SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement")
made this day of , 2003 by and between GW Capital Management, LLC, doing
business as Maxim Capital Management, LLC, a Colorado limited liability company
registered as an investment adviser under the Investment Advisers Act of 1940
(the "Adviser"), Federated Investment Management Company, a business trust
organized under the laws of the State of Delaware, registered as an investment
adviser under the Investment Advisers Act of 1940 (the "Sub-adviser"), and Maxim
Series Fund, Inc., a Maryland corporation ("the Fund"), this Agreement embodying
the arrangement whereby the Sub-adviser will act as an investment adviser to the
portfolios of the Fund (the "Portfolios") listed in Schedule A attached hereto
and commencing on the dates specified therein, as such Schedule may be amended
from time to time by mutual written agreement, in conjunction with the Adviser,
as follows:
ARTICLE I
Preamble
The Fund entered into an Investment Advisory Agreement with the
Adviser, a copy of which has been provided to the Sub-adviser. This advisory
agreement and all amendments thereto are hereinafter referred to as the "MCM
Agreement". In the MCM Agreement, the Adviser agreed to act as adviser to and
manager of the Fund. In that capacity it agreed to manage the investment and
reinvestment of the assets of any portfolio of the Fund in existence or created
in the future and to administer the Fund's affairs. The Adviser wishes to obtain
assistance with respect to its aforesaid advisory and management role with
respect to the Portfolios only to the extent described herein, and the Fund by
this Agreement agrees to such arrangement.
ARTICLE II
Duties of the Sub-adviser
The Adviser hereby employs and authorizes the Sub-adviser to act as an
investment subadviser to and manager of the Portfolios, and, subject to the
periodic review of the Board of Directors of the Fund (the "Board"), to, in
accordance with the terms and conditions of this Agreement, manage the
investment and reinvestment of the assets of the Portfolios and to administer
its affairs, for the period and on the terms and conditions set forth in this
Agreement. The Sub-Adviser may perform its day-to-day investment subadvisory
services under this Agreement in its discretion and without prior consultation
in accordance with this Agreement (including, without limitation, the documents
referred to in Section B below). The Sub-adviser hereby accepts such employment
and agrees during such period, at its own expense (as provided in Section B of
Article III below), to render the services and to assume the obligations herein
set forth for the compensation provided for herein. The discretion granted to
Sub-adviser under this Agreement includes the authority to execute and deliver,
and take any other required actions with respect to, such instruments,
agreements and other documents, as agent and attorney-in-fact, in the name of
and for or on behalf of the Adviser, the Portfolios and/or the Fund as
Sub-adviser determines are necessary in connection with the investment and
reinvestment of the assets of the Portfolios and the performance of its other
services and obligations under this Agreement. Unless otherwise expressly
provided or authorized by this Agreement or otherwise, the Sub-adviser shall for
all purposes herein be deemed to be an independent contractor and shall have no
authority to act for or represent the Fund in any way or otherwise be deemed an
agent of the Fund.
A. Investment Sub-Advisory Services. In carrying out its obligations in
managing the investment and reinvestment of the assets of the Portfolios, the
Sub-adviser shall, when appropriate and consistent with the limitations set
forth in Section B hereof:
(a) perform research and obtain and evaluate pertinent
economic, statistical, and financial data relevant to the investment
policies of the Portfolios;
(b) initially and on a periodic basis thereafter, consult with
the Adviser and with the Board and furnish to the Adviser and the board
recommendations with respect to an overall investment plan for the
Portfolios;
(c) seek out specific investment opportunities for the
Portfolios consistent with an overall investment plan approved by the
Adviser and the Board;
(d) take such steps as are reasonably necessary to implement
any overall investment plan approved by the Board for the Portfolios,
including making and carrying out decisions to acquire or dispose of
permissible investments as set forth in the Fund's Registration
Statement, management of investments and any other property of the
Portfolios and providing or obtaining such services as may be
reasonably necessary in managing, acquiring or disposing of
investments, consulting as appropriate with the Adviser;
(e) regularly report to the Adviser and the Board with respect
to investment related activity within the Portfolios (including, but
not limited to, purchases, sales and contractual commitments), the
implementation of any approved overall investment plan and any other
activities in connection with management of the assets of the
Portfolios;
(f) communicate as appropriate to the Adviser adequate and
timely information on investment related activity within the
Portfolios, including, but not limited to, purchases, sales and
contractual commitments;
(g) arrange with the applicable broker, dealer, bank, futures
commission merchant or other firm dealing in securities at the time of
the purchase or sale of investments or other assets of the Portfolios
for the appropriate delivery of the investment or other asset (it being
understood that, consistent with Article IX below, Sub-adviser shall
not be responsible for delivery or liable for the acts and omissions of
any such parties) ;
(h) report monthly in writing to the Adviser and report at
least annually in person to the Board with respect to the
implementation of the approved investment plan and any other activities
in connection with management of the Portfolios;
(i) maintain all records, memoranda, instructions or
authorizations relating to the acquisition or disposition of
investments or other assets of the Portfolios required under applicable
law or this Agreement to be maintained by Sub-adviser (it being
understood that Sub-adviser does not retain, and shall not be
responsible for maintaining, broker confirmations or statements);;
(j) arrange with the Adviser a reasonable administrative
process which permits the Adviser to appropriately reflect in its daily
determination of unit values, the transactions, positions and
obligations of the Portfolios resulting from the investment management
services provided to the Portfolios; and
(h) unless otherwise directed by the Adviser or the Fund in
writing, vote all shares held by the Portfolios. Adviser shall from
time to time provide Sub-Adviser with such reasonable documentation of
Adviser's acceptance of Sub-Adviser's proxy voting policies and
guidelines as Sub-Adviser may reasonably request.
