii. The Eligible Foreign Custodian's general reputation and standing
and, in the case of a Securities Depository, the Securities Depository's
operating history and number of participants;
iv. Whether Trust will have jurisdiction over and be able to enforce
judgments against the Eligible Foreign Custodian, such as by virtue of the
existence of any offices of the Eligible Foreign Custodian in the United
States or the Eligible Foreign Custodian's consent to service of process in
the United States;
v. In the case of an Eligible Foreign Custodian that is a banking
institution or trust company, any additional factors and criteria set forth
in Appendix C to this Agreement; and
c. Evaluation of Written Contracts
In exercising the authority delegated under this Agreement to enter into
written contracts governing Trust's foreign custody arrangements with an
Eligible Foreign Custodian, Delegate shall determine that such contracts provide
reasonable care for Assets based on the standards applicable to Eligible Foreign
Custodians in the relevant market. In making this determination, Delegate shall
ensure that the terms of such contracts comply with the provisions of Rule
17f-5(c)(2).
d. Monitoring
In exercising the authority delegated under this Agreement to establish a
system to Monitor the appropriateness of maintaining Assets with an Eligible
Foreign Custodian or the appropriateness of a written contract governing Trust's
foreign custody arrangements, Delegate shall consider any factors and criteria
set forth in Appendix D to this Agreement. If, as a result of its Monitoring of
Eligible Foreign Custodian relationships hereunder or otherwise, the Delegate
determines in its sole discretion that it is in the best interest of the
safekeeping of the Assets to move such Assets to a different Eligible Foreign
Custodian, the Trust shall bear any expense related to such relocation of
Assets.
7. Standard of Care
In exercising the authority delegated under this Agreement, Delegate agrees
to exercise reasonable care, prudence and diligence such as a person having
responsibility for the safekeeping of assets of an investment company registered
under the Investment Company Act of 1940 would exercise.
8. Reporting Requirements
Delegate agrees to provide written reports notifying Board of the placement
of Assets with a particular Eligible Foreign Custodian and of any material
change in Trust's foreign custody arrangements. Such reports shall be provided
to Board quarterly for consideration at the next regularly scheduled meeting of
the Board or earlier if deemed necessary or advisable by the Delegate in its
sole discretion.
9. Provision of Information Regarding Country Risk
With respect to the jurisdictions listed in Appendix A, or added thereto
pursuant to Article 3, Delegate agrees to provide annually to Board, such
information relating to Country Risk, if available, as is specified in Appendix
E to this Agreement. Such information relating to Country Risk shall be updated
from time to time as the Delegate deems necessary.
10. Limitation of Liability.
a. Notwithstanding anything in this Agreement to the contrary, in no event
shall the Delegate or any of its officers, directors, employees or agents
(collectively, the "Indemnified Parties") be liable to the Trust or any third
party, and the Trust shall indemnify and hold the Delegate and the Indemnified
Parties harmless from and against any and all loss, damage, liability, actions,
suits, claims, costs and expenses, including legal fees, (a "Claim") arising as
a result of any act or omission of the Delegate or any Indemnified Party under
this Agreement, except for any Claim resulting solely from the negligence,
willful misfeasance or bad faith of the Delegate or any Indemnified Party.
Without limiting the foregoing, neither the Delegate nor the Indemnified Parties
shall be liable for, and the Delegate and the Indemnified Parties shall be
indemnified against, any Claim arising as a result of:
i. Any act or omission by the Delegate or any Indemnified Party in
reasonable good faith reliance upon the terms of this Agreement, any
resolution of the Board, telegram, telecopy, notice, request, certificate
or other instrument reasonably believed by the Delegate to be genuine;
ii. Any information which the Delegate provides or does not provide
under Section 9 hereof;
iii. Any acts of God, earthquakes, fires, floods, storms or other
disturbances of nature, epidemics, strikes, riots, nationalization,
expropriation, currency restrictions, acts of war, civil war or terrorism,
insurrection, nuclear fusion, fission or radiation, the interruption, loss
or malfunction of utilities, transportation or computers (hardware or
software) and computer facilities, the unavailability of energy sources and
other similar happenings or events.
b. Notwithstanding anything to the contrary in this Agreement, in no event
shall the Delegate or the Indemnified Parties be liable to the Trust or any
third party for lost profits or lost revenues or any special, consequential,
punitive or incidental damages of any kind whatsoever in connection with this
Agreement or any activities hereunder.
11. Arbitration of Disputes
To the extent permitted by law, all disputes or claims arising under this
Agreement shall be resolved through arbitration. Arbitration under this Article
shall be conducted according to the Commercial Arbitration Rules of the American
Arbitration Association and shall take place in the City of Boston,
Massachusetts. This Article shall be enforced and interpreted exclusively in
accordance with applicable federal law, including the Federal Arbitration Act.
12. Effectiveness and Termination of Agreement
This Agreement shall be effective as of the later of the date of execution
on behalf of Board or Delegate and shall remain in effect until terminated as
provided herein. This Agreement may be terminated at any time, without penalty,
by written notice from the terminating party to the non-terminating party.
Termination will become effective 30 days after receipt by the non-terminating
party of such notice.
13. Authorized Representatives and Notices
The respective Authorized Representatives of Trust and Board, and the
addresses to which notices and other documents under this Agreement are to be
sent to each, are as set forth in Appendix F. Any Authorized Representative of a
party may add or delete persons from that party's list of Authorized
Representatives by written notice to an Authorized Representative of the other
party.
14. Governing Law
This Agreement shall be constructed in accordance with the laws of the
Commonwealth of Massachusetts without regard to principles of choice of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
Investors Bank & Trust Company
By: ___________________________________
Name:
Title:
LSA VARIABLE SERIES TRUST
By:____________________________________
Name:
Title:
List of Appendices
A -- Jurisdictions Covered
B -- Additional Jurisdictions Covered
C -- Additional Factors and Criteria To Be Applied in the Selection of
Eligible Foreign Custodians That Are Banking Institutions or Trust
Companies
D -- Factors and Criteria To Be Applied in Establishing Systems For the
Monitoring of Foreign Custody Arrangements and Contracts
E -- Information Regarding Country Risk
F -- Authorized Representatives
A-1
APPENDIX A
Jurisdictions Covered
Argentina Latvia
Austria Lebanon
Australia Lithuania
Bahrain Luxembourg
Bangladesh Malaysia
Belgium Mauritius
Bermuda Mexico
Botswana Morocco
Brazil Namibia
Bulgaria Netherlands
Canada New Zealand
Chile Norway
China Oman
Colombia Pakistan
Croatia Papau New Guinea
Cyprus Peru
Czech Republic Philippines
Denmark Poland
Ecuador Portugal
Egypt Romania
Estonia Russia
Euroclear Singapore
Finland Slovak Republic
France Slovenia
Germany South Africa
Ghana Spain
Greece Sri Lanka
Hong Kong Swaziland
Hungary Sweden
Iceland Switzerland
India Taiwan
Indonesia Thailand
Ireland Turkey
Israel Ukraine
Italy United Kingdom
Japan Uruguay
Jordan Venezuela
Kazakhstan Zambia
Kenya Zimbabwe
Korea
A-6
APPENDIX B
Additional Jurisdictions Covered
Pursuant to Article 3 of this Agreement, Delegate and Board agree that
the following jurisdictions shall be added to Appendix A:
[insert additional countries]
Investors Bank & Trust Company
By: ___________________________________
Name:
Title:
[FUND]
By:____________________________________
Name:
Title:
DATE: ______________________________
APPENDIX C
Additional Factors and Criteria To Be Applied
in the Selection of Eligible Foreign Custodians
That Are Banking Institutions or Trust Companies
In addition to the factors set forth in Rule 17f-5(c)(1), in selecting
Eligible Foreign Custodians that are banking institutions or trust companies,
Delegate shall consider the following factors, if such information is available
(check all that apply):
_________ None
_________ Other (list below):
APPENDIX D
Factors and Criteria To Be Applied
in the Establishing Systems For the Monitoring of
Foreign Custody Arrangements and Contracts
In establishing systems for the Monitoring of foreign custody
arrangements and contracts with Eligible Foreign Custodians, Delegate shall
consider the following factors, if such information is available:
1. Operating performance
2. Established practices and procedures
3. Relationship with market regulators
4. Contingency planning
APPENDIX E
Information Regarding Country Risk
To aid the Board in its determinations regarding Country Risk, Delegate
will furnish Board annually with respect to the jurisdictions specified in
Article 3, the following information:
1. Copy of Addenda or Side Letters to Subcustodian Agreements
2. Legal Opinion, if available, with regard to:
a) Access to books and records by the Trust's accountants
b) Ability to recover assets in the event of bankruptcy of a custodian
c) Ability to recover assets in the event of a loss
d) Likelihood of expropriation or nationalization, if available
e) Ability to repatriate or convert cash or cash equivalents
3. Audit Report
4. Copy of Balance Sheet from Annual Report
5. Summary of Central Depository Information
6. Country Profile Matrix containing market practice for:
a) Delivery versus payment
b) Settlement method
c) Currency restrictions
d) Buy-in practice
e) Foreign ownership limits
f) Unique market arrangements
7. Information Regarding Securities Depositories
a) Whether use is voluntary or compulsory
b) Ownership
c) Operating History
d) Established rules, practices and procedures
e) Membership
f) Financial strength
g) Governing regulatory body
APPENDIX F
Authorized Representatives
The names and addresses of each party's authorized representatives are set forth
below:
A. Board
With a copy to:
B. Delegate
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: _______________, Director, Client Management
Fax: (000) 000-0000
With a copy to:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, General Counsel
Fax: (000) 000-0000
Exhibit (8)(b)
ADMINISTRATION AGREEMENT
AGREEMENT made as of this ____ day of ______________, 1999, between LSA
VARIABLE SERIES TRUST, a business trust organized and registered under the laws
of the state of Delaware (the "Trust"), and INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company (the "Bank").
