Exhibit (h)(8)
AMENDED AND RESTATED
NET INVESTMENT INCOME MAINTENANCE AGREEMENT
ADVANTUS SERIES FUND, INC.
AMENDED AND RESTATED NET INVESTMENT INCOME MAINTENANCE AGREEMENT, effective
as of October 29, 2009, by and between Advantus Capital Management, Inc. (the
"Investment Adviser"), Securian Financial Services, Inc. (the "Underwriter") and
Advantus Series Fund, Inc. (the "Corporation"), a Minnesota corporation, on
behalf of the Money Market Portfolio (the "Fund").
WHEREAS, the Investment Adviser, the Underwriter and the Corporation have
previously entered into a Net Investment Income Maintenance Agreement, effective
as of February 1, 2009 (the "Prior Agreement"); and
WHEREAS, the parties have determined that each desires to amend and restate
the Prior Agreement as set forth herein; and
WHEREAS, the Corporation is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end diversified management company
of the series type, and the Fund is a series of the Corporation; and
WHEREAS, the Corporation and the Investment Adviser have entered into an
Investment Advisory Agreement dated May 1, 2000 (the "Advisory Agreement"),
pursuant to which the Investment Adviser will render investment advisory
services to the Fund for compensation based on the value of the average daily
net assets of the Fund; and
WHEREAS, the Corporation and the Underwriter have entered into an Amended
Underwriting and Distribution Agreement dated November 6, 2007 (the
"Underwriting Agreement") pursuant to which the Underwriter acts the principal
underwriter for the Fund, and receives compensation thereunder pursuant to the
Fund's Rule 12b-1 Plan; and
WHEREAS, the Corporation and the Investment Adviser have determined that it
is appropriate and in the best interests of the Fund and its shareholders to
maintain the Fund's daily "Net Investment Income" (as defined in paragraph 1.1
below) at or in excess of zero. NOW, THEREFORE, the parties hereto agree as
follows:
1. Net Investment Income Maintenance.
1.1 Net Investment Income. "Fund Investment Income", as defined in
paragraph 1.2 below, minus "Fund Operating Expenses" as defined in
paragraph 1.3 below equals Net Investment Income. If the Fund's Net
Investment Income on any day is below zero, the Investment Adviser
shall waive its Advisory Fee or reimburse the Fund an amount (defined
as "Expense Waiver") sufficient to produce a Net Investment Income of
zero.
1.2 Fund Investment Income. Fund Investment Income includes interest and
dividends, net of foreign withholding taxes, plus income from
securities lending activities, if applicable. Fund Investment Income
does not include realized and unrealized gains or losses on
investments and foreign currencies.
1.3 Fund Operating Expenses. Fund Operating Expenses are the aggregate
expenses of every character incurred by the Fund, including but not
limited to investment advisory fees of the Investment Adviser (but
excluding interest, taxes, brokerage commissions and other
expenditures which are capitalized in accordance with generally
accepted accounting principles and other extraordinary expenses not
incurred in the ordinary course of the Fund's business). Fund
Operating Expenses do not include "acquired fund fees and expenses" as
defined in SEC Form N-1A, as it may be amended from time to time.
1.4 Method of Computing Expense Waiver. To determine the Expense Waiver
(Investment Adviser's liability), each day the Fund Operating Expenses
shall be subtracted from the Fund Investment Income to produce the
daily Net Investment Income. If the daily Net Investment Income is
below zero for any day, the Investment Adviser shall first waive or
reduce its advisory fee for such day by an amount sufficient to bring
the Net Investment Income to zero. If the amount of the waived or
reduced advisory fee for any such day is insufficient to bring the Net
Investment Income to zero , the Investment Adviser shall also pay Fund
expenses or reimburse the Fund an amount that, together with the
waived or reduced advisory fee, is sufficient to bring the Net
Investment Income to zero.
1.5 Right of Recovery. The Investment Adviser shall have the option to
recover the full amount waived, paid or reimbursed (the Expense
Waiver) by the Investment Adviser on any day on which the Fund's Net
Investment Income exceeds zero. In no event, however, shall the
Expense Waiver, or any portion thereof, constitute an obligation of
the Fund to the Investment Adviser on any such day unless the
Investment Adviser has expressly exercised its right to recover all or
a portion of the Expense Waiver on that day, in which case such
portion of the Expense Waiver elected by the Investment Adviser for
recovery that day shall then be due and payable. If, and to the
extent, the payment by the Fund to the Investment Adviser of the
Expense Waiver would cause the Fund's Net Investment Income to fall
below zero, such payment shall be deferred until such date on which
the payment would not cause the Fund to have a Net Investment Income
of less than zero, provided that the right of the Investment Adviser
to receive such payment shall expire three years after the day it
effected such waiver, or made such payment or reimbursement.
1.6 Payment. If the Investment Adviser is required to reimburse the Fund,
the Investment Adviser shall make such payment within 30 days after
each month-end in the amount due the Fund as of each month. If the
Fund is required to pay the Investment Adviser the Expense Waiver, the
Fund shall make such payment within 30 days after each month-end.
Reimbursements to the Fund or the Expense
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Waiver shall not include any additional charges or fees whatsoever,
including, e.g., interest accruable on such reimbursements or the
Expense Waiver.
1.7 Operating Expense Limit. Any Expense Waiver recovery payment by the
Fund to the Investment Adviser shall not cause the Operating Expense
for the Fund's full year of operations to exceed 1.25% of the Fund's
average daily net assets.
2. The Underwriter.
In connection with the obligation of the Investment Adviser to maintain the
Fund's Net Investment Income as set forth in section 1 herein, the
Underwriter may waive its Rule 12b-1 fees contemplated by the Underwriting
Agreement, and shall have the same rights to be reimbursed by the Fund as
the Investment Adviser, as set forth in Section 1 herein, to the extent the
Investment Adviser has not already been reimbursed by the Fund for its
payment of Rule 12b-1 fees.
3. Term and Termination of Agreement.
This Agreement shall continue in effect for a period of one year from the
date of its execution and from year to year thereafter provided such continuance
is specifically approved by a majority of the directors of the Corporation who
(i) are not "interested persons" of the Corporation or any other party to this
Agreement, as defined in the 1940 Act, and (ii) have no direct or indirect
financial interest in the operation of this Agreement ("Non-Interested
Directors"). This Agreement will terminate upon the termination of the Advisory
Agreement except the Investment Adviser's Right of Recovery set forth in section
1.5 herein.
4. Miscellaneous.
4.1 Captions. The captions in this Agreement are included for convenience
of reference only and in no other way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
4.2 Interpretation. Nothing herein contained shall be deemed to require
any party hereto to take any action contrary to its Articles of
Incorporation or By-Laws, or any applicable statutory or regulatory
(including self-regulatory) requirement to which it is subject or by
which it is bound.
4.3 Definitions. Any question of interpretation of any term or provision
of this Agreement, including, but not limited to the investment
advisory or Rule 12b-1 fee, the computations of net asset values, and
the allocation of expenses, having a counterpart in or otherwise
derived from the terms and provisions of the Advisory Agreement, the
Underwriting Agreement, or the 1940 Act, shall have the same meaning
as and be resolved by reference to such Advisory Agreement, the
Underwriting Agreement, or the 1940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ADVANTUS SERIES FUND, INC.
By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
ADVANTUS CAPITAL MANAGEMENT, INC.
By: /s/Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Executive Vice President
SECURIAN FINANCIAL SERVICES, INC.
By: /s/Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President and CEO
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