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EX-99.9(b) Form of Subadministration Agreement for Reporting and Accounting
Services between the Registrant and State Street Bank and Trust
Company
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SUBADMINISTRATION AGREEMENT
for
REPORTING AND ACCOUNTING SERVICES
Agreement dated as of April 1, 19994 between FIRST VARIABLE ADVISORY
SERVICES, INC. (the "Manager"), STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company (the "Bank") and VARIABLE INVESTORS SERIES TRUST, a
Massachusetts business trust (the "Fund").
WHEREAS, the Manager has been appointed manager of the Fund, including
each portfolio or series thereof if applicable (the "Portfolio (s) 11), an
open-end diversified management investment company registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the Manager has accepted such appointment;
WHEREAS, the Manager and the Fund have entered into a management agreement
(the "Management Agreement") pursuant to which the Manager will provide
management, administrative and other services to the Fund and certain of said
services are commonly referred to as those performed by an administrator;
WHEREAS, the Bank provides management, subadministrative, and other
services to investment companies and others; and
WHEREAS, the Manager desires to retain the Bank to render certain
sub-administrative and other services with respect to the Fund and its
Portfolios as listed on Schedule A attached hereto, together with such
additional Portfolios as may be offered by the Fund from time to time and with
respect to which it is agreed by the Manager and the Bank this Agreement shall
apply, and the Bank is willing to render such services on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment of Sub-Administrator
The Manager with the consent of the Fund hereby appoints the Bank to act
as sub-administrator with respect to the Fund and each Portfolio for purposes of
reporting and accounting exclusively to the Manager and the Fund for the period
and on the terms set forth in this Agreement. The Bank accepts such appointment
and agrees to render the services stated herein and to provide the office
facilities and the personnel required by it to perform such services. In
connection with such appointment, the Manager will deliver or cause the Fund to
deliver to the Bank copies of each of the following documents and will deliver
to it all future amendments and supplements, if any:
A. Certified copies of the Agreement and Declaration of Trust of the
Fund as presently in effect and as amended from time to time;
B. A certified copy of the Fund's By-Laws as presently in effect and as
amended from time to time;
C. The Fund's most recent registration statement on Form N-lA as filed
with, and, if applicable, declared effective by the U.S. Securities
and Exchange Commission, and all amendments thereto;
D. Each resolution of the Trustees of the Fund authorizing the original
issue of its shares;
E. Certified copies of the resolutions of the Fund's Trustees
authorizing: (1) this Agreement, (2) certain officers and employees
of the Manager and the Fund to give instructions to the Bank
pursuant to this Agreement and (3) certain officers and employees of
the Manager or the Fund to sign checks and pay expenses on behalf of
the Manager or the Fund, respectively;
F. A copy of the Management Agreement;
G. A copy of the investment advisor agreement between the Fund and the
Advisor;
H. A copy of the Custodian Agreement between the Fund and its
custodian;
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I. A copy of the Transfer Agency and Services Agreement between the
Fund and its transfer agent; and
J. Such other certificates, documents or opinions which the Bank may,
in its reasonable discretion, deem necessary or appropriate in the
proper performance of its duties.
2. Representation and Warranties of the Bank
The Bank represents and warrants to the Manager and the Fund that:
A. It is a Massachusetts trust company, duly organized and existing in
good standing under the laws of the Commonwealth of Massachusetts;
B. It is duly qualified to carry on its business in the Commonwealth of
Massachusetts;
C. It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform the services contemplated in this
Agreement;
D. All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement; and
E. it has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3. Authorized Shares
The Manager certifies to the Bank that, as of the close of business on the
date of this Agreement, the Fund is authorized to issue shares of beneficial
interest, and that the Trustees of the Fund have the power to classify or
reclassify unissued shares, from time to time, into one or more series, and that
it presently offers shares in the authorized amounts as set forth in Schedule:A
attached hereto.