In connection with the rendering of the services required to be
provided by the Sub-adviser under this Agreement, the Sub-adviser may, to the
extent it deems appropriate and subject to compliance with the requirements of
applicable laws and regulations, and upon receipt of written approval of the
Fund (if required under applicable law), make use of its affiliated companies,
if any, and their employees; provided that the Sub-adviser shall supervise and
remain fully responsible for all such services in accordance with and to the
extent provided by this Agreement.
It is understood that any information or recommendation supplied by the
Sub-adviser in connection with the performance of its obligations hereunder is
to be regarded as confidential and for use only by the Adviser in connection
with the Portfolios.
The Adviser will continue to provide all of the services described in
the MCM Agreement other than the services described herein which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolios would be
benefited by supplemental investment research from other persons or entities,
outside the context of brokerage transactions referred to in Article IV hereof,
the Sub-adviser is authorized to obtain, and pay at its own expense, for such
information.
B. Limitations on Advisory Services. The Sub-adviser shall perform the
services under this Agreement, subject to the periodic review of the Adviser and
the Board, and in a manner consistent with the investment objectives, policies,
and restrictions of the Portfolios and/or Fund as stated in its Registration
Statement, as amended from time to time, filed with the Securities and Exchange
Commission, its Articles of Incorporation and Bylaws, as amended from time to
time and the other documents (as applicable) identified on Schedule C hereto and
provided to or in the possession of Sub-adviser (it being understood that
certain of such documents may already be in Sub-adviser's possession) and the
provisions of the Investment Company Act of 1940, as amended.
The Fund has furnished or will furnish the Sub-adviser with copies of
the Fund's Registration Statement, Prospectus, Articles of Incorporation, and
Bylaws as currently in effect and agrees during the continuance of this
Agreement to furnish the Sub-adviser with copies of any amendments or
supplements thereto before or at the time the amendments or supplements become
effective. The Sub-adviser will be entitled to rely on all documents furnished
by the Adviser or the Fund, or any agent of the Adviser or the Fund.
The Adviser and the Fund hereby acknowledge that Sub-adviser is not
responsible for pricing portfolio securities and will rely on the pricing
services utilized by the Adviser.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee. The Adviser, and not the Fund, will pay
monthly compensation to the Sub-adviser for the services rendered by the
Sub-adviser with respect to the Portfolios, as described in Schedule B attached
hereto, as such Schedule may be amended from time to time by mutual written
agreement, based on the average daily net assets of the Portfolios during each
month. Such payment will accrue daily and will be paid monthly to Sub-adviser on
or before the last business day of the next succeeding calendar month. If this
Agreement is terminated or expires, the payment shall be prorated to the
effective date of termination or expiration.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred by Sub-adviser in performing the services set forth in Article
II hereof. These expenses include only the costs incurred in providing
sub-advisory services pursuant to this Agreement (such as compensating and
furnishing office space for officers and employees of the Sub-adviser connected
with investment and economic research, trading, and investment management of the
Portfolio). As described in the MCM Agreement, the Fund and/or the Adviser pays
all other expenses incurred in the operation of the Portfolios and all of its
general administrative expenses. The Sub-adviser shall not be responsible for
the following expenses of the Adviser or the Fund: organization and offering
expenses of the Fund (including out-of-pocket expenses, but not including the
Sub-adviser's overhead and employee costs); fees payable to the Sub-adviser and
to any other Fund advisers or consultants; legal expenses; auditing and
accounting expenses; interest expenses; telephone, telex, facsimile, postage and
other communications expenses; taxes and governmental fees; fees, dues and
expenses incurred by or with respect to the Fund in connection with membership
in investment company trade organizations; fees and expenses of the Fund's
Administrator or of any transfer agent, registrar, or dividend disbursing agent
of the Fund; payments to the Administrator for maintaining the Fund's financial
books and records and calculating its daily net asset value; other payments for
portfolio pricing or valuation services to pricing agents, accountants, bankers
and other specialists, if any; expenses of preparing share certificates; other
expenses in connection with the issuance, offering, distribution or sale of
securities issued by the Fund; expenses relating to investor and public
relations; expenses of registering and qualifying shares of the Fund for sale;
freight, insurance and other charges in connection with the shipment of the
Fund's portfolio securities; brokerage commissions, xxxx-ups, ticket charges,
transfer taxes, custodian fees or other costs of acquiring or disposing of any
portfolio securities or other assets of the Fund, or of entering into other
transactions or engaging in any investment practices with respect to the Fund;
expenses of printing and distributing prospectuses, Statements of Additional
Information, reports, notices and dividends to stockholders; costs of stationery
or other office supplies; any litigation expenses; and costs of stockholders'
and other meetings.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolios, subject to the provisions of Article II, and to place
orders pursuant to its determinations, either directly with the issuer, with any
broker dealer or underwriter that specializes in the securities for which the
order is made, or with any other broker, dealer, bank, futures commission
merchant or other firm dealing in securities selected by the Sub-adviser,
subject to the following limitations.
