SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (herein "the Agreement" or "this Agreement") made
this _________ day of _______________, 2004 by and between GW Capital
Management, LLC, a Colorado limited liability company registered as an
investment adviser under the Investment Advisers Act of 1940 ("the Adviser"),
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Asset Management Company LLC, a Delaware limited liability
company registered as an investment adviser under the Investment Advisers Act of
1940 ("the Sub-adviser"), and Maxim Series Fund, Inc., a Maryland corporation
and an open-end, diversified management investment company registered under the
Investment Company Act of 1940, as amended ("Maxim" and the "1940 Act"), this
Agreement embodying the arrangement whereby the Sub-adviser will act as an
investment adviser to the Maxim Global Bond Portfolio (the "Portfolio"), in
conjunction with the Adviser, as follows:
ARTICLE I
Preamble
Maxim 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 Maxim. In that
capacity it agreed to manage the investment and reinvestment of the assets of
any Portfolio of Maxim in existence or created in the future and to administer
Maxim'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 Maxim by this Agreement agrees to such arrangement.
The Sub-adviser is registered as an investment adviser and regulated by
the United States Securities and Exchange Commission in the conduct of its
investment business. The Sub-adviser is authorized under the Investment Advisers
Act of 1940, as amended, to provide discretionary management and investment
advisory services.
The services provided by the Sub-adviser under this agreement will be
covered by the provisions of the Investment Advisers Act of 1940.
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 Maxim ("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 Maxim in any way or otherwise be deemed an agent of Maxim.
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 Maxim'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; and
(k) assist in the coordination of all matters relating to the
functions of the custodian of the Portfolio, including the delivery of oral and
written instructions to such custodian in connection with the services of
Sub-adviser described herein.
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 Maxim, 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.
All assets of the Portfolio will be held by the Custodian. The
Sub-adviser will not hold or take responsibility for any money or assets
belonging to the Adviser or to
Maxim or to the Portfolio.
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 Maxim 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 1940 Act.
Maxim has furnished or will furnish the Sub-adviser with copies of
Maxim'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 Maxim.
ARTICLE III
Compensation of the Sub-adviser
A. Investment Advisory Fee.
The Adviser, and not Maxim, will pay the "NAV Fee", set forth in Schedule A, 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. These fees
are based on an annual percentage of the total of assets of the Portfolio.
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 (excluding brokerage commissions, dealer spreads and exchange and other
transaction-based fees), and investment management of the Portfolio).
As described in the GW Agreement, Maxim 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 Maxim'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's orders, taking into account all appropriate factors,
including price, dealer spread or commission, if any, size of the transaction,
difficulty of the transaction, and potentiality of market movement.
The Sub-adviser is specifically authorized to allocate brokerage and
principal business to firms that provide such services or facilities and to
cause Maxim 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.
ARTICLE V
Activities of the Sub-adviser
The services of the Sub-adviser to the Adviser and Maxim 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 Maxim 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 Maxim, and that the Sub-adviser is or may
become interested in Maxim 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
Adviser and Maxim.
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 Adviser and Maxim
agree 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 Adviser and Maxim
recognize 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 Maxim 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
Maxim, 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 Maxim, 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 of this Agreement by
either party (as the term "termination" is defined in Section 2(a)(4) of the
1940 Act).
In addition,
(e) the Sub-adviser shall upon termination be entitled to receive fees
up to the effective date of termination and shall prepare and submit an invoice
calculated on a pro rata basis.
(f) termination shall be without prejudice to the accrued rights of the
parties and to the completion of transactions in the Portfolio already initiated
at the effective time of the termination and the Sub-adviser may charge and the
Adviser shall pay any additional expenses necessarily incurred in terminating
this Agreement and any losses necessarily realized in settling or concluding
outstanding obligations.
(g) upon written instruction from the Adviser upon termination, the
Sub-adviser may enter into binding transactions on behalf of Maxim to eliminate
open forward foreign exchange transactions, such transactions having value dates
beyond the effective date of termination.
ARTICLE VIII
Recordkeeping
The Sub-adviser agrees that all accounts and records which it maintains
for the Portfolio shall be the property of Maxim and that it will surrender
promptly to the designated officers of Maxim 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 Maxim in a confidential manner.
All such accounts or records shall be made available, within five (5) business
days of the request, to Maxim'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 United States 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 Maxim 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 Maxim 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 Maxim 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 Maxim or any shareholder of Maxim 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 Maxim, 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 Maxim 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
Maxim may request and will cooperate with the preparation of the Disclosure
Documents (as defined in Article XI.C. below). Maxim 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. Maxim 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 1940 Act, 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 Maxim or the
Adviser in writing by the Sub-adviser which Maxim or the Adviser 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. Maxim and the Adviser will
notify the Sub-adviser promptly of the happening of any event which in the
judgment of Maxim 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.
The Sub-adviser represents and warrants to Maxim and the Adviser that
the information furnished in writing by it which Maxim 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 1940 Act and other applicable laws. The Sub-adviser will notify
Maxim 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 Maxim or the Adviser by the Sub-adviser which Maxim 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, Maxim and the Adviser,
jointly and severally, agree to hold harmless the Sub-adviser, its directors,
managers 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 Maxim'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 Maxim or the Adviser by the Sub-adviser
which Maxim 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 Maxim and the Adviser, the
Sub-adviser Indemnified Party shall promptly notify Maxim and the Adviser in
writing, and Maxim 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) Maxim or the Adviser has agreed to pay
such fees and expenses or (b) Maxim 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 Maxim 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 Maxim or the Adviser (in which case, if the Sub-adviser Indemnified
Party notifies Maxim and the Adviser in writing that it elects to employ
separate counsel at the expense of Maxim and the Adviser, Maxim 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
Maxim 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
Maxim 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, Maxim 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 Maxim 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 Maxim and the Adviser, their directors, managers and
officers, and each person, if any, who controls Maxim 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 Maxim and the Adviser to the Sub-adviser,
but only with respect to information furnished in writing by it which Maxim or
the Adviser 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 unless: (1) such information subsequently ceased to be true and
accurate; (2) Maxim and/or the Adviser had actual knowledge that the information
ceased to be true and accurate; and (3) neither Maxim nor the Adviser informed
the Sub-adviser of the change. In case any action or proceeding shall be brought
against Maxim or the Adviser, their directors, managers 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 Maxim and
the Adviser, and Maxim or the Adviser, their Directors, 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 Maxim or the Adviser, its directors, managers and officers,
or any person controlling Maxim or the Adviser or (b) any termination of this
Agreement.
