EXHIBIT 6(a)
IDEX II SERIES FUND
UNDERWRITING AGREEMENT
This Agreement is entered into as of September 30, 1994, by and between
IDEX II Series Fund, a Massachusetts business trust (the "Fund"), and
InterSecurities, Inc. (formerly known as Idex Distributors, Inc.), a Delaware
corporation (the "Distributor").
Whereas, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company;
Whereas, the Distributor has served as principal underwriter for the
Fund since its inception;
Whereas, the Fund was formerly known as "Idex II" and the Fund
consisted of , and offered for public sale, only one series of shares of
beneficial interest corresponding to one portfolio;
Whereas, the Fund's Declaration of Trust was amended under a
Restatement of Declaration of Trust dated August 30, 1991 to provide for more
than one distinct series of shares of beneficial interest and for classes of
shares;
Whereas, the Fund currently offers for public sale more than one series
of its shares, for each of which series the Distributor serves as the principal
underwriter under an Underwriting Agreement dated April 22, 1993;
1. APPOINTMENT AND AUTHORITY OF AGENT. The Fund appoints the
Distributor as its principal underwriter, to sell shares of the Fund's
beneficial interest during the term of this Agreement. While this Agreement is
in force, the Distributor agrees to use its best efforts to find purchasers for
shares of the Fund. The Distributor shall sell, as agent on behalf of the Fund,
the shares needed, but not more than the shares needed (except for clerical
errors and errors of transmission), to fill unconditional orders placed with the
Distributor, and the price which the Fund shall receive for shares so purchased
shall be the net asset value used in determining the public offering price on
which such orders were based. (The term "net asset value" as used in this
Agreement shall have the meaning assigned to it in the Fund's Bylaws, as amended
from time to time).
The Distributor shall notify the Custodian of the Fund, at the end of
each business day, or as soon thereafter as the orders placed with it in such
period have been compiled, of the number of shares and the prices thereof which
the Distributor shall have sold on behalf of the Fund. The Distributor shall use
its best efforts to cause the sums due for shares ordered from the Fund to be
collected or to be advanced to the Fund on behalf of the purchasers on or before
the seventh business day (excluding Saturdays) after the shares have been so
ordered.
The agency of the Distributor shall be exclusive, except that it shall
not apply to (1) shares issued in connection with the merger or consolidation of
any other investment company or entity with the Fund or the non-taxable
acquisition, by purchase or otherwise, of all (or substantially all) of the
assets or the outstanding shares of any company by the Fund, or (2) shares which
may be offered by the Fund to its shareholders for reinvestment of dividends and
capital gains distributions, whether declared in cash or in shares or cash at
the option of the shareholder.
The Fund may suspend the sale of its shares at any time by notice to the
Distributor for such period of time as the Fund deems desirable. Such a
suspension of sale shall not effect a termination of this Agreement.
2. TERMS OF SALE OF SHARES. The Fund's shares shall be sold by the
Distributor as agent on behalf of the Fund to dealers having sales agreements
with the Distributor and to investors upon the terms and conditions (including
minimum purchase requirements) set forth in the current prospectus relating to
the Fund's shares and (to the extent not inconsistent with said prospectus) upon
the following terms and conditions:
a. PUBLIC OFFERING PRICE. The public offering price, which means
the price per share at which the Distributor or a dealer purchasing shares from
the Fund may sell shares to the public, shall be based upon the per share net
asset value determined as of the time specified in the then current prospectus
relating to the Fund's shares. The public offering price shall not exceed the
per share net asset value on the basis of which the applicable public offering
price is determined plus a sales charge as described in the then current
prospectus
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relating to the Fund's shares, which shall not exceed 8.5% of the public
offering price. The public offering price shall be adjusted to the nearer cent.
The Distributor shall fix, in its agreements with dealers, the portion of the
sales charge which may be reallowed to the dealers on the purchase of shares
from the Fund.
b. DETERMINATION OF NET ASSET VALUE. The Fund shall determine the
net asset value of the shares of the Fund (or cause such net asset value to be
determined) as of the close of the New York Stock Exchange on each business day
on which said Exchange is open, in accordance with the method set forth in the
Bylaws. Upon due notice to the Distributor, the Fund may also employ other
methods or times in calculation of net asset value, to the extent authorized by
its Bylaws and consistent with applicable federal laws and rules of the National
Association of Securities Dealers, Inc. The Fund shall also have the right to
suspend the sale of its shares and the calculation of net asset value if,
because of some extraordinary condition, the New York Stock Exchange shall be
closed, or if, in the judgment of a majority of the members of the Board of
Trustees of the Fund, or its Executive Committee, conditions existing during the
hours when said Exchange is open render such action advisable.
c. CONFIRMATIONS. The Distributor shall issue and deliver on
behalf of the Fund or cause to be issued and delivered all confirmations of
transactions effected hereunder for the account of the Fund.