The Sub-adviser is authorized to select the brokers, dealers, banks,
futures commission merchants or other firms dealing in securities that will
execute the purchases and sales of portfolio securities for the Portfolios.
Sub-adviser will use its best efforts to seek to obtain execution of
transactions for the Portfolios at prices and rates that are reasonable in
relation to the services received, taking into account all appropriate factors,
including, without limitation, price, dealer spread or commission, if any, size
of the transaction, and difficulty of the transaction.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause the Fund to pay a member of a securities exchange or any other securities
broker, dealer, bank, futures commission merchant or other firm dealing in
securities an amount of commission for effecting a securities transaction in
excess of the amount of commission another member of an exchange, broker,
dealer, bank, futures commission merchant or other firm dealing in securities
would have charged for effecting that transaction, if the Sub-adviser determines
in good faith that such amount of commission is reasonable in relation to the
value of the brokerage and research services (as such services are defined in
Section 28(e) of the Securities Exchange Act of 1934) provided by such member,
broker, dealer, bank, futures commission merchant or other firm dealing in
securities viewed in terms of either that particular transaction or the
Sub-adviser's over-all responsibilities with respect to the accounts as to which
it exercises investment discretion (as that term is defined in Section 3(a)(35)
of the Securities Exchange Act of 1934). The Sub-adviser shall regularly report
to the Adviser and the Board with respect to brokerage commissions incurred by
the Portfolios for the purchases and sales of its portfolio securities. The
Adviser and the Board will review the amount of such brokerage commissions and
consult with the Sub-adviser in that regard.
Subject to the above requirements, and compliance with the provisions
of the Investment Company Act of 1940, the Securities and Exchange Act of 1934,
other applicable provisions of law, and the terms of any exemption(s) therefrom,
nothing shall prohibit the Sub-adviser from selecting brokers, dealers, banks,
futures commission merchants or other firms dealing in securities with which it
or the Fund are affiliated.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Fund under this Agreement are
not to be deemed exclusive and the Sub-adviser will be free to render similar
services or other services to other advisers, investment companies and other
types of clients so long as the Sub-adviser fulfills its rights and obligations
under this Agreement.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolios in providing investment
advice to its other investment advisory accounts. The Sub-adviser or its
affiliates may use such information in managing their own accounts. Conversely,
such supplemental information obtained by the Sub-adviser for the benefit of the
Sub-adviser or other entities advised by the Sub-adviser may be considered by
and may be useful to the Sub-adviser in carrying out its obligations to the
Fund.
Securities held by the Portfolios may also be held by separate accounts
or other mutual funds for which the Sub-adviser or its affiliates act as an
adviser or sub-adviser, or by the Sub-adviser or its affiliates. Because of
different investment objectives or other factors, a particular security may be
bought by the Sub-adviser or its affiliates or for one or more clients when one
or more clients are selling the same security. If purchases or sales of
securities for the Portfolios or other entities for which the Sub-adviser or its
affiliates act as investment adviser or sub-adviser or for their advisory
clients arise for consideration at or about the same time, the Fund agrees that
the Sub-adviser may make transactions in such securities, insofar as feasible,
for the respective entities and clients in a manner deemed equitable to all. To
the extent that transactions on behalf of more than one client of the
Sub-adviser during the same period may increase the demand for securities being
purchased or the supply of securities being sold, the Fund recognizes that there
may be an adverse effect on price.
It is agreed that, on occasions when the Sub-adviser deems the purchase
and sales of a security to be in the best interest of the Portfolios as well as
other accounts, companies or clients, it may, to the extent permitted by and
consistent with applicable laws and regulations, but will not be obligated to,
aggregate the securities to be so sold or purchased for other accounts,
companies or clients in order to obtain favorable execution and low brokerage
commissions. In that event, allocation of the securities purchased or sold, as
well as the expenses incurred in the transaction, will be made by the
Sub-adviser, in the manner it considers to be most equitable and consistent with
its and its affiliates' fiduciary obligations to the Portfolios and to such
other accounts, companies or clients. The Adviser and Fund recognize that in
some cases this procedure may adversely affect the size of the position
obtainable for the Portfolios.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as hereunder) unless and until (a) it is approved by the Board of
the Fund including a majority of directors who are not parties to this Agreement
or interested persons of any such party to this Agreement, and by a majority of
the shareholders of each of the Portfolios, (b) receipt by Sub-adviser of
complete copies of all policies procedures, guidelines, and codes listed under
the heading "Fund's Documents" on Schedule C to this Agreement; and, (c) receipt
by Adviser of complete copies of all policies, procedures, guidelines, codes and
other documents listed under the heading "Sub-adviser documents" on Schedule C
to this Agreement.
