First Amendment to Amended and Restated
Management and Investment
Advisory Agreement
AMERICAN FIDELITY DUAL STRATEGY FUND, INC., a Delaware corporation
(the "Fund"), and AMERICAN FIDELITY ASSURANCE COMPANY, an insurance
corporation organized under the laws of the State of Oklahoma (the
"Manager"), have entered into this First Amendment in connection with the
Amended and Restated Management and Investment Advisory Agreement between
the Fund and the Manager effective as of May 1, 2003 (the "Agreement").
The parties agree that, effective as of January 5, 2009, the Agreement is
amended as set forth herein.
1. Section 1 of the Agreement is replaced in its entirety with the
following:
The Fund hereby employs the Manager as its investment
advisor and manager, and the Manager hereby accepts
such employment and agrees, subject to the supervision
of the Fund's Board of Directors and for the period
and on the terms set forth in this First Amendment,
to render the services and assume the obligations set
forth herein, for the compensation provided below.
2. Section 2 of the Agreement is replaced in its entirety with the
following:
(a) The Manager shall provide (or arrange to be provided, at its
own expense) a wide variety of services, including, but not limited to:
(i) Portfolio security selection;
(ii) Securities trading;
(iii) Custody of fund assets;
(iv) Daily valuation of the Fund's portfolio;
(v) Shareholder servicing and transfer agency,
including shareholder confirmations, record
keeping and communications;
(vi) Legal services;
(vii) Regulatory and portfolio compliance;
(viii) Financial reporting, including auditing
services;
(ix) Marketing and distribution;
(x) Provide office space, business equipment,
supplies and other business-related items;
(xi) Compensate Fund personnel, officers and
directors;
(xii) Provide and maintain larceny and embezzlement
bond, as required by the Investment Company Act of
1940; and
(xiii) Provide to the Fund, its management and its
Board of Directors such advice, recommendations and
services that the Manager believes to be in the best
interest of the Fund, including, but not limited to,
the selection of the Fund's sub-advisors and other
service providers.
(b) Additionally, the Manager shall reimburse the Fund to the
fullest extent necessary for costs and expenses incurred by the Fund in
connection with one or more indemnification agreements between the Fund and
any of its directors (each, a "Director Indemnification Agreement"). In
this regard, the Manager agrees to reimburse the Fund for any damages,
judgments, penalties, fines, losses, liabilities, settlement amounts, costs
and expenses (including, without limitation, reasonable legal fees, costs and
disbursements) (collectively, "Losses") incurred, suffered or expended by the
Fund as a result of or in connection with a Director Indemnification Agreement,
except that, no reimbursement shall be paid to the Fund for Losses incurred in
violation of the terms of a Director Indemnification Agreement. As soon as
practicable after receipt by the Fund of a claim for indemnification pursuant
to a Director Indemnification Agreement, the Fund shall notify the Manager of
the claim thereunder; however, failure by the Fund to notify the Manager will
not relieve the Manager from any liability it may have to the Fund under this
First Amendment or otherwise.
3. Section 4 of the Agreement is replaced in its entirety with the
following:
For the services to be rendered and the charges and expenses
assumed and to be paid by the Manager, the Fund shall pay the
Manager as a basic advisory and service fee at the close of
each calendar month an amount equal to 0.00136988% (0.50% on
an annual basis) of the current value of the Fund for each day
of the valuation periods.
4. References to the "Amended Agreement" in the Agreement shall
mean the Agreement as modified by this First Amendment.
5. To the extent that provisions of the Agreement and this First
Amendment are in conflict, the terms of this First Amendment
shall control. Except to the extent amended by this First
Amendment, the Agreement shall remain unchanged and in full
force and effect, and is hereby ratified and confirmed in all
respects as amended hereby. Capitalized terms not defined in
this First Amendment shall have the definition set forth in
the Agreement.
6. This First Amendment may be executed in one or more separate
counterparts, each of which shall be deemed to be an original,
and all of which taken together shall be deemed to constitute
one and the same instrument.
[Signature Page Follows]
Dated as of the day and year first above written.
AMERICAN FIDELITY DUAL
STRATEGY FUND, INC.
By: ___________________________
Xxxxx X. Xxxxxxxxx, President
AMERICAN FIDELITY
ASSURANCE COMPANY
By:_____________________________
Xxxxxx X. Xxxxxxxx,
Executive Vice President
Execution Copy
