Draft 9/6/01
INVESTMENT SUBADVISORY AGREEMENT
By and Among
Lutheran Brotherhood
and
LB Series Fund, Inc.
and
Fidelity Management & Research Company
INVESTMENT SUBADVISORY AGREEMENT, made as of the ___ day of ________, 200_,
(the "Effective Date") by and among Lutheran Brotherhood, a fraternal
benefit society organized and existing under the laws of the State of
Minnesota ("Adviser"), LB Series Fund, Inc., a corporation organized and
existing under the laws of the State of Minnesota ("Fund"), and Fidelity
Management & Research Company, a corporation organized and existing under
the laws of the State of Delaware ("Subadviser").
WHEREAS, Adviser has entered into an Investment Advisory Agreement dated as
of the ____ day of _________, 200_ ("Advisory Agreement") with the Fund,
which is engaged in business as an open-end investment company registered
under the Investment Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Fund is authorized to issue shares of the FI All Cap Portfolio
("Portfolio"), a separate series of the Fund; and
WHEREAS, Subadviser is engaged principally in the business of rendering
investment supervisory management services and is registered as an
investment adviser under the Investment Advisers Act of 1940, as amended
("Advisers Act"); and
WHEREAS, the Fund and Adviser desire to retain Subadviser as subadviser to
furnish certain investment advisory services to Adviser and the Portfolio
and Subadviser is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual promises herein
set forth, the parties hereto agree as follows:
I. Appointment. (A) Adviser hereby appoints Subadviser as its
investment subadviser with respect to the Portfolio for the period
and on the terms set forth in this Agreement, and (B) Subadviser
hereby accepts such appointment and agrees to render the services
herein set forth, for the compensation herein provided.
II. Additional Series. In the event that the Fund establishes one or
more series of shares other than the Portfolio with respect to which
Adviser desires to retain Subadviser to render investment advisory
services hereunder, Adviser shall so notify Subadviser in writing,
indicating the advisory fee to be payable with respect to the
additional series of shares. If Subadviser is willing to render
such services on the terms provided for herein, it shall so notify
Adviser in writing, whereupon such series shall become a Portfolio
hereunder.
III. Duties of Subadviser.
A. Subadviser is hereby authorized and directed and hereby agrees
to (i) furnish continuously an investment program for the
Portfolio, and (ii) determine from time to time what investments
shall be purchased, sold or exchanged and what portion of the
assets of the Portfolio shall be held uninvested. Subadviser
shall perform these duties subject always to (1) the overall
supervision of Adviser and the Board of Directors of the Fund
(the "Board"), (2) the Fund's Articles and By-laws (as defined
below), as amended from time to time, (3) the stated investment
objectives, policies and restrictions of the Portfolio as set
forth in the Fund's then current Registration Statement (as
defined below), (4) any additional policies or guidelines
established by Adviser or Board that have been furnished in
writing to Subadviser, and (5) all applicable provisions of the
1940 Act, the Advisers Act, and the rules and regulations
thereunder. In advising the Portfolio, the Subadviser shall use
reasonable efforts to comply with Subchapters L and M of the
Internal Revenue Code of 1986, as amended (the "Code") . In
accordance with [Section VII], Subadviser shall arrange for the
execution of all orders for the purchase and sale of securities
and other investments for the Portfolio's account and will
exercise full discretion and act for the Fund in the same manner
and with the same force and effect as the Fund might or could do
with respect to such purchases, sales, or other transactions, as
well as with respect to all other things necessary or incidental
to the furtherance or conduct of such purchases, sales, or other
transactions, including without limitation, management of cash
balances in the Portfolio.
B. Subadviser shall have no responsibility with respect to
maintaining custody of the Portfolios assets. Subadviser shall
affirm security transactions with central depositories and
advise the custodian of the Portfolio ("Custodian") or such
depositories or agents as may be designated by Custodian and
Adviser promptly of each purchase and sale of a portfolio
security, specifying the name of the issuer, the description and
amount or number of shares of the security purchased, the market
price, the commission and gross or net price, the trade date and
settlement date and the identity of the effecting broker or
dealer. Subadviser shall from time to time provide Custodian
and Adviser with evidence of authority of its personnel who are
authorized to give instructions to Custodian.
