INVESTMENT SUB-ADVISORY AGREEMENT
Agreement dated April 2, 1998 by and between Fortis Advisers, Inc., a
Minnesota Corporation (the "Manager") and Xxxxxx Associates, Inc, a corporation
organized under the laws of the State of Delaware (the "Sub-Adviser") whose
principal office is located at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000.
WHEREAS, the Manager serves as the investment adviser, manager, registrar,
transfer agent and dividend disbursing agent for Fortis Series Fund, Inc. (the
"Company"), an open-end, management investment company registered with the
Securities and Exchange Commission ("SEC") pursuant to the Investment Company
Act of 1940, as amended ("1940 Act"), that is comprised of a number of separate
series of investments that act as funding vehicles for various variable annuity
contracts and variable universal life insurance policies issued by Fortis
Benefits Insurance Company ("FBIC") and/or First Fortis Life Insurance Company
("First Fortis");
WHEREAS, the Manager desires to retain the Sub-Adviser to assist the
Manager in furnishing an investment program to one series of the Company, the
Small Cap Value Series (the "Portfolio");
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Manager and the Sub-Adviser agree as follows:
1. APPOINTMENT AND EXPENSES OF THE SUB-ADVISER. The Manager hereby
appoints the Sub-Adviser to serve as sub-adviser with respect to the assets of
the Portfolio and to perform the services hereinafter set forth and the
Sub-Adviser hereby accepts such appointment. The Sub-Adviser agrees, for the
compensation herein provided, to assume all obligations herein provided and bear
all its personnel and other expenses associated with the performance of its
services hereunder. The Company shall be responsible for the Portfolio's
administrative, operational, business and other direct expenses, including, but
not limited to: (a) the fees of the Manager as the investment adviser (and, any
reimbursement of advisory fees required by any expense limitation provision
shall be the sole responsibility of the Manager); (b) fees pursuant to any plan
of distribution that the Portfolio may adopt; (c) the Portfolio's brokerage and
commission expenses, including all ordinary and reasonable transaction costs;
(d) fees and expenses of pricing services used by the Company to determine the
value of the Portfolio's holdings; (e) Federal, state, local and foreign taxes,
including issue and transfer taxes incurred by or levied on the Portfolio;
(f) interest charges on any Portfolio borrowings; (g) the Company's
organizational and offering expenses; (h) the cost of the Company's personnel
providing services to the Company; (i) fees and expenses of registering the
Company's shares under the appropriate Federal securities laws and of qualifying
the Company's shares under applicable state securities laws and pursuant to any
foreign laws; (j) expenses of printing and distributing reports to the Company's
shareholders, proxy materials, prospectuses and distribution of dividends;
(k) costs
of the Company's shareholders' meetings and proxy solicitation; (l) charges and
expenses of the Company's custodian and registrar, transfer agent and dividend
disbursing agent; (m) compensation of the Company's officers, directors and
employees that are not "affiliated persons" or "interested persons" [as defined
in Section 2(a) of the 1940 Act and the rules, regulations and releases relating
thereto] of the Sub-Adviser; (n) the Company's legal and auditing expenses;
(o) cost of certificates representing shares of the Portfolio; (p) the Company's
costs of stationery and supplies; (q) the Company's insurance expenses; (r) the
Company's association membership dues; (s) travel expenses of officers and
employees of the Sub-Adviser to the extent such expenses relate to the
attendance of such persons at meetings at the request of the Board of Directors
of the Company (EXCEPT that a representative of the Sub-Adviser will attend one
Board meeting per year, at the Sub-Adviser's own expense); and (t) travel
expenses for attendance at Board of Directors meetings by members of the Board
of Directors of the Company who are not "interested persons" or "affiliated
persons" of the Sub-Adviser. The Sub-Adviser shall for all purposes herein be
deemed to be an independent contractor and shall, except as expressly provided
or authorized (whether herein or otherwise), have no authority to act for or on
behalf of the Company in any way or otherwise be deemed an agent of the Company.