4. Reporting and Accounting Services
The Bank shall discharge the responsibilities set forth in Schedule B
hereof subject to the control of the Manager in accordance with procedures
established from time to time between the Manager and the Bank.
It is the responsibility of the Manager and/or its outside legal counsel
and accountants to notify the Bank in a timely manner of any change to any rule,
regulation, law or statute that will affect the services to be provided
hereunder. Without limiting the obligations or responsibilities of any of the
parties hereto, the Bank and the Manager agree that all services provided
hereunder are subject to review and correction by the Fund's accountants and
legal counsel and the services provided by Bank shall not constitute the
practice of public accountancy or law.
5. Services to be Obtained by the Manager or the Fund
The Manager and/or the Fund shall provide for any of its own:
A. Organizational expenses;
B. Services of an independent accountant;
C. Services of outside legal and tax counsel (including such counsel's
review of the Fund's registration statement, proxy materials,
federal and state tax qualification as a regulated investment
company, and other reports and materials prepared by the Bank under
this Agreement);
D. Any services contracted f or by either the Manager or the Fund
directly from parties other than the Bank;
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E. Trading operations and brokerage fees, commissions and transfer
taxes in connection with the purchase and sale of securities for the
Fund;
F. Investment advisory services;
G. Taxes, insurance premiums and other fees and expenses applicable to
its operation;
H. Costs incidental to any meetings of shareholders including,- but not
limited to, legal and accounting fees, proxy filing fees and the
preparation, printing and mailing of any proxy materials;
I. Administration of and costs incidental to Trustees' meetings,
including fees and expenses of Trustees;
J. The salary and expenses of any officer or employee, of the Fund or
the Manager;
K. Costs incidental to the preparation, printing and distribution of
the Fund's registration statements and any amendments thereto, and
shareholder reports;
L. All applicable registration fees and filing fees required under the
securities laws of the United States and state regulatory
authorities;
M. Preparation and filing of the Fund's tax returns, Form N-lA, Annual
Report and Semi-Annual Report on Form N-SAR, and all notices,
registrations and amendments associated with applicable tax and
securities laws of the United States and state regulatory
authorities; and
N. Fidelity bond and directors' and officers' liability insurance.
6. Fees
The Bank shall receive from the Manager or the Fund such compensation for
the Bank's services provided and the expenses incurred pursuant to this
Agreement as may be agreed to from time to time in a written fee schedule
approved by the parties hereto and initially set forth herein in Schedule C
attached hereto. In addition, the Bank shall be reimbursed by the Manager for
the reasonable out-of-pocket costs incurred by it in connection with this
Agreement.
7. Instructions
At any time the Bank may apply to any officer of the Manager or the Fund
for instructions and may consult with legal counsel for the Fund or the Manager
as directed by the Manager, or its own outside legal counsel, the outside
counsel for the Fund or the outside auditors for the Fund at the expense of the
Fund, with respect to any matter arising in connection with the services to be
performed by the Bank under this Agreement. The Bank shall not be liable and
shall be indemnified by the Manager and the Fund for any action taken or omitted
by it without negligence and in good faith in reliance upon such instructions or
upon any paper or document reasonably believed by it to be genuine and to have
been signed by the proper person or persons. The Bank shall not be held to have
notice of any change of authority of any person until receipt of written notice
thereof from the Manager or the Fund.
8. Limitation of Liability and Indemnification
a. The Bank shall be responsible for the performance of only such
duties as are set forth herein and shall have no responsibility for
the actions or activities of any other party including other service
providers not acting upon instructions of, at the direction of, or
in reliance upon the Bank. The Bank shall have no . liability for
any loss or damage resulting from the performance or nonperformance
of its duties hereunder except to the extent caused by or resulting
from the negligence or willful misconduct of the Bank, its officers
or employees. In any event, the Bank's liability shall be limited
to its total annual compensation earned and fees paid during the
preceding twelve months for any liability suffered by the Manager or
the Fund including, but not limited to, any liability relating to
qualification of the Fund as a regulated investment company or any
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liability relating to the Fund's compliance with any federal or
state tax or securities statute, regulation or ruling.
