Exhibit 23(d)(2)(ww)
Form of Sub-Advisory Agreement for Protected Principal Stock
SUB-ADVISORY AGREEMENT
BETWEEN
AEGON/TRANSAMERICA FUND ADVISERS, INC.
AND
GATEWAY INVESTMENT ADVISERS, L.P.
SUB-ADVISORY AGREEMENT, made as of the 1st day of March, 2002, between
AEGON/Transamerica Fund Advisers, Inc. ("Investment Adviser"), a corporation
organized and existing under the laws of the State of Florida, and Gateway
Investment Advisers, L.P. ("Sub-Adviser"), a Limited Partnership organized and
existing under the laws of the State of Delaware.
WHEREAS, the Investment Adviser acts as an investment adviser to IDEX
Mutual Funds ("IDEX"), a Massachusetts business trust which is engaged in
business as an open-end management investment company registered under the
Investment Company Act of 1940, as amended ("1940 Act"), pursuant to an
investment advisory agreement dated March 1, 2002 (the "Advisory Agreement");
WHEREAS, IDEX is authorized to issue shares of IDEX Protected Principal
Stock (the "Fund"), a separate series of IDEX;
WHEREAS, the Sub-Adviser is engaged principally in the business of
rendering investment advisory services and is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended ("Advisers Act");
and
WHEREAS, the Investment Adviser desires to retain the Sub-Adviser as
sub-adviser to furnish certain investment advisory services to the Investment
Adviser with respect to the Fund and the Sub-Adviser is willing to furnish such
services.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein set forth, the parties hereto agree as follows:
1. APPOINTMENT.
Investment Adviser hereby appoints the Sub-Adviser as its investment
sub-adviser with respect to the Fund for the period and on the terms set forth
in this Agreement. The Sub-Adviser accepts such appointment and agrees to render
the services herein set forth, for the compensation herein provided.
2. DUTIES OF THE SUB-ADVISER.
A. Investment Sub-Advisory Services. Subject to the
supervision of the IDEX Board of Trustees ("Board") and the Investment Adviser,
the Sub-Adviser shall act as the investment sub-adviser and shall supervise and
direct the investments of the Fund in accordance with the Fund's investment
objective, policies, and restrictions as provided in the IDEX Prospectus and
Statement of Additional Information, as currently in effect and as amended or
supplemented from time to time (hereinafter referred to as the "Prospectus"),
and such other limitations as directed by the appropriate officers of the
Investment
Adviser or IDEX by notice in writing to the Sub-Adviser. The Sub-Adviser shall
obtain and evaluate such information relating to the economy, industries,
businesses, securities markets, and securities as it may deem necessary or
useful in the discharge of its obligations hereunder and shall formulate and
implement a continuing program for the management of the assets and resources of
the Fund in a manner consistent with the Fund's investment objective, policies,
and restrictions. In furtherance of this duty, the Sub-Adviser, on behalf of the
Fund, is authorized, in its discretion and without prior consultation with the
Fund or the Investment Adviser, to:
(1) buy, sell, exchange, convert, lend, and otherwise trade in any
stocks, options, bonds and other securities or assets; and
(2) place orders and negotiate the commissions (if any) for the
execution of transactions in securities or other assets with or
through such brokers, dealers, underwriters or issuers as the
Sub-Adviser may select.
B. Additional Duties of Sub-Adviser. In addition to the
above, Sub-Adviser shall:
(1) furnish continuous investment information, advice and
recommendations to IDEX 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;
(2) cause its officers to attend meetings of IDEX and furnish oral
or written reports, as IDEX may reasonably require, in order to
keep IDEX and its officers and Board fully informed as to the
condition of the investment securities of the Fund, the investment
recommendations of the Sub-Adviser, and the investment
considerations which have given rise to those recommendations; and
(3) furnish such statistical and analytical information and
reports as may reasonably be required by IDEX from time to time.
C. Further Duties of Sub-Adviser. In all matters relating to
the performance of this Agreement, the Sub-Adviser shall act in conformity with
the IDEX Restatement of Declaration of Trust and By-Laws, as each may be amended
or supplemented, and currently effective Registration Statement (as defined
below) and with the written instructions and directions of the Board and the
Investment Adviser, and shall comply with the requirements of the 1940 Act, the
Advisers Act, the rules thereunder, and all other applicable federal and state
laws and regulations.
