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EXHIBIT 5(b)-6B
AMENDED AND RESTATED SUB-ADVISER AGREEMENT
This Amended and Restated Agreement is made and entered into this 17th
day of September, 1993, by and between Sierra Investment Advisors Corporation
(the "Manager"), a corporation organized under the laws of the state of
California and Janus Capital Corporation (the "Sub-Adviser"), a corporation
organized under the laws of the state of Colorado.
WITNESSETH:
WHEREAS, the Manager is engaged in the business of rendering
investment advisory and management services, is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and is the investment adviser to the Growth Fund of The Sierra Variable
Trust (the "Trust"), an unincorporated business trust organized under the laws
of the Commonwealth of Massachusetts pursuant to a Management Contract, dated
as of April 8, 1993, between the Manager and the Trust (the "Management
Contract"); and
WHEREAS, the Trust is engaged in business as an open-end, management
investment company and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Trust offers a number of investment portfolios, each with
its own investment objective and strategies, and of which one investment
portfolio is the Growth Fund (the "Fund"); and
WHEREAS, the Sub-Adviser is engaged in the business of rendering
investment advisory and management services and is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"); and
WHEREAS, the Manager is authorized to retain sub-advisers and desires
to retain the Sub-Adviser to furnish investment advisory and management
services to the Fund and the Sub-Adviser is willing to furnish such services;
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NOW, THEREFORE, in consideration of the mutual agreements herein
contained, it is hereby agreed by and among the parties hereto as follows:
1. Investment Description; Appointment
The Manager desires to employ and hereby appoints the Sub-Adviser to
act as investment sub-adviser to the Fund. The Sub-Adviser accepts the
appointment and agrees to furnish the services described herein for the
compensation set forth below.
In performance of its duties, the Sub-Adviser will comply with the
limitations specified in its Agreement and Declaration of Trust, the By-laws of
the Trust and the stated investment objectives, policies and restrictions of the
Fund as forth in the Trust's Registration Statement on Form N-1A, File No.
33-57732, as in effect and which may be amended from time to time (the
"Registration Statement"), and in such manner and to such extent as may from
time to time be approved by the Board of Trustees of the Trust. Copies of the
Registration Statement, have been or will be submitted to the Sub-Adviser.
Copies of all amendments or supplements to the Trust's Registration Statement
and the Trust's Declaration and Agreement of Trust will be provided to the
Sub-Adviser during the continuance of this Agreement before or at the time such
amendments or supplements become effective.
The Manager agrees to furnish the Sub-Adviser with minutes of meetings
of the Board of Trustees of the Fund to the extent they may affect the duties
of the Sub-Adviser, a certified copy of any financial statements or reports
prepared for the Trust which relate to the Fund, by certified or independent
public accountants, and with copies of any financial statements or reports made
by the Trust to its shareholders or to any governmental body or securities
exchange, and any further materials or information which the Sub-Adviser may
reasonably request to enable it to perform its functions under this Agreement.
2. Services as Investment Sub-Adviser
Subject to the supervision of the Board of Trustees of the Trust and
of the Manager, the Fund's investment adviser, the
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Sub-Adviser will (a) maintain compliance procedures for the Fund that the
Sub-Adviser believes are adequate to ensure its compliance with the applicable
provisions of the 1940 Act and the Advisers Act as the same may from time to
time be amended, (b) make investment decisions for the Fund in accordance with
the Fund's investment objective(s) and policies as stated in the Fund's
Registration Statement as in effect and, after notice to the Sub-Adviser, and
which may be amended from time to time, (c) place purchase and sale orders on
behalf of the Fund to effectuate the investment decisions made, (d) maintain
books and records with respect to the securities transactions of the Fund in
accordance with the 1940 Act and the Advisers Act and the rules adopted
thereunder and will furnish the Manager quarterly, annual and special reports
as the Manager may reasonably request; and (e) treat confidentially and as
proprietary information of the Trust, all records and other information
relative to the Trust and prior, present or potential shareholders; and will
not knowingly use such records and information for any purpose other than
performance of its responsibilities and duties hereunder, except after prior
notification to and approval in writing by the Trust, which approval shall not
be unreasonably withheld and such records may not be withheld where the
Sub-Adviser may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust. In providing those
services, the Sub-Adviser will supervise the Fund's investments and conduct a
continual program of investment, evaluation and, if appropriate, sale and
reinvestment of the Fund's assets.
