UNDERWRITING AND DISTRIBUTION AGREEMENT
THIS AGREEMENT, made as of May 1, 2000 by and between Advantus
Series Fund, Inc., a Minnesota corporation (the "Fund") and Ascend Financial
Services, Inc. (the "Underwriter").
WITNESSETH:
1. UNDERWRITING SERVICES.
The Fund hereby engages the Underwriter, and the Underwriter
hereby agrees to act, as principal underwriter for the Fund in the sale and
distribution of the shares of the Fund. The Underwriter agrees to offer such
shares for sale at all times when such shares are available for sale and may
lawfully be offered for sale and sold.
2. SALE OF FUND SHARES.
Such shares are to be sold only on the following terms:
(a) All subscriptions, offers, or sales shall be subject to
acceptance or rejection by the Fund. Any offer or sale shall be conclusively
presumed to have been accepted by the Fund if the Fund shall fail to notify the
Underwriter of the rejection of such offer or sales prior to the computation of
the net asset value of the Fund's shares next following receipt by the Fund of
notice of such offer or sale.
(b) No share of the Fund shall be sold by the Underwriter for
any consideration other than cash.
(c) Shares of the Fund are not available to the public. The Fund
is available for sale only to separate accounts of Minnesota Life Insurance
Company and to certain of its life insurance affiliates for the purpose of
funding variable life insurance policies and variable annuity contracts
("Variable Contracts"). At the date of this Agreement, Minnesota Life and Ascend
Financial Services, Inc., and the Fund have received an order from the
Securities and Exchange Commission dated January 7, 1987, issued pursuant to
Section 6(c) of the Investment Company Act of 1940, granting relief from
Sections 9(a), 13(a), 15(a) and 15(b) of that Act and from paragraph (b)(5) of
Rule 6e-1 thereunder so as to permit the sales of Fund shares to both variable
annuity and variable life separate accounts, a practice known as "mixed
funding", subject to the provisions of the Rule and the undertakings set forth
in the Order. The Fund will advise Underwriter in the event of any change in the
Order.
3. REGISTRATION OF SHARES.
The Fund agrees to make prompt and reasonable efforts to effect
and keep in effect, at its expense, the registration or qualification of its
shares for sale in such jurisdictions as the Fund may designate.
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4. INFORMATION TO BE FURNISHED TO THE UNDERWRITER.
The Fund agrees that it will furnish the Underwriter with such
information with respect to the affairs and accounts of the Fund as the
Underwriter may from time to time reasonably require, and further agrees that
the Underwriter, at all reasonable times, shall be permitted to inspect the
books and records of the Fund.
5. ALLOCATION OF EXPENSES.
During the period of this contract, the Fund shall pay or cause
to be paid all expenses, costs, and fees incurred by the Fund which are not
assumed by the Underwriter or Advantus Capital Management, Inc., a Minnesota
corporation and the Fund's investment adviser. The Underwriter shall pay costs
associated with the distribution of shares of the Fund. Distribution-related
payments may include, among other things, the printing of prospectuses and
reports used for sales purposes, preparing and distributing sales literature and
related expenses, advertisements, education of Variable Contract owners or
dealers and their representatives, trail commissions, and other
distribution-related expenses, including a prorated portion of the overhead
expenses of the Underwriter or the Insurance Companies which are attributable to
the distribution of the Variable Contracts. Underwriter may undertake such
activities directly or may compensate others for undertaking such activities.
Payments made under the Plan may also be used to pay Insurance Companies,
dealers or others for non-distribution services, including, among other things,
responding to inquiries from owners of Variable Contracts regarding the Fund,
printing and mailing Fund prospectuses and other shareholder communications to
existing Variable Contract owners, direct communications with Variable Contract
owners regarding Fund operations and portfolio composition and performance,
furnishing personal services or such other enhanced services as the Fund or a
Variable Contract may require, or maintaining customer accounts and records.
Agreements for the payment of fees to the Underwriter, Insurance Companies or
others shall be in a form which has been approved from time to time by the
Board, including the non-interested Board members.
6. COMPENSATION TO THE UNDERWRITER.
Pursuant to the Fund's Plan of Distribution adopted by the
shareholders of the Fund in accordance with Rule 12b-1 under the 1940 Act (the
"Plan"), the Fund shall pay the Underwriter a total fee each month equal to .25%
per annum of the average daily net assets represented by shares of the Fund to
cover the costs of "distribution-related activities" and other "non-distribution
services" as described in the Plan ("Distribution Expenses"). Average daily net
assets shall be computed in accordance with the Fund's currently effective
Prospectus. Amounts payable to the Underwriter under the Plan may exceed or be
less than the Underwriter's actual Distribution Expenses. In the event such
Distribution Expenses exceed amounts payable to the Underwriter under the Plans,
the Underwriter shall not be entitled to reimbursement by the Fund.