2. DUTIES OF THE SUB-ADVISER. The Sub-Adviser will deal in good faith
and with due diligence and will use professional skill, care and judgment in the
performance of its duties under this Agreement. In so doing, the Sub-Adviser
shall formulate and implement a continuing program for the management of the
assets of the Portfolio. The Sub-Adviser shall amend and update such program
from time to time as financial and other economic conditions warrant. The
Sub-Adviser shall make all determinations with respect to the investment of the
assets of the Portfolio and shall take such steps as may be necessary to
implement the same, including the placement of purchase and sale orders on
behalf of the Portfolio. The Manager shall be responsible for the
administration of the investment activities of the Company and the Portfolio,
including compliance with the requirements of the 1940 Act, except for the
investment management activities specifically delegated to the Sub-Adviser
pursuant to this Agreement.
3. POWERS OF THE SUB-ADVISER.
3.1 The Sub-Adviser's power to direct the investment and reinvestment
of the assets of the Portfolio shall be exercised in accordance with applicable
law, the Company's Articles of Incorporation and the investment objectives,
policies and restrictions set forth in the then-current Prospectus and Statement
of Additional Information (collectively the "Prospectus") relating to the
Portfolio contained in the Company's Registration Statement under the 1940 Act
and the Securities Act of 1933, as amended. The Company and/or the Manager may
also place additional limitations on the Sub-Adviser's investment decisions by
written notice to the Sub-Adviser. The Company agrees to provide to the
Sub-Adviser at or before the time they become effective a copy of the documents
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mentioned above and all changes made, or supplements, to such documents. In
addition, the Company shall provide (or cause the Custodian to provide) timely
information to the Sub-Adviser regarding such matters as the composition of
assets in the Portfolio, cash requirements and cash available for investment in
the Portfolios and all other information as may be reasonably necessary for the
Sub-Adviser to perform its responsibilities hereunder.
3.2 While the Sub-Adviser will have day-to-day responsibility for the
discretionary investment decisions to be made on behalf of the Portfolio, the
Sub-Adviser will be subject to oversight by the Manager. Such oversight,
however, shall not require prior approval of discretionary investment decisions
made by the Sub-Adviser except as may be required by applicable law, the
Portfolio's investment policies and restrictions and/or any limitations imposed
on the Sub-Adviser by the Company and/or the Manager pursuant to the preceding
paragraph. The Manager shall retain the right to instruct the Sub-Adviser to
effect any transactions necessary to ensure compliance with the Portfolio's
investment policies and restrictions as well as the requirements of Subchapter M
of the Internal Revenue Code and the provisions of Section 817(h) of the
Internal Revenue Code and the regulations promulgated thereunder.
3.3 In the event the Sub-Adviser's compliance with any amendment of
the Portfolio's investment objectives, policies and restrictions or other
limitations placed on the Sub-Adviser's investment decisions with respect to the
Portfolio would interfere with the completion of any transaction commenced on
behalf of the Portfolio prior to the Sub-Adviser's knowledge of such amendment,
the Sub-Adviser may complete such transaction unless doing so would violate any
applicable law, rule or regulation. In such an event, the Sub-Adviser will not
be responsible for any loss that may result from the completion of the
transaction.
3.4 Further, and except as may be qualified elsewhere in this
Agreement, the Sub-Adviser is hereby authorized, for and on behalf of the
Company, with respect to the Portfolio, in its discretion to:
(a) exercise any conversion and/or subscription rights available
in connection with any securities or other investments held in the
Portfolio;
(b) maintain all or part of the Portfolio's assets uninvested in
short-term income-producing instruments for such periods of time as shall
be deemed reasonable and prudent by the Sub-Adviser;
(c) instruct the Custodian, in accordance with the Custodian
Agreement, to deliver for cash received, securities or other cash and/or
securities instruments sold, exchanged, redeemed or otherwise disposed of
from the Portfolio, and to pay cash for securities or other cash and/or
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securities instruments delivered to the Custodian and/or credited to the
Portfolio upon acquisition of the same for the Portfolio;
(d) determine how to vote all proxies received with respect to
securities held in the Portfolio and direct the Custodian as to the voting
of such proxies; and
(e) generally, perform any other act necessary to enable the
Sub-Adviser to carry out its obligations under this Agreement.