Subject to the supervision of the Manager and in accordance with the
investment objective and policies as stated in the Trust's Registration
Statement, the Sub-Adviser is authorized, in its discretion and without prior
consultation with the Manager to buy, sell, lend, and otherwise trade in any
stocks, bonds, and other securities and investment instruments on behalf of the
Fund, without regard to the length of time the securities have been held and
the resulting rate of portfolio turnover or any tax considerations, and so long
as consistent with the foregoing, the majority or the whole of the Fund may be
invested in such proportions of stocks, bonds, other securities or investment
instruments, or cash as the Sub-Adviser shall
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determine. In addition, the Sub-Adviser will furnish the Fund or the Manager
with whatever statistical information the Fund or the Manager may reasonably
request with respect to the instruments that the Fund may hold or contemplate
purchasing.
3. Brokerage
Subject to (i) the over-riding objective of obtaining the best
possible execution of orders; and (ii) review and approval of the Board of
Trustees of the Trust, which may be conducted as often as quarterly, the
Sub-Adviser shall place all orders for the purchase and sale of investments for
the Fund with brokers, dealers, futures commissions merchants, or other sources
(hereafter, "brokers or dealers") selected by the Sub-Adviser, which may
include brokers or dealers affiliated with the Sub-Adviser. All transactions
with any affiliated person of the Trust, or where any such affiliated person
acts as broker or agent in connection with any such transaction, shall be
accomplished in compliance with the 1940 Act, the Advisers Act, the Securities
Exchange Act of 1934, as amended, the rules adopted thereunder and the
procedures adopted thereunder by the Trust. As provided in the Management
Contract, the Trust agrees that any entity or person associated with the
Manager or Sub-Adviser which is a member of a national securities exchange is
authorized to effect any transaction on such exchange for the account of the
Fund which is permitted by Section 11(a) of the Securities Exchange Act of 1934
and Rule 11a2-2(T) thereunder, and the Trust has consented to the retention of
compensation for the transactions in accordance with Rule 11a2-2(T)(2)(iv).
Purchase or sell orders for the Fund may be aggregated with contemporaneous
purchase or sell orders of other clients of the Sub-Adviser; provided that (i)
no advisory account will be favored by the Sub-Adviser over any other account;
(ii) each client of the Sub-Advisor who participates in such an aggregated
order will participate at the average share price, with all transaction costs
shared on a pro rata basis; (iii) only advisory clients' transactions will be
aggregated for such an aggregated order; and (iv) the accounts of clients whose
orders are aggregated will be segregated on the Sub- Adviser's books and
records so as to identify the particular client who has the beneficial interest
therein. The Sub-Adviser shall use its best efforts to obtain execution of
Fund transactions at prices which
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are advantageous to the Fund and at commission rates that are reasonable in
relation to the benefits received. However, the Sub-Adviser may select brokers
or dealers on the basis that they provide brokerage, research, or other
services or products to the Fund and/or other accounts serviced by the
Sub-Adviser. The Sub-Adviser may pay a broker or dealer an amount of
commission for effecting a securities transaction in excess of the amount of
commission or dealer spread another broker or dealer would have charged for
effecting that transaction if the Sub-Adviser determines in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research products and/or services provided by such broker or
dealer. This determination, with respect to brokerage and research services or
products, may be viewed in terms of either that particular transaction or the
overall responsibilities which the Sub-Adviser and its affiliates have with
respect to the Fund and to accounts over which they exercise investment
discretion, and not all such services or products may be used by the
Sub-Adviser in managing the Fund; provided that with respect to such
transaction and such determination the affiliates of the Sub-Adviser shall have
the same responsibilities to the Fund as the Sub-Adviser has under this
Agreement.
4. Information Provided to the Trust
The Sub-Adviser will keep the Trust and the Manager informed of
developments materially affecting the Fund of which the Sub-Adviser becomes
aware and will, on its own initiative, furnish the Trust and the Manager on at
least a quarterly basis with whatever information the Sub-Adviser believes is
appropriate for this purpose.
5. Standard of Care
The Sub-Adviser shall exercise its best judgment in rendering the
services described in paragraphs 2 and 3 above. Except as may otherwise be
provided by federal or state securities laws, the Sub-Adviser shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Fund in connection with the matters to which this Agreement relates, except
a loss resulting from willful misfeasance, bad faith or gross negligence on its
part in the performance of its
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duties or from reckless disregard by it of its obligations and duties under
this Agreement (the conduct excepted in this sentence shall be referred to as
"Disqualifying Conduct").
6. Compensation
In consideration of the services rendered pursuant to this Agreement,
the Manager will pay the Sub-Adviser on the first business day of each month a
fee for the previous month at the annual rate of .55% of the Fund's average
daily net assets up to $25 million and .50% of the Fund's average daily net
assets in excess of $25 million. The fee for the first month shall be prorated
based upon the number of days the account was open in that month. Upon any
termination of this Agreement before the end of a month, the fee for such part
of that month shall be prorated according to the proportion that such period
bears to the full monthly period and shall be payable upon the date of
termination of this Agreement. For the purpose of determining fees payable to
the Sub-Adviser, the value of the Fund's net assets shall be computed at the
times and in the manner specified in the Registration Statement.