In each year during which this Agreement remains in effect, the
Underwriter will prepare and furnish to the Board of Directors of the Fund, and
the Board will review, on a quarterly basis, written reports complying with the
requirements of Rule 12b-1 under the 1940
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Act that set forth the amounts expended under this Agreement and the Plan and
the purposes for which those expenditures were made.
7. LIMITATION OF THE UNDERWRITER'S AUTHORITY.
The Underwriter shall be deemed to be an independent contractor
and, except as specifically provided or authorized herein, shall have no
authority to act for or represent the Fund.
8. SUBSCRIPTION FOR SHARES--REFUND FOR CANCELLED ORDERS.
The subscription for the shares of the Fund shall be solely from
separate accounts pursuant to the terms of the variable life insurance policies
and variable annuity contracts.
9. INDEMNIFICATION OF THE FUND.
The Underwriter agrees to indemnify the Fund against any and all
litigation and other legal proceedings of any kind or nature and against any
liability, judgment, cost, or penalty imposed as a result of such litigation or
proceedings in any way arising out of or in connection with the sale or
distribution of the shares of the Fund by the Underwriter. In the event of the
threat or institution of any such litigation or legal proceedings against the
Fund, the Underwriter shall defend such action on behalf of the Fund at its own
expense, and shall pay any such liability, judgment, cost, or penalty resulting
therefrom, whether imposed by legal authority or agreed upon by way of
compromise and settlement; provided, however, the Underwriter shall not be
required to pay or reimburse the Fund for any liability, judgment, cost, or
penalty incurred as a result of information supplied by, or as the result of the
omission to supply information by, the Fund to the Underwriter, or to the
Underwriter by a director, officer, or employee of the Fund who is not an
interested person of the Underwriter, unless the information so supplied or
omitted was available to the Underwriter or Management without recourse to the
Fund or any such person referred to above.
10. FREEDOM TO DEAL WITH THIRD PARTIES.
The Underwriter shall be free to render to others services of a
nature either similar to or different from those rendered under this contract,
except such as may impair its performance of the services and duties to be
rendered by it hereunder.
11. EFFECTIVE DATE, DURATION AND TERMINATION OF
AGREEMENT.
The effective date of this Agreement is set forth in the first
paragraph of this Agreement.
Unless sooner terminated as hereinafter provided, this Agreement
shall continue in effect only so long as such continuance is specifically
approved at least annually (a) by the Board of Directors of the Fund, or by the
vote of the holders of a majority of the outstanding voting securities of the
Fund (or such Portfolio), and (b) by a majority of the directors who are not
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interested persons of the Underwriter or of the Fund cast in person at a meeting
called for the purpose of voting on such approval.
This Agreement may be terminated with respect to the Fund (or any
Portfolio thereof) at any time without penalty, by vote of a majority of the
outstanding Shares of the Fund (or such Portfolio) or by vote of a majority of
the non-interested Board members, on not more than sixty (60) days' written
notice, or by the Underwriter on not more than sixty (60) days' written notice,
and shall terminate automatically in the event of any act that constitutes an
assignment, (as defined by the provisions of the Investment Company Act of 1940,
as amended) of this Agreement.
12. AMENDMENTS TO AGREEMENT.
No material amendment to this Agreement shall be effective until
approved by the Underwriter and by vote of majority of the Board of Directors of
the Fund who are not interested persons of the Underwriter, and such amendment
is in writing and signed by both parties.
13. NOTICES.
Any notice under this Agreement shall be in writing, addressed,
delivered, or mailed, postage prepaid, to the other party at such address as
such other party may designate in writing for receipt of such notice.
14. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota and the Federal Securities Laws.
IN WITNESS WHEREOF, The Fund and the Underwriter have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
ADVANTUS SERIES FUND, INC.
By________________________________________
Xxxxxxx X. Xxxxxxxx
Its President
ASCEND FINANCIAL SERVICES, INC.
By________________________________________
Xxxxxx X. Xxxxxxxx
Its President
c:\sec\dfg\sf principal underwriter.doc
as revised February 9, 2000
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