C. Adviser acknowledges that Subadviser is not the compliance agent
for the Fund or for Adviser, and does not have access to all of
the Fund's books and records necessary to perform certain
compliance testing. To the extent that Subadviser has agreed to
perform the services specified in this Section hereof in
accordance with applicable law (including sub-chapters M and L
of the Code, the 1940 Act and the Advisers Act ("Applicable
Law")) and in accordance with the Fund's Articles of
Incorporation and By-laws, policies and determinations of the
Board and Adviser and the Fund's current Registration Statement
received by Subadviser (collectively, the "Charter
Requirements"), the Subadviser shall perform such services based
upon its books and records with respect to the Portfolio, which
comprise a portion of the Portfolio's books and records, and
upon written instructions received from the Fund, Adviser or the
Fund's administrator, and shall not be held responsible under
this Agreement so long as it performs such services in
accordance with this Agreement, the Charter Requirements and
Applicable Law based upon such books and records and such
instructions provided by the Fund, Adviser or the Fund's
administrator.
D. Unless Adviser advises Subadviser in writing that the right to
vote proxies has been expressly reserved to Adviser or the Fund
or otherwise delegated to another party, Subadviser shall
exercise voting rights incident to any securities held in the
Portfolio without consultation with Adviser or Fund, provided
that Subadviser will follow any written instructions received
from Adviser or Fund with respect to voting as to particular
issues. Subadviser shall further respond to all corporate
action matters incident to the securities held in the Portfolio
including, without limitation, proofs of claim in bankruptcy and
class action cases and shelf registrations.
E. Upon request of Custodian and/or Fund, Subadviser shall provide
assistance in connection with the determination of the fair
value of securities in the Portfolio for which market quotations
are not readily available and the parties to this Agreement
agree that the Subadviser shall not bear responsibility or
liability for the determination or accuracy of the valuation of
any portfolio securities and other assets of the Portfolio.
F. In the performance of its duties hereunder, Subadviser is and
shall be an independent contractor and except as expressly
provided for herein or otherwise expressly provided or
authorized shall have no authority to act for or represent the
Portfolio or the Fund in any way or otherwise be deemed to be an
agent of the Portfolio, the Fund or of Adviser.
IV. Compensation. For the services provided pursuant to this Agreement,
Subadviser shall receive an investment management fee as set forth
in Schedule 1, attached hereto and incorporated herein by reference.
The management fee shall be payable monthly in arrears to Subadviser
on or before the 10th day of the next succeeding calendar month. If
this Agreement becomes effective or terminates before the end of any
month, the investment management fee for the period from the
effective date to the end of such month or from the beginning of
such month to the date of termination, as the case may be, shall be
prorated according to the proration which such period bears to the
full month in which such effectiveness or termination occurs.
V. Expenses. Except for expenses specifically assumed or agreed to be
paid by Subadviser pursuant hereto, Subadviser shall not be liable
for any expenses of Adviser, the Fund or any Portfolio, including,
without limitation, (i) interest and taxes; (ii) brokerage
commissions and other costs in connection with the purchase or sale
of securities or other investment instruments with respect to the
Portfolio; and (iii) Custodian fees and expenses. Subadviser will
pay its own expenses incurred in furnishing the services to be
provided by it pursuant to this Agreement.
VI. Duties of Adviser. Adviser has furnished Subadviser with copies of
each of the following documents and will furnish to Subadviser at
its principal office all future amendments and supplements to such
documents, if any, as soon as practicable after such documents
become available:
A. The Articles of Incorporation of the Fund, as filed with the
State of Minnesota, as in effect on the date hereof and as
amended from time to time ("Articles");
B. The by-laws of the Fund as in effect on the date hereof and as
amended from time to time ("By-Laws");
C. Certified resolutions of the Board authorizing the appointment
of Adviser and Subadviser and approving the form of the Advisory
Agreement and this Agreement;
D. The Fund's Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended (the "1933 Act") on Form
N-1A, as filed with the Securities and Exchange Commission
("SEC") relating to the Portfolio and its shares and all
amendments thereto ("Registration Statement");
E. The Notification of Registration of the Fund under the 1940 Act
on Form N-8A as filed with the SEC and any amendments thereto;
F. The Portfolio's most recent prospectus (the "Prospectus");
G. Any proxy statements of the Fund sent to shareholders of the
Portfolio for the purpose of voting on matters affecting the
Portfolio; and
H. Copies of reports made by the Fund to its shareholders.
Adviser shall furnish Subadviser with any further documents,
materials or information that Subadviser may reasonably request to
enable it to perform its duties pursuant to this Agreement.
