EXHIBIT 23(D)(1)(SS)
INVESTMENT ADVISORY AGREEMENT - IDEX XXXXXXX GROWTH
IDEX MUTUAL FUNDS
INVESTMENT ADVISORY AGREEMENT
This Agreement, entered into as of November 1st, 2002 between IDEX
Mutual Funds, a Massachusetts business trust (referred to herein as the
"Trust") and AEGON/Transamerica Fund Advisers, Inc., a Florida corporation
(referred to herein as "ATF Advisers"), to provide certain advisory services to
certain series of shares of beneficial interest in the Trust as listed on the
attached Schedule A to this Agreement (referred to herein as the "Fund").
The Trust is registered as an open-end investment company registered
under the Investment Company Act of 1940 ("1940 Act"), and consists of more
than one series of shares, including the Fund. In managing the Fund, as well as
in the conduct of certain of its affairs, the Trust wishes to have the benefit
of the investment advisory services of ATF Advisers and its assistance in
performing certain management, administrative and promotional functions. ATF
Advisers desires to furnish services for the Trust and to perform the functions
assigned to it under this Agreement for the considerations provided.
Accordingly, the parties of agreed as follows:
1. APPOINTMENT. The Trust hereby appoints ATF Advisers as the Trust's
investment adviser and administrator for the period and on the terms set forth
in this Agreement. ATF Advisers accepts such appointment and agrees to render
or cause to be rendered the services set forth for the compensation herein
specified. In all matters relating to the performance of this Agreement, ATF
Advisers will act in conformity with the Trust's Declaration of Trust, Bylaws
and current registration statement applicable to the Fund as it may be
supplemented from time to time, and with the instructions and direction of the
Board of Trustees of the Trust, and will conform to and comply with the 1940
Act and all other applicable federal or state laws and regulations.
2. INVESTMENT ADVISORY SERVICES. In its capacity as investment adviser
to the Trust, ATF Advisers shall have the following responsibilities:
(a) to provide a continuous investment program for the Fund including
advice as to the acquisition, holding or disposition of any or all of
the securities or other assets which the Fund may own or contemplate
acquiring from time to time, consistent with the Trust's Declaration
of Trust and the Fund's investment objective and policies adopted and
declared by the Board of Trustees and stated in the Fund's current
Prospectus;
(b) to cause the officers of ATF Advisers to attend meetings and
furnish oral or written reports, as the Trust may reasonably require,
in order to keep the Trustees and appropriate officers of the Trust
fully informed as to the conditions of the investment securities of
the Fund, the investment recommendations of ATF Advisers, and the
investment considerations which have given rise to those
recommendations; and
(c) to supervise the purchase and sale of securities as directed by
the appropriate officers of the Trust, including the selection of
brokers and dealers to execute such transactions, consistent with
Section 8 hereof.
It is understood and agreed that ATF Advisers intends to enter into a
Sub-Advisory Agreement with a sub-adviser for the Fund listed on Schedule A
(the "Sub-Adviser") pursuant to which ATF Advisers may delegate some or all of
its responsibilities under this Section 2. The compensation to be paid to the
Sub-Adviser for such services shall be set forth in the Sub-Advisory Agreement;
provided, however, that such Sub-Advisory Agreement shall be approved by the
Board of Trustees, including a majority of the directors who are not parties to
the Sub-Advisory Agreement or interested persons (within the meaning of Section
2(a)(19) of the 0000 Xxx) of any such party (the "Disinterested Trustees"), and
by the holders of the outstanding voting securities of each of the Fund in
accordance with the requirements of Section 15 of the 1940 Act, and shall
otherwise be subject to, and contain such provisions as shall be required by,
the 1940 Act.
3. MANAGEMENT AND ADMINISTRATIVE SERVICES. ATF Advisers shall furnish
or make available to the Fund the services of executive and management
personnel to supervise the performance of all administrative, record-keeping,
shareholder relations, regulatory reporting and compliance, and all other
functions of the Fund, including supervising and coordinating the services of
the Fund's custodian and transfer agent. ATF Advisers shall also assist in the
preparation of reports to shareholders of the Fund and prepare sales literature
promoting sale of the Fund's shares as
requested by the Trust.
4. ALLOCATION OF EXPENSES. During the term of this Agreement, the Fund
will bear all expenses not expressly assumed by ATF Advisers incurred in the
operation of each Fund and the offering of its shares. Without limiting the
generality of the foregoing:
(a) The Fund shall pay (i) fees payable to ATF Advisers pursuant to
this Agreement; (ii) the cost (including brokerage commissions, if
any) incurred in connection with purchases and sales of the Fund's
portfolio securities; (iii) expenses of organizing the Fund; (iv)
filing fees and expenses relating to registering and qualifying and
maintaining the registration and qualification of the Fund's shares
for sale under federal and state securities laws; (v) its allocable
share of the compensation, fees and reimbursements paid to the Trust's
non-interested Trustees; (vi) custodian and transfer agent fees; (vii)
legal and accounting expenses allocable to the Fund, including costs
for local representation in Massachusetts and fees of special counsel,
if any, for the independent Trustees; (viii) all federal, state and
local tax (including stamp, excise, income and franchise taxes and the
preparation and filing of all returns and reports in connection
therewith; (ix) cost of certificates and delivery to purchasers; (x)
expenses of preparing and filing reports with federal and state
regulatory authorities; (xi) expenses of shareholders' meetings and of
preparing, printing and distributing proxy statements (unless
otherwise agreed to by the Trust and ATF Advisers); (xii) costs of any
liability, uncollectible items of deposit and other insurance or
fidelity bonds; (xiii) any costs, expenses or losses arising out of
any liability of or claim for damage or other relief asserted against
the Trust for violation of any law; (xiv) expenses of preparing,
typesetting and printing prospectuses and supplements thereto for
existing shareholders and of reports and statements to shareholders;
(xv) fees and expenses in connection with membership in investment
company organizations; and (xvi) any extraordinary expenses incurred
by the Trust on behalf of the Fund.