3. COMPENSATION.
For the services provided and the expenses assumed by the Sub-Adviser
pursuant to this Agreement, the Sub-Adviser shall receive monthly: (i) an
investment management fee as specified in Schedule A of this Agreement, (ii)
less 50% of any amount reimbursed to the Fund by the Investment Adviser pursuant
to Section 4(c) of the Investment Advisory Agreement. Should the amount of any
such reimbursement be greater than the Sub-Adviser's compensation expressed in
this section, such amount shall be paid by the Investment Adviser and will be
deducted against any subsequent Sub-Adviser compensation, provided at no point
shall the Sub-Adviser be responsible for any such reimbursement that
exceeds its total compensation hereunder. If this Agreement becomes effective or
terminates before the end of any month, the investment management fee for the
period from the effective date to the end of such month or from the beginning of
such month to the date of termination, as the case may be, shall be pro-rated
according to the pro-ration which such period bears to the full month in which
such effectiveness or termination occurs.
4. DUTIES OF THE INVESTMENT ADVISER.
A. The Investment Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall oversee and review the Sub-Adviser's performance of
its duties under this Agreement. Notwithstanding the Advisory Agreement, the
Sub-Adviser has the authority to buy, sell, exchange, convert, lend, and
otherwise trade in any stocks, bonds and other securities or assets on behalf of
the Fund.
B. The Investment Adviser has furnished the Sub-Adviser with
copies of each of the following documents and will furnish to the Sub-Adviser at
its principal office all future amendments and supplements to such documents, if
any, as soon as practicable after such documents become available:
(1) The IDEX Restatement of Declaration of Trust, as filed
with the State of Massachusetts, as in effect on the date
hereof and as amended from time to time ("Trust");
(2) The By-Laws of IDEX as in effect on the date hereof and as
amended from time to time ("By-Laws");
(3) Certified resolutions of the Board of IDEX authorizing the
appointment of the Investment Adviser and the Sub-Adviser and
approving the form of the Advisory Agreement and this
Agreement;
(4) The IDEX Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended, on Form N-1A, as filed
with the Securities and Exchange Commission ("SEC") relating
to the Fund and its shares and all amendments thereto
("Registration Statement");
(5) The IDEX Prospectus (as defined above);
(6) A certified copy of any publicly available financial statement or
report prepared for IDEX by certified or independent public
accountants, and copies of any financial statements or reports made by
the Fund to its shareholders or to any governmental body or securities
exchange;
(7) The Investment Advisory Agreement.
The Investment Adviser shall furnish the Sub-Adviser with any further
documents, materials or information that the Sub-Adviser may reasonably request
to enable it to perform its duties pursuant to this Agreement.
C. During the term of this Agreement, the Investment Adviser
shall furnish to the Sub-Adviser at its principal office all prospectuses, proxy
statements, reports to shareholders, sales literature, or
other material prepared for distribution to shareholders of the Fund or the
public, which refer to the Fund, the Sub-Adviser or investment companies or
other advisory accounts advised or sponsored by the Sub-Adviser or investment
companies or other advisory accounts advised or sponsored by the Sub-Adviser in
any way, at least 15 days prior to the use thereof, and the Investment Adviser
shall not use any such materials if the Sub-Adviser reasonably objects in
writing fifteen business days (or such other time as may be mutually agreed)
after receipt thereof. This Paragraph C shall survive the termination of this
Agreement.
5. BROKERAGE.
A. The Sub-Adviser agrees that, in placing orders with
broker-dealers for the purchase or sale of portfolio securities, it shall
attempt to obtain quality execution at favorable security prices (best price and
execution); provided that, on behalf of the Fund, the Sub-Adviser may, in its
discretion, agree to pay a broker-dealer that furnishes brokerage or research
services as such services are defined under Section 28(e) of the Securities
Exchange Act of 1934, as amended ("1934 Act"), a higher commission than that
which might have been charged by another broker-dealer for effecting the same
transactions, if the Sub-Adviser determines in good faith that such commission
is reasonable in relation to the brokerage and research services provided by the
broker-dealer, viewed in terms of either that particular transaction or the
overall responsibilities of the Sub-Adviser with respect to the accounts as to
which it exercises investment discretion (as such term is defined under Section
3(a)(35) of the 1934 Act). Pursuant to such factors the Sub-Adviser may utilize
one or more of its affiliates as broker for transactions for the Fund. In no
instance will portfolio securities be purchased from or sold to the Sub-Adviser,
or any affiliated person thereof, except in accordance with the federal
securities laws and the rule and regulations thereunder.