b. The Manager and the Fund shall indemnify and hold the Bank harmless
from all loss, cost, damage and expense, including reasonable
expenses f or counsel, incurred by the Bank resulting from any
claim, demand, action or suit in connection with the Bank's
acceptance of this Agreement, any action or omission by it in the
performance of its duties hereunder, or as a result of acting upon
any instructions reasonably believed by it to have been executed by
a duly authorized officer of the Manager or of the Fund, provided
that this indemnification shall not apply to actions or omissions of
the Bank, its officers, employees or agents in cases of its or their
own gross negligence or willful misconduct.
c. The Manager and the Fund will be entitled to participate at their
own expense in the defense, or, if either so elects, to assume the
defense of any suit brought to enforce any liability subject to the
indemnification provided above. In the event the Manager or the
Fund elects to assume the defense of any such suit and retain such
counsel, the Bank or any of its affiliated persons named as
defendant or defendants in the suit may retain additional counsel
but shall bear the fees and expenses of such counsel unless the
Manager or the Fund, as the case may be, shall have-specifically
authorized the retaining of such counsel.
d. The indemnification contained herein shall survive the termination
of this Agreement.
e. This Section 8 shall not apply with respect to services covered by
the Custodian Agreement or the Transfer Agency and Services
Agreement.
9. Confidentiality
The Bank agrees that, except as otherwise required by law, it will keep
confidential the terms of this Agreement, all records and information in its
possession relating to the Fund-or its shareholders or shareholder accounts and
will not disclose the same to any person except at the request or with the
written consent of the Fund.
10. Compliance with Governmental Rules and Regulations
The Manager and the Fund assume full responsibility for complying with all
applicable requirements of the Investment Company Act, the Securities Act of
1933, the Securities Exchange Act of 1934, and the Internal Revenue Code of
1986, all as amended, and any laws, rules and regulations issued thereunder,
provided that such assumption shall not limit the Bank's obligation to perform
all of its duties hereunder in accordance with the terms hereof.
The Bank shall maintain and preserve for the periods prescribed such
records relating to the services to be performed by the Bank under this
Agreement as are required pursuant to the Investment Company Act and such other
records as may be agreed upon by the parties. All such records shall at all
times remain the respective properties of the Manager or the Fund, shall be
readily accessible during normal business hours to each, and shall be promptly
surrendered upon the termination of the Agreement or otherwise on written
request. Records shall be surrendered in usable machine-readable form.
11. Status of the Bank
The services of the Bank to the Manager and the Fund are not to be deemed
exclusive, and the Bank shall be free to render similar services to others. The
Bank shall be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Manager or the Fund, as the case
may be from time to time, have no authority to act or represent either the
Manager or the Fund in any way or otherwise be deemed an agent of either the
Manager or of the, Fund.
12. Printed Matter
Neither the Manager nor the Bank shall publish or circulate any printed
matter which contains any reference to the other party without such party's
prior written approval. The Fund or the Manager may circulate
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such printed matter as. refers in accurate terms to the Bank's appointment
hereunder provided that the Bank is given a copy of such material prior to its
first use.
13. Term, Amendment and Termination
This Agreement may be modified or amended from time to time by mutual
agreement between the parties hereto. The Agreement shall remain in effect for a
period of one year from the date hereof and shall automatically continue in
effect thereafter unless terminated by a party at the end of such period or
thereafter on sixty (60) days' prior written notice. Upon termination of this
Agreement entirely or with respect to a Portfolio, the Manager or the Fund shall
pay to the Bank such compensation as may be due under the terms hereof as of the
date of such termination including reasonable out-of-pocket expenses associated
with such termination.
14. Notices
Any notice or other communication authorized or required by this Agreement
to be given to any party mentioned herein shall be sufficiently given if
addressed to such party and mailed post prepaid or delivered to its principal
office.
15. Non-Assignability
This Agreement shall not be assigned by any of the parties hereto without
the prior consent in writing of the other parties.
