EXHIBIT 99.B5.6
EXHIBIT (d) (2) (mm)
FORM OF INVESTMENT COUNSEL AGREEMENT
FOR MID-CAP SUMMIT FUND
FORM OF
IDEX SERIES FUND
INVESTMENT COUNSEL AGREEMENT
This Agreement is entered into as of March 1, 1999 between IDEX
MANAGEMENT, INC., a Delaware corporation (referred to herein as "Idex
Management"), and Pilgrim Xxxxxx and Associates, Ltd. a Delaware corporation
(referred to herein as "Pilgrim Xxxxxx").
WHEREAS, Idex Management entered into a Management and Investment Advisory
Agreement (referred to herein as the "Advisory Agreement"), dated as of March 1,
1999 with IDEX Series Fund, a Massachusetts business trust (referred to herein
as "IDEX"), an open-end management investment company registered under The
Investment Company Act of 1940 (the "1940 Act"), on behalf of the Mid-Cap Summit
Fund (the "Fund"), under which Idex Management has agreed, among other things,
to act as investment adviser to the Fund.
WHEREAS, the Advisory Agreement provides that Idex Management may engage
Pilgrim Xxxxxx to furnish investment information and advice to assist Idex
Management in carrying out its responsibilities under the Advisory Agreement as
investment adviser to the Fund.
WHEREAS, it is the purpose of this Agreement to express the mutual
agreements of the parties hereto with respect to the services to be provided by
Pilgrim Xxxxxx to Idex Management and the terms and conditions under which such
services will be rendered.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
1. SERVICES OF PILGRIM XXXXXX. Pilgrim Xxxxxx shall act as investment
adviser to Idex Management with respect to the Fund. In this capacity, Pilgrim
Xxxxxx shall have the following responsibilities:
(a) to provide a continuous investment program for the Fund including
management of 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;
(b) Pilgrim Xxxxxx will place orders for the purchase and sale of
securities primarily with or through such persons, brokers or dealers
whom it believes will provide the most favorable price and efficient
execution. Within the framework of this policy and in accordance with
Section 28(e) of the Securities & Exchange Act of 1934, Pilgrim Xxxxxx
may consider the financial responsibility, research and investment
information and other services provided by brokers or dealers who may
effect or be a party to any such transaction or other transactions to
which Pilgrim Xxxxxx'x other clients may be a party. It is understood
that it is desirable for the Fund that Pilgrim Xxxxxx have access to
supplemental investment and market research and security and economic
analysis provided by brokers who may execute brokerage transactions at
a higher cost to the Fund that may result when allocating brokerage to
other brokers solely on the basis of seeking the most favorable price.
Therefore, Pilgrim Xxxxxx is authorized to place orders for the
purchase and sale of securities for the Fund with such brokers,
subject to review by Idex Management and the Trust's Board of
Trustees, from time to time, with respect to the extent and
continuation of this practice. It is understood that the services
provided by such brokers also may be useful to Pilgrim Xxxxxx in
connection with Pilgrim Xxxxxx'x services to other clients.
On occasions when Pilgrim Xxxxxx xxxxx the purchase or sale of a
security to be in the best interest of the Fund as well as other
clients of Pilgrim Xxxxxx, to the extent permitted by applicable laws
and regulations, Pilgrim Xxxxxx may, but shall be under no obligation
to, aggregate the securities to be so purchased or sold in order to
obtain the most favorable price or lower brokerage commissions and
efficient execution. In such event, allocation of the securities so
purchased or sold, as well as the expenses incurred in the
transaction, will be made by Pilgrim Xxxxxx in the manner it considers
to be the most equitable and consistent with its fiduciary obligations
to the Fund and to such other clients.
(c) to cause its officers to attend meetings of Idex Management or the
Fund and furnish oral or written reports, as Idex Management may
reasonably require, in order to keep Idex Management and its officers
and the Trustees of IDEX and appropriate officers of IDEX fully
informed as to the condition of the investment portfolio of the Fund,
the investment recommendations of Pilgrim Xxxxxx, and the investment
considerations which have given rise to those recommendations;
(d) to furnish such statistical and analytical information and reports as
may reasonably be required by Idex Management
from time to time; and
(e) to supervise the purchase and sale of securities.
