TRANSFER AGENCY AGREEMENT
AGREEMENT made this ____ day of _____, 1997, between VARIABLE INSURANCE
FUNDS (the "Trust"), a Massachusetts business trust having its principal place
of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and BISYS FUND
SERVICES OHIO, INC. ("BISYS Ohio"), an Ohio corporation having its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
WHEREAS, the Trust desires that BISYS Ohio perform certain services for the
Trust, and for each of its investment portfolios (see Schedule A, as such
Schedule may be amended from time to time) denominated as funds and whose shares
of beneficial interest comprise from time to time the shares of the Trust
(individually referred to herein as a "Fund" and collectively as the "Funds");
and
WHEREAS, BISYS Ohio is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services. BISYS Ohio shall perform for the Trust the transfer agent
services set forth in Schedule B hereto.
BISYS Ohio also agrees to perform for the Trust such special services
incidental to the performance of the services enumerated herein as agreed to by
the parties from time to time. BISYS Ohio shall perform such additional services
as are provided on an amendment to Schedule B hereof, in consideration of such
fees as the parties hereto may agree.
BISYS Ohio may, in its discretion, appoint in writing other parties
qualified to perform transfer agency services reasonably acceptable to the Trust
(individually, a "Sub-transfer Agent") to carry out some or all of its
responsibilities under this Agreement with respect to a Fund; provided, however,
that the Sub-transfer Agent shall be the agent of BISYS Ohio and not the agent
of the Trust or such Fund, and that BISYS Ohio shall be fully responsible for
the acts of such Sub-transfer Agent and shall not be relieved of any of its
responsibilities hereunder by the appointment of such Sub-transfer Agent.
2. Fees. The Trust shall pay BISYS Ohio for the services to be provided by
BISYS Ohio under this Agreement in accordance with, and in the manner set forth
in, Schedule C hereto. BISYS Ohio may increase the fees it charges pursuant to
the fee schedule; provided, however, that BISYS Ohio may not increase such fees
until the expiration of the Initial Term of this Agreement (as defined below),
unless the Trust otherwise agrees to such change in writing. Fees for any
additional services to be provided by BISYS Ohio pursuant to an amendment to
Schedule B hereto shall be subject to mutual agreement at the time such
amendment to Schedule B is proposed.
3. Reimbursement of Expenses. In addition to paying BISYS Ohio the fees
described in Section 2 hereof, the Trust agrees to reimburse BISYS Ohio for
BISYS Ohio's out-of-pocket expenses in providing services hereunder, including
without limitation, the following:
(a) All freight and other delivery and bonding charges incurred by
BISYS Ohio in delivering materials to and from the Trust and in
delivering all materials to shareholders;
(b) All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred by BISYS Ohio in
communication with the Trust, the Trust's investment adviser or
custodian, dealers, shareholders or others as required for BISYS
Ohio to perform the services to be provided hereunder;
(c) Costs of postage, couriers, stock computer paper, statements,
labels, envelopes, checks, reports, letters, tax forms, proxies,
notices or other form of printed material which shall be required
by BISYS Ohio for the performance of the services to be provided
hereunder;
(d) The cost of microfilm or microfiche of records or other
materials; and,
(e) Any expenses BISYS Ohio shall incur at the written direction of
an officer of the Trust thereunto duly authorized.
4. Effective Date. This Agreement shall become effective as of the date
first written above (the "Effective Date").
5. Term. This Agreement shall continue in effect, unless earlier terminated
by either party hereto as provided hereunder, until _____________ (the "Initial
Term"). Thereafter, this Agreement shall continue in effect unless either party
hereto terminates this Agreement by giving 90 days' written notice to the other
party, whereupon this Agreement shall terminate automatically upon the
expiration of said 90 days; provided, however, that after such termination, for
so long as BISYS Ohio, with the written consent of the Trust, in fact continues
to perform any one or more of the services contemplated by this Agreement or any
Schedule or exhibit hereto, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. This Agreement also will terminate automatically 90 days
after: (1) the effective date of the repeal or modification of the
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▇▇▇▇▇-▇▇▇▇▇▇▇▇ Act permitting banks or bank affiliates to underwrite or
distribute shares of mutual funds; or (2) a change of control of, or assignment
of this Agreement (within the meaning of section 2(a)(4) of the Investment
Company Act of 1940, as amended (the "1940 Act")) by, the Administrator;
provided, however, that the Fund may, at its sole option, elect to waive said
automatic termination or to specify a termination date which is later than 90
days but not to exceed the expiration of the then-current contract term. Fees
and out-of-pocket expenses incurred by BISYS Ohio but unpaid by the Trust upon
such termination shall be immediately due and payable upon and notwithstanding
such termination. BISYS Ohio shall be entitled to collect from the Trust, in
addition to the fees and disbursements provided by Sections 2 and 3 hereof, the
amount of all of BISYS Ohio's cash disbursements and a reasonable fee (which fee
shall be not less than one hundred and two percent (102%) of the sum of the
actual costs incurred by BISYS Ohio in performing such service) for services in
connection with BISYS Ohio's activities in effecting such termination, including
without limitation, the delivery to the Trust and/or its distributor or
investment adviser and/or other parties, of the Trust's property, records,
instruments and documents, or any copies thereof. Subsequent to such
termination, BISYS Ohio, for a reasonable fee, will provide the Trust with
reasonable access to any Trust documents or records remaining in its possession.