B. On occasions when the Sub-Adviser deems the purchase or
sale of a security to be in the best interest of the Fund, as well as other
clients of the Sub-Adviser, the Sub-Adviser, to the extent permitted by
applicable laws and regulations, may, but shall be under no obligation to,
aggregate the securities to be purchased or sold to attempt to obtain a more
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 the Sub-Adviser in the
manner the Sub-Adviser considers to be the most equitable and consistent with
its fiduciary obligations to the Fund and to its other clients.
C. In addition to the foregoing, the Sub-Adviser agrees that
orders with broker-dealers for the purchase or sale of portfolio securities by
the Fund shall be placed in accordance with the standards set forth in the
Advisory Agreement.
6. OWNERSHIP OF RECORDS.
The Sub-Adviser shall maintain all books and records required to be
maintained by the Sub-Adviser pursuant to the 1940 Act and the rules and
regulations promulgated thereunder with respect to transactions on behalf of
IDEX. In compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Sub-Adviser hereby agrees: (i) that all records that it maintains for the Fund
are the property of IDEX, (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 IDEX any records that it maintains for the Fund upon
request by IDEX; provided, however, the Sub-Adviser may retain copies of such
records.
7. REPORTS.
The Sub-Adviser shall furnish to the Board or the Investment Adviser,
or both, as appropriate, such information, reports, evaluations, analyses and
opinions as the Sub-Adviser and the Board or the Investment Adviser, as
appropriate, may mutually agree upon from time to time.
8. PROXIES.
The Sub-Adviser shall vote all proxies solicited by or with respect to
the issuers of securities in which assets of the Fund may be invested from time
to time in accordance with its policies on proxy voting, and Investment Adviser
shall arrange for the custodian of the Fund to forward copies of all proxies and
shareholder communications relating the Fund asset to Sub-Adviser or
Sub-Adviser's designated proxy agent.
9. SERVICES TO OTHER CLIENTS.
Nothing contained in this Agreement shall limit or restrict (i) the
freedom of the Sub-Adviser, or any affiliated person thereof, to render
investment management and corporate administrative services to other investment
companies, to act as investment manager or investment counselor to other
persons, firms, or corporations, or to engage in any other business activities,
or (ii) the right of any director, officer, or employee of the Sub-Adviser, who
may also be a director, officer, or employee of IDEX, to engage in any other
business or to devote his or her time and attention in part to the management or
other aspects of any other business, whether of a similar nature or a dissimilar
nature.
10. SUB-ADVISER'S USE OF THE SERVICES OF OTHERS.
The Sub-Adviser may (at its cost except as contemplated by Section 5 of
this Agreement) employ, retain, or otherwise avail itself of the services or
facilities of other persons or organizations for the purpose of obtaining such
statistical and other factual information, such advice regarding economic
factors and trends, such advice as to occasional transactions in specific
securities, or such other information, advice, or assistance as the Sub-Adviser
may deem necessary, appropriate, or convenient for the discharge of its
obligations hereunder or otherwise helpful to the Sub-Adviser, as appropriate,
or in the discharge of Sub-Adviser's overall responsibilities with respect to
the other accounts that it serves as investment manager or counselor, provided
that the Sub-Adviser shall at all times retain responsibility for making
investment recommendations with respect to the Fund.