7. Expenses
The Sub-Adviser will bear all of its expenses in performing its
services under this Agreement, which expenses shall not include brokerage fees
or commissions in connection with the effectuation of securities transactions.
The Sub-Adviser shall bear no expenses of the Trust, the Fund or the Manager.
The Trust bears the expenses described in its Registration Statement. Any
reimbursement of advisory fees required by the Management Contract between the
Trust and the Manager or any voluntary or statutory expense limitation
provision shall be the sole responsibility of the Manager.
8. Services to Other Companies or Accounts
The Trust understands that the Sub-Adviser now acts, will continue to
act and may act in the future as investment adviser to fiduciary and other
managed accounts and as investment adviser to one or more other investment
companies or series of investment companies, and the Trust has no objection to
the Sub-
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Adviser so acting, provided that whenever the Fund and one or more other
accounts or investment companies advised by the Sub-Adviser have available
funds for investment, investments suitable and appropriate for each will be
allocated in a manner reasonably equitable to each entity. Similarly,
opportunities to sell securities will be allocated in such an equitable manner.
The Trust recognizes that in some cases this procedure may limit the size of
the position that may be acquired or disposed of for the Fund. In addition,
the Trust understands that the persons employed by the Sub-Adviser to assist in
the performance of the Sub-Adviser's duties hereunder will not devote their
full time to such service and nothing contained herein shall be deemed to limit
or restrict the right of the Sub-Adviser or any affiliate of the Sub-Adviser to
engage in and devote time and attention to other business or to render services
of whatever kind or nature. The Trust recognizes and agrees that the
Sub-Adviser may provide advice to other clients which may differ from or be
identical to advice given with respect to the Fund.
9. Term of Agreement
This Agreement shall become effective upon its execution, shall
continue for a one year term and shall continue thereafter so long as such
continuance is specifically approved at least annually by (i) the Board of
Trustees of the Trust or (ii) a vote of a "majority" (as defined in the ▇▇▇▇
▇▇▇) of the Fund's outstanding voting securities, provided that in either event
the continuance is also approved by a majority of the Board of Trustees who are
not "interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. This Agreement is terminable, without penalty, on 60 days'
written notice by the Manager, the Board of Trustees of the Trust or by vote of
holders of a majority of the Fund's shares, or upon 60 days' written notice, by
the Sub-Adviser and, will terminate automatically upon any termination of the
Management Contract. In addition, this Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act). The
Sub-Adviser agrees to notify the Trust of any circumstances that to its best
knowledge and belief might result in this Agreement being deemed to be
assigned.
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10. Representations of the Trust and the Sub-Adviser
The Trust represents that (i) a copy of its Declaration and Agreement
of Trust, dated January 27, 1993, together with all amendments thereto, is on
file in the office of the Secretary of the Commonwealth of Massachusetts, (ii)
the appointment of the Sub-Adviser has been duly authorized, and (iii) it has
acted and will continue to act in conformity with the 1940 Act and other
applicable laws.
The Manager represents that (i) it is authorized to perform the
services herein, (ii) the appointment of the Sub-Adviser has been duly
authorized, and (iii) it will act in conformity with the 1940 Act and other
applicable laws.
The Sub-Adviser represents that it is authorized to perform the
services described herein.
11. Indemnification
The Manager shall indemnify and hold harmless the Sub-Advisor from and
against any and all claims, losses, liabilities or damages (including
reasonable attorneys' fees and other related expenses), howsoever arising from
or in connection with this Agreement or the performance by the Sub-Advisor of
its duties hereunder; provided, however, that nothing contained herein shall
require that the Sub-Advisor be indemnified for Disqualifying Conduct.
12. Amendment of this Agreement
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought. No amendment of this Agreement shall be effective with respect to the
Fund until approved by vote of a majority of the outstanding voting securities
of the Fund, and by the vote, cast in person at a meeting called for the
purpose of voting on such approval, of a majority of the Trustees of the Trust
who are not interested persons of the Trust or of the Manager or of the
Sub-Adviser.
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13. Limitation of Liability
This Agreement has been executed on behalf of the Trust by the
undersigned officer of the Trust in his capacity as an officer of the Trust.
The obligations of this Agreement shall be binding upon the assets and property
of the Fund only and not upon the assets and property of any other investment
fund of the Trust and shall not be binding upon any Trustee, officer or
shareholder of the Fund and/or the Trust individually.
14. Entire Agreement
This Agreement constitutes the entire agreement between the parties
hereto.
15. Governing Law
This Agreement shall be governed in accordance with the laws of the
Commonwealth of Massachusetts.