WHEREAS, the Trust, a registered investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), consisting of the separate
funds listed on Appendix A hereto; and
WHEREAS, the Trust desires to retain the Bank to render certain
administrative services to the Trust and the Bank is willing to render such
services.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Bank to act as
Administrator of the Trust on the terms set forth in this Agreement. The
Bank accepts such appointment and agrees to render the services herein set
forth for the compensation herein provided.
2. Delivery of Documents. The Trust has furnished the Bank with copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Trust's Board of Trustees authorizing the
appointment of the Bank to provide certain administrative services to
the Trust and approving this Agreement;
(b) The Trust's Declaration of Trust filed with the state of
Delaware on _______________________, 1999 and all amendments thereto
(the "Declaration");
(c) The Trust's By-laws and all amendments thereto (the
"By-Laws");
(d) The Trust's agreements with all service providers which
include any investment advisory agreements, sub-investment advisory
agreements, custody agreements, distribution agreements and transfer
agency agreements (collectively, the "Agreements");
(e) The Trust's most recent Registration Statement on Form N-lA
(the "Registration Statement") under the Securities Act of 1933 and
under the 1940 Act and all amendments thereto; and
(f) The Trust's most recent prospectus and statement of
additional information (the "Prospectus"); and
(g) Such other certificates, documents or opinions as may
mutually be deemed necessary or appropriate for the Bank in the proper
performance of its duties hereunder.
The Trust will immediately furnish the Bank with copies of all amendments
of or supplements to the foregoing. Furthermore, the Trust will notify the Bank
as soon as possible of any matter which may materially affect the performance by
the Bank of its services under this Agreement.
3. Duties of Administrator. Subject to the supervision and direction of the
Board of Trustees of the Trust, the Bank, as Administrator, will assist in
conducting various aspects of the Trust's administrative operations and
undertakes to perform the services described in Appendix B hereto. The Bank may,
from time to time, perform additional duties and functions which shall be set
forth in an amendment to such Appendix B executed by both parties. At such time,
the fee schedule included in Appendix C hereto shall be appropriately amended.
In performing all services under this Agreement, the Bank shall act in
conformity with the Trust's Articles and By-Laws and the 1940 Act, as the same
may be amended from time to time, and the investment objectives, investment
policies and other practices and policies set forth in the Trust's Registration
Statement, as the same may be amended from time to time. Notwithstanding any
item discussed herein, the Bank has no discretion over the Trust's assets or
choice of investments and cannot be held liable for any problem relating to such
investments.
4. Duties of the Trust.
(a) The Trust is solely responsible (through its transfer agent or
otherwise) for (i) providing timely and accurate reports ("Daily Sales
Reports") which will enable the Bank as Administrator to monitor the total
number of shares sold in each state on a daily basis and (ii) identifying
any exempt transactions ("Exempt Transactions") which are to be excluded
from the Daily Sales Reports.
(b) The Trust agrees to make its legal counsel available to the Bank
for instruction with respect to any matter of law arising in connection
with the Bank's duties hereunder, and the Trust further agrees that the
Bank shall be entitled to rely on such instruction without further
investigation on the part of the Bank. The Bank agrees that it will obtain
the approval of the Trust before consulting with the Trust=s legal counsel.
5. Fees and Expenses.
(a) For the services to be rendered and the facilities to be furnished
by the Bank, as provided for in this Agreement, the Trust will compensate
the Bank in accordance with the fee schedule attached as Appendix C hereto.
Such fees do not include out-of-pocket disbursements (as delineated on the
fee schedule or other expenses with the prior approval of the Trust's
management) of the Bank for which the Bank shall be entitled to xxxx the
Trust separately and for which the Trust shall reimburse the Bank.
(b) The Bank shall not be required to pay any expenses incurred by the
Trust.
6. Limitation of Liability.
(a) The Bank, its directors, officers, employees and agents shall not
be liable for any error of judgment or mistake of law or for any loss
suffered by the Trust in connection with the performance of its obligations
and duties under this Agreement, except a loss resulting from willful
misfeasance, bad faith or negligence in the performance of such obligations
and duties, or by reason of its reckless disregard thereof. The Trust will
indemnify the Bank, its directors, officers, employees and agents against
and hold it and them harmless from any and all losses, claims, damages,
liabilities or expenses (including legal fees and expenses) resulting from
any claim, demand, action or suit (i) arising out of the actions or
omissions of the Trust, including, but not limited to, inaccurate Daily
Sales Reports and misidentification of Exempt Transactions; (ii) arising
out of the offer or sale of any securities of the Trust in violation of (x)
any requirement under the federal securities laws or regulations, (y) any
requirement under the securities laws or regulations of any state, or (z)
any stop order or other determination or ruling by any federal or state
agency with respect to the offer or sale of such securities; or (iii) not
resulting from the willful misfeasance, bad faith or negligence of the Bank
in the performance of such obligations and duties or by reason of its
reckless disregard thereof.
(b) The Bank may apply to the Trust at any time for instructions and
may consult counsel for the Trust, or its own counsel (at the expense of
the Bank), and with accountants and other experts with respect to any
matter arising in connection with its duties hereunder, and the Bank shall
not be liable or accountable for any action taken or omitted by it in good
faith in accordance with such instruction, or with the opinion of such
counsel, accountants, or other experts. The Bank shall not be liable for
any act or omission taken or not taken in reliance upon any document,
certificate or instrument which it reasonably believes to be genuine and to
be signed or presented by the proper person or persons. The Bank shall not
be held to have notice of any change of authority of any officers,
employees, or agents of the Trust until receipt of written notice thereof
has been received by the Bank from the Trust.
(c) In the event either party is unable to perform, or is delayed in
performing, its obligations under the terms of this Agreement because of
acts of God, strikes, legal constraint, government actions, war, emergency
conditions, interruption of electrical power or other utilities, equipment
or transmission failure or damage reasonably beyond its control or other
causes reasonably beyond its control, such party shall not be liable to the
other for compensation nor for any damages resulting from such failure to
perform or otherwise from such causes.
(d) Notwithstanding anything to the contrary in this Agreement, in no
event shall the Bank be liable for special, incidental or consequential
damages, even if advised of the possibility of such damages.
7. Termination of Agreement.
(a) The term of this Agreement shall be three years commencing upon
the date hereof (the "Initial Term"), unless earlier terminated as provided
herein. After the expiration of the Initial Term, the term of this
Agreement shall automatically renew for successive one-year terms (each a
"Renewal Term") unless notice of non-renewal is delivered by the
non-renewing party to the other party no later than ninety days prior to
the expiration of the Initial Term or any Renewal Term, as the case may be.
(i) Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term in the event the other party violates
any material provision of this Agreement, provided that the violating
party does not cure such violation within sixty days of receipt of
written notice from the non-violating party of such violation.