3. NECESSARY ACTION. The Fund agrees that it will, from time to time,
but subject to any necessary approval of its shareholders, take all appropriate
action fixing the number of its authorized shares, and such other steps as may
be necessary to register the same under the Securities Act of 1933, to the end
that there will be available for sale such number of shares as the Distributor
may reasonably be expected to sell. The Fund plans to discontinue sales of its
shares except to existing shareholders when it reaches $500,000,000 in net
assets.
4. INDEMNITY OF FUND BY DISTRIBUTOR. The Distributor will indemnify and
hold harmles the Fund and each of its officers and trustees and each person, if
any, who controls the Fund within the meaning of Section 15 of the Securities
Act of 1933, against any loss, liability, damage, claim, or expense (including
the reasonable cost of investigating or defending any alleged loss, liability,
damage, claim or expense and reasonable counsel fees incurred in connection
therewith), arising by reason of or in connection with any person acquiring any
shares of the Fund, which may be based upon the Securities Act of 1933 or any
other statute or on the common law, on account of any wrongful act of the
Distributor or any of its employees or on the ground that the registration
statement or prospectus, as from time to time amended and supplemented, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, insofar as any such statement or omission was made in
reliance upon, and in conformity with, information furnished to the Fund in
connection therewith by or on behalf of the Distributor, provided, however, that
in no case shall (1) the indemnity of the Distributor in favor of any person
indemnified be deemed to protect the Fund or any such person against any
liability to which the Fund or any such person would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the performance
of its (or his) duties or by reason of its (or his) reckless disregard of its
(or his) obligations and duties under this Agreement, or (2) the Distributor be
liable under its indemnity agreement contained in this paragraph with respect to
any claim made against the Fund or any person indemnified unless the Fund or
such person, as the case may be, shall have notified the Distributor in writing
within a reasonable time after the summons or first legal process giving notice
of the claim shall have been served upon the Fund or upon such person (or after
the Fund or such person shall have received notice of such service on any
designated agent), but failure to notify the Distributor of any such claim shall
not relieve it from any liability which it may have to the Fund or any person
against whom such action is brought otherwise than on account of its indemnity
agreement contained in this paragraph. In the case of any such notice to the
Distributor, it shall be entitled to participate, at its own expense, in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but, if the Distributor elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Fund, and to those of its officers, trustees, or controlling
persons who are defendants in the suit. In the event that the Distributor elects
to assume the defense of any such suit and retain such counsel, the Fund and
those of its officers, trustees or controlling persons who are defendants in the
suit shall bear the fees and expenses of any additional counsel retained by
them, but, in case the Distributor does not elect to assume the defense of any
such suit, it shall reimburse them for the reasonable fees and expenses of any
counsel so retained by them. The Fund agrees to notify the Distributor promptly
of the commencement of any litigation or proceedings against it in connection
with the issue and sale of any of the shares.