(b) ATF Advisers shall pay (i) all expenses incurred by it in the
performance of its duties under this Agreement; and (ii) compensation,
fees and expenses of officers and Trustees of the Trust, except for
such Trustees who are not interested persons (as defined in the 0000
Xxx) of ATF Advisers;
(c) If, for any fiscal year, the total expenses of the Fund, including
but not limited to: the fees to ATF Advisers, compensation to its
custodian, transfer agent, registrar, auditors and legal counsel,
printing expense, and fees, compensation and expenses to Trustees who
are not interested persons, exceed any expense limitation imposed by
applicable state law, ATF Advisers shall reimburse the Fund for such
excess in the manner and to the extent required by applicable state
law; provided, however, that ATF Advisers shall reimburse the Fund for
the amount of such expenses which exceed 0.80% of the Fund's average
daily net assets. For purposes of this sub-paragraph, "total expenses"
shall not include interest, taxes, litigation expenses, brokerage
commissions or other costs incurred in acquiring or disposing of any
of the Fund's portfolio securities, or any costs arising other than in
the ordinary and necessary course of the Fund's business.
5. OBLIGATIONS OF TRUST. The Trust shall have the following
obligations under the Agreement:
(a) to keep ATF Advisers continuously and fully informed as to the
composition of its investment portfolio of the Fund and the nature of
all of its assets and liabilities from time to time;
(b) to furnish ATF Advisers with a certified copy of any financial
statement or report prepared for the Fund by certified or independent
public accountants, and with copies of any financial statements or
reports made to its shareholders or to any governmental body or
securities exchange;
(c) to furnish ATF Advisers with any further materials or information
which ATF Advisers may reasonably request to enable it to perform its
functions under this Agreement; and
(d) to compensate ATF Advisers for its services in accordance with the
provisions of Section 6 hereof.
6. COMPENSATION. The Fund shall pay to ATF Advisers for its services a
fee, computed daily and paid monthly, payable on the last day of each month
during which or part of which this Agreement is in effect, as set forth in
Schedule A attached to this Agreement, as it may be amended from time to time
in accordance with Section 15 below. For the month during which this Agreement
becomes effective and the month during which it terminates, however, there
shall be an appropriate pro-ration of the fee payable for such month based on
the number of calendar days of such month during which this Agreement is
effective.
7. TREATMENT OF INVESTMENT ADVICE. With respect to the Fund, the Fund
shall retain full control over its own investment policies. However, the
Trustees of the Trust may delegate to the appropriate officers of the Trust, or
to a committee of Trustees, the power to authorize purchases, sales or other
actions affecting the Fund in the interim between meetings of the Trustees,
provided such action is consistent with the established investment policy of
the Trustees and is reported to the Trustees at their next meeting.
8. BROKERAGE COMMISSIONS. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. ATF Advisers is authorized and directed to place the Fund's
securities transactions, or to delegate to the Sub-Adviser the authority and
direction to place the Fund's securities transactions, only with brokers and
dealers who render satisfactory service in the execution of orders at the most
favorable prices and at reasonable commission rates; provided, however, that
ATF Advisers or the Sub-Adviser, may pay a broker or dealer an amount of
commission for effecting a securities transaction in excess of the amount of
commission another broker or dealer would have charged for effecting that
transaction if ATF Advisers or the Sub-Adviser determines in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker or dealer viewed in
terms of either that particular transaction or the overall responsibilities of
ATF Advisers or the Sub-Adviser. ATF Advisers and the Sub-Adviser are also
authorized to consider sales of Fund shares (which shall be deemed to include
also shares of other registered investment companies with the same investment
adviser) by a broker-dealer or the recommendation of a broker-dealer to its
customers that they purchase Fund shares as a factor in selecting
broker-dealers to execute the Fund's securities transactions, provided that in
placing fund business with such broker-dealers, ATF Advisers and the
Sub-Adviser shall seek the best execution of each transaction and all such
brokerage placement shall be consistent with the Conduct Rules of the National
Association of Securities Dealers, Inc. Notwithstanding the foregoing, the
Trust shall retain the right to direct the placement of all securities
transactions of the Fund, and the Trustees may establish policies or guidelines
to be followed by ATF Advisers and the Sub-Adviser in placing portfolio
transactions for the Fund pursuant to the foregoing provisions. ATF Advisers
shall report on the placement of portfolio transactions each quarter to the
Trustees of the Trust.