16. Successors
This Agreement shall be binding on and shall inure to t benefit of the
Manager, the Fund and the Bank and their respective successors.
17. Entire Agreement
This Agreement (and the Fund Profile and Compliance Manual) contains the
entire understanding between the parties hereto and supersedes all previous
representations, warranties commitments regarding the services to be performed
hereunder whether oral or in writing. This Agreement cannot be modified
terminated except in accordance with its terms or by a writing signed by all
parties.
18. Governing Law
This Agreement shall be construed and the provision thereof interpreted
under and in accordance with the laws of the Commonwealth of Massachusetts.
19. Limitations of Liability to the Trustees and Shareholder
A copy of the Declaration of Trust of the Fund is on file with the
Secretary of the Commonwealth of Massachusetts, and notice is hereby given that
this instrument is executed on behalf of the Trustees of the Trust as Trustees
and not individually and that the obligations of this instrument are not binding
upon any of the Trustees or Shareholders individually but are binding only upon
the assets and property of the Fund.
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FIRST VARIABLE ADVISORY SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Treasurer and Secretary
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Logne
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
VARIABLE INVESTORS SERIES TRUST
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer and Secretary
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SCHEDULE A
TO
SUBADMINISTRATION AGREEMENT
Portfolio Authorized Shares and Class
(unlimited authorization and
single class unless otherwise noted.)
- Cash-Management Portfolio __________________________________
- Common Stock Portfolio __________________________________
- Equity Income Portfolio __________________________________
- High Income Bond Portfolio __________________________________
- Multiple Strategies Portfolio __________________________________
- U.S. Government Bond Portfolio __________________________________
- World Equity Portfolio __________________________________
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SCHEDULE B
TO
SUBADMINISTRATION AGREEMENT
Reporting and Accounting Services Provided by the Bank
(a) Oversee the determination and publication of the Fund's net asset value in
accordance with the Fund's policy as instructed by the Manager;
(b) Oversee the maintenance by the Bank and Fund of certain books and records
of the Fund as required under Rule 3la-l(b)(4) of the Investment Company
Act of 1940;
(c) Prepare the Fund's federal, state and local income tax returns for review
by the independent accountants and filing by the treasurer;
(d) Review the appropriateness of and arrange for payment of the Fund's
expenses;
(e) Perform such compliance reviews of the Fund as may be agreed upon between
the Manager and the Bank;
(f) Prepare for review and approval by officers of the Fund financial
information for the Fund's semi-annual and annual reports, proxy
statements and other communications with shareholders;
(g) Prepare for review by an officer and counsel of the Fund certain periodic
financial reports required by the Securities and Exchange Commission as
may be mutually agreed upon;
(h) Prepare reports relating to the business and affairs of the Fund as may be
mutually agreed upon;
(i) Make such reports and recommendations to the Trustees concerning the
performance of the independent accountants as the Trustees may reasonably
request or deem appropriate;
(j) Make such reports and recommendations to the Trustees concerning the
performance and fees of the Fund's custodian and transfer and dividend
disbursing agent as the Trustees may reasonably request or deem
appropriate;
(k) Oversee and review calculations of fees paid to the Manager, the
investment adviser, the custodian, and the transfer agent;
(l) Consult with the Fund's officers, independent accountants, legal counsel,
custodian and transfer and dividend disbursing agent in establishing the
accounting policies of the Fund;
(m) Review implementation by the Fund of any dividend reinvestment programs
authorized by the Trustees;
(n) Provide such assistance to the Manager, the adviser, the custodian, the
transfer agent and the Fund's counsel and auditors as may be mutually
agreed upon to properly carry on the business and operations of the Fund;
and
(o) Respond to or refer to the Fund's officers or transfer agent any
shareholder inquiries relating to the Fund.
Certain- details of the scope of the Bank's services hereunder shall be
documented in the Compliance Manual and Fund Profile as agreed upon by the
Manager, the Fund, and the Bank from time to time.