4. SELECTION OF BROKER-DEALERS. The Sub-Adviser shall select the brokers
and dealers through whom transactions on behalf of the Portfolio will be
executed and the markets on or in which such transactions will be executed and
shall place, in the name of the Portfolio or its nominee (or appropriate foreign
equivalent), all such orders. In selecting brokers and dealers to execute such
transactions, and in negotiating brokerage commissions, and in obtaining
research, statistical and other information from brokers and dealers in
connection with Portfolio transactions, the Sub-Adviser shall comply with the
description of the process contained in the Prospectus. This notwithstanding,
when the Sub-Adviser places orders for the purchase or sale of Portfolio assets,
so long as the Sub-Adviser uses reasonable efforts in seeking the best execution
in selecting brokers to execute such orders, the Sub-Adviser is expressly
authorized to consider the fact that a broker has furnished, or has agreed to
furnish in the future, research, statistical or other information or services
permitted under Section 28(e) of the Securities and Exchange Act of 1934
("Services") provided by such broker that enhance the Sub-Adviser's investment
research and portfolio management capability generally. It is understood that
the Sub-Adviser may not use all Services in connection with the Portfolio.
Sub-Adviser will not be required or deemed to have the duty to obtain the lowest
brokerage commission rates available or to combine or arrange orders to obtain
the lowest brokerage commission rates available on transactions in the
Portfolio. If the amount of commission charged by a broker is reasonable in
relation to the value of the brokerage functions and the Services provided by
such broker to Sub-Adviser, Sub-Adviser may direct brokerage transactions to
such broker notwithstanding the fact that such broker charges a higher
commission than those that another broker might charge.
(a) It is understood that certain other clients (including other
funds, portfolios and accounts) of the Sub-Adviser may have investment
objectives and policies similar to those of the Portfolio and that the
Sub-Adviser may, from time to time, make recommendations that result in the
purchase (or sale) of a particular security by its other clients and the
Portfolio during the same period of time. If transactions on behalf of
more than one client during the same period increase the demand for
securities being purchased or the supply of securities being sold, there
may be an adverse effect on price or quantity. In such event, the
Sub-Adviser shall allocate the securities or investments to be purchased or
sold, as well as the expenses incurred in the
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transactions (including price) in a manner the Sub-Adviser considers
equitable and consistent with its obligations to the Portfolio and the
Sub-Adviser's other clients.
(b) The Sub-Adviser agrees that it will only enter into transactions
that are covered by Section 10(f) or Section 17(e) of the 1940 Act if it
has (i) complied with Rule 10f-3 or Rule 17e-1 thereunder, respectively, or
the terms of an appropriate exemptive order issued to the Company by the
SEC, and (ii) has complied with the procedures adopted thereunder by the
Board of Directors of the Company which may, pursuant to authority granted
by the Company, be supplemented by interpretive guidelines of the Manager.
Aside from parties that are known or should be known by the Sub-Adviser,
the Manager shall promptly notify the Sub-Adviser in writing of any
additional parties with whom engaging in a transaction for the Portfolio
would result in a violation of the 1940 Act.