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5. INDEMNITY OF DISTRIBUTOR BY FUND. The Fund will indemnify and hold
harmless the Distributor and each of its officers and directors and each person,
if any, who controls the Distributor within the meaning of Section 15 of the
Securities Act of 1933 against any loss, liability, claim, damage or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damage or expense and reasonable counsel fees incurred in
connection therewith), arising by reason of or in connection with any person
acquiring any of its shares which may be based upon the Securities Act of 1933
or on any other statute or on the common law, on the ground that the
registration statement or prospectus, as from time to time amended and
supplemented, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statement therein not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, information furnished to the Fund in
connection therewith by or on behalf of the Distributor; provided, however, that
in no case shall (1) the indemnity of the Fund in favor of the Distributor and
any such controlling person be deemed to protect the Distributor or any such
controlling person against any liability to which the Distributor (or any such
controlling person) would otherwise be subject by reason of its willful
misfeasance, bad faith, gross negligence in the performance of its (or his)
duties or by reason of its (or his) reckless disregard of its (or his)
obligations and duties under this Agreement, or (2) the Fund be liable under its
indemnity agreement contained in this paragraph with respect to any claim made
against the Distributor (or any such controlling person) unless the Distributor
or such controlling person, as the case may be, shall have notified the Fund in
writing within a reasonable time after the summons or first legal process giving
notice of the claim shall have been served upon the Distributor or upon such
controlling person (or after such Distributor or controlling person shall have
received notice of such service on any designated agent), but failure to notify
the Fund of any such claim shall not relieve it from any liability which it may
have to the person against whom such action is brought otherwise than on account
of its indemnity agreement contained in this paragraph. The Fund will be
entitled to participate at its own expense in the defense or, if it so elects,
to assume the defense of any suit brought to enforce any such liability, but, if
the Fund elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Distributor and to the controlling
persons who are defendants in the suit. In the event the Fund elects to assume
the defense of any such suit and retain such counsel, the Distributor or persons
who are defendants in the suit shall bear the fees and expenses of any
additional counsel retained by them, but, in case the Fund does not elect to
assume the defense of any such suit, it will reimburse them for the reasonable
fees and expenses of any counsel so retained by them. The Distributor agrees to
notify the Fund promptly of the commencement of any litigation or proceedings
against it or any of its officers or directors in connection with the issuance
or sale of any of the shares.
6. COMPLIANCE WITH SECURITIES LAWS. The Distributor, in selling the
shares of the Fund, will in all respects duly conform with all federal and
state laws relating to the sale of such securities.
7. AUTHORIZED REPRESENTATIONS. Neither the Distributor, any dealer nor
any other person is authorized by the Fund to give any information or to make
any representations, other than those contained in the registration statement or
prospectus filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (as said registration statement and
prospectus may be amended or supplemented from time to time), covering the
shares of the Fund, or in such other sales literature as the Fund may expressly
authorize the Distributor to use. No dealer (except the Distributor acting as
agent of the Fund for the account of the Fund) is authorized to act as agent for
the Fund in connection with the offering or sale of shares of the Fund to the
public or otherwise.
8. COSTS TO BE INCURRED BY DISTRIBUTOR. In addition to the expenses
which the Distributor may incur in the performance of its own functions under
this Agreement, and the expenses which it may expressly undertake to pay under
other agreements with the Fund or otherwise, the Distributor will pay:
(a) the expenses of printing and distributing prospectuses to
persons other than shareholders and state and federal agencies; and
(b) preparing, printing and distributing all other sales
literature used by the Distributor or by dealers, (including copies of the
Fund's reports to shareholders or federal or state regulatory agencies, other
than those sent to shareholders or federal or state regulatory agencies, which
the Fund may permit to be used as sales literature) in connection with the
offering of Fund shares for sale to the public; and
(c) any expenses of advertising in connection with such
offering.
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The Fund will pay all of its own expenses, except as expressly provided
herein or in any other agreements which the Fund may have with the Distributor
or any other person.
9. VOLUNTARY REPURCHASE OF SHARES BY THE FUND. The Fund reserves the
right, by resolution of its Board of Trustees, to authorize and require the
Distributor to repurchase, upon prices, terms and conditions to be set forth in
such resolution, as agent of the Fund and for its account, such shares of the
Fund as may be offered for voluntary repurchase by the Fund from time to time.
10. LONG OR SHORT POSITIONS. The Distributor agrees that it will not
take any long or short positions in the shares of the Fund except to the extent
contemplated by paragraphs 1 and 9 above, and that, so far as it can control the
situation, it will prevent any officer or director of (or person financially
interested in) the Distributor from taking any long or short position in the
shares of the Fund, except as permitted by the Declaration of Trust of the Fund
and by those portions of its Bylaws which are not subject to amendment except by
the shareholders of the Fund.
11. AMENDMENTS. This Agreement may be supplemented or amended by mutual
consent of the parties, provided that no amendment hereto shall be effective
unless approved by a majority of the trustees of the Fund who are not interested
persons (as that term is defined in Section 2(a)(19) of the Investment Company
Act of 1940, as amended) of the Distributor, cast in person at a meeting called
for the purpose of voting on such approval. If, at any time during the existence
of this Agreement, the Fund shall in good xxxxx xxxx it necessary or advisable
in the best interest of the Fund that any amendment of this Agreement be made in
order to comply with the recommendations or requirements of the Securities and
Exchange Commission or other governmental authority or to obtain any proper
advantage under federal or state tax laws, and shall notify the Distributor of
the form of amendment which it deems necessary or advisable and the reasons
therefor, and, if the Distributor declines to assent to such amendment, the Fund
may terminate this Agreement immediately, upon written notice. If, at any time
during the existence of this Agreement, upon request by the Distributor, the
Fund fails (after a reasonable time) to make any changes in its governing
instruments, or in its methods of doing business, which are in good faith deemed
by the Distributor to be necessary in order to comply with federal law or the
lawful requirements of the Securities and Exchange Commission or of the National
Association of Securities Dealers, Inc. relating to the sale of the shares of
the Fund, the Distributor may terminate this Agreement immediately, upon written
notice.