VII. Portfolio Transactions.
A. Subadviser agrees that, in executing portfolio transactions and
selecting brokers or dealers, if any, it shall use its best
efforts to seek on behalf of the Portfolio the best overall
terms available. In assessing the best overall terms available
for any transaction, Subadviser shall consider all factors it
deems relevant, including the breadth of the market in and the
price of the security, the financial condition and execution
capability of the broker or dealer, and the reasonableness of
the commission, if any, with respect to the specific transaction
and on a continuing basis. In evaluating the best overall terms
available, and in selecting the broker or dealer, if any, to
execute a particular transaction, Subadviser may also consider
the brokerage and research services (as those terms are defined
in Section 28(e) of the Securities Exchange Act of 1934, as
amended ("1934 Act")) provided to Subadviser with respect to the
Portfolio and/or other accounts over which Subadviser exercises
investment discretion. Subadviser may, in its discretion, agree
to pay a broker or dealer that furnishes such brokerage or
research services a higher commission than that which might
have been charged by another broker-dealer for effecting the
same transactions, if Subadviser determines in good faith that
such commission is reasonable in relation to the brokerage and
research services provided by the broker or dealer, viewed in
terms of either that particular transaction or the overall
responsibilities of Subadviser with respect to the accounts as
to which it exercises investment discretion (as such term is
defined under Section 3(a)(35) of the 1934 Act). Subadviser
shall, upon request from Adviser, provide such periodic and
special reports describing any such brokerage and research
services received and the incremental commissions, net price or
other consideration to which they relate.
B. In no instance will portfolio securities be purchased from or
sold to Subadviser, or any affiliated person thereof, except in
accordance with the federal securities laws and the rules and
regulations thereunder.
C. Subadviser may buy securities for the Portfolio at the same time
it is selling such securities for another client account and may
sell securities for the Portfolio at the time it is buying such
securities for another client account. In such cases, subject
to applicable legal and regulatory requirements, and in
compliance with such procedures of the Fund as may be in effect
from time to time, Subadviser may effectuate cross transactions
between the Portfolio and such other account if it deems this to
be advantageous. The Subadviser's affiliated broker/dealers may
effectuate cross transactions between the Portfolio and its
customers in accordance with such procedures of the Fund as may
be in effect from time to time.
D. On occasions when Subadviser deems the purchase or sale of a
security to be in the best interest of the Fund as well as other
clients of Subadviser, Subadviser, to the extent permitted by
applicable laws and regulations, may, but shall be under no
obligation to, aggregate the securities to be purchased or sold
to attempt to obtain a more favorable price or lower brokerage
commissions and efficient execution. In such event, allocation
of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by Subadviser in the
manner Subadviser considers to be the most equitable and
consistent with its fiduciary obligations to the Fund and to its
other clients.
VIII. Ownership of Records. Subadviser shall maintain all books and
records required to be maintained by a sub-investment adviser of a
registered investment company pursuant to the 1940 Act and the rules
and regulations promulgated thereunder with respect to transactions
on behalf of the Portfolio. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, Subadviser hereby agrees (A) that all
records that it maintains for the Portfolio are the property of the
Fund, (B) to preserve for the periods prescribed by Rule 31a-2 under
the 1940 Act any records that it maintains for the Fund and that are
required to be maintained by Rule 31a-1 under the 1940 Act, and (C)
to surrender promptly to the Fund any records that it maintains for
the Fund upon request by the Fund; provided, however, Subadviser may
retain copies of such records.
IX. Reports and Meetings.
A. Subadviser shall furnish to the Board or Adviser, or both, as
appropriate, such information, reports, evaluations, analyses
and opinions as are required by law or that the Board or
Adviser, as appropriate, may reasonably require on quarterly or
annual timeframes, including, without limitation: compliance
reporting and certification with respect to:
1. Affiliated Brokerage Transactions
2. Affiliated Underwritings
3. Cross Transactions
4. Prospectus Compliance
5. Code of Ethics
B. Subadviser shall make available in person to the Board on an
annual basis and to Adviser personnel on a periodic basis the
portfolio manager of the Portfolio or an appropriate investment
professional of Subadviser to review the investments and the
investment program of the Portfolio and the services provided by
Subadviser hereunder.