2. OBLIGATIONS OF IDEX MANAGEMENT. Idex Management shall have the
following obligations under this Agreement:
(a) to keep Pilgrim Xxxxxx continuously and fully informed as to the
composition of the Fund's investment portfolio and the nature of the
Fund's assets and liabilities from time to time;
(b) to furnish Pilgrim Xxxxxx with a certified copy of the IDEX's By-laws
and 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 by the
Fund to its shareholders or to any governmental body or securities
exchange;
(c) to promptly furnish Pilgrim Xxxxxx with copies of the Fund's current
prospectus and statement of additional information, together with any
investment restrictions or limitations imposed upon the management of
the assets of the Fund by the Trust's Board of Trustees or officers,
or those imposed by Idex Management, and copies of any or all
Exemptive Orders or no-action letters received by the Trust from the
Securities and Exchange Commission which may apply to the Fund.
(d) to furnish Pilgrim Xxxxxx with any further materials or information
which Pilgrim Xxxxxx may reasonably request to enable it to perform
its functions under this Agreement;
(e) to compensate Pilgrim Xxxxxx for its services provided, and the
expenses assumed under this Agreement, by (i) the payment of a monthly
fee as set forth on schedule A attached to this Agreement, as it may
be amended from time to time in accordance with Section 10 below. In
the event that this Agreement shall be effective for only part of a
period to which any such fee received by Idex Management is
attributable, then an appropriate pro-ration of the fee that would
have been payable hereunder if this Agreement had remained in effect
until the end of such period shall be made, based on the number of
calendar days in such period and the number of calendar days during
the period in which this Agreement was in effect. The fees payable to
Pilgrim Xxxxxx hereunder shall be payable upon receipt by Idex
Management from the Fund of fees payable to Idex Management under
Section 6 of the Advisory Agreement; and
3. TREATMENT OF INVESTMENT ADVICE. Idex Management may direct Pilgrim
Xxxxxx to furnish its investment information, advice and recommendations
directly to officers of IDEX.
4. PURCHASES BY AFFILIATES. Neither Pilgrim Xxxxxx nor any of its officers
or Directors 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 Fund by the officers and Directors of
Pilgrim Xxxxxx (or 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 in the Fund's current prospectus in accordance with
Section 22(d) of the Investment Company Act of 1940, as amended (the "1940
Act").
5. LIABILITY OF PILGRIM XXXXXX. Pilgrim Xxxxxx may rely on information
provided to it by Idex Management or IDEX reasonably believed by it to be
accurate and reliable. Except as may otherwise be provided by the 1940 Act,
neither Pilgrim Xxxxxx nor its officers, directors, employees or agents shall be
subject to any liability to the Fund or any shareholders of the Fund or to Idex
Management 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 the performance of its duties or
by reason of reckless disregard of its obligations and duties under this
Agreement.
6. COMPLIANCE WITH LAWS. Pilgrim Xxxxxx represents that it is, and will
continue to be throughout the term of this Agreement, an investment adviser
registered under all applicable federal and state laws. In all matters relating
to the performance of this Agreement, Pilgrim Xxxxxx will act in conformity with
the IDEX's Declaration of Trust, Bylaws, and current prospectus and with the
instructions and direction of Idex Management and IDEX's Trustees, and will
conform to and comply with the 1940 Act and all other applicable federal or
state laws and regulations.
7. TERMINATION. This Agreement shall terminate automatically with respect
to the Fund upon the termination of the Advisory Agreement with respect to such
Fund. This Agreement may be terminated at any time with respect to the Fund,
without penalty, by Idex Management or by IDEX by giving 60 days' written notice
of such termination to Pilgrim Xxxxxx at its principal place of business,
provided that, if terminated by IDEX, such termination is approved by the Board
of Trustees of IDEX or by vote of a majority of the outstanding voting
securities (as that phrase is defined in Section 2(a)(42) of the 0000 Xxx) of
the Fund. This Agreement may be terminated at any time by Pilgrim Xxxxxx by
giving 60 days' written notice of such termination to IDEX and Idex Management
at their respective principal places of business.
8. ASSIGNMENT. This Agreement shall terminate automatically in the event
of any assignment (as that term is defined in Section 2(a)(4) of the 0000 Xxx)
of this Agreement.
9. TERM. This Agreement shall continue in effect, unless sooner terminated
in accordance with its terms, for an initial term ending April 30, 2000, and
shall continue in effect from year to year thereafter so long as such
continuance is specifically approved at least annually by the vote of a majority
of the Trustees of IDEX who are not parties hereto or interested persons (as
that term 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
the terms of such renewal, and by either the Trustees of IDEX 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).