ARTICLE VII
Term of the Agreement; Amendment
The Agreement shall remain in effect until two years from the date
first above-written and shall continue, subject to the parties' termination
rights set forth herein, so long as such continuance is annually approved
thereafter (a) by the vote of a majority of the Board of the Fund, or by vote of
a majority of the outstanding shares of each of the Portfolios, and (b) by the
vote of a majority of the members of the Board, who are not parties to this
Agreement or interested persons of any such party, cast in person at a meeting
called for the purpose of voting on such approval. In connection with such
approvals, the Board shall request and evaluate, and the Sub-adviser shall
furnish, such information as may be reasonably necessary to evaluate the terms
of this Agreement. This Agreement:
(a) shall not be terminated by the Sub-adviser without sixty days
prior written notice to the Adviser and the Fund;
(b) shall be subject to termination, without the payment of any
penalty, by the Board or by vote of a majority of the
outstanding voting securities of each of the Portfolios, on
sixty days prior written notice to the Sub-adviser;
(c) may be amended only by a written instrument signed by the
Fund, the Adviser and the Sub-adviser; provided that no
material amendment of this Agreement shall be effective
without specific approval of such amendment by (I) the Board,
including a majority of those directors who are not parties to
this Agreement or interested persons of such a party, cast in
person at a meeting called for the purpose of voting on such
approval, and (ii) a majority of the outstanding shares of
each of the Portfolios; and
(d) shall automatically terminate upon assignment by either party
or upon the termination of the MCM Agreement.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolios shall be the property of the Fund and that it will surrender
promptly to the designated officers of the Fund any or all such accounts and
records upon request; provided that Sub-adviser shall be entitled to retain
copies of such records in its files to the extent that Sub-adviser determines
that such records are necessary to comply with the rules and regulations of the
Securities and Exchange Commission or other applicable provisions of state or
federal law. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission and consistent with its customary policies and procedures all such
records as are required to be maintained pursuant to said rules. The Sub-adviser
also agrees that it will maintain all records and accounts regarding the
investment activities of the Fund in a confidential manner and consistent with
its customary policies and procedures; provided, however, that the Sub-adviser
may make such records and accounts available to its legal counsel, independent
auditors and regulators or as otherwise required by applicable law. All such
accounts or records shall be made available, within five (5) business days of
the reasonable request, to the Fund's accountants or auditors during regular
business hours at the Sub-adviser's offices upon reasonable prior written
notice; provided, however, that the Sub-adviser shall be permitted to keep such
records or copies thereof for such periods of time as are necessary to comply
with the rules and regulations of the Securities and Exchange Commission or
other applicable provisions of state or federal law. In addition, the
Sub-adviser will provide any materials, reasonably related to the investment
sub-advisory services provided hereunder, as may be reasonably requested in
writing by the directors or officers of the Fund or as may be required by any
governmental agency or self-regulatory organization having jurisdiction.
Notwithstanding the foregoing, it is understood that Sub-adviser does not
retain, and shall not be responsible for maintaining, broker confirmations or
statements.
The Adviser agrees to maintain all records in connection with this
Agreement and the MCM Agreement, and its obligations and services rendered
thereunder, as and for such time period required by applicable law, including
without limitation the rules and regulations of the Securities and Exchange
Commission, and consistent with its customary policies. The Adviser agrees to
make such records, or copies thereof, available to Sub-adviser upon reasonable
prior request. This record obligation shall survive termination or expiration of
this Agreement.
The Adviser will notify Sub-adviser of any material change in any of
the documents listed under the heading "Fund's Documents" on Schedule C to this
Agreement and will promptly provide Sub-adviser with copies of any such modified
document. The Adviser also will provide Sub-adviser with a list, to the best of
Adviser's knowledge, of all affiliated persons of Adviser (and any affiliated
person of such an affiliated person) and will promptly update the list whenever
the Adviser becomes aware of any additional affiliated persons.
Any reports to be provided by Sub-adviser under this Agreement shall be
in a form as may be mutually agreed upon by Sub-adviser, Adviser and the Fund.
ARTICLE IX
Liability of the Sub-adviser
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties on the part of the Sub-adviser or
its officers, directors, employees, controlling persons, shareholders, and any
other person or entity affiliated with the Sub-adviser, neither the Sub-adviser
nor any of its officers, directors, employees, controlling persons, shareholders
or any other person or entity affiliated with the Sub-adviser shall be subject
to liability to the Fund or to any shareholder or the Adviser for any act or
omission in the course of, or connected with, rendering services pursuant to
this Agreement, including without limitation any error of judgment or mistake of
law or for any loss suffered by the Fund or any shareholder in connection with
the matters to which this Agreement relates. The federal securities laws impose
liabilities under certain circumstances on persons who act in good faith and,
therefore, nothing herein shall in any way constitute a waiver or limitation of
any rights which the Fund or any shareholder of the Fund may have under any
federal securities laws. The Sub-adviser shall not be liable for the acts and
omissions of any independent contractor used by it nor for those of any bank,
trust company, custodian, broker, dealer, futures commission merchant, other
firm dealing in securities or other person with whom or into whose hands any
monies, shares of the Fund, or securities and investments may be deposited or
come into possession, pursuant to the provisions of this Agreement.