X. Services to Other Clients. Nothing contained in this Agreement
shall limit or restrict (i) the freedom of Subadviser, or any
affiliated person thereof, to render investment management and
corporate administrative services to other investment companies, to
act as investment manager or investment counselor to other persons,
firms, or corporations, or to engage in any other business
activities, or (ii) the right of any director, officer, or employee
of Subadviser, who may also be a director, officer, or employee of
the Fund, to engage in any other business or to devote his or her
time and attention in part to the management or other aspects of any
other business, whether of a similar nature or a dissimilar nature.
XI. Subadviser's Use of the Services of Others. Subadviser may, at its
cost, employ, retain, or otherwise avail itself of the services or
facilities of other persons or organizations for the purpose of
providing Subadviser or the Fund or Portfolio, as appropriate, with
such statistical and other factual information, such advice
regarding economic factors and trends, such advice as to occasional
transactions in specific securities, or such other information,
advice, or assistance as Subadviser may deem necessary, appropriate,
or convenient for the discharge of its obligations hereunder or
otherwise helpful to the Fund or the Portfolio, as appropriate, or
in the discharge of Subadviser's overall responsibilities with
respect to the other accounts that it serves as investment manager
or counselor.
The Subadviser may, at its own expense, delegate any or all of its
duties and responsibilities under this Agreement to its wholly-owned
subsidiary, FMR Co., Inc., provided that the Subadviser remains
responsible to the Adviser and the Fund for the performance of all
of its responsibilities and duties hereunder. The Subadviser will
compensate FMR Co., Inc. for its services to the Fund. Subject to
prior notice to the Adviser, the Subadviser may terminate the
services of FMR Co, Inc. for the Portfolio(s) and shall, at the same
time, assume the responsibilities of FMR Co., Inc and shall, at such
time, assume the responsibilities of FMR Co., Inc. with respect to
the Fund.
XII. Liability of Subadviser; Indemnification. Neither Subadviser nor
any of its officers, directors, or employees, nor any person
performing executive, administrative, trading, or other functions
for the Fund, the Portfolio (at the direction or request of
Subadviser) or Subadviser in connection with Subadviser's discharge
of its obligations undertaken or reasonably assumed with respect to
this Agreement (collectively, "Related Persons"), shall be liable
for (i) any error of judgment or mistake of law or for any loss
suffered by the Fund or Portfolio or (ii) any error of fact or
mistake of law contained in any report or data provided by
Subadviser, except for any error, mistake or loss resulting from
willful misfeasance, bad faith, or gross negligence in the
performance by Subadviser or such Related Person of Subadviser's
duties on behalf of the Fund or Portfolio or from reckless disregard
by Subadviser or any such Related Person of the duties of Subadviser
pursuant to this Agreement (each of which is referred to as a
"Culpable Act").
Notwithstanding the foregoing, any stated limitations on liability
shall not relieve Subadviser from any responsibility or liability
Subadviser may have under federal statutes..
Subadviser shall indemnify Adviser and its Related Persons and hold
them harmless from and against any and all actions, suits or claims
whether groundless or meritorious and from and against any and all
losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liabilities (collectively, "Damages") arising directly
or indirectly out of or in connection with the performance of
services by Subadviser or its Related Persons hereunder to the
extent such Damages result from willful misfeasance, bad faith,
gross negligence or the reckless disregard of Subadviser's
obligations and duties under this Agreement.
Adviser shall indemnify Sudadviser and its Related Persons from and
against any Damages arising directly or indirectly out of or in
connection with the performance of services by Adviser or its
Related Persons under this Agreement or the Advisory Agreement, in
each case, to the extent such Damages result from any Culpable Act
of Adviser or any of its Related Persons.
XIII. Representations of Subadviser. Subadviser represents, warrants, and
agrees as follows:
A. Subadviser (i) is registered as an investment adviser under
Advisers Act and will continue to be so registered for so long
as this Agreement remains in effect; (ii) is not prohibited by
the 1940 Act or the Advisers Act from performing the services
contemplated by this Agreement; (iii) has met, and will continue
to meet for so long as this Agreement remains in effect, any
other applicable federal, Massachusetts or Delaware
requirements, or the applicable requirements of any federal
regulatory or industry self-regulatory agency, necessary to be
met in order to perform the services contemplated by this
Agreement; (iv) has the authority to enter into and perform the
services contemplated by this Agreement; and (v) will promptly
notify Adviser of the occurrence of any event that would
disqualify Subadviser from serving as an investment adviser of
an investment company pursuant to Section 9(a) of the 1940 Act
or otherwise.
