EXHIBIT (b)(5)
SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement") made
this day of , 1998 by and between G W Capital Management, LLC, a Colorado
limited liability company registered as an investment adviser under the
Investment Advisers Act of 1940 ("the Adviser"), Ariel Capital Management, Inc.,
an Illinois corporation 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 Maxim MidCap
Portfolio of the Fund (the "Portfolio"), 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 is attached hereto as Appendix A. This advisory agreement and
all amendments thereto are hereinafter referred to as "the GW Agreement". In the
GW 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
Portfolio 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 the Sub-adviser to act with the Adviser as
investment advisers to and managers of the Portfolio, and, subject to the review
of the Board of Directors of the Fund ("the Board"), to manage the investment
and reinvestment of the assets of the Portfolio and to administer its affairs,
for the period and on the terms and conditions set forth in this Agreement. The
Sub-adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation provided for herein. The Sub-adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless otherwise expressly
provided or authorized by this Agreement or otherwise, 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 to
assist in managing the investment and reinvestment of the assets of the
Portfolio, 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 Portfolio;
(b) 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 Portfolio for approval, modification, or
rejection by the Board;
(c) seek out specific investment opportunities for the Portfolio,
consistent with an overall investment plan approved by the Adviser and the
Board;
(d) take such steps as are necessary to implement any overall
investment plan approved by the Board for the Portfolio, 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 Portfolio, and providing or
obtaining such services as may be 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
the implementation of any approved overall investment plan and any other
activities in connection with management of the assets of the Portfolio;
(f) communicate as appropriate to the Adviser the purchases and
sales within the Portfolio;
(g) arrange with the applicable broker or dealer at the time of
the purchase or sale of investments or other assets of the Portfolio
for the appropriate delivery of the investment or other asset;
(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 assets of the Portfolio;
(i) maintain all records, memoranda, instructions or
authorizations relating to the acquisition or disposition of
investments or other assets of the Portfolio required to be maintained
by Sub-adviser;
(j) arrange with the Investment Operations Department of the
Adviser an administrative process which permits the Adviser to
appropriately reflect in its daily determination of unit values, the
expenses that will be borne directly by the Portfolio and which are
incurred as a result of providing investment management services to
the Portfolio;
(k) vote all shares held by the Portfolio.
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, 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 Portfolio.
The Adviser will continue to provide all of the services described in
the GW Agreement other than the services described above which have been
delegated to the Sub-adviser in this Agreement.
If, in the judgment of the Sub-adviser, the Portfolio 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 review of the Adviser and the Board
and in a manner consistent with the investment objectives, policies, and
restrictions of the 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
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 Fund.
ARTICLE III
Compensation of the Sub-adviser
A. Investment
Advisory Fee. The Adviser, and not the Fund, will pay on the last day of each
month as monthly compensation to the Sub-adviser for the services rendered by
the Sub-adviser with respect to the Portfolio, as described in Article II of
this Agreement, based on an annual percentage of the assets of the Portfolio
(the "NAV Fee") as set forth below:
Annual Fee Assets
.50%
first $25 million
.40%
next $75 million
.30%
over $100 million
Payment to the Sub-adviser will be made monthly by the Adviser based on the
average daily net assets of the Portfolio during each month, calculated as set
forth in the then current Registration Statement of the Fund. If this Agreement
is terminated, the payment shall be prorated to the effective date of
termination.
B. Allocation of Expenses. The Sub-adviser shall be responsible for all
expenses incurred 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 GW Agreement, the Fund and/or the Adviser pays all
other expenses incurred in the operation of the Portfolio and all of its general
administrative expenses.
ARTICLE IV
Portfolio Transactions and Brokerage
The Sub-adviser agrees to determine the securities to be purchased or
sold by the Portfolio, subject to the provisions of Article II regarding
coordination with and supervision by the Adviser and the Fund's Board of
Directors, 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 or dealer
selected by the Sub-adviser, subject to the following limitations.