5. REPORTS AND INFORMATION TO BE PROVIDED BY THE SUB-ADVISER. The
Sub-Adviser shall furnish such information and reports relating to the
Portfolio, its holdings and transactions involving Portfolio securities as the
Manager and/or the Company may reasonably require to fulfill its or their legal
responsibilities or to meet regulatory requirements or discharge other duties
they may have. Among the subjects of the reports and information to be provided
by the Sub-Adviser, to the extent such reports and information are not otherwise
available from the Portfolio's Custodian, are the following:
(a) Information required by the Manager to determine the Company's
and Portfolio's compliance with the 1940 Act, the Advisers Act, the
Internal Revenue Code, applicable federal and state securities and
insurance laws and other applicable laws and regulations or regulatory and
taxing authorities in the United States and other relevant countries;
(b) Information required by the Manager to meet the accounting and
operational requirements of the Portfolio. Specific examples of the types
of reports and information that will be needed by the Manager and the
Company are set forth in Exhibit A, attached hereto;
(c) Information required by the Manager to satisfy its reporting
obligations to the Company arising from the Investment Advisory and
Management Agreement between the Manager and the Company;
(d) Information reasonably requested by the Manager to determine the
Portfolio's compliance with Rule 17f-5 under the 1940 Act, relating to
foreign custodians and sub-custodians;
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(e) Information required by the Manager to determine the
Sub-Adviser's compliance with Rule 17j-1 under the 1940 Act with respect to
the Sub-Adviser's activities on behalf of the Portfolio;
(f) Information required by the Manager to determine compliance with
Rule 10f-3 and Rule 17e-1 under the 1940 Act with respect to the
Sub-Adviser's (or its affiliates') activities on behalf of the Portfolio;
and
(g) Information reasonably necessary to respond to specific inquiries
from the Company's management and/or Board of Directors.
6. NON-EXCLUSIVE SERVICES, CONFLICTS OF INTEREST AND MATERIAL NONPUBLIC
INFORMATION. The Manager understands that the Sub-Adviser and its affiliates
may furnish investment management and advisory services to others, and that the
Sub-Adviser and its affiliates shall be at all times free, in their discretion,
to make recommendations to, and investments for, others which may or may not
correspond to investments made for the Portfolio. The Manager further
understands that the Sub-Adviser, its affiliates, and any officer, director,
stockholder, employee or any member of their families may or may not have an
interest in the securities whose purchase and sale the Sub-Adviser effects for
the Portfolio. Actions taken by the Sub-Adviser on behalf of the Portfolio may
be the same as, or different from, actions taken by the Sub-Adviser on its own
behalf or for others or from actions taken by the Sub-Adviser's affiliates,
officers, directors, partners, employees of the Sub-Adviser or its affiliates,
or the family members of such persons or other investors. The Sub-Adviser
represents that it has in effect a code of ethics that complies with Rule 17j-1
under the 1940 Act and has procedures in place that, taken together, provide
reasonable enforcement of the code's provisions. Similarly, the Sub-Adviser
represents that, with respect to the use of nonmaterial nonpublic information,
it has complied, and will continue to comply, with Section 204A of the
Investment Advisers Act of 1940, as amended ("Advisers Act") and any rules
thereunder.
7. DISCLOSURE OF INFORMATION AND CONFIDENTIALITY.
7.1 The Sub-Adviser, the Company and the Manager, either during, or
after the termination of, this Agreement, are authorized with respect to matters
arising out of this Agreement to make any disclosures and/or participate in any
conduct required by any applicable law, rule, regulation, self-regulating
organization, investment exchange or any other body having regulatory or
enforcement responsibility with respect to any investment business conducted by
the Sub-Adviser on behalf of the Portfolio.
7.2 Subject to the preceding paragraph, the Sub-Adviser agrees that
all information which has or will come into its possession or knowledge
concerning the Portfolio or its investments in connection with this Agreement
shall be held by the Sub-Adviser in confidence. The Sub-Adviser shall make no
use of such
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information other than for the performance of this Agreement, shall disclose
such information only to the directors, officers or employees of the Sub-Adviser
or its affiliated firms or of any third party appointed pursuant to this
Agreement requiring such information and shall not disclose such information to
any other person without the written consent of the Company; provided, however,
that to the extent the investments for the Portfolio are similar to investments
for other clients of the Sub-Adviser, the Sub-Adviser may disclose such
investments without direct reference to the Portfolio. The Sub-Adviser may also
include the name of the Portfolio in a representative client list.
7.3 Subject to the preceding paragraph, the Company and the Manager
agree that all information which has or will come into their possession or
knowledge concerning the operations and procedures of the Sub-Adviser shall be
held by the Company and the Manager in confidence. The Company and the Manager
shall make no use of such information other than for the performance of this
Agreement, shall disclose such information only to their directors, officers or
employees or those of its affiliated firms requiring such information and shall
not disclose such information to any other person without the written consent of
the Sub-Adviser.