(ii) Either party may terminate this Agreement during any Renewal
Term upon ninety days written notice to the other party. Any
termination pursuant to this paragraph 7(a)(ii) shall be effective
upon expiration of such ninety days, provided, however, that the
effective date of such termination may be postponed, at the request of
the Trust, to a date not more than one hundred twenty days after
delivery of the written notice in order to give the Trust an
opportunity to make suitable arrangements for a successor
administrator.
(b) The Bank, as Administrator, and the Trust agree that all books,
records, information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the carrying
out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by
law.
In the event of the termination of this Agreement, it is the obligation of
the Bank to promptly deliver to the Trust the books and records with respect to
transactions for which the Bank is responsible pursuant to the terms and
conditions of this Agreement.
8. Miscellaneous.
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Trust or the Bank shall be
sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Trust:
LSA Variable Series Trust
Allstate Life Insurance Company
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: ______________________________
With a copy to: Xxxxxxx Xxxxxxx, General Counsel
To the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Director, Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
(b) This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable without the written
consent of the other party.
(c) This Agreement shall be construed in accordance with the laws of
the Commonwealth of Massachusetts, without regard to its conflict of laws
provisions.
(d) This Agreement may be executed in any number of counterparts each
of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
(e) The captions of 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.
9. Confidential. All books, records, information and data pertaining to the
business of the other party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain confidential, and
shall not be voluntarily disclosed to any other person, except as may be
required in the performance of duties hereunder or as otherwise required by law.
10. Use of Bank Name. The Trust shall not use the name of the Bank or any
of its affiliates in any prospectus, sales literature or other material relating
to the Trust in a manner not approved by the Bank prior thereto in writing;
provided however, that the approval of the Bank shall not be required for any
use of its name which merely refers in accurate and factual terms to its
appointment hereunder or which is required by the Securities and Exchange
Commission or any state securities or insurance authority or any other
appropriate regulatory, governmental or judicial authority; provided further,
that in no event shall such approval be unreasonably withheld or delayed.
11. Use of Trust Name. The Bank shall not use the name of the Trust or any
of its affiliates in any advertisement, sales literature or other material
relating to the Bank in a manner not approved by the Trust prior thereto in
writing; provided however, that the approval of the Trust shall not be required
for any use of its name which merely refers in accurate and factual terms to its
relationship with the Trust hereunder or which is required by the Securities and
Exchange Commission or any state securities or insurance authority or any other
appropriate regulatory, governmental or judicial authority; provided further,
that in no event shall such approval be unreasonably withheld or delayed.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
LSA VARIABLE SERIES TRUST
By:
Name:
Title:
INVESTORS BANK & TRUST COMPANY
By:
Name:
Title:
Exhibit (8)(c)
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of this ___ day of ___________________, 1999, between LSA
VARIABLE SERIES TRUST, a business trust organized and registered under the laws
of the state of Delaware (the "Trust"), and INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company (the "Bank").
WHEREAS, the Trust desires to appoint the Bank as its transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the "1934
Act");
WHEREAS, the Trust is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Trust intends to initially offer shares in the series listed
on Appendix A hereto (such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 17, being herein referred to as the "Fund(s)");
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
the Trust and the Bank agree as follows:
1. Terms of Appointment Duties of the Bank.
1.1 Subject to the terms and conditions set forth in this Agreement, the
Trust on behalf of the Funds hereby employs and appoints the Bank to act, and
the Bank agrees to act, as transfer agent for each of the Fund(s)' authorized
and issued shares of beneficial interest ("Shares"), dividend disbursing agent
and agent in connection with any accumulation, open-account or similar plans
provided to the shareholders of the Trust ("Shareholders") and set out in the
currently effective prospectus and statement of additional information, as each
may be amended from time to time, (the "Prospectus") of the Trust.
1.2 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to time by
agreement between the Trust and the Bank, the Bank shall:
(i) Receive for acceptance orders for the purchase of Shares and
promptly deliver payment and appropriate documentation therefor to the
custodian of the Trust appointed by the Board of Trustees of the Trust
(the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation therefor to the
Custodian;
(iv) At the appropriate time as and when it receives monies paid
to it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Trust on behalf of a Fund;
(vii) Create and maintain all necessary records including those
specified in Section 10 hereof, in accordance with all applicable
laws, rules and regulations, including but not limited to records
required by Section 31(a) of the Investment Company Act of 1940, as
amended (the "1940 Act"), and those records pertaining to the various
functions performed by it hereunder. All records shall be available
for inspection and use by the Trust. Where applicable, such records
shall be maintained by the Bank for the periods and in the places
required by Rule 3la-2 under the 1940 Act;
(viii) Make available during regular business hours all records
and other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Trust, or any person retained
by the Trust. Upon reasonable notice by the Trust, the Bank shall make
available during regular business hours its facilities and premises
employed in connection with its performance of this Agreement for
reasonable visitation by the Trust, or any person retained by the
Trust; and
(ix) Record the issuance of Shares of the Trust and maintain,
pursuant to Rule 1 7Ad- 10(e) under the 1934 Act, a record of the
total number of Shares of the Trust which are authorized, based upon
data provided to it by the Trust, and issued and outstanding. The Bank
shall also provide the Trust on a regular basis with the total number
of Shares which are authorized and issued and outstanding and shall
have no obligation, when recording the issuance of Shares, to monitor
the issuance of such Shares or to take cognizance of any laws relating
to the issue or sale of such Shares, which functions shall be the sole
responsibility of the Trust.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a) or in any Schedule hereto, the Bank shall: (i) perform
all of the customary services of a transfer agent, dividend disbursing
agent and, as relevant, agent in connection with accumulation, open-account
or similar plans; including but not limited to maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies, receiving
and tabulating proxies, mailing Shareholder reports and prospectuses to
current Shareholders, withholding taxes on all accounts, including
nonresident alien accounts, preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required with respect to dividends
and distributions by federal authorities for all Shareholders, preparing
and mailing confirmation forms and statements of account to Shareholders
for all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, responding to Shareholder telephone
calls and Shareholder correspondence, preparing and mailing activity
statements for Shareholders, and providing Shareholder account information;
and (ii) provide a system which will enable the Trust to monitor the total
number of shares sold in each State. The Trust shall (i) indemnify to the
Bank in writing those transactions and assets to be treated as exempt from
blue sky reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The responsibility of
the Bank for a Fund's blue sky state registration status is solely limited
to the initial establishment of transactions subject to blue sky compliance
by such Fund(s) and the reporting of such transactions to the Fund(s) as
provided above.
(c) Additionally, the Bank shall utilize a system to identify all
share transactions which involve purchase and redemption orders that are
processed at a time other than the time of the computation of net asset
value per share next computed after receipt of such orders, and shall
compute the net effect upon the Fund(s) of such transactions so identified
on a daily and cumulative basis.
2. Sale of Trust Shares
2.1 Whenever the Trust shall sell or cause to be sold any Shares of a Fund,
the Trust shall deliver or cause to be delivered by facsimile to the Bank a
document duly specifying: (i) the name of the Fund whose Shares were sold; (ii)
the number of Shares sold, trade date, and price; (iii) the amount of money to
be delivered to the Custodian for the sale of such Shares and specifically
allocated to such Fund; and (iv) in the case of a new account, a new account
application or sufficient information to establish an account.
2.2 The Bank will, upon receipt by it of a check or other payment
identified by it as an investment in Shares of one of the Funds and drawn or
endorsed to the Bank as agent for, or identified as being for the account of;
one of the Funds, promptly deposit such check or other payment to the
appropriate account postings necessary to reflect the investment. The Bank will
notify the Trust, or its designee, and the Custodian of all purchases and
related account adjustments.
2.3 Under procedures as established by mutual agreement between the Trust
and the Bank, the Bank shall issue to the purchaser or its authorized agent such
Shares, computed to the nearest three decimal points, as he is entitled to
receive, based on the appropriate net asset value of the Funds' Shares,
determined in accordance with the prospectus and any applicable federal law or
regulation. In issuing Shares to a purchaser or its authorized agent, the Bank
shall be entitled to rely upon the latest directions, if any, previously
received by the Bank from the purchaser or its authorized agent concerning the
delivery of such Shares.
2.4 The Bank shall not be required to issue any Shares of the Trust where
it has received a written instruction from the Trust or written notification
from any appropriate federal or state authority that the sale of the Shares of
the Fund(s) in question has been suspended or discontinued, and the Bank shall
be entitled to rely upon such written instructions or written notification.
