IDEX II SERIES FUND
ON BEHALF OF IDEX II AGGRESSIVE GROWTH PORTFOLIO
INVESTMENT COUNSEL AGREEMENT
This Agreement is entered into as of September 30, 1994, between
INTERSECURITIES, INC., a Delaware corporation (referred to herein as "ISI"), and
XXXX XXXXX MANAGEMENT, INC., a New York corporation (referred to herein as "Xxxx
Xxxxx").
WHEREAS, ISI entered into a Management and Investment Advisory Agreement
(referred to herein as the "Advisory Agreement"), dated September 30, 1994, with
IDEX II Series Fund, a Massachusetts business trust (referred to herein as the
"Fund") on behalf of the IDEX II Series Fund Aggressive Growth Portfolio (the
"Portfolio"), under which ISI has agreed, among other things, to act as
investment adviser to the Fund.
WHEREAS, the Advisory Agreement provides that ISI may engage Xxxx Xxxxx
to furnish investment information and advice to assist ISI in carrying out its
responsibilities under the Advisory Agreement as investment adviser to the
Portfolio.
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
Xxxx Xxxxx to ISI 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 Xxxx Xxxxx. Xxxx Xxxxx shall act as investment counsel to
ISI. In this capacity, Xxxx Xxxxx shall have the following responsibilities:
(a) to furnish continuous investment information, advice and
recommendations to ISI as to the acquisition, holding or disposition of any or
all of the securities or other assets which the Portfolio may own or contemplate
acquiring from time to time;
(b) to cause its officers to attend meetings of ISI or the Fund and furnish
oral or written reports, as ISI may reasonably require, in order to keep ISI and
its officers and the Trustees of the Fund and appropriate officers of the Fund
fully informed as to the condition of the investment portfolio of the Portfolio,
the investment recommendations of Xxxx Xxxxx, and the investment considerations
which have given rise to those recommendations;
(c) to furnish such statistical and analytical information and reports as
may reasonably be required by ISI from time to time; and
(d) to supervise the purchase and sale of securities as directed by the
appropriate officers of the Fund or of ISI.
2. Obligations of ISI. ISI shall have the following obligations under this
Agreement:
(a) to keep Xxxx Xxxxx continuously and fully informed as to the
composition of the Portfolio's investment portfolio and the nature of the
Portfolio's assets and liabilities from time to time;
(b) to furnish Xxxx Xxxxx with a certified copy of any financial statement
or report prepared for the Portfolio 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 furnish Xxxx Xxxxx with copies of the Fund's Declaration of Trust,
By-laws, and current registration statement and any amendments thereto
applicable to the Portfolio, together with any further materials or information
which Xxxx Xxxxx may reasonably request to enable it to perform its functions
under this Agreement; and
(d) to compensate Xxxx Xxxxx for its services under this Agreement by the
payment of fees equal to (i) 40% of the fees received by ISI pursuant to Section
6 of the Advisory Agreement for services rendered by ISI to the Portfolio during
the term of this Agreement, less (ii) 40% of any amount reimbursed to the
Portfolio by ISI pursuant to the provisions of Section 8 of the Advisory
Agreement. The parties hereto expressly agree that in the event that for any
applicable period (ii) is greater than (i), Xxxx Xxxxx shall not receive a fee
for that period but that Xxxx Xxxxx shall not be obligated to pay ISI to the
extent that (ii) exceeds (i) for the period. In the event that this Agreement
shall be effective for only part of a period to which any such fee received by
ISI is attributable, then an appropriate proration 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 Xxxx Xxxxx hereunder shall be payable upon receipt
by ISI from the Portfolio of fees payable to ISI under Section 5 of the Advisory
Agreement.
3. Treatment of Investment Advice. ISI shall treat the investment
information, advice and recommendations of Xxxx Xxxxx as being advisory only,
and shall determine the extent to which such advice and recommendations shall be
passed on to the Portfolio or incorporated in investment advice by ISI to the
Portfolio. ISI may direct Xxxx Xxxxx to furnish its investment information,
advice and recommendations directly to officers or Trustees of the Fund.
4. Purchases by Affiliates. Neither Xxxx Xxxxx 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 by the officers and Directors of Xxxx Xxxxx (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.