7.4 The Manager and the Company agree not to refer to Xxxxxx
Associates, Inc. or Perkins, Wolf, XxXxxxxxx & Company or their affiliates in
any advertisement or other document without prior consent of the Sub-Adviser.
Similarly, Xxxxxx Associates, Inc. and Perkins, Wolf, XxXxxxxxx & Company and
their affiliates shall not refer to the Manager, the Company, the Portfolio, or
other Fortis affiliates in any advertisement or other document without the
Manager's prior consent. However, the Parties to this Agreement agree that they
may reference one another as necessary in regulatory and other legal filings.
Further, the parties agree that they will not unreasonably withhold permission
to use their names or otherwise reference them in materials used to describe the
Portfolio and/or the Company.
8. DEALINGS WITH THE CUSTODIAN. The Manager shall notify the Sub-Adviser
of the appointment of the custodian(s) ("Custodian") for all or any portion of
the Portfolio's assets, shall provide the Sub-Adviser with a true and complete
copy of each agreement with the Custodian that deals with the Portfolio's assets
("Custodian Agreements"), and shall provide the Sub-Adviser with the names of
persons authorized to act on behalf of the Custodian and such other information
as the Sub-Adviser shall reasonably require. The Sub-Adviser agrees to give
instructions in accordance with the terms of the applicable Custodian
Agreements. The Company agrees to provide promptly to the Sub-Adviser a copy of
all relevant Custodian Agreements, and all changes made to such documents, at or
before the time they become effective.
9. DELEGATION OF THE SUB-ADVISER'S RESPONSIBILITIES. Notwithstanding
anything herein to the contrary, Sub-Adviser may delegate any or all of its
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investment management duties and responsibilities under this Agreement to
Perkins, Wolf, XxXxxxxxx & Company. No delegation pursuant to this provision
shall relieve Sub-Adviser of its duties or responsibilities thereunder, and
Sub-Adviser shall appropriately oversee, monitor and evaluate the activities of
any party appointed hereunder for the Portfolio. The Sub-Adviser (or such
delegatee) may employ, retain or otherwise avail itself of the services and
facilities of persons and entities within its own organization or any other
organization for the purpose of providing the Sub-Adviser (or such delegatee),
the Manager or the Portfolio with such information, advice or assistance,
including but not limited to advice regarding economic factors and trends and
advice as to transactions in specific securities, as the Sub-Adviser (or such
delegatee's) may deem necessary, appropriate or convenient for the discharge of
its obligations hereunder or as may otherwise be helpful to the Manager or the
Portfolio, or in the discharge of the Sub-Adviser's (or such delegatee's)
overall responsibilities with respect to the other accounts for which it serves
as investment manager or investment adviser. The Sub-Adviser's (or such
delegatee's) acquisition of information, advice or assistance pursuant to this
paragraph shall be at the Sub-Adviser's (or such delegatee's) own expense and
shall not relieve the Sub-Adviser (or such delegatee) of any of its obligations
under this Agreement.
10. COMPENSATION. For the services to be rendered under this Agreement
and the facilities to be furnished, the Manager shall pay to the Sub-Adviser for
each fiscal year of the Company, a monthly management fee at the annual rate of
.50 of 1% of the Portfolio's first $50 million of average daily net assets and
.45 of 1% of the Portfolio's average daily net assets in excess of $50 million.
The monthly management fee shall be paid to the Sub-Adviser not later than the
tenth business day of the month following the month in which such services were
rendered and shall be based upon the average net asset values of all the issued
and outstanding shares of the Portfolio as determined as of the close of each
business day of the month pursuant to the Articles of Incorporation, Bylaws and
currently effective Prospectus of the Portfolio. Payments of the monthly
management fee will be accompanied by documentation that verifies the
calculation of such fee. If the management of the Portfolio by the Sub-Adviser
commences or terminates at any time other than the beginning or end of a month,
the management fee shall be prorated for that portion of such month during which
this Agreement was in force.