6. Uncontrollable Events. BISYS Ohio assumes no responsibility hereunder,
and shall not be liable for any damage, loss of data, delay or any other loss
whatsoever caused by events beyond its reasonable control.
7. Legal Advice. BISYS Ohio shall notify the Trust at any time BISYS Ohio
believes that it is in need of the advice of counsel (other than counsel in the
regular employ of BISYS Ohio or any affiliated companies) with regard to BISYS
Ohio's responsibilities and duties pursuant to this Agreement; and after so
notifying the Trust, BISYS Ohio, at its discretion, shall be entitled to seek,
receive and act upon advice of legal counsel of its choosing, such advice to be
at the expense of the Trust or Funds unless relating to a matter involving BISYS
Ohio's willful misfeasance, bad faith, gross negligence or reckless disregard
with respect to BISYS Ohio's responsibilities and duties hereunder and BISYS
Ohio shall in no event be liable to the Trust or any Fund or any shareholder or
beneficial owner of the Trust for any action reasonably taken pursuant to such
advice.
8. Instructions. Whenever BISYS Ohio is requested or authorized to take
action hereunder pursuant to instructions from a shareholder, or a properly
authorized agent of a shareholder ("shareholder's agent"), concerning an account
in a Fund, BISYS Ohio shall be entitled to rely upon any certificate, letter or
other instrument or communication, believed by BISYS Ohio to be genuine and to
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have been properly made, signed or authorized by an officer or other authorized
agent of the Trust or by the shareholder or shareholder's agent, as the case may
be, and shall be entitled to receive as conclusive proof of any fact or matter
required to be ascertained by it hereunder a certificate signed by an officer of
the Trust or any other person authorized by the Trust's Board of Trustees or by
the shareholder or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS Ohio may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Trust relating to the Funds to the extent that such services
are described therein unless BISYS Ohio receives written instructions to the
contrary in a timely manner from the Trust.
9. Standard of Care; Reliance on Records and Instructions; Indemnification.
BISYS Ohio shall use its best efforts to ensure the accuracy of all services
performed under this Agreement, but shall not be liable to the Trust for any
action taken or omitted by BISYS Ohio in the absence of bad faith, willful
misfeasance, gross negligence or from reckless disregard by it of its
obligations and duties. The Trust agrees to indemnify and hold harmless BISYS
Ohio, its employees, agents, directors, officers and nominees from and against
any and all claims, demands, actions and suits, whether groundless or otherwise,
and from and against any and all judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character arising
out of or in any way relating to BISYS Ohio's actions taken or nonactions with
respect to the performance of services under this Agreement or based, if
applicable, upon reasonable reliance on information, records, instructions or
requests given or made to BISYS Ohio by the Trust, the investment adviser and on
any records provided by any fund accountant or custodian thereof; provided that
this indemnification shall not apply to actions or omissions of BISYS Ohio in
cases of its own bad faith, willful misfeasance, negligence or from reckless
disregard by it of its obligations and duties; and further provided that prior
to confessing any claim against it which may be the subject of this
indemnification, BISYS Ohio shall give the Trust written notice of and
reasonable opportunity to defend against said claim in its own name or in the
name of BISYS Ohio.
