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EXHIBIT 99.B9(b)
AGENCY AGREEMENT
This agreement is made and entered into as of this 15th day of
November, 1993 (the "Agreement"), by and between VARIABLE INSURANCE PRODUCT
TRUST, a registered diversified management investment company established in
the State of Delaware (the "Fund"), and Xxxxx Fargo Bank, N.A., national
association ("Agent"), for transfer agency and dividend disbursing services as
follows:
I. SERVICES.
A. Appointment of Agent. The Fund hereby appoints Agent as its
transfer and dividend disbursing agent for each of its investment portfolios
and Agent accepts such appointment.
B. Description of Services. As consideration for the
compensation hereinafter described in Section I(C), Agent agrees to provide the
Fund with the facilities and services described and set forth on Schedule A
attached hereto and incorporated herein by reference.
C. Compensation. As consideration for the services described in
Section I(B), above, the Fund shall pay to Agent an annual fee of 0.05% of the
Fund's average net assets.
II. EXPENSES. The Fund shall promptly reimburse Agent for all
reasonable out-of-pocket expenses incurred by Agent in connection with the
performance of services under this Agreement, including, without limitation,
the following:
A. Postage, including first class mail insurance in connection
with mailing share certificates, express delivery, etc.;
B. Envelopes, check forms, continuous forms, forms for reports
and statements, stationery and other similar supplies;
C. Fees and costs of outside legal counsel employed by Agent;
D. Banking services, fees, and costs for wire transfers, deposit
accounts, etc.;
E. Expenses of fidelity and liability insurance and bonding;
F. Fees and costs relating to the use, licensing, development or
implementation of data processing software used by or for the Fund;
G. Data transmission expenses;
H. Costs and microfilm/microfiche; and
I. Costs for telephone lines and equipment.
III. TERM. This Agreement shall become effective as of the date first
above written and shall continue until terminated pursuant to its provisions.
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IV. INSURANCE. Agent agrees to procure and maintain such fidelity
bond coverage as may be required by the Investment Company Act of 1940 (the
"1940 Act"), in the amounts and with such deductibles as are required by or
permitted under the 1940 Act, as it may be amended from time to time.
V. REGISTRATION AND COMPLIANCE.
A. Agent represents that it is registered as a transfer agent
with the Securities and Exchange Commission ("SEC") pursuant to Section 17A of
the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations promulgated thereunder, and Agent agrees to maintain said
registration current and comply with all of the requirements of the Exchange
Act, rules and regulations during the term of this Agreement.
B. The Fund represents that it is a diversified management
investment company registered with the SEC in accordance with the 1940 Act and
the rules and regulations promulgated thereunder. The Fund is authorized to
offer and sell its shares pursuant to the 1940 Act, the Securities Act of 1933
("1933 Act") and the rules and regulations promulgated thereunder. The Fund
will furnish Agent with a list of those jurisdictions in the United States and
elsewhere in which it is authorized to offer and sell its shares to the general
public and will maintain the currency of such list by amendment. The Fund
agrees promptly to advise Agent of any change in or limitation upon its
authority to carry on business as an investment company pursuant to the 1940
Act, the Exchange Act and the 1933 Act and the statutes, rules and regulations
of each and every jurisdiction to which it is subject.
VI. DOCUMENTATION. The Fund and Agent shall each supply to the other
upon request such documentation as is required by them to carry out their
respective obligations under this Agreement including, but not limited to,
articles or incorporation, bylaws, codes of ethics, registration statements,
permits, financial reports, third party audits, certificates of authority,
computer tapes and related items.
VII. PROPRIETARY INFORMATION. It is agreed that all records and
documents, excepting computer data processing programs and any related
documentation used or prepared by, or on behalf of Agent for the performance of
its services hereunder, are the property of the Fund and shall be open to audit
or inspection by the Fund or its agents during the normal business hours of
Agent, shall be maintained in a manner designed to preserve the confidentiality
thereof and to comply with applicable federal and state laws and regulations,
and shall, in whole or any specified part, be surrendered to the Fund or its
duly authorized agents upon receipt by Agent of reasonable notice of and
request therefor.