11. REPRESENTATIONS OF THE SUB-ADVISER. The Sub-Adviser represents and
agrees that:
(a) The Sub-Adviser is registered as an "investment adviser" under
the Advisers Act and is currently in compliance in all material respects
and shall at all times continue to comply in all material respects with the
requirements imposed upon it by the Advisers Act, the 1940 Act, the
Internal Revenue Code, state securities laws and all applicable rules and
regulations thereunder as they relate to the services provided under this
Agreement. The Sub-Adviser will immediately notify the Manager if it
becomes aware of the
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occurrence of any event that would disqualify the Sub-Adviser from serving
as an investment adviser of an investment company pursuant to Section 9 of
the 1940 Act or any other applicable law or regulation.
(b) The Sub-Adviser will maintain, keep current and accurate, and
preserve all records with respect to the Portfolio as are required of it
under the Advisers Act and the 1940 Act, in the manner provided by such
Acts and the rules thereunder. The Sub-Adviser agrees that such records
are the property of the Company, and following termination of this
Agreement will be surrendered to the Company promptly upon request except
to the extent that they are required to be retained by the Sub-Adviser
under applicable law. Further, such records shall be open to inspection by
the Company. The Sub-Adviser will also assure that the Company will have
the same access as the Sub-Adviser has to records relating to the Portfolio
that are held by relevant third parties. Such inspections will be at
reasonable times during business hours and only upon reasonable notice of
the Company's desire to make an inspection.
(c) The Sub-Adviser agrees to advise the Manager of any developments,
such as the reassignment of a portfolio manager, that would require
Prospectus disclosure and to provide any necessary information related to
such developments.
(d) The Sub-Adviser has provided the Manager and the Company with a
copy of its most recent and complete Form ADV and will promptly furnish
them with copies of any material amendments to the Form.
(e) If the Sub-Adviser's performance of its obligations under this
Agreement takes place in the United Kingdom, the Sub-Adviser shall be and
shall remain during the effectiveness of this Agreement, a member of the
Investment Management Regulatory Organization, Ltd. ("IMRO") and thereby
regulated in the conduct of Investment Business (as defined in IMRO's
rules) by the IMRO. The Company and the Manager will be treated as a
Non-Private Customer (as defined in IMRO's rules) of the Sub-Adviser.
(f) The Sub-Adviser shall furnish the Manager with a certificate,
signed by a duly authorized officer of the Sub-Adviser that designates the
officers or employees of the Sub-Adviser having authority to act for and on
behalf of the Sub-Adviser in connection with this Agreement. The
Sub-Adviser agrees that, until such time as the Manager is otherwise
informed in writing by a duly authorized officer of the Sub-Adviser, the
Manager shall be authorized and entitled to rely on any notice,
instruction, request, order or other communication, given either in writing
or orally, and reasonably believed by the Manager in good faith to be given
by an authorized representative of the Sub-Adviser.
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12. REPRESENTATIONS OF THE MANAGER. The Manager represents and agrees
that:
(a) The Manager is registered as an "investment adviser" under the
Advisers Act and has provided to the Sub-Adviser a copy of its most recent
and complete Form ADV, along with a copy of the Investment Advisory and
Management Agreement between the Manager and the Company and the current
Company Prospectus regarding the Portfolio. After any amendment to the
documents referenced in this paragraph, the Manager will promptly furnish a
copy of such amended document to the Sub-Adviser. In addition, the Manager
will provide the Sub-Adviser with notice of proposed changes in the
Prospectus and the opportunity to review and comment upon such changes
before they are finalized, wherever possible.
(b) The Manager and the Company are currently in material compliance
and shall at all times continue to be in material compliance with the
relevant requirements of the Advisers Act, the 1940 Act, all applicable
state securities and insurance laws, and the rules thereunder, as they
pertain to the Portfolio.
(c) The Manager shall furnish the Sub-Adviser with a certificate,
signed by a duly authorized officer of the Manager that designates the
officers or employees of the Manager having authority to act for and on
behalf of the Manager in connection with this Agreement. The Manager
agrees that, until such time as the Sub-Adviser is otherwise informed in
writing by a duly authorized officer of the Manager, the Sub-Adviser shall
be authorized and entitled to rely on any notice, instruction, request,
order or other communication, given either in writing or orally, and
reasonably believed by the Sub-Adviser in good faith to be given by an
authorized representative of the Manager.