10. Record Retention and Confidentiality. BISYS Ohio shall keep and
maintain on behalf of the Trust all books and records which the Trust or BISYS
Ohio is, or may be, required to keep and maintain pursuant to any applicable
statutes, rules and regulations, including without limitation Rules 31a-1 and
31a-2 under the 1940 Act, relating to the maintenance of books and records in
connection with the services to be provided hereunder. BISYS Ohio further agrees
that all such books and records shall be the property of the Trust and to make
such books and records available for inspection by the Trust or by the
4
the Securities and Exchange Commission (the "Commission") at reasonable times
and otherwise to keep confidential all books and records and other information
relative to the Trust and its shareholders, except when requested to divulge
such information by duly-constituted authorities or court process, or requested
by a shareholder or shareholder's agent with respect to information concerning
an account as to which such shareholder has either a legal or beneficial
interest or when requested by the Trust, the shareholder, or shareholder's
agent, or the dealer of record as to such account.
11. Reports. BISYS Ohio will furnish to the Trust and to its
properly-authorized auditors, investment advisers, examiners, distributors,
tdealers, underwriters, salesmen, insurance companies and others designated by
the Trust in writing, such reports at such times as are prescribed in Schedule D
attached hereto, or as subsequently agreed upon by the parties pursuant to an
amendment to Schedule D. The Trust agrees to examine each such report or copy
promptly and will report or cause to be reported any errors or discrepancies
therein not later than three business days from the receipt thereof. In the
event that errors or discrepancies, except such errors and discrepancies as may
not reasonably be expected to be discovered by the recipient within three days
after conducting a diligent examination, are not so reported within the
aforesaid period of time, a report will for all purposes be accepted by and be
binding upon the Trust and any other recipient, and BISYS Ohio shall have no
liability for errors or discrepancies therein and shall have no further
responsibility with respect to such report except to perform reasonable
corrections of such errors and discrepancies within a reasonable time after
requested to do so by the Trust.
12. Rights of Ownership. All computer programs and procedures developed to
perform services required to be provided by BISYS Ohio under this Agreement are
the property of BISYS Ohio. All records and other data except such computer
programs and procedures are the exclusive property of the Trust and all such
other records and data will be furnished to the Trust in appropriate form as
soon as practicable after termination of this Agreement for any reason.
13. Return of Records. BISYS Ohio may at its option at any time, and shall
promptly upon the Trust's demand, turn over to the Trust and cease to retain
BISYS Ohio's files, records and documents created and maintained by BISYS Ohio
pursuant to this Agreement which are no longer needed by BISYS Ohio in the
performance of its services or for its legal protection. If not so turned over
to the Trust, such documents and records will be retained by BISYS Ohio for six
years from the year of creation. At the end of such six-year period, such
records and documents will be turned over to the Trust unless the Trust
authorizes in writing the destruction of such records and documents.
5
14. Bank Accounts. The Trust and the Funds shall establish and maintain
such bank accounts with such bank or banks as are selected by the Trust, as are
necessary in order that BISYS Ohio may perform the services required to be
performed hereunder. To the extent that the performance of such services shall
require BISYS Ohio directly to disburse amounts for payment of dividends,
redemption proceeds or other purposes, the Trust and Funds shall provide such
bank or banks with all instructions and authorizations necessary for BISYS Ohio
to effect such disbursements.
15. Representations of The Trust. The Trust certifies to BISYS Ohio that:
(a) as of the close of business on the Effective Date, each Fund which is in
existence as of the Effective Date has authorized unlimited shares, and (b) by
virtue of its Amended and Restated Declaration of Trust (the "Declaration of
Trust"), shares of each Fund which are redeemed by the Trust may be sold by the
Trust from its treasury, and (c) this agreement has been duly authorized by the
Trust and, when executed and delivered by the Trust, will constitute a legal,
valid and binding obligation of the Trust, enforceable against the Trust in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
16. Representations of BISYS Ohio. BISYS Ohio represents and warrants that
it has been in, and shall continue to be in, substantial compliance with all
provisions of law, including Section 17A(c) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), required in connection with the
performance of its duties under this Agreement.
17. Insurance. BISYS Ohio shall notify the Trust should its insurance
coverage with respect to professional liability or errors and omissions coverage
be canceled or reduced. Such notification shall include the date of change and
the reasons therefor. BISYS Ohio shall notify the Trust of any material claims
against it with respect to services performed under this Agreement, whether or
not they may be covered by insurance, and shall notify the Trust from time to
time as may be appropriate of the total outstanding claims made by BISYS Ohio
under its insurance coverage.
18. Information to be Furnished by the Trust and Funds. The Trust has
furnished to BISYS Ohio the following:
(a) Copies of the Declaration of Trust of the Trust and of any
amendments thereto.