B. Subadviser has adopted a written code of ethics (the "Subadviser
Code") complying with the requirements of Rule 17j-1 under the
1940 Act, as may be amended from time to time, and, has provided
the Adviser and the Fund with a copy of the Subadviser Code,
together with evidence of its adoption. The Subadviser
certifies that it has adopted procedures reasonably necessary to
prevent access persons" as defined in Rule 17j-1 ("Access
Persons") from violating the Subadviser Code. On a [quarterly]
basis, Subadviser will either; (i) certify to Adviser that
Subadviser and its Access Persons have complied with Subadviser
Code with respect to the Portfolio, or (ii) identify any
material violations of the Subadviser Code which have occurred
with respect to the Portfolio. In addition, Subadviser will
furnish at least annually to Adviser and the Board a written
report that (a) describes any issues arising under the
Subadviser Code since the last report to the Board, including,
but not limited to, information about material violations of the
Subadviser Code with respect to the Portfolio and sanctions
imposed in response to the material violations and (b) certifies
that the Subadviser has adopted procedures reasonably necessary
to prevent Access Persons from violating the Subadviser Code.
C. Subadviser has provided Adviser and the Fund with a copy of its
Form ADV as most recently filed with the SEC and, if not so
filed, the its most recent Part 2 of Form ADV, and will,
promptly after filing any amendment to its Form ADV with the
SEC, and, if not so filed, any amendment to Part 2 of its Form
ADV, furnish a copy of such amendment to Adviser.
XIV. Representations of Adviser. Adviser represents, warrants, and
agrees as follows:
A. Adviser (i) is registered as an investment adviser under
Advisers Act and will continue to be so registered for so long
as this Agreement remains in effect; (ii) is not prohibited by
the 1940 Act or the Advisers Act from performing the services
contemplated by its management agreement with the Fund; (iii)
has met, and will continue to meet for so long as this Agreement
remains in effect, any other applicable federal or state
requirements, or the applicable requirements of any regulatory
or industry self-regulatory agency, necessary to be met in order
to perform the services contemplated by this Agreement; (iv) has
the authority to enter into and perform the services
contemplated by this Agreement; and (v) will promptly notify
Adviser of the occurrence of any event that would disqualify
Subadviser from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the 1940 Act or
otherwise.
B. Adviser and the Fund have adopted a written code of ethics
complying with the requirements of Rule 17j-1 under the 1940
Act, as may be amended from time to time.
C. Adviser has provided Subadviser with a copy of its Form ADV as
most recently filed with the SEC and, if not so filed, the its
most recent Part 2 of Form ADV, and will, promptly after filing
any amendment to its Form ADV with the SEC, and, if not so
filed, any amendment to Part 2 of its Form ADV, furnish a copy
of such amendment to Subadviser.
XV. Compliance with Applicable Regulations. In performing its duties
hereunder, Subadviser shall have compliance procedures reasonably
calculated to ensure compliance with all applicable provisions of
the 1940 Act and the Advisers Act, and any rules and regulations
adopted thereunder; Subchapter M of the Code; the provisions of the
Registration Statement, as provided by Adviser to Subadviser; the
provisions of the Articles and the By-Laws of the Fund, as the same
may be amended from time to time, as provided by Adviser to
Subadviser; and any other applicable provisions of federal
securities law.
XVI. Term of Agreement. This Agreement shall become effective with
respect to the FI All Cap Portfolio on the Effective Date and, with
respect to any additional Portfolio, on the date of receipt by the
Adviser of notice from the Subadviser in accordance with Section II
hereof that the Subscriber is willing to serve as Subadviser with
respect to such Portfolio. Unless sooner terminated as provided
herein, this Agreement shall continue in effect for two years from
the Effective Date with respect to the FI All Cap Portfolio and,
with respect to each additional Portfolio, for two years from the
date on which this Agreement becomes effective with respect to such
Portfolio. Thereafter, this Agreement shall continue in effect from
year to year, with respect to the Portfolio, subject to the
termination provisions and all other terms and conditions hereof, so
long as (a) such continuation shall be specifically approved at
least annually (i) by either the Board, or by vote of a majority of
the outstanding voting securities of the Portfolio; (ii) in either
event, by the vote, cast in person at a meeting called for the
purpose of voting on such approval, of a majority of the Directors
of the Fund who are not interested persons of any party to this
Agreement, cast in person at a meeting called for the purpose of
voting on such approval; and (b) Subadviser shall not have notified
the Fund, in writing, at least 60 days prior to such approval that
it does not desire such continuation.