2.5 Upon the issuance of any Shares of any Fund(s) in accordance with
foregoing provisions of this Section, the Bank shall not be responsible for the
payment of any original issue or other taxes, if any, required to be paid by the
Trust in connection with such issuance.
2.6 The Bank may establish such additional rules and regulations governing
the transfer or registration of Shares as it may deem advisable and consistent
with such rules and regulations generally adopted by transfer agents, or with
the written consent of the Trust, any other rules and regulations.
3. Redemptions. Shares of any Fund may be redeemed in accordance with the
procedures set forth in the Prospectus of the Trust and the Bank will duly
process all redemption requests.
4. Transfers and Exchanges. The Bank is authorized to review and process
transfers of Shares of each Fund, exchanges between Funds on the records of the
Funds maintained by the Bank, and exchanges between the Trust and any other
entity as may be permitted by the Prospectus of the Trust. If Shares to be
transferred are represented by outstanding certificates, the Bank will, upon
surrender to it of the certificates in proper form for transfer, and upon
cancellation thereof; countersign and issue new certificates for a like number
of Shares and deliver the same. If the Shares to be transferred are not
represented by outstanding certificates, the Bank will, upon an order therefor
by or on behalf of the registered holder thereof in proper form, credit the same
to the transferee on its books. If Shares are to be exchanged for Shares of
another Fund, the Bank will process such exchange in the same manner as a
redemption and sale of Shares, except that it may in its discretion waive
requirements for information and documentation.
5. Right to Seek Assurances. The Bank reserves the right to refuse to transfer
or redeem Shares until it is satisfied that the requested transfer or redemption
is legally authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or redemptions which the Bank, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no basis for
any claims adverse to such transfer or redemption. The Bank may, in effecting
transfers, rely upon the provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as the same may be
amended from time to time, which in the opinion of legal counsel for the Trust
or the Bank's own legal counsel, do not require certain documents in connection
with the transfer or redemption of Shares of any Fund, and the Trust shall
indemnify the Bank for any act done or omitted by it in reliance upon such laws
or opinions of counsel of the Trust or of the Bank.
6. Distributions.
6.1 The Trust will promptly notify the Bank of the declaration of any
dividend or distribution. The Trust shall furnish to the Bank a resolution of
the Board of Trustees of the Trust certified by the Secretary (a "Certificate"):
(i) authorizing the declaration of dividends on a specified periodic basis and
authorizing the Bank to rely on oral instructions or a Certificate specifying
the date of the declaration of such dividend or distribution, the date of
payment thereof; the record date as of which Shareholders entitled to payment
shall be determined and the amount payable per share to Shareholders of record
as of such record date and the total amount payable to the Bank on the payment
date; or (ii) setting forth the date of the declaration of any dividend or
distribution by a Fund, the date of payment thereof; the record date as of which
Shareholders entitled to payment shall be determined, and the amount payable per
share to the Shareholders of record as of that date and the total amount payable
to the Bank on the payment date.
6.2 The Bank, on behalf of the Trust, shall instruct the Custodian to place
in a disbursing account funds equal to the cash amount of any dividend or
distribution to be paid out. The Bank will calculate, prepare and mail checks to
(at the address as it appears on the records of the Bank), or (where
appropriate) credit such dividend or distribution to the account of the Fund
Shareholders, and maintain and safeguard all underlying records.
6.3 The Bank will replace lost checks at its discretion and in conformity
with regular business practices.
6.4 The Bank will maintain all records necessary to reflect the crediting
of dividends which are reinvested in Shares of the Trust, including without
limitation daily dividends.
6.5 The Bank shall not be liable for any improper payments made in
accordance with a resolution of the Board of Trustees of the Trust.
6.6 If the Bank shall not receive from the Custodian sufficient cash to
make payment to all Shareholders of the Trust as of the record date, the Bank
shall, upon notifying the Trust, withhold payment to all Shareholders of record
as of the record date until such sufficient cash is provided to the Bank and
shall not be liable for any claim arising out of such withholding.
7. Other Duties. In addition to the duties expressly provided for herein, the
Bank shall perform such other duties and functions and shall be paid such
amounts therefor as may from time to time be agreed to in writing.
8. Taxes. It is understood that the Bank shall file such appropriate information
returns concerning the payment of dividends and capital gain distributions and
tax withholding with the proper Federal, State and local authorities as are
required by law to be filed by the Trust and shall withhold such sums as are
required to be withheld by applicable law.
9. Books and Records.
9.1 The Bank shall maintain confidential records showing for each
Shareholder's account the following: (i) names, addresses and tax identification
numbers; (ii) numbers of Shares held; (iii) historical information (as available
from prior transfer agents) regarding the account of each Shareholder, including
dividends paid and date and price of all transactions on a Shareholder's
account; (iv) any stop or restraining order placed against a Shareholder's
account; (v) information with respect to withholdings; (vi) any capital gain or
dividend reinvestment order, plan application, dividend address and
correspondence relating to the current maintenance of a Shareholder's account;
(vii) certificate numbers and denominations for any Shareholders holding
certificates; (viii) any information required in order for the Bank to perform
the calculations contemplated or required by this Agreement; and (ix) such other
information and data as may be required by applicable law.
9.2 Any records required to be maintained by Rule 3la-l under the 1940 Act
will be preserved for the periods prescribed in Rule 3la-2 under the 1940 Act.
Such records may be inspected by the Trust during regular business hours upon
reasonable notice. The Bank may, at its option at any time, and shall forthwith
upon the Trust's demand, turn over to the Trust and cease to retain in the
Bank's files, records and documents created and maintained by the Bank in
performance of its service or for its protection. At the end of the six-year
retention period, such documents will either be turned over to the Trust, or
destroyed in accordance with the Trust's authorization.
9.3 Procedures applicable to the services to be performed hereunder may be
established from time to time by agreement between the Fund(s) and the Bank. The
Bank shall have the right to utilize any shareholder accounting and
recordkeeping systems which, in its opinion, qualifies to perform any services
to be performed hereunder. The Bank shall keep records relating to the services
performed hereunder, in the form and manner as it may deem advisable.
10. Fees and Expenses.
10.1 For performance by the Bank pursuant to this Agreement, the Fund(s)
agree to pay the Bank an annual maintenance fee for each Shareholder account as
set out in the initial fee schedule attached as Appendix B hereto. Such fees and
out-of-pocket expenses and advances identified under Section 10.2 below may be
changed from time to time subject to mutual written agreement between the
Fund(s) and the Bank.
10.2 In addition to the fee paid under Section 10.1 above, the Fund(s)
agree to reimburse the Bank for out-of-pocket expenses or advances incurred by
the Bank for the items set out in the fee schedule attached hereto. In addition,
any other expenses incurred by the Bank at the request or with the consent of
the Fund(s) including, without limitation, any equipment or supplies which the
Trust specifically orders or requires the Bank to purchase, will be reimbursed
by the Fund(s).
10.3 The Fund(s) agree to pay all fees and reimbursable expenses within
thirty days following the mailing of the respective billing notice. Postage for
mailing of dividends, proxies, Fund reports and other mailings to all
shareholder accounts shall be advanced to the Bank by the Fund(s) at least seven
(7) days prior to the mailing date of such materials. Any waiver or extension by
the Bank of the thirty and seven day time periods enumerated in this Section
10.3 shall not constitute a dismissal of any monies due under this Agreement nor
shall such waiver or extension apply to any future monies due to the Bank
hereunder.
11. Representations and Warranties of the Bank.
The Bank represents and warrants to the Trust that:
11.1 It is a trust company duly organized and existing and in good standing
under the laws of the Commonwealth of Massachusetts.
11.2 It is empowered under applicable laws and by its charter and by-laws
to enter into and perform this Agreement.
11.3 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
11.4 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
12. Representations and Warranties of the Trust.
The Trust represents and warrants to the Bank that:
12.1 It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware as set forth in the preamble
hereto.
12.2 It is empowered under applicable laws and by its charter documents and
by-laws to enter into and perform this Agreement.
12.3 All proceedings required by said charter documents and by-laws have
been taken to authorize it to enter into and perform this Agreement.
12.4 It is an open-end investment company registered under the 1940 Act.
12.5 A registration statement on Form N-lA (including a prospectus and
statement of additional information) under the Securities Act of 1933 and the
1940 Act is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with respect
to all Shares of the Trust being offered for sale.