16. Miscellaneous
(a) Unless the Trust gives the Sub-Adviser written instructions to
the contrary, the Sub-Adviser shall vote all proxies solicited by or with
respect to the issuers of securities in which assets of the Fund may be
invested. The Sub-Adviser shall use its best good faith judgment to vote such
proxies in a manner which best serves the interests of the Fund's shareholders.
(b) The Trust shall provide the Sub-Adviser with a copy of the
Fund's agreement (the "Custody Agreement") with the Custodian (the "Custodian")
designated to hold the assets of the Fund and any modification thereto in
advance. The Fund's assets shall be maintained in the custody of the Custodian
identified in, and in accordance with the terms and conditions of, the Custody
Agreement. The Sub-Adviser shall have no liability for the acts or omissions
of the Custodian. Any assets added to the Fund shall be delivered directly to
the Custodian.
(c) The Trust, the Fund and the Manager agree and acknowledge that
the Sub-Adviser is the sole owner of the name
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and ▇▇▇▇ "▇▇▇▇▇" and that all use of any designation comprised in whole or part
of Janus (a "▇▇▇▇▇ ▇▇▇▇") under this Agreement shall inure to the benefit of
the Sub-Adviser. The use by the Trust on its own behalf or on behalf of the
Fund of any ▇▇▇▇▇ ▇▇▇▇ in any advertisement or sales literature or other
materials promoting the Fund shall be with the consent of the Sub-Adviser. The
Trust and the Manager shall not, without the consent of the Sub-Adviser, make
representations regarding the Sub-Adviser intended to be disseminated to the
investing public in any disclosure document, advertisement or sales literature
or other materials promoting the Fund. Such consent shall not be required for
any documents or other materials intended for broker-dealer use only, for use
by the Trust's trustees and for internal use by the Trust and the Manager.
Consent by the Sub-Adviser to such use of any ▇▇▇▇▇ ▇▇▇▇ and any such
representation shall not be unreasonably withheld and shall be deemed to be
given if no written objection is received by the Trust, the Fund or the Manager
within 3 business days after the request is made by the Trust, the Fund or the
Manager for such use of any ▇▇▇▇▇ ▇▇▇▇ or any such representation. Upon
termination of this Agreement for any reason, the Trust and the Manager shall
cease all use of any ▇▇▇▇▇ ▇▇▇▇(s) as soon as reasonably practicable.
(d) The Sub-Adviser agrees and acknowledges that the Trust is the
sole owner of the name and ▇▇▇▇ "The Sierra Variable Trust" and the Manager is
the sole owner of the name and ▇▇▇▇ "Sierra Investment Advisors" and that any
and all use of any designation comprised in whole or in part of "The Sierra
Variable Trust" or "Sierra Investment Advisors" (a "▇▇▇▇▇▇ ▇▇▇▇") under this
Agreement shall inure to the benefit of the Trust or the Manager, respectively.
The use by the Sub-Adviser on its own behalf of any ▇▇▇▇▇▇ ▇▇▇▇ in any
advertisement or sales literature or other materials promoting the Sub-Adviser
shall be with the consent of the Trust or the Manager, respectively. The
Sub-Adviser shall not, without the consent of the Trust or the Manager, as
applicable, make representations regarding the Trust, the Fund or the Manager
in any disclosure document, advertisement or sales literature or other
materials promoting the Sub-Adviser. Consent by the Trust and the Manager to
such use of any ▇▇▇▇▇▇ ▇▇▇▇ and any such representations shall not be
unreasonably withheld and shall be deemed to be given if no written objection
is received by the Sub-Adviser within 5 business days after the
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request by the Sub-Adviser is made for such use of any ▇▇▇▇▇▇ ▇▇▇▇ or any such
representations. Upon termination of this Agreement for any reason, the
Sub-Adviser shall cease any and all use of any ▇▇▇▇▇▇ ▇▇▇▇ as soon as
reasonably practicable.
(e) The Sub-Adviser may perform its services through any employee,
officer or agent of the Sub-Adviser, and the Trust and the Fund shall not be
entitled to the advice, recommendation, or judgment of any specific person.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
ATTEST: SIERRA INVESTMENT ADVISORS CORPORATION
\s\ ▇▇▇ ▇. ▇▇▇▇▇▇ By: \s\ ▇▇▇▇▇▇▇ ▇. Goth
---------------------------- ------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. Goth
Title: Administrative Assistant Title: Chief Operating Officer
ATTEST: JANUS CAPITAL CORPORATION
\s\ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: \s\ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------- ------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Legal Assistant Title: Assistant Vice President
Accepted and agreed to
as of the day and year
first above written:
THE SIERRA VARIABLE TRUST
By: \s\ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director, Executive Vice President
& Secretary
ATTEST:
By: \s\ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Administrative Assistant
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