13. LIABILITY, INDEMNIFICATION AND FORCE MAJEURE.
13.1 The Sub-Adviser, its affiliated firms or its or their employees,
officers, or directors will not be liable for any error of judgment or mistake
of law or for any loss suffered by the Portfolio, its shareholders, FBIC
contract owners or First Fortis contract owners in connection with the
performance of their duties under this Agreement, except for loss resulting from
willful misfeasance, bad faith or gross negligence on their part in the
performance of their duties or from reckless disregard by them of their duties
under this Agreement.
13.2 The Manager shall indemnify the Sub-Adviser against all claims
which may be made against the Sub-Adviser in connection with the exercise of the
powers and discretion conferred upon it pursuant to this Agreement, EXCEPT
insofar as such claims are the result of the willful misfeasance, bad faith or
gross negligence of the Sub-Adviser or any of its affiliated firms or its or
their employees, officers or
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directors or its or their material breach of this Agreement or violation of
applicable law. Conversely, the Sub-Adviser shall indemnify the Manager and the
Company against all claims resulting from the willful misfeasance, bad faith or
gross negligence of the Sub-Adviser or any of its affiliated firms or its or
their employees, officers or directors or its or their material breach of this
Agreement or violation of applicable law.
13.3 Neither party shall be held responsible for their non-performance
of any of their obligations under this Agreement by reason of any cause beyond
their control, including any breakdown or failure of transmission, communication
or computer facilities, postal or other strikes or similar industrial action and
the failure of any relevant exchange, clearing house and/or broker for any
reason to perform its obligations.
14. TERM, RENEWAL AND TERMINATION.
14.1 This Agreement shall, with respect to the Portfolio, become
effective as of the date first above written and shall remain in force for two
years thereafter, and for successive annual periods thereafter but only so long
as each such continuance is specifically approved at least annually by (1) a
majority of the Directors of the Company who are not parties to this Agreement
or interested persons of any such parties (other than as Directors of the
Company), by vote cast in person at a meeting called for the purpose of voting
on such approval; or (2) a vote of the holders of a majority of the outstanding
voting securities (as defined in the 0000 Xxx) of such Portfolio. It shall be
the duty of the Directors of the Company to request and evaluate, and the duty
of the Manager and Sub-Adviser to furnish, such information as may be reasonably
necessary to evaluate the terms of this Agreement and any renewal hereof.
14.2 This Agreement may be terminated with respect to the Portfolio at
any time without the payment of any penalty by the Portfolio (1) by a vote of a
majority of the entire Board of Directors of the Company on sixty (60) days'
written notice to the Manager and the Sub-Adviser; (2) by vote of the holders of
a majority of the outstanding voting securities of such Portfolio (as defined in
the 1940 Act); or (3) by the Sub-Adviser on 60 days' written notice to the
Manager and the Company.
14.3 This Agreement shall automatically terminate in the event of its
assignment, as that term is defined in Section 2(a)(4) of the 1940 Act and the
rules thereunder.
14.4 On the effective date of any termination of this Agreement or as
close to such date as is reasonably possible, the Sub-Adviser shall provide the
Manager with a final report for the Portfolio.
14.5 Upon the Manager's receipt or service of any notice given by or
to the Company concerning the termination of the Manager's appointment as the
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investment adviser to the Company, the Manager shall immediately forward a copy
of such notice to the Sub-Adviser and the Sub-Adviser's appointment under this
Agreement shall terminate on the same date as the termination of the Manager's
appointment.
15. AMENDMENT. No amendment to or modification of this Agreement shall be
effective unless and until it is set forth in a written amendment signed by the
Manager and the Sub-Adviser and if so required approved by the vote of a
majority of the outstanding shares of the Portfolio, as defined in the 1940 Act.