12.6 When Shares are hereafter issued in accordance with the terms of the
Prospectus, such Shares shall be validly issued, fully paid and nonassessable by
the Fund(s).
13. Indemnification.
13.1 Notwithstanding anything in this Agreement to the contrary, in no
event shall the Bank or any of its officers, directors, employees or agents
(collectively, the "Indemnified Parties") be liable to the Trust, any Fund or
any third party, and the Trust and each Fund shall indemnify and hold the Bank
and the Indemnified Parties harmless from and against any and all loss, damage,
liability, actions, suits, claims, costs and expenses, including legal fees (a
"Claim"), arising as a result of any act or omission of the Bank or any
Indemnified Party under this Agreement, except for any Claim resulting solely
from the negligence, willful misfeasance or bad faith of the Bank or any
Indemnified Party. Without limiting the foregoing, neither the Bank nor the
Indemnified Parties shall be liable for, and the Bank and the Indemnified
Parties shall be indemnified against, any Claim arising as a result of:
(a) Any actions taken or omitted to be taken by the Bank or its agents
or subcontractors in good faith in reliance on, or use by the Bank or its
agents or subcontractors of; information, records and documents which (i)
are received by the Bank or its agents or subcontractors and furnished to
such party by or on behalf of the Fund(s), (ii) have been prepared and/or
maintained by the Fund(s) or any other person or firm on behalf of the
Fund(s), or (iii) were received by the Bank or its agents or subcontractors
from a prior transfer agent.
(b) Any action taken or omitted to be taken by the Bank in good faith
reliance upon any law, act, regulation (a "Regulation") or interpretation
of a Regulation even though such Regulation may thereafter have been
altered, changed, amended or repealed.
(c) The Fund(s)' refusal or failure to comply with the terms of this
Agreement, or which arise out of the Funds' lack of good faith, negligence
or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund(s) hereunder.
(d) The Bank's good faith and reasonable reliance on, or the carrying
out by the Bank or its agents or subcontractors of any instructions or
requests, whether written or oral, of the Fund(s).
(e) The offer or sale of Shares by the Trust in violation of (i) any
requirement under the federal securities laws or regulations; (ii) any
requirement under the securities laws or regulations of any state; or (iii)
any stop order or other determination or ruling by any federal or state
agency with respect to the offer or sale of such Shares.
13.2 The Bank shall indemnify and hold the Fund(s) harmless from and
against any and all losses, damages, costs, charges, legal fees, payments,
expenses and liability arising out of or attributed to any action or failure or
omission to act by the Bank as a result of the Bank's lack of good faith,
negligence, willful misconduct, knowing violation of law or fraud.
13.3 At any time the Bank may apply to any officer of the Trust for
instructions, and may, after consultation with the Trust, consult with legal
counsel of the Bank or the Trust with respect to any matter arising in
connection with the services to be performed by the Bank under this Agreement,
and the Bank and its agents or subcontractors shall not be liable and shall be
indemnified by the Trust for any action taken or omitted by it in reliance upon
such instructions or upon the opinion of such counsel except for a knowing
violation of law. The Bank, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on behalf of
the Fund(s), reasonably believed to be genuine and to have been signed by the
proper person or persons, or upon any instruction, information, data, records or
documents provided to the Bank or its agents or subcontractors by machine
readable input, telex, CRT data entry or other similar means authorized by the
Fund(s), and the Bank, its agents and subcontractors shall not be held to have
notice of any change of authority of any person, until receipt of written notice
thereof from the Fund(s). The Bank, its agents and subcontractors shall also be
protected and indemnified in recognizing stock certificates which are reasonably
believed to bear the proper manual or facsimile signatures of an officer of the
Trust, and one proper countersignature of any former transfer agent or
registrar, or of a co-transfer agent or co-registrar.
13.4 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, interruption of
electrical power or other utilities, equipment or transmission failure or damage
reasonably beyond its control, or other causes reasonably beyond its control,
such party shall not be liable to the other for compensation nor for any damages
resulting from such failure to perform or otherwise from such causes.
13.5 Neither party to this Agreement shall be liable to the other party for
special, incidental or consequential damages, even if the other party has been
advised of the possibility of such damages, under any provision of this
Agreement or for any act or failure to act hereunder as contemplated by this
Agreement.
13.6 In order that the indemnification provisions contained in this Section
13 shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking the indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
seeking indemnification shall give the indemnifying party full and complete
authority, information and assistance to defend such claim or proceeding, and
the indemnifying party shall have, at its option, sole control of the defense of
such claim or proceeding and all negotiations for its compromise or settlement.
The party seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent, which consent shall not be
unreasonably withheld.
14. Covenants of the Trust and the Bank.
14.1 The Trust shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Trustees of the Trust
authorizing the appointment of the Bank and the execution and delivery of
this Agreement.
(b) A copy of the charter documents and by-laws of the Trust and all
amendments thereto.
(c) Copies of each vote of the Trustees designating authorized persons
to give instructions to the Bank, and a Certificate providing specimen
signatures for such authorized persons.
(d) Certificates as to any change in any officer or Director of the
Trust.
(e) If applicable a specimen of the certificate of Shares in each Fund
of the Trust in the form approved by the Trustees, with a Certificate as to
such approval.
(f) Specimens of all new certificates for Shares, accompanied by the
Trustees' resolutions approving such forms.
(g) All account application forms and other documents relating to
shareholder accounts or relating to any plan, program or service offered by
the Trust.
(h) A list of all Shareholders of the Fund(s) with the name, address
and tax identification number of each Shareholder, and the number of Shares
of the Fund(s) held by each, certificate numbers and denominations (if any
certificates have been issued), lists of any account against which stops
have been placed, together with the reasons for said stops, and the number
of Shares redeemed by the Fund(s).
(i) An opinion of counsel for the Trust with respect to the validity
of the Shares and the status of such Shares under the Securities Act of
1933.
(j) Copies of the Fund(s) registration statement on Form N-lA (if
applicable)as amended and declared effective by the Securities and Exchange
Commission and all post-effective amendments thereto.
(k) Such other certificates, documents or opinions as the Bank may
deem necessary or appropriate for the Bank in the proper performance of its
duties hereunder.
14.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of; such certificates,
forms and devices.
14.3 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the 1940 Act and the Rules thereunder, the Bank agrees
that all such records prepared or maintained by the Bank relating to the
services to be performed by the Bank hereunder are the confidential property of
the Trust and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered to the Trust on and in
accordance with its request.
14.4 The Bank and the Trust agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
14.5 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, the Bank will endeavor to notify the Trust and
to secure instructions from an authorized officer of the Trust as to such
request or demand. The Bank reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be subject to enforcement or other action by any court or regulatory body
for the failure to exhibit the Shareholder records to such person.
15. Term of Agreement.
15.1 Termination of Agreement. The term of this Agreement shall be three
years commencing upon the date hereof (the "Initial Term"), unless earlier
terminated as provided herein. After the expiration of the Initial Term, the
term of this Agreement shall automatically renew for successive one-year terms
(each a "Renewal Term") unless notice of non-renewal is delivered by the
non-renewing party to the other party no later than ninety days prior to the
expiration of the Initial Term or any Renewal Term, as the case may be.
(a) Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term in the event the other party violates any
material provision of this Agreement, provided that the non-violating party
gives written notice of such violation to the violating party and the
violating party does not cure such violation within sixty days of receipt
of such notice.
(b) Either party may terminate this Agreement during any Renewal Term
upon ninety days written notice to the other party. Any termination
pursuant to this paragraph 16.1(b) shall be effective upon expiration of
such ninety days, provided, however, that the effective date of such
termination may be postponed to a date not more than one hundred twenty
days after delivery of the written notice: (i) at the request of the Bank,
in order to prepare for the transfer by the Bank of its duties hereunder;
or (ii) at the request of the Fund, in order to give the Fund an
opportunity to make suitable arrangements for a successor transfer agent.
15.2 Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Trust. Additionally, the Bank reserves the right to recover from the Trust
any other reasonable expenses associated with such termination.
16. Additional Funds. In the event that the Trust establishes one or more series
of Shares in addition to the series listed on Appendix A hereto with respect to
which it desires to have the Bank render services as transfer agent under the
terms hereof; it shall so notify the Bank in writing, and if the Bank agrees to
provide such services, the parties may execute an amendment hereto pursuant to
which such series of Shares shall become a Fund hereunder and Appendix A shall
be appropriately amended.