The Adviser and the Fund are hereby expressly put on notice of the
limitation of liability as set forth in the Declaration of Trust of Sub-adviser
and agree that the obligations assumed by Sub-adviser pursuant to this Agreement
will be limited in any case to Sub-adviser and its assets and the Adviser and
the Fund shall not seek satisfaction of any such obligation from the
shareholders of Sub-adviser, the trustees of Sub-adviser, officers, employees or
agents of Sub-adviser, or any of them.
ARTICLE X
Indemnification
Subject to Article IX, the Sub-adviser agrees and undertakes to hold
the Adviser harmless and to indemnify and protect the Adviser from and against
any and all lawsuits or other claims brought against the Adviser, and any
related losses, damages, liabilities and expenses (including reasonable costs of
investigation and reasonable attorney's fees) paid, incurred or suffered by
Adviser, as a result of the activities of the Sub-adviser (or omissions by the
Sub-adviser in carrying out its obligations) under this Agreement, including the
activities (or omissions) of the Sub-adviser's officers and directors, agents,
employees, controlling persons, shareholders, and any other person or entity
affiliated with the Sub-adviser or retained by it to perform or assist in the
performance of its obligations under this Agreement; provided, however, that in
no event is Sub-adviser's indemnity in favor of Adviser deemed to protect
Adviser against any liability to which the Adviser would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations or
duties under this Agreement or the MCM Agreement.
The Adviser agrees and undertakes to hold the Sub-adviser harmless and
to indemnify and protect the Sub-adviser from and against any and all lawsuits
or other claims brought against the Sub-adviser, and any related losses,
damages, liabilities and expenses (including reasonable costs of investigation
and reasonable attorney's fees) paid, incurred or suffered by Sub-adviser, as a
result of (a) the activities of the Adviser (or omissions by the Adviser in
carrying out its obligations) under this Agreement or the MCM Agreement,
including the activities (or omissions) of the Adviser's officers, directors,
agents, employees, controlling persons, shareholders, and any other person or
entity affiliated with the Adviser or retained by it to perform or assist in the
performance of its obligations under this Agreement or the MCM Agreement; or (b)
any action or omission by Sub-adviser taken or not taken (i) in reliance on
incomplete, obsolete or inaccurate information, records or documents provided by
the Adviser or the Fund, or any agent of the Adviser or the Fund or (ii) at the
direction of Adviser or the Fund, or any agent of the Adviser or the Fund;
provided, however, that in no event is Adviser's indemnity in favor of
Sub-adviser deemed to protect Sub-adviser against any liability to which the
Sub-adviser would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations or duties under this Agreement.
The agreements contained in this Article X shall remain operative and
in full force and effect for applicable statutes of limitation periods
regardless of (a) any investigation made by or on behalf of Sub-adviser or
Adviser, or (b) any termination or expiration of this Agreement.
ARTICLE XI
Agreements, Representations and Indemnification Related to
Disclosure Documents; Additional Representations, Warranties and Agreements
A. The Sub-adviser will reasonably cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolios for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may reasonably request and will reasonably cooperate with the
preparation of the Disclosure Documents (as defined in Section C of Article XI
below). The Fund and the Adviser will provide the Sub-adviser with copies of all
Disclosure Documents at least 10 days prior to distribution to investors or
submission to governmental bodies or self-regulatory organizations and will
incorporate its reasonable comments relating to the description of, or services
to be provided by, the Sub-adviser or its affiliates, or relating to the
description of the investment objectives and policies of the Portfolios.
B. The Fund and the Adviser, jointly and severally, represent and
warrant to the Sub-adviser that the Disclosure Documents will fully comply with
the provisions of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the Investment Company Act of 1940, as
amended, and other applicable laws, and the Disclosure Documents at all such
times will not knowingly contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and warranty
does not apply to statements or omissions in the Disclosure Documents made in
reliance upon information furnished to the Fund or the Adviser in writing by the
Sub-adviser which the Fund had informed the Sub-adviser was to be used in the
particular Disclosure Document. The Fund and the Adviser will notify the
Sub-adviser promptly after Adviser has actual knowledge and becomes aware of the
happening of any event which in the judgment of the Fund or the Adviser makes
any statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Fund and the
Adviser need not make such notification with respect to information in the
Disclosure Documents based upon information furnished in writing to the Fund or
the Adviser by the Sub-adviser which the Fund had informed the Sub-adviser was
to be used in the particular Disclosure Document.
The Sub-adviser represents and warrants to the Fund and the Adviser
that the information furnished in writing by it which the Fund has informed it
is to be used in a particular Disclosure Document, will not knowingly contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading as
required by the provisions of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Investment Company Act of 1940,
as amended, and other applicable laws. The Sub-adviser will notify the Fund and
the Adviser promptly after Sub-adviser has actual knowledge and becomes aware of
the happening of any event which in the judgment of the Sub-adviser makes any
statement made in the Disclosure Documents untrue in any material respect or
requires the making of any changes in the Disclosure Documents in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading in any material respect, except that the Sub-adviser need
only make such notification with respect to information in the Disclosure
Documents based upon information furnished in writing to the Fund or the Adviser
by the Sub-adviser which the Fund had informed the Sub-adviser was to be used in
the particular Disclosure Statement.