12. COMPENSATION. As compensation for the services performed and the
expenses assumed by the Distributor under this Agreement, including, but not
limited to, remuneration to the Distributor's employees and to other
broker/dealers on the basis of sales of shares, the Fund shall pay the
Distributor a distribution service fee of .25% of the average daily net assets
of the Fund. Such payments have been authorized by the Fund in its Distribution
Plan adopted pursuant to Rule 12b-1 under the Investment Company Act of 1940
("Distribution Plan") and will be limited in accordance with the terms of the
Distribution Plan. Additional payments to the Distributor from the Fund's
investment manager, IDEX Management, Inc. or the Fund's investment sub-adviser,
Janus Capital Corporation, may be authorized in accordance with applicable law.
13. REPORTS. The Distributor shall prepare written reports for the Board
of Trustees of the Fund on a quarterly basis showing information concerning
services provided and expenses incurred which are related to this Agreement and
such other information as from time to time shall be reasonably requested by the
Fund's Board of Trustees.
14. 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 Board of Trustees
of the Fund or 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
Investment Company Act of 1940, as amended); provided that no renewal hereof
shall be effective unless the terms of such renewal have been approved by the
vote of a majority of the Trustees of the Fund who are not interested parties
(as that term is defined in Section 2(a)(19) of the Investment Company Act of
1940, as amended) of the Distributor, cast in person at a meeting called for the
purpose of voting on the approval of the terms of such renewal. Either party
shall have the right to terminate this Agreement upon 60 days' written notice
given to the other party.
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15. ASSIGNMENT. In the event of the assignment (as defined in Section
2(a)(4) of the Investment Company Act of 1940, as amended) of this Agreement
by the Distributor, this Agreement shall automatically terminate.
16. 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 Fund.
17. 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 appearing above.
ATTEST: IDEX II SERIES FUND
/s/ Xxxxx X. Xxxxxxx By: /s/ G. Xxxx Xxxxxx
------------------------ ------------------------------
Xxxxx X. Xxxxxxx G. Xxxx Xxxxxx
Secretary President and Chief Executive Officer
ATTEST: INTERSECURITIES, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------- --------------------------------
Xxxxxxx X. Xxxxxx Xxxx X. Xxxxxx
Secretary Chairman of the Board
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AMENDMENT TO SCHEDULE I
OF THE UNDERWRITING AGREEMENT
BETWEEN
IDEX II SERIES FUND AND INTERSECURITIES, INC.
The following series and classes of shares are offered for public sale by IDEX
II Series Fund:
IDEX II Growth Portfolio IDEX II Balanced Portfolio
Class A Class A
Class B Class B
Class C Class C
IDEX II Global Portfolio IDEX II Capital Appreciation Portfolio
Class A Class A
Class B Class B
Class C Class C
IDEX II Flexible Income Portfolio IDEX II Aggressive Growth Portfolio
Class A Class A
Class B Class B
Class C Class C
IDEX II Tax-Exempt Portfolio IDEX II Equity-Income Portfolio
Class A Class A
Class B Class B
Class C Class C
IDEX II Income Plus Portfolio IDEX II Tactical Asset Allocation Portfolio
Class A Class A
Class B Class B
Class C Class C
IDEX II C.A.S.E. Portfolio
Class A
Class B
Class C
Effective as of February 1, 1996.
ATTEST: IDEX II SERIES FUND
/s/ Xxxxx X. Xxxxxxx /s/ G. Xxxx Xxxxxx
---------------------------- --------------------------------------
Xxxxx X. Xxxxxxx, Secretary By: G. Xxxx Xxxxxx, President and
Chief Executive Officer
ATTEST: INTERSECURITIES, INC.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------- ------------------------------
Xxxxxxx X. Xxxxxx, Secretary By: Xxxxxx X. Xxxxxxxx,
Senior Vice President
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