17. Assignment.
17.1 Except as provided in Section 18.3 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party.
17.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
17.3 The Bank, may with the consent on the part of the Trust, subcontract
for the performance of any of the services to be provided hereunder to third
parties, including any affiliate of the Bank, provided that the Bank shall
remain liable hereunder for any acts or omissions of any subcontractor as if
performed by the Bank.
18. Amendment. This Agreement may be amended or modified only by a written
agreement executed by both parties.
19. Governing Law. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts, without regard to its conflict of laws provisions.
20. Merger of Agreement and Severability
20.1 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written.
20.2 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
20.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall together,
constitute only one instrument.
21. Notices. Any notice or other instrument in writing authorized or required by
this Agreement to be given to either party hereto will be sufficiently given if
addressed to such party and mailed or delivered to it at its office at the
address set forth below:
For the Trust:
LSA Variable Series Trust
Allstate Life Insurance Company
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: ______________________________
For the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Director, Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and the year first above written.
LSA VARIABLE SERIES TRUST
By:
Name:
Title:
INVESTORS BANK & TRUST COMPANY
By:
Name:
Title:
Exhibit (8)(d)
FORM OF
PARTICIPATION AGREEMENT
Among
LSA VARIABLE SERIES TRUST,
LSA ASSET MANAGEMENT LLC,
and
LINCOLN BENEFIT LIFE COMPANY
THIS AGREEMENT (the "Agreement"), made and entered into as of the first day
of October, 1999 by and among Lincoln Benefit Life Company (hereinafter the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Schedule 1 to this Agreement (collectively, the "Accounts"),
LSA Variable Series Trust (the "Fund") and LSA Asset Management LLC (the
"Manager").
WHEREAS, the Fund is an open-end management investment company and is
available to act as the investment vehicle for separate accounts now in
existence or to be established in the future for variable life insurance
policies, variable annuity contracts and other tax-deferred products offered by
insurance companies (the "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares, each designated a "Portfolio", (collectively, the "Portfolios") and
each representing the interests in a particular managed pool of securities and
other assets;
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (the "SEC"), dated ____________, 1999 (File No. 812-6324)
(hereinafter, the "Order") granting relief to the Fund, the Manager and any
subsequently registered open-end investment companies that in the future are
advised by the Manager, or by any entity controlling, controlled by, or under
common control with the Manager. Specifically, the Order provides exemptions
from Section 15(a) of the 1940 Act and Rule 18f-2 thereunder, subject to the
conditions set forth in the application, to permit investment advisers other
than the Manager, to serve and act as an investment subadviser to one or more
portfolios of the Fund (the "Adviser(s)") pursuant to written agreements between
the Manager and each Adviser that have been approved by the board of trustees of
the Fund (the "Trustees") but which have not been approved by a vote of a
majority of the outstanding voting securities of each portfolio. The Order also
provides exemptions from: certain registration statement disclosure requirements
of Items 3, 6(a)(1)(ii) and 15(a)(3) of Form N-1/A and Item 3 of Form N-14;
certain proxy statement disclosure requirements of Items 22(a)(3)(iv),
(c)(1)(ii), (c)(1)(iii), (c)(8) and (c)(9) of Schedule 14A under the Securities
Exchange Act of 1934, as amended; certain semi-annual reporting disclosure
requirements of Item 48 of Form N-SAR; and, certain financial statement
disclosure requirements of Sections 6-07(2)(a), (b), and (c) of Regulation S-X
which may be deemed to require various disclosures regarding advisory fees paid
to the Advisers;
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and its shares are registered under the Securities Act of 1933, as amended (the
"1933 Act");
WHEREAS, the Manager is duly registered as an investment adviser under the
Investment Advisers Act of 1940;
WHEREAS, the Company has registered or will register certain variable
annuity and/or life insurance contracts under the 1933 Act (the "Contracts")
(unless an exemption from registration is available);
WHEREAS, the Accounts are or will be duly organized, validly existing
segregated asset accounts, established by resolution of the Board of Directors
of the Company, to set aside and invest assets attributable to the Contracts and
the Accounts;
WHEREAS, the Company has registered or will register the Accounts as unit
investment trusts under the 1940 Act (unless an exemption from registration is
available);
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios (as named
in Schedule 2 to this Agreement and as may be amended from time to time by
mutual consent of the parties) on behalf of the Accounts to fund the Contracts
(as named in Schedule 3 to this Agreement and as may be amended from time to
time by mutual consent of the parties) and the Fund is authorized to sell such
shares to the Accounts at net asset value; and
NOW, THEREFORE, in consideration of their mutual promises, the Fund, the
Manager and the Company agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company those shares of the Fund which
the Company orders on behalf of the Account, executing such orders on a daily
basis at the net asset value next computed after receipt by the Fund or its
designee of the order for the shares of the Fund. For purposes of this Section
1.1, the Company shall be the designee of the Fund for receipt of such orders
from each Account and receipt by such designee shall constitute receipt by the
Fund; provided that the Fund receives written (or facsimile) notice of such
order by 9:30 a.m. Eastern Standard Time on the next following Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange is open
for trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC.
1.2. The Company shall pay for Fund shares on the next Business Day after
it places an order to purchase Fund shares in accordance with Section 1.1
hereof. Payment shall be in federal funds transmitted by wire or by a credit for
any shares redeemed.
1.3. The Fund agrees to make Fund shares available for purchase at the
applicable net asset value per share by the Company for its Accounts (as named
in Schedule 1 to this Agreement and as may be amended from time to time by
mutual consent of the parties) on those days on which the Fund calculates its
net asset value pursuant to rules of the SEC; provided, however, that the
Trustees may refuse to sell shares of any Portfolio to any person, or suspend or
terminate the offering of shares of any Portfolio if such action is required by
law or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Trustees, acting in good faith and in light of their fiduciary
duties under federal and any applicable state laws, in the best interests of the
shareholders of any Portfolio.
1.4. The Fund agrees to redeem, upon the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of the request for redemption. For purposes of this Section 1.4,
the Company shall be the designee of the Fund for receipt of requests for
redemption and receipt by such designee shall constitute receipt by the Fund;
provided that the Fund receives written (or facsimile) notice of such request
for redemption by 9:30 a.m. Eastern Standard Time on the next following Business
Day. Payment shall be made within the time period specified in the Fund's
prospectus or statement of additional information, in federal funds transmitted
by wire to the Company's account as designated by the Company in writing from
time to time.
1.5. The Company shall pay for the Fund shares on the next Business Day
after an order to purchase shares is made in accordance with the provisions of
Section 1.4 hereof. Payment shall be in federal funds transmitted by wire
pursuant to the instructions of the Fund's treasurer or by a credit for any
shares redeemed.
1.6. The Company agree to purchase and redeem the shares of the Portfolios
named in Schedule 2 offered by the Fund's then current prospectus and statement
of additional information in accordance with the provisions of such prospectus
and statement of additional information. The Company shall not permit any person
other than a Contract owner to give instructions to the Company which would
require the Company to redeem or exchange shares of the Fund.
ARTICLE II. Sales Material, Prospectuses and Other Reports
2.1. The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material in
which the Fund or the Manager is named, at least ten Business Days prior to its
use. No such material shall be used if the Fund or its designee reasonably
objects to such use within ten Business Days after receipt of such material.
"Business Day" shall mean any day in which the New York Stock Exchange is open
for trading and in which the Fund calculates its net asset value pursuant to the
rules of the SEC.
2.2. Except with the express permission of the Fund, the Company shall not
give any information or make any representations or statements on behalf of the
Fund or concerning the Fund in connection with the sale of the Contracts other
than the information or representations contained in the registration statement
or prospectus for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional material
approved by the Fund or its designee.
2.3. For purposes of this Article II, the phrase "sales literature or other
promotional material" shall mean advertisements (such as material published, or
designed for use in, a newspaper, magazine, or other periodical, radio,
television, telephone or tape recording, videotape display, signs or billboard
or electronic media), and sales literature (such as brochures, circulars, market
letters and form letters), distributed or made generally available to customers
or the public.
2.4. The Fund shall provide a copy of its current prospectus within a
reasonable period of its effective filing date, and provide other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus for the Fund is supplemented or amended) to have
the prospectus for the Contracts and the prospectus for the Fund printed
together in one document (such printing to be at the Company's expense). The
Manager shall be permitted to review and approve the typeset form of the Fund's
prospectus prior to such printing.