The Sub-adviser is authorized to select the brokers or dealers that will
execute the purchases and sales of portfolio securities for the Portfolio and
will use its best efforts to obtain the most favorable net results and execution
of the Portfolio' orders, taking into account all appropriate factors, including
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 or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer 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 or dealer, 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 the
brokerage commissions incurred by the Portfolio 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 or dealers 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 to others so long as the
Sub-adviser fulfills its rights and obligations under this Agreement. It is
understood that directors, officers, employees and shareholders of the Fund are
or may become interested in the Sub-adviser, as directors, officers, employees
or shareholders or otherwise, and that directors, officers, employees or
shareholders of the Sub-adviser are or may become similarly interested in the
Fund, and that the Sub-adviser is or may become interested in the Fund as
shareholder or otherwise.
It is agreed that the Sub-adviser may use any supplemental investment
research obtained for the benefit of the Portfolio 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 Portfolio 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 Portfolio 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
or sale of a security to be in the best interests of the Portfolio as well as
other accounts or companies, it may, to the extent permitted by applicable laws
and regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for other accounts or companies 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 fiduciary obligations to the Portfolio
and to such other accounts or companies.
ARTICLE VI
Effectiveness of the Agreement
The Agreement shall not become effective (and the Sub-adviser shall not
serve or act as investment adviser) unless and until it is approved by the Board
of Directors 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
this Agreement shall come into full force and effect on the date on which all of
these conditions are met.
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 so long as such continuance is annually
approved thereafter (a) by the vote of a majority of the Board of Directors of
the Fund, or by vote of a majority of the outstanding shares of the Portfolio,
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;
(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 the Portfolio, on sixty days 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 the
Portfolio; and
(d) shall automatically terminate upon assignment by either party.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio 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. The Sub-adviser further agrees to preserve for the period
prescribed by the rules and regulations of the Securities and Exchange
Commission 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. All such accounts or records shall be made available, within five (5)
business days of the 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.
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,
broker or other person with whom or into whose hands any monies, shares of the
Fund, or securities and investments may be deposited or come, pursuant to the
provisions of this Agreement.
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 as a result of the activities of the
Sub-adviser under this Agreement, including the activities 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 GW 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 as a result of the activities of
the Adviser under this Agreement and the GW Agreement, including the activities
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 GW Agreement; 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.
ARTICLE XI
Agreements, Representations and Indemnification
Related to Disclosure Documents
A. The Sub-adviser will cooperate with the Fund and the Adviser in
connection with the registration or qualification of units of the Portfolio for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Fund may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). The Fund and the Adviser will
provide the Sub-adviser with copies of all Disclosure Documents 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 Portfolio.
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 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, or which
the Sub-adviser had acknowledged was to be used, in the particular Disclosure
Document. The Fund and the Adviser will notify the Sub-adviser promptly 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, or which the Sub-adviser had acknowledged 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, or which the Sub-adviser has acknowledged is to be used, in a
particular Disclosure Document, will not 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 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, or which the Sub-adviser had acknowledged was to be used, in the
particular Disclosure Statement.
C. Notwithstanding Article X to the contrary, the Fund and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors and
officers (each such person a "Sub-adviser Indemnified Party"), 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, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) 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 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
without the consent of the Sub-adviser.
Notwithstanding 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, or which the
Sub-adviser had acknowledged 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 this
Article XI shall remain operative and in full force and effect regardless of (a)
any investigation made by or on behalf of the 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 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 rules and regulations of the Securities and Exchange
Commission thereunder, including such exemptions therefrom as the Securities and
Exchange Commission may grant. Words and phrases used herein shall be
interpreted in accordance with that Act and those rules and regulations. As used
with respect to the Portfolio, the term "majority of the outstanding shares"
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 rules and regulations thereunder, such Act, 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
Sales Literature
The Adviser will not use the Sub-adviser's name in Fund sales literature
without prior review and approval by the Sub-adviser, which will not be
unreasonably withheld or delayed.
ARTICLE XVI
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon person 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 or (c) 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.
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:
G W CAPITAL MANAGEMENT, LLC
By:
Name:
Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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Attn: General Counsel
Witness:
ARIEL CAPITAL MANAGEMENT, INC.
By:
Name:
Name:
Title:
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Attn:
Witness:
MAXIM SERIES FUND, INC.
By:
Name:
Name:
Title:
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Attn: Secretary