XVII. Termination of Agreement. Notwithstanding the foregoing, this
Agreement may be terminated at any time, without the payment of any
penalty, by vote of the Board or by a vote of a majority of the
outstanding voting securities of the Portfolio on at least 60 days'
prior written notice to Subadviser. This Agreement may also be
terminated by Adviser: (i) on at least 60 days' prior written notice
to Subadviser, without the payment of any penalty; or (ii) upon
material breach by Subadviser of any of the representations and
warranties set forth in Paragraph 11 of this Agreement, if such
breach shall not have been cured within a 20-day period after notice
of such breach.Subadviser may terminate this Agreement at any time,
without the payment of any penalty, on at least 60 days' prior
notice to Adviser. This Agreement shall terminate automatically in
the event of its "assignment, as such term is defined in the 1940
Act, or upon termination of the Advisory Agreement. Any approval,
amendment, or termination of this Agreement by the holders of a
majority of the outstanding voting securities (as defined in the
▇▇▇▇ ▇▇▇) of any Portfolio shall be effective to continue, amend or
terminate this Agreement with respect to any such Portfolio
notwithstanding (i) that such action has not been approved by the
holders of a majority of the outstanding voting securities of any
other Portfolio affected thereby, and/or (ii) that such action has
not been approved by the vote of a majority of the outstanding
voting securities of the Fund, unless such action shall be required
by any applicable law or otherwise.
XVIII. Use of Subadviser's Name. The parties agree that the name of
Subadviser, the names of any affiliates of Subadviser and any
derivative, logo, trademark, service ▇▇▇▇ or trade name are the
valuable property of the Subadviser and its affiliates. Adviser and
the Fund shall have the right to use such name(s), derivatives,
logos, trademarks or service marks or trade names only with the
prior written approval of Subadviser, which approval shall not be
unreasonably withheld or delayed so long as this Agreement is in
effect.
Upon termination of the Agreement, Adviser and the Fund shall
forthwith cease to use such name(s), derivatives, logos, trademarks,
service marks or trade names. Adviser and the Fund agree they will
review with Subadviser any advisertisemen, sales literature, or
notice prior to its use that makes reference to Subadviser or its
affiliates or any such name(s), derivatives, logos, trademarks,
service marks or trade names, it being understood that Subadviser
shall have no responsibility to ensure of the adequacy of the form
or content of such materials for purposes of the 1940 Act or other
applicable laws and regulations. If Adviser or the Fund makes an
unauthorized use of Subadviser's names, derivatives, logos,
trademarks, service marks or trade names, the parties acknowledge
that Subadviser shall suffer irreparable hard for which monetary
damages are inadequate and thus, Subadviser will be entitiled to
injunctive relief.
XIX. Review of Fund Documents. During the term of this Agreement,
Adviser shall furnish to Subadviser at its principal office all
prospectuses, proxy statements, reports to shareholders, sales
literature or other material prepared for distribution to
shareholders of the Fund or the public, which refer to Subadviser or
its clients in any way, prior to the use thereof, and Adviser shall
not use any such materials if Subadviser resonably objects in
writing in five (5) days (or such other time as may be mutually
agreed, which would include longer time periods for review of the
Fund's prospectus and other parts of the registration statement)
after receipt thereof.
XX. Confidentiality. All information furnished by one party to the
other party (including their respective agents, employees and
representatives) hereunder shall be treated as confidential and
shall not be disclosed to third parties, except if it is otherwise
be in the public domain or, with notice to the other party, as may
be necessary to comply with applicable laws, rules, regulations,
subpoenas or court orders. Without limiting the foregoing, Adviser
acknowledges that the securities holdings of the Portfolio(s)
constitute information of value to Subadviser, and agrees (1) not to
use for any purpose, other than for Adviser or the Fund, or their
agents, to supervise or monitor Subadviser, the holdings or trade-
related information of the Fund; and (2) not to disclose the
Portfolio(s)' holdings, except: (a) as required by applicable law or
regulation; (b) as required by state or federal regulatory
authorities; (c) to the Board, counsel to the Board, counsel to the
Fund, the administator or any sub-administrator, the independent
accounts and any other agent of the Fund; or (d) as otherwise agreed
to by the parties in writing. Further, Adviser agrees that
information supplied by Subadviser, including approved lists,
internal procedures, compliance procedures and any board materials,
is valuable to Subadviser, and Adviser agrees not to disclose any of
the information contained in such materials, except: (i) as required
by applicable law or regulation; (ii) as required by state or
federal regulatory authorities; (iii) to the Board, counsel to the
Board, counsel to the Fund, the administator or any sub-
administrator, the independent accounts and any other agent of the
Fund; or (iv) as otherwise agreed to by the parties in writing.
