EXHIBIT 23(d)(1)(mm)
FORM OF INVESTMENT ADVISORY AGREEMENTS
ON BEHALF OF IDEX FEDERATED TAX EXEMPT
PROPOSED INVESTMENT ADVISORY AGREEMENT
IDEX MUTUAL FUNDS
This Agreement, entered into between IDEX Mutual Funds, a Massachusetts
business trust (referred to herein as the "Fund") and Idex Management, Inc., a
Delaware corporation (referred to herein as "Idex Management"), to provide
certain advisory services with respect to the series of shares of beneficial
interest in the Fund as listed on the attached Schedule A to this Agreement
(each a "fund," collectively the "funds").
The Fund is registered as an open-end investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and consists of
more than one series of shares, including the funds. In managing the funds, as
well as in the conduct of certain of its affairs, the Fund wishes to have the
benefit of the investment advisory services of Idex Management and its
assistance in performing certain management, administrative and promotional
functions. Idex Management desires to furnish such services to the Fund and to
perform the functions assigned to it under this Agreement for the considerations
provided. Schedule A, which may be amended from time to time, lists the
effective date and the termination date of this Agreement for each fund of the
Fund. Accordingly, the parties have agreed as follows:
1. APPOINTMENT. The Fund hereby appoints Idex Management as the funds'
investment adviser and administrator for the period and on the terms set forth
in this Agreement. Idex Management 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, Idex
Management will act in conformity with the Fund's Declaration of Trust, Bylaws
and registration statement applicable to the funds and with the instructions and
direction of the Board of Trustees of the Fund, 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 funds, Idex Management shall have the following responsibilities:
(a) to provide a continuous investment program for each fund including
advice as to the acquisition, holding or disposition of any or all of
the securities or other assets which the funds may own or contemplate
acquiring from time to time, consistent with the Fund's Declaration of
Trust and each 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 its officers to attend meetings and furnish oral or written
reports, as the Fund may reasonably require, in order to keep the
Trustees and appropriate officers of the Fund fully informed as to the
conditions of each investment portfolio of the funds, the investment
recommendations of Idex Management, and the investment considerations
which have given rise to those recommendations;
(c) to supervise the purchase and sale of securities as directed by the
appropriate officers of the Fund, including the selection of brokers and
dealers to execute such transactions, consistent with paragraph 8
hereof; and
(d) to maintain all books and records required to be maintained by the
Investment Adviser pursuant to the 1940 Act and the rules and
regulations promulgated thereunder with respect
to transactions on behalf of the Fund. In compliance with the
requirements of Rule 31a-3 under the 1940 Act, Idex Management hereby
agrees: (i) that all records that it maintains for the Fund are the
property of the Fund, (ii) to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act any records that it maintains for the Fund
and that are required to be maintained by Rule 31a-1 under the 1940 Act
and (iii) agrees to surrender promptly to the Fund any records that it
maintains for the Fund upon request by the Fund; provided, however, Idex
Management may retain copies of such records.
It is understood and agreed that Idex Management may, and intends to,
enter into Sub-Advisory Agreements with duly registered investment advisers (the
"Sub-Advisers") for each fund, under which each Sub-Adviser will, under the
supervision of Idex Management, furnish investment information and advice with
respect to one or more funds to assist Idex Management in carrying out its
responsibilities under this Section 2. The compensation to be paid to each
Sub-Adviser for such services and the other terms and conditions under which the
services shall be rendered by the Sub-Adviser shall be set forth in the
Sub-Advisory Agreement between Idex Management and each Sub-Adviser; provided,
however, that such Agreement shall be approved by the Board of Trustees and by
the holders of the outstanding voting securities of each 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. Idex Management shall furnish
or make available to the funds the services of executive and management
personnel to supervise the performance of all administrative, recordkeeping,
shareholder relations, regulatory reporting and compliance, and all other
functions of the funds, including supervising and coordinating the services of
the funds' custodian and transfer agent. Idex Management shall also assist in
the preparation of reports to shareholders of the funds and prepare sales
literature promoting sale of the funds' shares as requested by the Fund.
4. ALLOCATION OF EXPENSES. During the term of this Agreement, each fund
will bear all expenses not expressly assumed by Idex Management incurred in the
operation of each fund and the offering of its shares. Without limiting the
generality of the foregoing:
(a) Each fund shall pay (i) fees payable to Idex Management pursuant to
this Agreement; (ii) the cost (including brokerage commissions, if any)
incurred in connection with purchases and sales of each 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 a fund's shares for sale under federal
and state securities laws; (v) its allocable share of the compensation,
fees and reimbursements paid to the Fund's non-interested Trustees; (vi)
custodian and transfer agent fees; (vii) legal and accounting expenses
allocable to each 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 Fund and Idex Management);
(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 Fund 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 Fund on behalf of the
funds.