VIII. INDEMNITY. The Fund shall indemnify and hold Agent harmless
against any losses, claims, damages, liabilities or expenses (including
reasonable attorney's fees and expenses) resulting from any claim, demand,
action or suit brought by any person other than the Fund (including a
shareholder naming the Fund as a party) and not resulting from Agent's bad
faith, willful misfeasance, reckless disregard of its obligations and duties,
gross negligence or breach of this Agreement, and arising out of, or in
connection with:
A. Agent's performance hereunder;
B. Any error or omission in any record (including but not
limited to magnetic tapes, computer printouts, hard copies and microfilm or
microfiche copies) delivered, or caused to be delivered, by the Fund to Agent
in connection with this Agreement;
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C. Bad faith, willful misfeasance, reckless disregard of its
obligations and duties or negligence of the Fund, or Agent's acting upon any
instructions reasonably believed by it to have been properly executed or
communicated by any person duly authorized by the Fund;
D. Agent's acting in reliance upon advice given by counsel for
Agent or upon advice reasonably believed by it to have been given by counsel
for the Fund; or
E. Agent's acting in reliance upon any instrument reasonably
believed by it to have been genuine and signed, countersigned or executed by
the proper person(s) in accordance with the currently effective certificate(s)
of authority delivered to Agent by the Fund.
In the event that Agent requests the Fund to indemnify or
hold it harmless hereunder, agent shall use its best efforts to inform the Fund
of the relevant facts concerning the matter in question. Agent shall use
reasonable care to identify and promptly notify the Fund concerning any matter
which presents, or appears likely to present, a claim for indemnification
against the Fund.
The Fund shall have the election of defending Agent against
any claim which may be the subject of indemnification hereunder. In the event
the Fund so elects, it will so notify Agent and thereupon the Fund shall take
over defense of the claim, and (if so requested by the Fund) Agent shall incur
no further legal limit or other expenses related thereto for which it would be
entitled to indemnify hereunder; provided, however, that nothing herein
contained shall prevent Agent from retaining, at its own expense, counsel to
defend any claim. Except with the Fund's prior consent, Agent shall in no
event confess any claim or make any compromise in any matter in which the Fund
will be asked to indemnify or hold harmless hereunder.
IX. LIABILITY
A. Damages. Agent shall not be liable to the Fund, or any third
party, for punitive, exemplary, indirect, special or consequential damages
(even if Agent has been advised of the possibility of such damages) arising
from its obligations and the services provided under this Agreement, including
but not limited to loss of profits, loss of use of the shareholder accounting
system, cost of capital and expenses of substitute facilities, programs or
services.
B. Force Majeure. Anything in this Agreement to the contrary
notwithstanding, Agent shall not be liable for delays or errors occurring by
reason of circumstances beyond its control, including but not limited to acts
or civil or military authority, national emergencies, work stoppage, fire,
flood, catastrophe, earthquake, acts of God, insurrection, war, riot, data
processing and communications downtime (where such downtime occurs for reasons
other than Agent's gross negligence or willful misconduct) or interruption of
power supply.
X. AMENDMENT. This Agreement and the Schedules attached hereto and
made a part hereof may be amended at any time, with or without shareholder
approval (except as otherwise required by law), in writing signed by each of
the parties hereto. Any change in the Fund's registration statements or other
documents of compliance or in the forms relating to any plan, program or
service offered by its current prospectuses which would require a change in
Agent's obligations hereunder shall be subject to Agent's approval, which
approval shall not be unreasonably withheld.
XI. TERMINATION. This Agreement may be terminated by either party
without cause upon one hundred twenty (120) days prior written notice to the
other, and at any time for cause in the event that such
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cause remains unremedied for more than thirty (30) days after receipt by the
other party of written specification of such cause.
In the event the Fund designates a successor to any of Agent's
obligations hereunder, Agent shall, at the expense and pursuant to the
direction of the Fund, transfer promptly to such successor all relevant books,
records and other data of the Fund in the possession or under the control of
Agent.
XII. SEVERABILITY. If any clause or provision of this Agreement is
determined to be illegal, invalid or unenforceable under present or future laws
effective during the term hereof, then such clause or provision shall be
considered severed herefrom and the remainder of this Agreement shall continue
in full force and effect.
XIII. RECORDS. The Trust shall own and control all records generated on
behalf of the Trust as a result of services provided under this Agreement. In
addition, the Trust shall have the right to inspect, audit, and/or copy all
records pertaining to the performance of services under this Agreement.
XIV. APPLICABLE LAW. This Agreement shall be subject to and construed
in accordance with the laws of the State of California.
XV. ENTIRE AGREEMENT. Except as otherwise provided herein, this
Agreement constitutes the entire and complete agreement of the parties hereto
relating to the subject matter hereof and supersedes and merges all prior
contracts and discussions between the parties.
XVI. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same Agreement and
each of which shall be deemed an original.
VARIABLE INSURANCE XXXXX FARGO BANK, N.A.