C. Notwithstanding any provision in Article X to the contrary, the Fund
and the Adviser, jointly and severally, agree to hold harmless the Sub-adviser,
its directors and officers, and each person, if any, who controls the
Sub-adviser within the meaning of either Section 15 of the Securities Act of
1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended (each such person a "Sub-adviser Indemnified Party"), from and against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable attorney's fees) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the Fund's Registration Statement or Prospectus, or any
amendment or supplement thereto, or in any preliminary prospectus, any other
communication with investors or any other submissions to governmental bodies or
self-regulatory agencies filed or distributed on or subsequent to the date first
above-written (such documents being herein referred to as "Disclosure
Documents") or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Fund or the Adviser by the Sub-adviser which the Fund had
informed the Sub-adviser was to be used, or which the Sub-adviser had
acknowledged was to be used, in the particular Disclosure Document.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against the Sub-adviser Indemnified Party in
respect of which indemnity may be sought from the Fund and the Adviser, the
Sub-adviser Indemnified Party shall promptly, after gaining actual knowledge and
becoming aware of such action or proceeding, notify the Fund and the Adviser in
writing, and the Fund and the Adviser shall assume the defense thereof,
including the employment of counsel satisfactory to the Sub-adviser and the
payment of all expenses. The Sub-adviser Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be the expense of the
Sub-adviser Indemnified Party unless (a) the Fund or the Adviser has agreed to
pay such fees and expenses or (b) the Fund or the Adviser shall have failed to
assume the defense of such action or proceeding and to employ counsel
satisfactory to the Sub-adviser in any such action or proceeding or (c) the
named parties to any such action or proceeding (including any impleaded parties)
include both the Sub-adviser Indemnified Party and the Fund or the Sub-adviser
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to any of them which are different from or
additional to those available to the Fund or the Adviser (in which case, if the
Sub-adviser Indemnified Party notifies the Fund and the Adviser in writing that
it elects to employ separate counsel at the expense of the Fund and the Adviser,
the Fund and the Adviser shall not have the right to assume the defense of such
action or proceeding on behalf of the Sub-adviser Indemnified Party), it being
understood, however, that the Fund and the Adviser shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Sub-adviser Indemnified Party, which firm shall be designated in writing by the
Sub-adviser. Neither the Fund nor the Adviser shall be liable for any settlement
of any such action or proceeding effected without their written consent, but if
settled with their written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Fund and the Adviser agree to
indemnify and hold harmless the Sub-adviser Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. It is understood
that neither the Fund nor the Adviser may settle on behalf of the Sub-adviser or
any Sub-adviser Indemnified Party without the consent of the Sub-adviser or such
Sub-adviser Indemnified Party, as the case may be.
Notwithstanding any provision in Article X to the contrary, the
Sub-adviser agrees to indemnify and hold harmless the Fund and the Adviser,
their directors and officers, and each person, if any, who controls the Fund or
the Adviser within the meaning of either Section 15 of the Securities Act of
1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended, to the same extent as the foregoing indemnity from the Fund and the
Adviser to the Sub-adviser, but only with respect to information furnished in
writing by it which the Fund had informed the Sub-adviser was to be used in the
particular Disclosure Document. In case any action or proceeding shall be
brought against the Fund or the Adviser, their directors or officers, or any
such controlling persons, in respect of which indemnity may be sought against
the Sub-adviser, the Sub-adviser shall have the rights and duties given to the
Fund and the Adviser, and the Fund or the Adviser, their directors or officers,
or such controlling persons shall have the rights and duties given to the
Sub-adviser, by the preceding paragraph.
D. The agreements, representations and indemnification contained in
Sections A, B and C of this Article XI shall remain operative and in full force
and effect for applicable statutes of limitation periods regardless of (a) any
investigation made by or on behalf of any Sub-adviser Indemnified Party or by or
on behalf of the Fund or the Adviser, its directors and officers, or any person
controlling the Fund or the Adviser or (b) any termination or expiration of this
Agreement.
E. Sub-adviser represents and warrants to Adviser and Fund as follows:
(1) Sub-adviser is a business trust duly organized, validly existing, and in
good standing under the laws of the State of Delaware; (2) This Agreement
constitutes the legal, valid, and binding obligation of Sub-adviser, enforceable
against Sub-adviser in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium or similar laws affecting
the rights of contract counterparties' generally, general principles of equity
or public policy. Sub-adviser has the absolute and unrestricted right, business
trust power, and business trust authority to execute and deliver this and to
perform its obligations under this Agreement; (3) Neither the execution and
delivery of this Agreement by Sub-adviser nor the performance of any of its
obligations hereunder will give any person the right to prevent, delay, or
otherwise interfere with the performance of such obligations pursuant to: (a)
any provision of Sub-adviser's Declaration of Trust or By-Laws, (b) any
resolution adopted by the board of trustees or the shareholders of Sub-adviser,
(c) any law, regulation or administrative or court order to which Sub-adviser
may currently be subject, or (d) any contract to which Sub-adviser is a party or
by which Sub-adviser may be bound. Sub-adviser is not and will not be required
to obtain any consent from any person in connection with the execution and
delivery of this Agreement or the performance of any obligations hereunder; (4)
Sub-adviser is registered with the Securities and Exchange Commission as an
investment adviser under the Investment Advisers Act of 1940, as amended, and is
registered or licensed as an investment adviser under the laws of all
jurisdictions in which its activities require it to be so registered or
licensed, except where the failure to be so licensed would not have a material
adverse effect on its business; (5) Sub-adviser shall at all times operate in
compliance with the Investment Advisers Act of 1940, as amended; and (6)
Sub-adviser has furnished to the Adviser true and complete copies of all the
documents listed under the heading "Sub-adviser Documents" on Schedule C to this
Agreement.