16. AUTHORITY AND ENFORCEABILITY.
16.1 Each of the parties to this Agreement hereby represents that it
is duly authorized and empowered to execute, deliver, and perform this Agreement
and that such actions do not conflict with or violate any provision of law,
rule, regulation, other legal requirement, contract or other instrument to which
it is a party or to which it is subject and that this Agreement constitutes a
valid and binding obligation, inuring to the benefit of the Manager and the
Sub-Adviser and their respective successors, enforceable in accordance with its
terms.
16.2 If any provision of this Agreement shall be held or made invalid
or unenforceable by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby and any such invalid or
unenforceable provision shall be deemed to be replaced with a valid and
enforceable provision that most closely reflects the intention of the parties.
17. APPLICABLE LAW. To the extent that state law is not preempted by the
provisions of any law of the United States heretofore or hereafter enacted, as
the same may be amended from time to time, this Agreement shall be administered,
construed and enforced according to the laws of the State of Minnesota.
18. NOTICES. All notices hereunder shall be in writing and shall be
delivered in person or by facsimile (followed by delivery in person) to the
parties at the addresses set forth below:
If to the Manager: Fortis Advisers, Inc.
000 Xxxxxxxxxx Xxxxx
Xx. Xxxx, XX 00000
Fax #: (000) 000-0000
Attn: Legal Department
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If to the Sub-Adviser: Xxxxxx Associates, Inc.
000 Xxxxxxxxxx Xxxxxxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxx
Fax #: (000) 000-0000
or such other name or address as may be given in writing to the other party.
Unless specifically provided elsewhere, notice given as provided above shall be
deemed to have been given, if by personal delivery, on the day of such delivery,
and if by facsimile and mail, on the date on which such facsimile is sent.
19. EXECUTION. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers.
Attest: FORTIS ADVISERS, INC.
/s/ Xxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------- --------------------------
Xxxx X. Xxxx Xxxxx X. Xxxxxxx
2nd Vice President Vice President
Attest: XXXXXX ASSOCIATES INC.
/s/ X. X. Xxx By: /s/ Xxxxxx X. Xxxxx
--------------------------- --------------------------
X. X. Xxx Xxxxxx X. Xxxxx
Senior Vice President and Secretary President
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EXHIBIT A
EXAMPLES OF THE ROUTINE ACCOUNTING AND OPERATIONAL
INFORMATION AND DOCUMENTATION REQUIREMENTS
OF THE PORTFOLIO TO BE SATISFIED BY THE SUB-ADVISER
The following information is to be provided to:
Fortis Series Fund, Inc.
ATTN: Fund Accounting
X.X. Xxx 00000
Xx. Xxxx, XX 00000
FAX: (000) 000-0000
PHONE: (000) 000-0000, 5517 or 5369
1. DOCUMENTATION OF TRADES. On a trade date plus one basis, via facsimile, a
listing of that day's executed trades and copies of the trade tickets for those
trades. At the end of each week, by mail, hard copies of documentation for that
week's executed trades. The signature or initials of the portfolio manager or
duly authorized officer or employee of the Sub-Adviser should be placed on the
trade tickets to validate the authenticity of the trading information. On a
weekly basis, with respect to trades for which no DTC affirmation is available,
hard copies of broker confirmations for such trades.
2. PORTFOLIO HOLDINGS. On a monthly basis, via facsimile, a list of the
Portfolio's holdings. The list should include the following information, for
each of the Portfolio's holdings, where applicable: long description,
cusip/sedol number, maturity date, par/principal amounts, market value, market
price, coupon rate and bond rating.
3. SECURITY PRICING. On a daily basis, by telephone or facsimile:
(i) upon request by the Company, review with the Company's Fund Accounting
Department (the "Department") the prices of the Portfolio's securities, which
shall be provided by the Department; (ii) inform the Department any material
disagreement with such prices; (iii) provide the Department with the basis for
any disagreement it may have with respect to a particular security's price and
its opinion (along with outside broker quotes) as to what that security's price
should be; and (iv) in any instance where the pricing services utilized by the
Department do not provide a price for a security held by the Portfolio, provide
the Department with the reasonable assistance necessary for them to determine a
price for such security.
A-1