(b) Idex Management 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 Fund, except for such
Trustees who are not interested persons (as defined in the 1940 Act) of
Idex Management; and
(c) If, for any fiscal year, the total expenses of a fund, including but
not limited to: the fees to Idex Management, 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, Idex Management shall reimburse a fund for such
excess in the manner and to the extent required by applicable state law;
provided, however, that Idex Management shall reimburse each fund for
the amount of expenses that exceed the percentage of the fund's average
daily net assets as specified on Schedule A. 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 a fund's portfolio securities, expenses
incurred pursuant to a fund's Plan of Distribution under Rule 12b-1 of
the 1940 Act, or any costs arising other than in the ordinary and
necessary course of a fund's business.
5. OBLIGATIONS OF FUND. The Fund shall have the following obligations
under the Agreement:
(a) to keep Idex Management continuously and fully informed as to the
composition of its investment portfolio of each fund and the nature of
all of its assets and liabilities from time to time;
(b) to furnish Idex Management with a certified copy of any financial
statement or report prepared for a 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 Idex Management with any further materials or information
which Idex Management may reasonably request to enable it to perform its
functions under this Agreement; and
(d) to compensate Idex Management for its services in accordance with
the provisions of Section 6 hereof.
6. COMPENSATION. Each fund shall pay to Idex Management 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 on
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 a fund, the Fund
shall retain full control over its own investment policies. However, the
Trustees of the Fund may delegate to the appropriate officers of the Fund, or to
a committee of Trustees, the power to authorize purchases,
sales or other actions affecting each 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 a 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. Idex Management is authorized and directed to place a fund's securities
transactions, or to delegate to the Sub-Advisers the authority and direction to
place a 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 Idex Management or the
Sub-Advisers, 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 Idex Management or
the Sub-Advisers 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 Idex Management or the
Sub-Advisers. Idex Management and the Sub-Advisers 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 portfolio business with
such broker-dealers, Idex Management and the Sub-Advisers 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 Fund shall retain the right to
direct the placement of all securities transactions of each fund, and the
Trustees may establish policies or guidelines to be followed by Idex Management
and the Sub-Advisers in placing portfolio transactions for each fund pursuant to
the foregoing provisions. Idex Management shall report on the placement of
portfolio transactions each quarter to the Trustees of the Fund.
9. PURCHASES BY AFFILIATES. Neither Idex Management nor any officer or
Director thereof shall take a long or short position in the securities issued by
the funds. This prohibition, however, shall not prevent the purchase from a fund
of shares issued by the Fund on behalf of the fund, by the officers or Directors
of Idex Management (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 an initial term as specified on
Schedule A, 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 Fund 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 Fund or the affirmative vote of a majority of the outstanding
voting securities of each 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 Fund, or with respect to a fund, by the
shareholders of such 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 Idex Management at its principal place of business. This
Agreement may be terminated by Idex
Management at any time by giving 60 days' written notice of termination to the
Fund, addressed to its principal place of business.
12. USE OF NAME. If this Agreement is terminated and Idex Management no
longer serves as investment adviser to the funds, Idex Management reserves the
right to withdraw from the Fund the use of the name "IDEX" with respect to the
funds or any name misleadingly implying a continuing relationship between the
funds and Idex Management or any of its affiliates.
13. LIABILITY OF IDEX MANAGEMENT. Idex Management may rely on information
reasonably believed by it to be accurate and reliable. Except as may otherwise
be provided by the 1940 Act, neither Idex Management nor its officers,
directors, employees or agents shall be subject to any liability to the Fund or
the funds or any shareholder of the funds 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 that term is defined in Section 2(a)(4) of the 1940
Act) 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 each
affected fund (as that phrase is defined in Section 2(a)(42) of the 1940 Act)
and the approval by the vote of a majority of Trustees of the Fund who are not
parties hereto or interested persons (as that phrase is defined in Section
2(a)(19) of the 1940 Act) of any such party, cast in person at a meeting called
for the purpose of voting on the approval of such amendment.
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 Fund'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 Fund 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 Fund individually, but binding only upon the assets
and property of the funds.
ATTEST: IDEX MANAGEMENT, INC.
_______________________ By: ______________________
Xxxxxxx X. Xxxxxx, Secretary Xxxxxx X. Xxxxxxxx
President and Chief
Executive Officer
ATTEST: IDEX MUTUAL FUNDS
________________________ By: _____________________
Xxxx X. Xxxxxx, Secretary Xxxx X. Xxxxxx
Chairman of the Board
Effective Date: JUNE 15, 2000
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