XXI. Amendments, Waivers, etc. Provisions of this Agreement may be
changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought. This Agreement
(including any exhibits hereto) may be amended at any time by
written mutual consent of the parties, subject to the requirements
of the 1940 Act, the Advisers Act, and rules and regulations
promulgated and orders granted thereunder.
XXII. Notification. Subadviser will notify Adviser promptly of any change
in the personnel of Subadviser with responsibility for making
investment decisions in relation to the Portfolio or who have been
authorized to give instructions to Custodian.
XXIII. Miscellaneous.
A. Governing Law. This Agreement shall be construed in accordance
with the laws of the Commonwealth of Massachusetts without
giving effect to the conflicts of laws principles thereof and
the 1940 Act. To the extent that the applicable laws of the
Commonwealth of Massachusetts conflict with the applicable
provisions of the 1940 Act, the latter shall control.
B. Insurance. Adviser, the Fund and Subadviser each agree to
maintain errors and omissions or professional liability
insurance coverage in an amount that is reasonable in light of
the nature and scope of its respective business activities.
C. Captions. The captions contained in this Agreement are included
for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their
construction or effect.
D. Entire Agreement. This Agreement represents the entire
agreement and understanding of the parties hereto and shall
supersede any prior agreements between the parties relating to
the subject matter hereof, and all such prior agreements shall
be deemed terminated upon the effectiveness of this Agreement.
E. Notice. Any notice under this Agreement shall be in writing,
addressed and delivered and mailed, postage prepaid, to the
other party, with a copy to the Fund, at the addressed below or
such other address as such other party may designate for the
receipt of such notice.
If to Adviser: Lutheran Brotherhood
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Attention: Investment Division
If to Subadviser: Fidelity Management & Research Company
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Attention: General Counsel
F. Interpretation. Nothing herein contained shall be deemed to
require the Fund to take any action contrary to its Articles or
By-Laws, or any applicable statutory or regulatory requirement
to which it is subject or by which it is bound, or to relieve or
deprive the Board of its responsibility for and control of the
conduct of the affairs of the Portfolio.
G. Successors. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors and
permitted assigns.
H. If any provisions of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall be deemed to be severable.
I. Definitions. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or
otherwise derived from a term or provision of the 1940 Act shall
be resolved by reference to such term or provision of the 1940
Act and to interpretations thereof, if any, by the United States
courts or, in the absence of any controlling decision of any
such court, by rules, regulations, or orders of the SEC validly
issued pursuant to the 1940 Act. As used in this Agreement, the
terms "majority of the outstanding voting securities,"
"affiliated person," "interested person," "assignment," broker,"
"investment adviser," "net assets," "sale," "sell," and
"security" shall have the same meaning as such terms have in the
1940 Act, subject to such exemption as may be granted by the SEC
by any rule, regulation, or order. Where the effect of a
requirement of the federal securities laws reflected in any
provision of this Agreement is made less restrictive by a rule,
regulation, or order of the SEC, whether of special or general
application, such provision shall be deemed to incorporate the
effect of such rule, regulation, or order.
J. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized signatories as of the date and year first
above written.
LUTHERAN BROTHERHOOD
Attest: __________________________ By: _____________________________
Name: __________________________ Name: ___________________________
Title: ___________________________
LB SERIES FUND, INC.
Attest: __________________________ By: _____________________________
Name: __________________________ Name: ___________________________
Title: ___________________________
FIDELITY MANAGEMENT & RESEARCH
COMPANY
Attest: __________________________ By: _____________________________
Name: __________________________ Name: ___________________________
Title: ___________________________
Schedule I
Dated ____________, 2001
Sub-advisory Fees
FI All Cap Portfolio
Average Net Daily Assets Annual Rate
$0 - 100 million 0.60%
$100 - 500 million 0.55%
$500 - 750 million 0.50%
$750+ million 0.45%