PRODUCT TRUST
By: /s/Xxxxxxx X. Xxxxx, Xx. By: /s/Xxxxxx Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxx, Xx. Name: Xxxxxx Xxxxxxxxxx
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Title: Chief Operating Officer Title: Senior Vice President
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By: /s/Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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SCHEDULE A
SCHEDULE OF SERVICES
1 . Share Transfer and Dividend Disbursing Services
A. Maintenance of shareholder accounts, including processing
of new accounts.
B. Posting address changes and other file maintenance for
shareholder accounts.
C. Posting all transactions to the shareholder file,
including:
- Direct purchase
- Wire order purchases
- Direct redemptions
- Telephone redemption
- Wire order redemption
- Direct exchanges
- Dividend payments
- Dividend reinvestments
- Transfers
D. Prepare daily reconciliations of shareholder processing to
money movement instructions.
E. Issuing all checks and stopping and replacing checks.
F. Performing certain of the Fund's other mailings, including:
- Dividend and capital gain distributions
- 1099/year-end shareholder reporting
- Daily confirmations
- Furnish certified list of shareholders (hard copy of
microfilm)
G. Maintaining and retrieving all required past history for
shareholders and provide research capabilities as follows:
- Daily monitoring of all processing activity to
verify back-up documentation
- Provide exception reports
- Microfilming
- Storage, retrieval and archive of records in
accordance with Rules 31a-1, 31a-2, and 31a-3 under
the 1940 Act.
H. Reporting and remitting as necessary for state escheat
requirements.
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SCHEDULE B
SHAREHOLDER SERVICES FEE SCHEDULE
A. Account Maintenance Fees:
Open accounts daily dividend fixed NAV - $16.75 per account per year.
Open accounts monthly dividend variable NAV - $14.25 per account per year
for the first 10,000 accounts per fund. $13.25 per account for each
account over $10,000.
Open accounts monthly dividend - $13.00 per account per year for the
first 10,000 accounts per fund. $12.00 per account for each account over
$10,000.
Open accounts quarterly or semi-annual dividend - $12.00 per account per
year for the first 10,000 accounts per fund. $11.00 per account for each
account over $10,000.
Closed account all funds - $2.25 per account per year.
B. Processing Fees:
12(b)1 processing $.25 per account per payment cycle.
Set up new accounts - $2.50 per new account established.
Sales reporting - $250.00 per month per fund utilizing sales reporting.
Transaction processing fee per transaction - $.50 per subsequent account
purchase, redemption or exchange excluding those transactions made via
fund drafts, audio response, systematic withdrawal plans or
pre-authorized check plans.
C. Base Fee:
There is a monthly base fee of $500.00 per fund per month.
D. Minimum Fee:
There is a monthly minimum fee of $3,000 per fund/portfolio.
E. Miscellaneous:
Fiduciary trustee fees - $10.00 per account per year.
Audio response fee - If audio response is utilized by a fund, the annual
open account maintenance fee increases by $.10 per year, the minimum
monthly fee increases by $250.00 and there is a charge of $.12 per call
utilizing the system.
F. Notes to Fee Schedule:
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a. For fee calculation purposes, a series fund is treated as multiple
funds. For example, a three portfolio series fund would be treated
as three separate funds when calculating set-up for minimum base
fees.
b. Annual maintenance fees are payable monthly at 1/12th of the annual
stated rate.
c. The above schedules do not include out-of-pocket expenses that would
be incurred by Xxxxx Fargo Bank on the Fund's behalf. Examples of
out-of-pocket expenses include pricing services, forms, postage,
outside mailing services, magnetic tapes, bank wire charges,
microfilm/microfiche, etc.
d. The fees stated above are exclusive of terminal equipment required in
the Client's location(s) and communication line costs.
e. Each month Xxxxx Fargo Bank bills service fees and out-of-pocket
expenses separately. The bills are mailed on approximately the 10th
and 20th, respectively, of each month. Ten days after the mailing
date of the invoice, Xxxxx Fargo Bank will automatically debit the
Fund's custody account for the amount of the fees or expenses due.
f. Any fees not paid within 45 days of the date of the original invoices
will be charged a late payment fee of 1% per month until payment of
the fees are received by Xxxxx Fargo Bank.
x. Xxxxx Fargo Bank will provide a credit against service fees based
upon 85% of the average 91 day Treasury Xxxx Index applied to the
average cash balances in the Fund's Custodial Account. The balance
credit will be calculated monthly and carried forward from month to
month. Any excess credit remaining at year-end (December 31) will
not be carried forward.
G. Fee Waivers:
Xxxxx Fargo Bank agrees to waive all shareholder servicing fees,
including out-of-pocket expenses, for any fund with less than $20,000,000
in net assets.
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