Exhibit h.5
INVESTMENT CONSULTANT AGREEMENT
This agreement is made as of January 1, 2005, between American Fidelity
Assurance Company, a corporation organized under the laws of the State of
Oklahoma, having its principal place of business at Oklahoma City, Oklahoma,
herein referred to as the "Company" and Asset Services Company, L. L. C., a
corporation organized under the laws of the State of Oklahoma, having its
principal place of business at Oklahoma City, Oklahoma, herein referred to as
"Consultant." This agreement relates to American Fidelity Dual Strategy Fund,
Inc. (successor to American Fidelity Variable Annuity Fund A), herein referred
to as the "Fund." This agreement replaces the previous agreements between the
Company and the Consultant dated January 1, 1999 and March 1, 2001.
The parties stipulate and recite that:
The Company is engaged in the financial services and general insurance
business. The Company has served as investment advisor to the Fund, an open-end
diversified investment management company, since the founding of the Fund. The
Company also engages in numerous investment activities in connection with the
insurance business and other financial services activities relating to its
principal business activities.
The Consultant is engaged in the business of offering investment advisor
and investment consulting services. The Consultant offers research, reporting,
and advisory services to various entities relating to investment activities.
For the reasons recited above, and in consideration of the mutual promises
contained herein, the Company and the Consultant agree as follows:
SECTION ONE
INVESTMENT ADVICE AND OTHER INVESTMENT CONSULTING SERVICES
1.01 The Consultant shall, to the extent reasonably required in the
business of the Company, assist the Company in the selection of Investment
Managers for certain regularly required investment activities as further
stipulated below. The Consultant shall also, from time to time, furnish to or
place at the disposal of the Company such reports and information on the
investment results of certain Investment Managers in the employ of the Company
as may be required or deemed helpful to the Company in judging the effectiveness
of such Investment Managers and their suitability for continued service to the
Company.
1.02 The Consultant agrees to use its best efforts in the furnishing of
such advice and recommendations and in the preparation of such reports and
information, and for this purpose Consultant shall at all times maintain a staff
of trained personnel for the performance of its obligations under this
agreement. The Consultant may, at its expense, employ other persons to furnish
statistical and other factual information, advice regarding economic factors and
trends, information with respect to technical and scientific developments, and
such other information, advice and assistance as Consultant may desire.
1.03 The Company will from time to time furnish to the Consultant detailed
statements of the investments and resources of the Company and information as to
its investment problems, and will make available to Consultant such financial
reports, and other information relating to its investments as may be in
possession of the Company or available to it.
SECTION TWO
COMPENSATION TO INVESTMENT CONSULTANT
2.01 The Company agrees to pay to the Consultant, and Consultant agrees to
accept, as full reimbursement for the following projects:
a. An annual fee equal to .03% of the Fund shall be paid to the
Consultant by the Company for which fee the Consultant will provide
quarterly performance reports for the Fund with separate results
produced for each Investment Manager contracted by the Fund.
b. One quarter (1/4) of the fee will be paid at the end of each calendar
quarter based on the asset balance of the Fund at the end of such
quarter.
2.02 Additional projects will be evaluation and additional fees will be
negotiated and contracted if mutually agreed upon in writing by Company and
Consultant.
SECTION THREE
ALLOCATION OF EXPENSES
3.01 The Consultant shall provide at its own expense the required office
space, equipment, personnel, and clerical services for the completion of the
projects contracted in Section Two above. Out of town travel, long distance
calls, long distance conference calls, express mail and other unusual costs will
be reimbursed by the Company to the Consultant. It is anticipated that such
other unusual costs will not exceed $50.00 per month. The Consultant shall
receive prior approval from the Company before incurring costs in excess of that
amount. The Consultant is not by way of this contract agreeing to become a
record keeper for the Company and shall not bear any expense for the day-to-day
accounting record requirements of the Company.
3.02 The Company will provide at its expense such summaries of investments
and financial accounting records as shall be reasonable required by the
Consultant to complete the projects described and contracted in Section Two
above.
SECTION FOUR
DURATION AND TERMINATION
4.01 The term of this agreement shall begin as of January 1, 2005, and this
agreement shall remain in effect until replaced by a subsequent agreement or
terminated by either of the parties as set forth below.
4.02 This agreement may be terminated by either party on sixty (60) days
prior notice in writing to the other party, at the following address for each:
If to Company:
American Fidelity Assurance Company
Attention: ▇▇▇▇ ▇. ▇▇▇, President
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Consultant:
Asset Services Company, L. L. C.
Attention: ▇▇▇ ▇▇▇▇▇▇, Chairman
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SECTION FIVE
STATUS OF CONSULTANT
5.01 Consultant shall be deemed to be an independent contractor and, except
as expressly provided or authorized in this contract, shall have no authority to
act for or represent the Company.
5.02 The Company recognizes that Consultant now renders and may continue to
render investment advice and services to other companies and persons, which may
or may not have investment policies and investments similar to those of the
Company. The Consultant shall be free to continue to render such advice and
services without further consent of the company.
SECTION SIX
LIABILITY OF CONSULTANT
6.01 In furnishing the Company with investment advice and management and
other services as herein provided, neither the Consultant, nor any officer,
director, or agent thereof shall be held liable to the Company or its creditors
or stockholders for errors of judgment or for anything except willful
misfeasance, bad faith, or gross negligence in the performance of it duties, or
reckless disregard of its obligations and duties under the terms of this
agreement.
6.02 It is further understood and agreed that the Consultant may rely upon
information furnished to it reasonably believed to be accurate and reliable and
that, except as hereinabove provided, the Consultant shall not be accountable
for any loss suffered by the Company by the reason of the Company's action or
non-action on the basis of any advice, recommendation or approval of the
Consultant, its officers, directors or agents.
SECTION SEVEN
ASSIGNMENT OF AGREEMENT
7.01 This agreement may not be transferred, assigned, sold or in any manner
hypothecated or pledged by the Consultant or the Company.
SECTION EIGHT
CONFIDENTIALITY
8.01 Consultant acknowledges that in the course of performing its duties
hereunder, Consultant will receive detailed information regarding the Company's
operating policies and procedures and other proprietary information of the
Company (hereinafter, "Proprietary Information"). Consultant agrees not to
directly or indirectly reveal, report, publish, disclose or transfer any of the
Proprietary Information, or utilize any of the Proprietary Information for any
purpose except in the course of performing duties for the Company pursuant to
this Agreement.
SECTION NINE
MISCELLANEOUS
9.01 This contract has been executed within, and shall be governed by, the
laws of the State of Oklahoma. This Agreement represents the entire agreement of
the parties with respect to the subject matter contained herein, and may not be
modified other than by a written agreement signed by both parties.
In witness whereof, the parties hereto have caused this agreement to be
signed by their respective officers thereunto duly authorized.
AMERICAN FIDELITY ASSURANCE COMPANY
▇▇▇▇ ▇. ▇▇▇
▇▇▇▇ ▇. ▇▇▇, President
ASSET SERVICES COMPANY, L. L. C.
▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, Chairman