5. Liability of Xxxx Xxxxx. Xxxx Xxxxx may rely on information reasonably
believed by it to be accurate and reliable. Except as may otherwise be provided
by the Investment Company Act of 1940, neither Xxxx Xxxxx nor its officers,
directors, employees or agents shall be subject to any liability to the Fund or
any shareholders 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 the performance
of its duties or by reason of reckless disregard of its obligations and duties
under this Agreement.
6. Compliance With Laws. Xxxx Xxxxx 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, Xxxx Xxxxx will act in conformity with the
Fund's Declaration of Trust, Bylaws, and current registration statement
applicable to the Portfolio and with the instructions and direction of ISI and
the Fund's Trustees, and will conform to and comply with the Investment Company
Act of 1940, as amended (the "1940 Act") and all other applicable federal or
state laws and regulations.
7. Termination. This Agreement shall terminate automatically upon the
termination of the Advisory Agreement. This Agreement may be terminated at any
time, without penalty, by ISI or by the Fund by giving 60 days' written notice
of such termination to Xxxx Xxxxx at its principal place of business, provided
that such termination is approved by the Board of Trustees of the Fund 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 Xxxx Xxxxx by giving 60 days' written notice of such
termination to the Fund and ISI at their respective principal places of
business.
8. Non-exclusivity. ISI agrees that the services of Xxxx Xxxxx are not to
be deemed exclusive and that Xxxx Xxxxx and its affiliates are free to act as
investment adviser and to provide other services to various investment companies
and other managed accounts, except as ISI and Xxxx Xxxxx may otherwise agree
from time to time in writing. Except as provided in Section 4, this Agreement
shall not in any way limit or restrict Xxxx Xxxxx or any of its officers,
directors, employees or agents from buying, selling or trading any securities or
other instruments for its or their own account or for the account of others for
whom it or they may be acting, provided that such activities do not adversely
affect or otherwise impair the performance by Xxxx Xxxxx of its duties and
obligations under this Agreement. ISI recognizes and agrees that Xxxx Xxxxx may
provide advice to or take action with respect to other clients, which advice or
action, including the timing or nature of such action, may differ from or be
identical to advice given or action taken with respect to the Fund. Xxxx Xxxxx
shall for all purposes hereof be deemed to be an independent contractor and
shall, unless otherwise provided or authorized, have no authority to act for or
represent the Fund or ISI in any way or be deemed an agent of the Fund or ISI.
9. Proprietary Rights. ISI agrees and acknowledges that Xxxx Xxxxx is the
sole owner of the name and xxxx "Xxxxx" and that all use of any designation
consisting in whole or part of "Xxxxx" (an "Xxxxx Xxxx") under this Agreement
shall inure to the benefit of Xxxx Xxxxx. ISI on its own behalf and on behalf of
the Fund agrees that it shall provide Xxxxx with copies of all disclosure
documents, advertisements and sales literature which uses an Xxxxx xxxx or makes
representations regarding Xxxx Xxxxx at least five (5) business days in advance
of such use. Upon termination of this Agreement for any reason, ISI shall cease,
and ISI shall use its best efforts to cause the Fund to cease, all use of any
"Xxxxx" Xxxx(s) as soon as reasonably practicable.
10. Assignment. This Agreement shall terminate automatically in the event
of any assignment (as that term is defined in Section 2(a)(4) and the rules
thereunder of the 0000 Xxx) of this Agreement.
11. Term. This Agreement shall continue in effect, unless sooner terminated
in accordance with its terms, for one year from the date hereof and shall
continue in effect from year to year thereafter only so long as such continuance
is specifically approved at least annually by the vote of a majority of the
Trustees of the Fund who are not parties hereto or interested persons (as the
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 the Fund 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).
12. Amendments. This Agreement may be amended only with the approval by the
affirmative vote of a majority of the outstanding voting securities of the
Portfolio (as that phrase is defined in Section 2(a)(42) of the 0000 Xxx) and
the approval by the vote of a majority of the Trustees of the Fund 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 in accordance with the 1940 Act.
13. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ATTEST: XXXX XXXXX MANAGEMENT, INC.
/s/ Xxxxx X. Staple /s/ Xxxxxxx Xxxx
_________________________ BY:_________________________________
Secretary Title: Chief Financial Officer
ATTEST: INTERSECURITIES, INC.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
_________________________ BY:_________________________________
Xxxxxxx X. Xxxxxx, Secretary Xxxx X. Xxxxxx
Chairman of the Board