11. INDEMNIFICATION.
The Sub-Adviser shall exercise its best judgment in rendering the
services in accordance with the terms of this Agreement. The Sub-Adviser shall
not be liable for any error of judgment or mistake of law or for any act or
omission or any loss suffered by the Fund in connection with the matters to
which this Agreement relates, provided that nothing herein shall be deemed to
protect or purport to protect the Sub-Adviser against any liability to the Fund
or its shareholders, or the Adviser, to which the Sub-Adviser would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence on its
part in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement
("disabling conduct"). The Adviser will indemnify the Sub-Adviser against, and
hold harmless from, any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses), including any amount paid in
satisfaction of judgments, in compromise or as fines or penalties, not resulting
from disabling conduct by the Sub-Adviser. The Sub-Adviser shall be entitled to
advances from the Adviser for payment of reasonable expenses incurred in
connection with the matter as to which it is seeking indemnification in the
manner and to the fullest extent permissible under law.
12. REPRESENTATIONS OF SUB-ADVISER.
The Sub-Adviser represents, warrants, and agrees as follows:
A. The Sub-Adviser: (i) is registered as an investment adviser
under the Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or the
Advisers Act from performing the services contemplated by this Agreement; (iii)
has met, and will continue to meet for so long as this Agreement remains in
effect, any applicable federal or state requirements, or the applicable
requirements of any regulatory or industry self-regulatory agency, necessary to
be met in order to perform the services contemplated by this Agreement; (iv) has
the authority to enter into and perform the services contemplated by this
Agreement; and (v) will immediately notify the Investment Adviser of the
occurrence of any event that would disqualify the Sub-Adviser from serving as an
investment adviser of an investment company pursuant to Section 9 (a) of the
1940 Act or otherwise.
B. The Sub-Adviser has adopted a written code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act and, if it has
not already done so, will provide the Investment Adviser and IDEX with a copy of
such code of ethics, together with evidence of its adoption.
C. The Sub-Adviser has provided the Investment Adviser and IDEX with a
copy of its Form ADV as most recently filed with the SEC and will, promptly
after filing any amendment to its Form ADV with the SEC, furnish a copy of such
amendment to the Investment Adviser.
13. REPRESENTATIONS OF INVESTMENT ADVISER.
The Investment Adviser: (i) is registered as an investment adviser
under the Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or the
Advisers Act from performing investment advisory services to the Fund; (iii) has
met, and will continue to meet for so long as this Agreement remains in effect,
any applicable federal or state requirements, or the applicable requirements of
any regulatory or industry self-regulatory agency, or the applicable licensing
requirements for the use of any trademarks necessary to be met in order to
perform investment advisory services for the Fund; and (v) will immediately
notify the Sub-Adviser of the occurrence of any event that would disqualify the
Investment Adviser from serving as an investment adviser of an investment
company pursuant to Section 9(a) of the 1940 Act or otherwise.
14. GATEWAY NAME.
It is understood and hereby agreed that the word "Gateway" is the
property of the Sub-Adviser for copyright and other purposes. The Investment
Adviser further agrees that the word "Gateway" may freely be used by the
Sub-Adviser for other investment companies, entities or products. The Investment
Adviser further agrees that, in the event of termination of this Agreement, both
the Investment Adviser and the Fund shall promptly take all necessary and
appropriate action to cease all use
of the word "Gateway"; provided, however, that the Investment Adviser and the
Fund may continue to use the word "Gateway" if the Sub-Adviser consents in
writing to such use.
15. TERM OF AGREEMENT.
This Agreement shall become effective upon the date first above
written, provided that this Agreement shall not take effect unless it has first
been approved (i) by a vote of a majority of those members of the Board who are
not parties to this Agreement or interested persons of any such party, cast in
person at a meeting of the Board called for the purpose of voting on such
approval, and (ii) by vote of a majority of the Fund's outstanding voting
securities. Unless sooner terminated as provided herein, this Agreement shall
continue in effect for an initial term ending April 30, 2003. Thereafter, this
Agreement shall continue in effect from year to year, with respect to the Fund,
subject to the termination provisions and all other terms and conditions hereof,
so long as such continuation shall be specifically approved at least annually
(a) by either the Board, or by vote of a majority of the outstanding voting
securities of the Fund; and (b) in either event, by the vote, cast in person at
a meeting of the Board called for the purpose of voting on such approval, of a
majority of the members of the Board who are not parties to this Agreement or
interested persons of any such party. The Sub-Adviser shall furnish to IDEX,
promptly upon its request such information as may reasonably be necessary to
evaluate the terms of this Agreement or any extension, renewal, or amendment
hereof.