9. PURCHASES BY AFFILIATES. Neither ATF Advisers nor any officer or
Director thereof shall take a long or short position in the securities issued
by the Fund. This prohibition, however, shall not prevent the purchase from the
Fund of shares issued by the Fund on behalf of the Trust, by the officers or
Directors of ATF Advisers (or by deferred benefit plans established for their
benefit) at the current price available to the public, or at such price with
reductions in sales charge as may be permitted by the Fund's current
prospectus, in accordance with Section 22(d) of the 1940 Act.
10. TERM. This Agreement shall continue in effect, unless sooner
terminated in accordance with its terms, for two years from its effective date,
and shall continue in effect from year to year thereafter, provided such
continuance is specifically approved at least annually by the vote of a
majority of the Trustees of the Trust who are not parties hereto or interested
persons (as that term is defined in Section 2(a)(19) of the 1940 Act, as
amended) of any such party, cast in person at a meeting called for the purpose
of voting on the approval of the terms of such renewal, and by either the
Trustees of the Trust or the affirmative vote of a majority of the outstanding
voting securities of the Fund (as that phrase is defined in Section 2(a)(42) of
the 1940 Act.
11. TERMINATION. This Agreement may be terminated at any time, without
penalty, by the Trustees of the Trust, or with respect to the Fund, by the
shareholders of the Fund acting by vote of at least a majority of its
outstanding voting securities (as that phrase is defined in Section 2(a)(42) of
the 1940 Act), provided in either case that 60 days' written notice of
termination be given to ATF Advisers at its principal place of business. This
Agreement may be terminated by ATF Advisers at any time by giving 60 days'
written notice of termination to the Trust, addressed to its principal place of
business.
12. USE OF NAME. If this Agreement is terminated and ATF Advisers no
longer serves as investment adviser to
the Fund, ATF Advisers reserves the right to withdraw from the Trust the use of
the name "IDEX" with respect to the Fund or any name misleadingly implying a
continuing relationship between the Fund and ATF Advisers or any of its
affiliates.
13. LIABILITY OF ATF ADVISERS. ATF Advisers may rely on information
reasonably believed by it to be accurate and reliable. Except as may otherwise
be provided by the 1940 Act, neither ATF Advisers nor its officers, directors,
employees or agents shall be subject to any liability to the Trust or the Fund
or any shareholder of the Fund for any error of judgment, mistake of law or any
loss arising out of any investment or other act or omission in the course of,
connected with or arising out of any service to be rendered hereunder, except
by reason of willful misfeasance, bad faith or gross negligence in its
performance of its duties or by reason of reckless disregard of its obligations
and duties under this Agreement.
14. ASSIGNMENT. This Agreement shall terminate automatically in the
event of any assignment (as the term is defined in Section 2(a)(4) of the 0000
Xxx) of this Agreement.
15. AMENDMENTS. This Agreement may be amended only with the approval by
the affirmative vote of a majority of the outstanding voting securities of the
Fund (as that phrase is defined in Section 2(a)(42) of the 0000 Xxx) and the
approval by the vote of a majority of Trustees of the Trust who are not parties
hereto or interested persons (as that phrase is defined in Section 2(a)(19) of
the 0000 Xxx) of any such party, cast in person at a meeting called for the
purpose of voting on the approval of such amendment, unless otherwise permitted
by the 1940 Act,
16. PRIOR AGREEMENTS. This Agreement supersedes all prior agreements
between the parties relating to the subject matter hereof, and all such prior
agreements are deemed terminated upon the effectiveness of this Agreement.
17. LIMITATION OF LIABILITY. A copy of the Trust's Declaration of Trust
is on file with the Secretary of The Commonwealth of Massachusetts, and notice
is hereby given that this Agreement is executed on behalf of the Trustees as
Trustees of the Trust and not individually, and that the obligations under this
Agreement are not binding upon any of the Trustees, officers, shareholders,
agents or employees of the Trust individually, but binding only upon the assets
and property of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized signatories as of the date and year first
above written.
ATTEST: AEGON/TRANSAMERICA FUND ADVISERS, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxxx X. Xxxxxx Xxxx X. Xxxxxx
Assistant Vice President Vice President, General Counsel, Chief
and Assistant Secretary Compliance Officer
ATTEST: IDEX MUTUAL FUNDS
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxxx X. Xxxxxx Xxxx X. Xxxxxx
Assistant Vice President Vice President, General Counsel, Chief
and Assistant Secretary Compliance Officer
INVESTMENT ADVISORY AGREEMENT
SCHEDULE A
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FUND INVESTMENT ADVISER COMPENSATION TERMINATION DATE
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IDEX XXXXXXX GROWTH 0.80% of the first $250 million of October 31, 2004
the Funds average daily net assets;
0.75% of the next $250 million of the
Funds average daily net assets; 0.70%
of the next $500 million of the Funds
average daily net assets; and 0.60%
of assets in excess of $1 billion of
the Funds average daily net assets.
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