2.5. The Fund or the Manager shall provide the Company with either: (i) a
copy of the Fund's proxy material, reports to shareholders, other information
relating to the Fund necessary to prepare financial reports, and other
communications to shareholders for printing and distribution to Contract owners
at the Company's expense, or (ii) camera ready and/or printed copies, if
appropriate, of such material for distribution to Contract owners at the
Company' expense, within a reasonable period of the filing date for definitive
copies of such material. The Manager shall be permitted to review and approve
the typeset form of such proxy material, shareholder reports and communications
prior to such printing.
ARTICLE III. Fees and Expenses
3.1. The Fund and Manager shall pay no fee or other compensation to the
Company under this Agreement, and the Company shall pay no fee or other
compensation to the Fund or Manager, except as provided herein.
3.2. All expenses incident to performance by each party of its respective
duties under this Agreement shall be paid by that party. The Fund shall ensure
that all its shares are registered and authorized for issuance in accordance
with applicable federal law and, if and to the extent advisable by the Fund, in
accordance with applicable state laws prior to their sale. The Fund shall bear
the expenses for the cost of registration and qualification of the Fund's
shares, preparation and filing of the Fund's prospectus and registration
statement, proxy materials and reports, and the preparation of all statements
and notices required by any federal or state law.
3.3. The Company shall bear the expenses of typesetting, printing and
distributing the Fund's prospectus, proxy materials and reports to owners of
Contracts issued by the Company.
3.4. In the event the Fund adds one or more additional Portfolios and the
parties desire to make such Portfolios available to the respective Contract
owners as an underlying investment medium, a new Schedule 3 which shall be an
amendment to this Agreement shall be executed by the parties authorizing the
issuance of shares of the new Portfolios to the particular Account. The
amendment may also provide for the sharing of expenses for the establishment of
new Portfolios among Participating Insurance Companies desiring to invest in
such Portfolios and the provision of funds as the initial investment in the new
Portfolios.
ARTICLE IV. Conditions of the Order; Applicable Law
4.1. The Company has reviewed a copy of the Order, and in particular, has
reviewed the conditions to the requested relief set forth therein. The Company
agrees to be bound by the responsibilities of a Participating Insurance Company
as set forth in the Order.
4.2. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Illinois.
4.3. This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE V. Termination
5.1 This Agreement shall terminate with respect to some or all Portfolios:
(a) at the option of any party upon six month's advance written notice
to the other parties at the addresses specified in Section VI of this
Agreement; or
(b) at the option of the Company to the extent that shares of
Portfolios are not reasonably available to meet the requirements of its
Contracts or are not appropriate funding vehicles for the Contracts, as
determined by the Company reasonably and in good faith. Prompt written
notice of the election to terminate for such cause and an explanation of
such cause shall be furnished by the Company.
5.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 5.1(a) may be exercised for cause
or for no cause.
ARTICLE VI. Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other parties to this Agreement.
If to the Fund:
LSA Variable Series Trust
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Legal Department
If to the Manager:
LSA Asset Management LLC
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to the Company:
Lincoln Benefit Life Company
Lincoln, Nebraska
Attn: Legal Department
ARTICLE VII. Miscellaneous
7.1. Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until such time as it may come into the public domain
7.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
7.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
7.4. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
7.5. Each party hereto shall cooperate with all appropriate governmental
authorities (including without limitation the SEC, the National Association of
Securities Dealers, Inc. and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. Each party hereto shall promptly notify the other parties
to this Agreement, by written notice to the addresses specified in Section V, of
any such investigation or inquiry.
7.6. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
7.7. It is understood by the parties that this Agreement is not an
exclusive arrangement.
7.8. The Company and the Manager each understand and agree that the
obligations of the Fund under this Agreement are not binding upon any
shareholder of the Fund personally, but bind only the Fund and the Fund's
property; the Company and the Manager separately represent that each has notice
of the provisions of the Declaration of Trust of the Fund disclaiming
shareholder liability for acts or obligations of the Fund.
7.9. This Agreement shall not be assigned by any party hereto without the
prior written consent of all the parties.
7.10. This Agreement sets forth the entire agreement between the parties
and supercedes all prior communications, agreements and understandings, oral or
written, between the parties regarding the subject matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed as of the date specified below.
LIncoln Benefit Life Company
By: __________________________________
Title: _______________________________
Date: ________________________________
LSA VARIABLE SERIES TRUST
By: __________________________________
Title: _______________________________
Date: ________________________________
LSA ASSET MANAGEMENT LLC
By: __________________________________
Title: _______________________________
Date: ________________________________
SCHEDULE 1
[SEPARATE ACCOUNT(S)]
SCHEDULE 2
[PORTFOLIOS]
SCHEDULE 3
[CONTRACTS]
Exhibit (8)(e)
DISTRIBUTION AGREEMENT
DISTRIBUTORS, INC.
AGREEMENT, dated as of _______, 1999, by and between LSA Variable Series
Trust (the "Trust") and Allstate Life Financial Services, Inc. ("ALFS").
W I T N E S S E T H:
WHEREAS, the Trust is a Delaware business trust whose shareholders are and
will be separate accounts in unit investment trust form ("Eligible Separate
Accounts") of insurance companies ("Participating Insurance Companies"); and
WHEREAS, such Participating Insurance Companies issue, among other
products, variable insurance and annuity products ("Variable Products") whose
net premiums, contributions or other considerations may be allocated to Eligible
Separate Accounts for investment in the Trust; and
WHEREAS, the Trust's shares will not be sold except in connection with such
Variable Products outside the separate account context; and
WHEREAS, the Trust desires that ALFS undertake marketing activities with
respect to the Shares of the Trust's constituent series or investment portfolios
("Portfolios"); and
WHEREAS, the Trust is registered as an open-end investment company under
the Investment Company Act of 1940 ("Investment Company Act"); and
WHEREAS, the Investment Company Act prohibits any principal underwriter for
a registered open-end management investment company from offering for sale,
selling, or delivering after sale any security of which such company is the
issuer, except pursuant to a written contract with such investment company, and
ALFS will be a distributor for sale of the shares issued by the Trust; and
WHEREAS, ALFS is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended, ("Securities Exchange Act") and is a member of
the National Association of Securities Dealers, Inc. ("NASD").
NOW THEREFORE, the Trust and ALFS agree as follows:
Section 1. The Trust has adopted a form of Participation Agreement, which
was approved by the Board of Trustees of the Trust. This Agreement shall be
subject to the provisions of the form of Participation Agreement, the terms of
which are incorporated herein by reference, made a part hereof and controlling.
The form of Participation Agreement may be amended or superseded, without prior
notice, and this Agreement shall be deemed amended to the extent the form of
Participation Agreement is amended or superseded. ALFS represents and warrants
that it will act in a manner consistent with such form of Participation
Agreement as it is currently set forth and as it may be amended or superseded,
so long as ALFS serves as the principal underwriter of the shares of the Trust (
the "Shares").
Section 2. ALFS is hereby authorized, from time to time, to enter into
separate written agreements ("Sales Agreements" or, individually, a "Sales
Agreement"), on terms and conditions not inconsistent with this Agreement, with
Participating Insurance Companies which have Eligible Separate Accounts and
which agree to participate in the distribution of the Trust's shares, directly
or through affiliated broker dealers by means of distribution of Variable
Products and to use their best efforts to solicit applications for Variable
Products. ALFS may not enter into any Sales Agreement with any Participating
Insurance Company that is more favorable than that maintained with any other
Participating Insurance Company and Eligible Separate Account, except that not
all Portfolios of the Trust need be made available for investment by all
Participating Insurance Companies, Eligible Separate Accounts or Variable
Products. The Board of Trustees of the Trust may, in its sole discretion,
determine that certain Portfolios and classes of shares of the Trust shall be
available only to certain types of Variable Products or to a single
Participating Insurance Company and its affiliates.
Section 3. Such Participating Insurance Companies and their agents or
representatives soliciting applications for Variable Products shall be duly and
appropriately licensed, registered or otherwise qualified for the sale of
Variable Products under any applicable insurance laws and any applicable
securities laws of one or more states or other jurisdictions in which Variable
Products may be lawfully sold. Each such Participating Insurance Company shall,
when required by law, be both registered as a broker-dealer under the Securities
Exchange Act and a member of the NASD. Each such Participating Insurance Company
shall agree to comply with all laws and regulations, whether federal or state,
and whether relating to insurance, securities or other general areas, including
but not limited to the recordkeeping and sales supervision requirements of such
laws and regulations.