(b) Copies of the following documents:
1. The Trust's By-Laws and any amendments thereto;
2. Copies of resolutions of the Board of Trustees covering
the following matters:
6
A. Approval of this Agreement and authorization
of a specified officer of the Trust to
execute and deliver this Agreement and
authorization for specified officers of the
Trust to instruct BISYS Ohio hereunder; and
B. Authorization of BISYS Ohio to act as
Transfer Agent for the Trust on behalf of the
Funds.
(c) A list of all officers of the Trust, together with specimen
signatures of those officers, who are authorized to instruct
BISYS Ohio in all matters.
(d) Two copies of the following (if such documents are employed by
the Trust):
1. Prospectuses and Statement of Additional Information;
2. Distribution Agreement; and
3. All other forms commonly used by the Trust or its Distributor
with regard to their relationships and transactions with
shareholders of the Funds.
(e) A certificate as to shares of beneficial interest of the Trust
authorized, issued, and outstanding as of the Effective Date of
BISYS Ohio's appointment as Transfer Agent (or as of the date on
which BISYS Ohio's services are commenced, whichever is the later
date) and as to receipt of full consideration by the Trust for
all shares outstanding, such statement to be certified by the
Treasurer of the Trust.
19. Information to be Furnished by BISYS Ohio. BISYS Ohio
has furnished to the Trust the following:
(a) BISYS Ohio's Articles of Incorporation.
(b) BISYS Ohio's Bylaws and any amendments thereto.
(c) Certified copies of actions of BISYS Ohio covering the
following matters:
1. Approval of this Agreement, and authorization of a
specified officer of BISYS Ohio to execute and
deliver this Agreement; and
2. Authorization of BISYS Ohio to act as Transfer
Agent for the Trust.
(d) A copy of the most recent independent accountants' report
relating to internal accounting control systems as filed with
7
the Commission pursuant to Rule 17Ad-13 under the
Exchange Act.
20. Amendments to Documents. The Trust shall furnish BISYS Ohio written
copies of any amendments to, or changes in, any of the items referred to in
Section 18 hereof forthwith upon such amendments or changes becoming effective.
In addition, the Trust agrees that no amendments will be made to the
Prospectuses or Statement of Additional Information of the Trust which might
have the effect of changing the procedures employed by BISYS Ohio in providing
the services agreed to hereunder or which amendment might affect the duties of
BISYS Ohio hereunder unless the Trust first obtains BISYS Ohio's approval of
such amendments or changes.
21. Reliance on Amendments. BISYS Ohio may rely on any amendments to or
changes in any of the documents and other items to be provided by the Trust
pursuant to Sections 18 and 20 of this Agreement and the Trust hereby
indemnifies and holds harmless BISYS Ohio from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character which may
result from actions or omissions on the part of BISYS Ohio in reasonable
reliance upon such amendments and/or changes. Although BISYS Ohio is authorized
to rely on the above-mentioned amendments to and changes in the documents and
other items to be provided pursuant to Sections 18 and 20 hereof, BISYS Ohio
shall be under no duty to comply with or take any action as a result of any of
such amendments or changes unless the Trust first obtains BISYS Ohio's written
consent to and approval of such amendments or changes.
22. Compliance with Law. Except for the obligations of BISYS Ohio set forth
in Section 10 hereof, the Trust assumes full responsibility for the preparation,
contents and distribution of each prospectus of the Trust as to compliance with
all applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act, and any other laws, rules and regulations of governmental
authorities having jurisdiction. BISYS Ohio shall have no obligation to take
cognizance of any laws relating to the sale of the Trust's shares. The Trust
represents and warrants that no shares of the Trust will be offered to the
public until the Trust's registration statement under the 1933 Act and the 1940
Act has been declared or becomes effective.
23. Notices. Any notice provided hereunder shall be sufficiently given when
sent by registered or certified mail to the party required to be served with
such notice at the following address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, or at such other address as such party may from time to time specify
in writing to the other party pursuant to this Section.
24. Headings. Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
8
25. Assignment. This Agreement and the rights and duties hereunder shall
not be assignable by either of the parties hereto except by the specific written
consent of the other party. This Section 25 shall not limit or in any way affect
BISYS Ohio's right to appoint a Sub-transfer Agent pursuant to Section 1 hereof.