F. The Adviser represents and warrants to Sub-adviser as follows: (1)
The Adviser is a limited liability company duly organized, validly existing, and
in good standing under the laws of the State of Colorado; (2) This Agreement
constitutes the legal, valid, and binding obligation of the Adviser, enforceable
against the Adviser in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, moratorium or similar laws affecting
the rights of contract counterparties' generally, general principles of equity
or public policy. The Adviser has the absolute and unrestricted right, limited
liability company power, and limited liability company authority to execute and
deliver this Agreement and to perform its obligations under this Agreement; (3)
Neither the execution and delivery of this Agreement or the MCM Agreement by the
Adviser nor the performance of any of its obligations hereunder will give any
person the right to prevent, delay, or otherwise interfere with the performance
of such obligations pursuant to: (a) any provision of the Adviser's Certificate
of Formation or limited liability company agreement, (b) any resolution adopted
by the board of managers/directors or the shareholders of the Adviser, (c) any
law, regulation or administrative or court order to which the Adviser may
currently be subject, or (d) any contract to which the Adviser is a party or by
which the Adviser may be bound. Except for the approval of the Board. the Fund's
shareholders as required by Section 15 of the Investment Company Act of 1940, as
amended, and the Adviser's Managers, the Adviser is not and will not be required
to obtain any consent from any person in connection with the execution and
delivery of this Agreement or the performance of any obligations hereunder; (4)
The Adviser is registered with the Securities and Exchange Commission as an
investment adviser under the Investment Advisers Act of 1940, as amended, and is
registered or licensed as an investment adviser under the laws of all
jurisdictions in which its activities require it to be so registered or
licensed, except where the failure to be so licensed would not have a material
adverse effect on its business; (5) Adviser shall at all times operate in
compliance with the Investment Advisers Act of 1940, as amended; and (6) The
Adviser has furnished to Sub-adviser true and complete copies of all the
documents listed under the heading "Fund's Documents" on Schedule C to this
Agreement.
G. The Fund represents and warrants to Sub-adviser as follows: (1) The
Fund is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Maryland; (2) This Agreement constitutes the
legal, valid, and binding obligation of the Fund, enforceable against the Fund
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting the rights of
contract counterparties' generally, general principles of equity or public
policy. The Fund has the absolute and unrestricted right, corporate power, and
corporate authority to execute and deliver this Agreement and to perform its
obligations under this Agreement; (3) Neither the execution and delivery of this
Agreement or the MCM Agreement by the Fund nor the performance of any of its
obligations hereunder will give any person the right to prevent, delay, or
otherwise interfere with the performance of such obligations pursuant to: (a)
any provision of the Fund's Articles of Incorporation or Bylaws, (b) any
resolution adopted by the board of directors or the shareholders of the Fund,
(c) any law, regulation or administrative or court order to which the Fund may
currently be subject, or (d) any contract to which the Fund is a party or by
which the Fund may be bound. Except for the approval of the Board, the Fund's
shareholders as required by Section 15 of the Investment Company Act of 1940, as
amended, and the Adviser's Managers, the Fund is not and will not be required to
obtain any consent from any person in connection with the execution and delivery
of this Agreement or the performance of any obligations hereunder; (4) The Fund
shall at all times operate in compliance with the Investment Company Act of
1940, as amended; and (5) The Fund is registered with the Securities and
Exchange Commission as an investment company under the Investment Company Act of
1940, as amended, and is registered or licensed as an investment company under
the laws of all jurisdictions in which its activities require it to be so
registered or licensed, except where the failure to be so licensed would not
have a material adverse effect on its business.
H. Neither the Adviser nor the Fund shall use Sub-adviser's name, or
any logo, trademark, service xxxx, or other intellectual property of Sub-adviser
in any manner during the term of this Agreement, except with the prior written
approval of Sub-adviser; provided, however, that in no case shall the Adviser or
Fund be required to submit any material for approval hereunder so long as the
use or description of such name(s), logo, trademark, service xxxx, or other
intellectual property has not been materially altered from any such material
previously approved by Sub-adviser, nor in those cases where the material is not
altered by the Adviser or Fund and is provided to them by a third party by or on
behalf of Sub-adviser. Neither the Adviser nor the Fund shall use Sub-adviser's
name, or any logo, trademark, service xxxx, or other intellectual property of
Sub-adviser in any manner after the termination or expiration of this Agreement,
except with the prior written approval of Sub-adviser. This restriction shall
survive termination or expiration of this Agreement.