Section 4. The Trust's shares are divided into series or Portfolios, each
representing a different portfolio of investments. The Trust's Portfolios and
any restrictions on availability for shares relating thereto are set forth in
Schedule A hereto, which may be amended from time to time.
Purchases and redemptions of the Trust's shares of each Portfolio shall be
at the net asset value therefor, computed as set forth in the most recent
relevant Prospectus and Statement of Additional Information relating to the
Trust's contained in its Registration Statement on Form N-1A, or any amendments
thereto (respectively, "Trust Prospectus" and "SAI"), and any supplements
thereto and shall be submitted by the Participating Insurance Company to the
Trust's transfer agent pursuant to procedures and in accordance with payment
provisions adopted by ALFS and the Trust from time to time. The Trust's shares
may not be sold or transferred, except to an Eligible Separate Account or
Qualified Plan, without the prior approval of the Trust's Board of Trustees.
Section 5. The Trust shall not pay any compensation to ALFS for services as
a distributor hereunder, nor shall the Trust reimburse ALFS for any expenses
related to such services. ALFS may, but need not, pay or charge Participating
Insurance Companies pursuant to Sales Agreements, as described in Section 2
hereof.
Section 6. The Trust represents to ALFS that the Trust Prospectus and SAI,
as of their respective effective dates, contain all statements and information
which are required to be stated therein by the Securities Act of 1933, as
amended ("Securities Act"), and in all respects conform to the requirements
thereof, and neither the Trust Prospectus nor the SAI include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the foregoing representations shall not apply to
information contained in or omitted from the Trust Prospectus and SAI in
reliance upon, and in conformity with, written information furnished by ALFS
specifically for use in the preparation thereof.
In this connection, ALFS acknowledges that the day-to-day operations of the
Trust, including without limitation, investment management, securities brokerage
allocation, cash control, accounting, recordkeeping and other administrative,
marketing and regulatory compliance functions, are carried on and may in the
future be carried on by LSA Asset Management LLC ("Asset Management"),
affiliates of Asset Management and other parties unaffiliated with Asset
Management on behalf of the Trust (collectively, the "Preparing Parties"), under
various agreements and arrangements, and that such activities in large measure
provide the basis upon which statements and information are included or omitted
from the Trust Prospectus and SAI. ALFS further acknowledges that because of the
foregoing arrangements, the preparation of the Trust Prospectus and SAI is
substantially in the control of the Preparing Parties, subject to the broad
supervisory authority and responsibility of the Trust's Board of Trustees, and
that, essentially, the only Trust Prospectus or SAI information not
independently known to, or prepared by, the Preparing Parties is personal
information as to each Trustee's full name, age, background, business experience
and other personal information that may require disclosures under securities
laws and for which the Preparing Parties necessarily must rely on each such
Trustee to produce.
Section 7. The Trust will periodically prepare Prospectuses (and, if
applicable, SAIs) and any supplements thereto, proxy materials and annual and
semi-annual reports (collectively, the "Documents") and shall, in accordance
with the form of Participation Agreement, provide sufficient copies of such
Documents or shall make camera ready copy available to ALFS for reproduction by
ALFS or the Participating Insurance Companies. With respect to Documents
provided to existing owners of Variable Products, the cost of preparing,
printing, mailing or otherwise distributing such Documents shall be borne by the
Trust. With respect to the Trust's shares, the Trust shall not pay the cost of
printing, mailing or otherwise distributing such Documents except as specified
in this Section 7. The Trust will use its best efforts to provide notice to ALFS
of anticipated filings or supplements. ALFS or the Participating Insurance
Companies may alter the form of some or all of the Documents, with the prior
approval of the Trust's officers and legal counsel. Any preparation costs
associated with altering the form of the Documents will be borne by ALFS or the
Participating Insurance Companies, not the Trust.
Section 8. ALFS and officers of the Trust may, from time to time, authorize
descriptions of the Trust for use in sales literature or advertising by the
Participating Insurance Companies (including brochures, letters, illustrations
and other similar materials, whether transmitted directly to potential
applicants or published in print or audio-visual media), which authorization
will not be unreasonably withheld or delayed.
Section 9. ALFS shall furnish to the Trust, at least quarterly, reports as
to the sales of Trust's shares made pursuant to this Agreement. These reports
may be combined with any similar report prepared by ALFS or any of the Preparing
Parties.
Section 10. ALFS shall submit to all regulatory and administrative bodies
having jurisdiction over the operations of ALFS, the Trust, or any Participating
Insurance Company, present or future, any information, reports or other material
which any such body by reason of this Agreement may request or require as
authorized by applicable laws or regulations.
Section 11. This Agreement shall be subject to the provisions of the
Investment Company Act, the Securities Exchange Act and the Securities Act and
the rules, regulations, and rulings thereunder and of the NASD, from time to
time in effect, including such exemptions and no-action positions as the
Securities and Exchange Commission or its staff may grant, and the terms hereof
shall be interpreted and construed in accordance therewith. Without limiting the
generality of the foregoing, (a) the term "assigned" shall not include any
transaction exempted from section 15(b)(2) of the Investment Company Act and (b)
the vote of the persons having voting rights in respect of the Trust referred to
in Section 12 shall be the affirmative votes of the lesser of (i) the holders of
more than 50% of all votes in respect of shares entitled to be cast in respect
of the Trust or (ii) the holders of at least 67% of the votes in respect of
shares which are present at a meeting of such persons if the holders of more
than 50% of all votes in respect of shares entitled to be cast in respect of the
Trust are present or represented by proxy at such meeting, in either case voted
in accordance with the provisions contained in the form of Participation
Agreement or any policies on conflicts adopted by the Trust's Board of Trustees.
Section 12. This Agreement shall continue in effect only so long as such
continuance is specifically approved at least annually by a majority of the
Trustees of the Trust who are not interested persons of the Trust or ALFS
("Independent Trustees") and by (a) persons having voting rights in respect of
the Trust, by the vote stated in Section 11, voted in accordance with the
provisions contained in the form of Participation Agreement or any policies on
conflicts adopted by the Board of Trustees of the Trust, or (b) the Board of
Trustees of the Trust. This Agreement may be terminated at any time, without
penalty, by a majority of the Independent Trustees or by persons having voting
rights in respect of the Trust by the vote stated in Section 11.
Section 13. This Agreement shall terminate automatically if it shall be
assigned.
Section 14. The Trust shall indemnify and hold harmless ALFS from any and
all losses, claims, damages or liabilities (or actions in respect thereof) to
which ALFS may be subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or result from
negligent, improper, fraudulent or unauthorized acts or omissions by the Trust
or its officers, trustees, agents or representatives, other than acts or
omissions caused directly or indirectly by ALFS.
ALFS will indemnify and hold harmless the Trust, its officers, trustees,
agents and representatives against any losses, claims, damages or liabilities,
to which the Trust its officers, trustees, agents and representatives may become
subject, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of any material fact contained in the Trust Prospectus
and/or SAI or any supplements thereto; (ii) the omission or alleged omission to
state any material fact required to be stated in the Trust Prospectus and/or SAI
or any supplements thereto or necessary to make the statements therein not
misleading; or (iii) other misconduct or negligence of ALFS in its capacity as a
principal underwriter of the Trust's shares and will reimburse the Trust, its
officers, Trustees, agents and representatives for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
against such loss, claim, damage, liability or action; provided, however, that
ALFS shall not be liable in any such instance to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the Trust
Prospectus and/or SAI or any supplement in good faith reliance upon and in
conformity with written information furnished by the Preparing Parties
specifically for use in the preparation of the Trust Prospectus and/or SAI.
Section 15. A copy of the Agreement and Declaration of Trust of the Trust
is on file with the Secretary of State of Delaware and notice is given hereby
that this Agreement is executed on behalf of the trustees of the Trust as
trustees and not individually, and that the obligations of or arising out of
this Agreement are not binding upon any of the trustees or shareholders
individually but are binding only upon the assets and property of each
Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
LSA VARIABLE SERIES TRUST
By:
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Title:
ALLSTATE LIFE FINANCIAL SERVICES, INC.
By:
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Title:
SCHEDULE A
Portfolios