26. Governing Law. This Agreement shall be governed by and provisions shall
be construed in accordance with the laws of the Commonwealth of Massachusetts.
27. Limitation of Liability of the Trustees and Shareholders. It is
expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust personally, but shall bind only the trust property of the
Trust. The execution and delivery of this Agreement have been authorized by the
Trustees, and this Agreement has been signed and delivered by an authorized
officer of the Trust, acting as such, and neither such authorization by the
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
the Trust's Declaration of Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
VARIABLE INSURANCE FUNDS
_________________________ By:______________________________
_________________________ BISYS FUND SERVICES OHIO, INC.
By:______________________________
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Dated: ________, 1997
Schedule A
to the Transfer Agency Agreement
between Variable Insurance Funds and
BISYS Fund Services Ohio, Inc.
NAME OF FUND
Variable Insurance Money Market Fund
Variable Insurance Allocated Conservative Fund
Variable Insurance Allocated Balanced Fund
Variable Insurance Allocated Growth Fund
Variable Insurance Allocated Aggressive Fund
BB&T Growth and Income Fund
BB&T Capital Manager Fund
VARIABLE INSURANCE FUNDS
By:______________________________
BISYS FUND SERVICES OHIO, INC.
By:______________________________
A-1
Dated: ______, 1997
Schedule B
to the Transfer Agency Agreement
between Variable Insurance Funds and
BISYS Fund Services Ohio, Inc.
TRANSFER AGENCY
SERVICES
1. Shareholder Transactions
a. Process shareholder purchase and redemption orders.
b. Set up account information, including address, taxpayer
identification numbers and wire instructions.
c. Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
d. Issue periodic statements for shareholders.
e. Process transfers and exchanges.
f. Process dividend payments, including the purchasing of new shares
through dividend reinvestment.
2. Shareholder Information Services
a. Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
b. Produce detailed history of transactions through duplicate or
special order statements upon request.
c. Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements, or marketing material to current
shareholders and contractowners.
3. Compliance Reporting
a. Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers and the States in
which the Fund is registered.
B-1
b. Prepare and distribute appropriate Internal Revenue Service forms
for corresponding Fund and shareholder income and capital gains.
c. Issue tax withholding reports to the Internal Revenue Service.
4. Dealer/Load Processing (if applicable)
a. Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
5. Shareholder Account Maintenance.
a. Maintain all shareholder records for each account in the Trust.
b. Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
c. Record shareholder account information changes.
d. Maintain account documentation files for each shareholder.
B-2
Dated: _______, 1997
Schedule C
to the Transfer Agency Agreement
between Variable Insurance Funds and
BISYS Fund Services Ohio, Inc.
TRANSFER AGENT
FEES
A. Annual Base Fee
1. Each Fund will pay an Annual Base Fee as follows:
a. Each Fund with daily dividends shall pay an Annual Base
Fee of $16 per contractowner account, and each Fund
without daily dividends shall pay an Annual Base Fee of
$14 per contractowner account, subject to minimum fees
in paragraph A.1.b.
b. The Annual Base Fee shall not be less than:
$10,000 for a Fund/Class with less than 100
contractowners;
$18,000 for a Fund/Class with 100 or more
contractowners but less than 500 shareholders; and
$24,000 for a Fund/Class with 500 or more
contractowners.
B. Other Provisions
1. Any Fund which requires additional services shall pay
additional fees as agreed in writing between the parties.
Out-of-Pocket expenses are billed separately.
2. If a Fund requires special reports or specialized processing,
the programming costs or data base management fees for such
services will be agreed upon in writing by the parties.
3. All fees are subject to annual increases as agreed in writing
between the parties.
C-1
Dated: _______, 1997
Schedule D
to the Transfer Agency Agreement
between Variable Insurance Funds and
BISYS Fund Services Ohio, Inc.
REPORTS
I. Daily Shareholder Activity Journal
II. Daily Fund Activity Summary Report
A. Beginning Balance
B. Dealer Transactions
C. Shareholder Transactions
D. Reinvested Dividends
E. Exchanges
F. Adjustments
G. Ending Balance
III. Daily Wire and Check Registers
IV. Monthly Dealer Processing Reports
V. Monthly Dividend Reports
VI. Annual report by independent public accountants concerning
BISYS Fund Services Ohio, Inc.'s shareholder system and
internal accounting control systems to be filed with the
Securities and Exchange Commission pursuant to Rule 17Ad-13 of
the Securities Exchange Act
of 1934, as amended.
D-1