10. AMENDMENTS. This Agreement may be amended with respect to the Fund
only with the approval by the affirmative vote of a majority of the outstanding
voting securities (as that phrase is defined in Section 2(a)(42) of the 0000
Xxx) of such Fund and the approval by the vote of a majority of the Trustees of
IDEX who are not parties hereto or interested persons (as that term 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.
11. 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.
12. MISCELLANEOUS
(a) Pilgrim Xxxxxx shall not be required to pay any expenses of the
Fund. In particular, but without limiting the generality of the foregoing,
Pilgrim Xxxxxx shall not be responsible for the following expenses of the Fund:
organization and certain offering expenses of the Fund, legal expenses; auditing
and accounting expenses; interest expenses; telephone, telex, facsimile, postage
and other communications expenses; taxes and governmental fees; fees, dues and
expenses incurred by or with respect to the Fund in connection with membership
in investment company trade organization; costs of insurance relating to
fidelity coverage for the Fund's officers and employees; fees and expenses of
the Fund's custodian, any subcustodian, transfer agent registrar, or dividend
disbursing agent; payments to the Adviser for maintaining the Fund's financial
books and records and calculating the daily net asset value; other payments for
portfolio pricing or valuation services to pricing agents, accountants, bankers
and other specialists, if any; expenses of preparing share certificates; other
expenses in connection with the issuance, offering, distribution, sale or
redemption of securities issued by the Fund; expenses relating to investor and
public relations; expenses of registering and qualifying shares of the Fund for
sale; freight, insurance and other charges in connection with the shipment of
the Fund's portfolio securities; brokerage commissions or other costs of
acquiring or disposing of any portfolio securities or other assets of the Fund,
or of entering into other transactions or engaging in any investment practices
with respect to the Fund; expenses of printing and distributing prospectuses,
Statements of Additional Information, reports, notices and dividends to
stockholders; costs of stationery; any litigation expenses; and costs of
stockholders' meetings; costs relating to meetings of the Board of Trustees of
IDEX except for travel expenses for representatives of Pilgrim Xxxxxx to the
extent that such expenses relate to attendance at meetings of the Board of
Trustees of IDEX with respect to matters concerning the Fund, or any committees
thereof or advisers thereto.
(b) It is understood that the services of Pilgrim Xxxxxx are not
exclusive, and that nothing in this Agreement shall prevent Pilgrim Xxxxxx from
providing similar services to other investment companies or to other series of
investment companies, or from engaging in other activities, provided such other
services and activities do not, during the term of the Agreement, interfere in a
material manner with Pilgrim Xxxxxx'x ability to meet its obligations to the
Fund hereunder. When Pilgrim Xxxxxx recommends the purchase or sale of the same
security for the Fund, it is understood that in light of its fiduciary duty to
the Fund, such transactions will be executed on a basis that is fair and
equitable to the Fund. In connection with purchases or sales of portfolio
securities for the account of the Fund, neither Pilgrim Xxxxxx nor any of its
directors, officers or employees shall act as principal or agent or receive any
commission, provided that portfolio transactions for the Fund may be executed
through firms affiliated with Pilgrim Xxxxxx in accordance with applicable legal
requirements, and procedures adopted by the Trustees of the Fund.
(c) During the term of this Agreement, Idex Management agrees to
furnish Pilgrim Xxxxxx, at is principal office, all prospectuses, proxy
statements, reports to shareholders, sales literature or other materials
prepared for distribution to shareholders of the Fund, IDEX or the public that
refer to Pilgrim Xxxxxx or its clients in any way.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ATTEST: THE PILGRIM XXXXXX & ASSOCIATES, LTD.
______________________________ By:_____________________________________
Secretary Title:
ATTEST: IDEX MANAGEMENT, INC.
_______________________________ By:_____________________________________
Assistant Secretary G. Xxxx Xxxxxx
President and Chief Executive Officer
Investment Counsel Agreement
SCHEDULE A
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FUND ANNUAL PERCENTAGE TERMINATION
OF MONTHLY AVERAGE DATE
DAILY NET ASSETS
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MID-CAP SUMMIT 0.50% of the first $100 April 30, 2000
million of the Fund's average
daily net assets; 0.40% of
assets in excess of $100
million (from first dollar)
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