ARTICLE XII
Non-Compete
The Adviser and Sub-adviser acknowledge that, in the course of providing
services under this Agreement, Sub-adviser may obtain information about current
or prospective customers (hereinafter a "Customer") of Maxim or any affiliate of
the Adviser. In the event said Customer ultimately utilizes Maxim or any
affiliate of the Adviser as an investment product provider for any defined
contribution plan offered by Customer, Sub-adviser agrees:
(a) not to utilize any confidential information regarding the Customer
and/or its employees' participation in such defined contribution plan(s) which
Sub-adviser receives as result of providing services under this Agreement in
non-Maxim business of Sub-adviser or any of its affiliates;
(b) not to attempt to contact the Customer without prior notification to
the Adviser; and
(c) not to attempt to sell any mutual funds affiliated with the
Sub-adviser directly to Customer on a stand-alone basis while Maxim Portfolios
are included either directly or indirectly in the Customer's defined
contribution plan(s).
For purposes of this Section, defined contribution plan shall mean
401(k), 457 and 403(b) plans. The following situations are not subject to the
provisions of this Section:
(a) Customer has a pre-existing relationship with the Sub-adviser; or
(b) The Sub-adviser or any of its affiliates makes its funds available
to another defined contribution plan product provider and that product provider
bids on the Customer's case using publicly available information.
Article XIII
Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Colorado and the applicable provisions of the 1940 Act 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 1940 Act as amended, or the rules and regulations thereunder, such Act,
rules and regulations shall control.
ARTICLE XIV
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 XV
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 XVI
Sales Literature
The Adviser will not use the Sub-adviser's name in Portfolio sales
literature without prior review and approval by the Sub-adviser, which will not
be unreasonably withheld or delayed.
ARTICLE XVII
Confidentiality and Data Protection
(a) Each party will, during and after termination of this Agreement,
keep confidential all information acquired in consequence of this Agreement
relating to the business of the other parties except in relation to any such
information which they may be obliged or required to disclose by compulsion or
law or as required by any regulatory authority. For the avoidance of doubt, the
Sub-adviser may, however, disclose that the Adviser is a client of the
Sub-adviser. The Sub-adviser may state in its marketing materials that Maxim is
one of its investment management clients and may state the benchmark against
which the Portfolio's performance is measured. The Sub-adviser may also include
the Portfolio's investment performance in its performance composites for
purposes of calculating and marketing its investment performance.
(b) The Sub-adviser may use personnel-related information concerning
officers and employees of the Adviser and of Maxim (each "an Individual")
acquired in consequence of this Agreement for internal business and client
servicing purposes. The Sub-adviser may share this information with other group
companies and its agents insofar as this is reasonably required in order to
provide the services covered by this Agreement. An Individual has the right to
request a copy of the information held by the Sub-adviser in its records in
return for payment of a fee. An Individual also has the right to require the
Sub-adviser to correct any inaccuracies in the information.
(c) The Sub-adviser shall not be required to disclose or use for the
benefit of the Adviser any confidential information relating to or acquired
while providing discretionary management, advisory or other services to another
client or to disclose or use any other information not known to the manager of
the Portfolio even though it is known to an employee, director or agent of the
Sub-adviser who does not provide services in relation to the Portfolio.
(d) The Adviser and Maxim acknowledge that the Sub-adviser's investment
strategies and techniques are confidential and proprietary and that neither of
them will obtain any rights to the strategies and techniques by way of their
relationship with the Sub-adviser.
ARTICLE XVIII
Complaints
The Adviser shall in the first instance refer any complaint to the
Sub-adviser for the attention of its Compliance Officer.
ARTICLE XIX
Notices
Any notice under this Agreement shall be in writing and shall be deemed
given (a) upon person delivery, (b) on the relevant earliest business day after
receipted delivery to a courier service that guarantees a minimum delivery
period, under circumstances in which such guarantee is applicable or (c) on the
earlier of delivery or three business days after mailing by United States
certified mail if available, 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.
GW CAPITAL MANAGEMENT, LLC
Witness ________________________ By: ______________________________
Name: _________________________ Name: ____________________________
Title: _____________________________
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Secretary
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ASSET MANAGEMENT COMPANY LLC
Witness: ________________________ By: _____________________________
Name: __________________________ Name: ___________________________
Title: ____________________________
Address: Mellon Financial Center
One Boston Place
Room 024-0344
Boston, Massachusetts
02108-4408
MAXIM SERIES FUND, INC.
Witness: ________________________ By: ______________________________
Name: __________________________ Name: ____________________________
Title: ___________________________
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Secretary
SCHEDULE A
Fee Scale for Maxim Global Bond Portfolio
Annual Fee Assets
.55% First $25 million
.45% Next $50 million
.35% Next $175 million
.25% Assets over $250 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 Maxim. If this Agreement is
terminated, the payment shall be prorated to the effective date of termination.