16. NOTICES.
Any notice shall be sufficiently given when sent by certified U.S.
mail, national expenses deliver service, or facsimile to the parties at the
address below:
If to IDEX:
IDEX Mutual Funds
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Investment Adviser:
AEGON/Transamerica Fund Advisers, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Sub-Adviser:
Gateway Investment Advisers, L.P.
Rookwood Tower
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
17. TERMINATION OF AGREEMENT.
Notwithstanding the foregoing, this Agreement may be terminated at any
time, without the payment of any penalty, by vote of the Board or by a vote of a
majority of the outstanding voting securities of the Fund, or per the terms of
the exemptive order - Release No. 23379 - under Section 6(c) of the Act from
Section 15(a) and Rule 18f-2 under the Act, on at least 60 days' prior written
notice to the Sub-Adviser. This Agreement may also be terminated by the
Investment Adviser: (i) on at least 60 days' prior written notice to the
Sub-Adviser, without the payment of any penalty; or (ii) if the Sub-Adviser
becomes unable to discharge its duties and obligations under this Agreement. The
Sub-Adviser may terminate this Agreement at any time, or preclude its renewal
without the payment of any penalty, on at least 60 days' prior notice to the
Investment Adviser. This Agreement shall terminate automatically in the event of
its assignment or upon termination of the Advisory Agreement.
18. AMENDMENT OF AGREEMENT.
No provision of this Agreement may be changed, waived, discharged, or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge, or termination is
sought, and no amendment of this Agreement shall be effective until approved by
vote of a majority of the Fund's outstanding voting securities, unless otherwise
permitted in accordance with the 1940 Act.
19. MISCELLANEOUS.
A. Governing Law. This Agreement shall be construed in
accordance with the laws of the Commonwealth of Massachusetts without giving
effect to the conflicts of laws principles thereof, and the 1940 Act. To the
extent that the applicable laws of the Commonwealth of Massachusetts conflict
with the applicable provisions of the 1940 Act, the latter shall control.
B. Captions. The captions contained in this Agreement are
included for convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect.
C. Entire Agreement. This Agreement represents the entire
agreement and understanding of the parties hereto and shall supersede any prior
agreements between the parties relating to the subject matter hereof, and all
such prior agreements shall be deemed terminated upon the effectiveness of this
Agreement.
D. Interpretation. Nothing herein contained shall be deemed to
require IDEX to take any action contrary to its Trust or By-Laws, or any
applicable statutory or regulatory requirement to which it is subject or by
which it is bound, or to relieve or deprive the Board of its responsibility for
and control of the conduct of the affairs of IDEX.
E. Definitions. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be
resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States courts or, in the absence
of any controlling decision of any such court, by rules, regulations, or orders
of the SEC validly issued pursuant to the 1940 Act. As used in this Agreement,
the terms "majority of the outstanding voting securities," "affiliated person,"
"interested person," "assignment," "broker," "investment adviser," "net assets,"
"sale," "sell," and "security" shall have the same meaning as such terms have in
the 1940 Act, subject to such exemption as may be granted by the SEC by any
rule, regulation, or order. Where the effect of a requirement of the federal
securities laws reflected in any provision of this Agreement is made less
restrictive by a rule, regulation, or order of the SEC, whether of special or
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation, or order, unless the Investment Adviser and the
Sub-Adviser agree to the contrary.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized signatories as of the date and year first
above written.
ATTEST: AEGON/TRANSAMERICA FUND ADVISERS, INC.
By:
------------------------------------ -----------------------------------
Xxxx X. Xxxxxx Xxxxxx X. Xxxxxxxx
Vice President, General Counsel, Executive Vice President
Compliance Officer & Secretary
ATTEST GATEWAY INVESTMENT ADVISERS, L.P.
By
------------------------------------ -----------------------------------
Name: Name:
Title: Title:
SUB-ADVISORY AGREEMENT
SCHEDULE A
FUND SUB-ADVISER COMPENSATION TERMINATION DATE
---- ------------------------ ----------------
0.40% of the first $100 million of the
IDEX PROTECTED PRINCIPAL STOCK Fund's average daily net assets; and
0.375% of the Fund's average daily net April 30, 2003
assets in excess of $100 million.