ARTICLE XII
Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Colorado and the applicable provisions of the Investment Company Act of
1940, as amended, and the Investment Advisers Act of 1940, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder,
including such exemptions therefrom as the Securities and Exchange Commission
may grant, and other applicable federal law. As used with respect to the
Portfolios, the term "majority of the outstanding share" means the lesser of (i)
67% of the shares represented at a meeting at which more than 50% of the
outstanding shares are represented or (ii) more than 50% of the outstanding
shares. To the extent that the applicable laws of the State of Colorado conflict
with applicable provisions of the Investment Company Act of 1940, as amended, or
the Investment Advisers Act of 1940, as amended, or the rules and regulations
thereunder, such Acts, rules and regulations shall control.
ARTICLE XIII
Severability
If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
ARTICLE XIV
Counterparts
This Agreement may be executed in any number of counterparts, and by
separate parties hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument.
ARTICLE XV
Further Assurances
The parties agree (a) to furnish upon request to each other such
further information, (b) to execute and deliver to each other such other
documents, and (c) to do such other acts and things, all as the other party may
reasonably request for the purpose of carrying out the intent of this Agreement
and the documents referred to in this Agreement.
ARTICLE XVI
Waiver
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement or the documents
referred to in this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege.
ARTICLE XVII
Entire Agreement
This Agreement supersedes all prior agreements between the parties with
respect to its subject matter and constitutes (along with the documents referred
to in this Agreement) a complete and exclusive statement of the terms of the
agreement between the parties with respect to its subject matter.
ARTICLE XVIII
Section Headings; Construction
The headings of Articles and Sections in this Agreement are provided
for convenience only and will not affect its construction or interpretation. All
references to "Article" or "Articles" or "Section" or "Sections" refer to the
corresponding Article or Articles or Section or Sections of this Agreement. All
words used in this Agreement will be construed to be of such gender or number as
the circumstances require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
ARTICLE XIX
Assignment, Successors, and No Third-Party Rights
Subject to Section (4) of Article VII above, neither party may assign
any of its rights under this Agreement without the prior consent of the other
parties. Subject to the preceding sentence, this Agreement will apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their successors and permitted assigns.
ARTICLE XX
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon personal delivery, (b) on the first business day after receipted
delivery to a courier service that guarantees next business day delivery, under
circumstances in which such guaranty is applicable, (c) when sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (d) on the earlier of delivery or
three business days after mailing by United States certified mail, postage and
fees prepaid, to the appropriate party at the address set forth below, or to
such other address as the party so notifies the others in writing.
[Signature Page Follows]
[Signature Page to Sub-Advisory Agreement]
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officials duly authorized, as of the day and year first
above written.
Witness: GW CAPITAL MANAGEMENT, LLC
By:
Name: Name:
Title:
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Secretary
Facsimile No: 000-000-0000
Witness: MAXIM SERIES FUND, INC.
By:
Name: Name:
Title:
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Secretary
Facsimile No: 000-000-0000
Witness: FEDERATED INVESTMENT MANAGEMENT COMPANY
By:
Name: Name:
Title:
By:
Name:
Title:
Address: Federated Investment Management
Company
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxx
Facsimile No: (000) 000-0000
Schedule A
Maxim Federated Bond Portfolio
Schedule B
Assets Basis Points
$0 - 100 million 0.15%
$100 - $250 million 0.12%
$250 million and over 0.10%
Schedule C
Fund Documents
1. Copies of any financial statements or reports made by the Portfolios to its
shareholders or to any governmental body or securities exchange.
2. All policies, procedures, guidelines and codes adopted by the Board under
the Investment Company Act of 1940, as amended, or any regulation
thereunder, including (as applicable):
o Rule 10f-3 (relating to affiliated underwriting syndicates),
o Rule 17a-7 (relating to interfund transactions),
o Rule 17e-1 (relating to transactions with affiliated Brokers), and
o Rule 17j-1 (relating to a code of ethics)
3. Copies of any SEC exemptive orders applicable to the Portfolios promptly
after such exemptive orders become applicable to the Portfolios..
4. All procedures and guidelines adopted by the Board regarding: o Repurchase
agreements, and
o Evaluating the liquidity of securities, including restricted
securities, municipal leases and stripped U.S. government securities
5. Any master agreements that the Fund has entered into on behalf of the
Portfolios, including:
o Master Repurchase Agreement,
o Master Futures and Options Agreements,
o Master Foreign Exchange Netting Agreements, and
o Master Swap Agreements.
6. CFTC Rule 4.5 letter.
7. Pricing and performance calculation entities and contact persons.
Sub-adviser's Documents
1. Part II of Sub-adviser's Form ADV most recently filed with the SEC.
2. Procedures and checklists required by the following exemptive rules and
orders under the Investment Company Act of 1940, as amended:
o Rule 10f-3 (relating to affiliated underwriting syndicates),
o Rule 17a-7 (relating to interfund transactions),
o Rule 17e-1 (relating to transactions with affiliated Brokers),
o Rule 17j-1 (relating to a code of ethics), and
o Release Nos. IC-16602 and IC-19816 (granting an exemption for
certain transactions with affiliated banks)
