23(d)(41)
Investing Agreements on behalf of Transamerica Foxhall Global Conservative VP,
Transamerica Foxhall Emerging Markets/Pacific Rim VP, Transamerica Foxhall
Global Growth VP, Transamerica Foxhall Global Hard Asset VP, Transamerica Xxxxxx
Balanced VP, Transamerica Xxxxxx Growth VP, Transamerica Xxxxxx Growth and
Income VP and Transamerica Xxxxxx Managed Income VP
PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of May 1, 2009, among Transamerica Series Trust, a
Delaware Statutory Trust organized under the laws of Delaware, on behalf of
itself or its separate series listed on Schedule A, severally and not jointly
(each, an "INVESTING FUND"), iShares Trust, a business trust organized under the
laws of the State of Delaware, and iShares, Inc., a corporation organized under
the laws of the State of Maryland, each on behalf of its respective iShares
series, severally and not jointly (each an "ISHARES FUND" and collectively the
"ISHARES FUNDS").
WHEREAS, each Investing Fund and the iShares Funds are registered with the
U.S. Securities and Exchange Commission ("SEC") as open-end management
investment companies under the Investment Company Act of 1940 (the "1940 ACT");
WHEREAS, section 12(d)(1)(A) and (B) of the 1940 Act limits the ability of
an investment company to invest in shares of another investment company, and
therefore limits the ability of an Investing Fund to invest in shares of an
iShares Fund;
WHEREAS, iShares Trust and iShares, Inc., on behalf of each iShares Fund,
have obtained an order from the SEC dated April 15, 2003 (the "ISHARES ORDER"),
that permits registered investment companies to invest in the iShares Funds in
excess of the limits set forth in section 12(d)(1)(A) and (B) in accordance with
the conditions of the iShares Order and the representations in the application
filed to obtain the iShares Order (the "ISHARES APPLICATION"); and
WHEREAS, the Investing Fund may, from time to time, invest in shares of one
or more iShares Funds in excess of the limitations of section 12(d)(1)(A) and
(B) in reliance on the iShares Order;
NOW THEREFORE, in consideration of the potential benefits to the Investing
Fund and the iShares Funds arising out of the Investing Fund's investment in
iShares Funds, the parties agree as follows.
1. Representations and Obligations of the iShares Funds.
(a) The iShares Funds have provided to the Investing Fund a copy of the
iShares Order and the related SEC Notice of Application for the iShares Order
(attached hereto as Schedule B). The iShares Funds will promptly provide each
Investing Fund with (i) a copy of any amendments to the iShares Order and (ii) a
copy of the iShares Application.
(b) In connection with any investment by an Investing Fund in an iShares
Fund, such iShares Fund agrees (i) to comply with the terms and conditions of
the iShares Order and this Agreement and (ii) to promptly notify the Investing
Fund if such iShares Fund fails to comply with the terms and conditions of the
iShares Order or this Agreement.
(c) iShares(R) is a registered trademark of Barclays Global Investors, N.A.
("BGI") and BGI has licensed the trademark to the iShares Funds.
2. Representations and Obligations of the Investing Funds.
(a) Pursuant to Condition 9 of the iShares Order, each Investing Fund
represents that the board of directors/trustees of such Investing Fund and such
Investing Fund's advisor understand the terms and conditions of the iShares
Order and that each agrees to fulfill its responsibilities under the iShares
Order.
(b) Pursuant to Condition 9 of the iShares Order, each Investing Fund will
promptly notify the iShares Funds in writing at the time of any investment by
such Investing Fund in an iShares Fund in excess of the 3% limit in Section
12(d)(1)(A)(i). Upon such investment, such Investing Fund shall also provide to
the iShares Funds in writing a list of the names of each Investing Fund
Affiliate and Underwriting Affiliate (as such terms are defined in the iShares
Order) and shall promptly notify the iShares Funds of any changes to such list.
(c) Each Investing Fund will promptly notify the iShares Funds in writing
of any purchase or acquisition of shares of an iShares Fund that causes such
Investing Fund to hold (i) 5% or more of such iShares Fund's total outstanding
voting securities or (ii) 10% or more of such iShares Fund's total outstanding
voting securities.
(d) Any Investing Fund that exceeds either the 5% or the 10% limitation in
Sections 12(d)(1)(A)(ii) or (iii) will, as required by the iShares Application,
disclose in its prospectus in "plain English":
(1) That it may invest in exchange-traded funds; and
(2) The unique characteristics of the Investing Fund investing in
exchange-traded funds, including but not limited to the basic expense structure
and additional expenses, if any, of investing in exchange-traded funds.
(e) Each Investing Fund: (i) acknowledges that it has received a copy of
the iShares Order and the related SEC Notice of Application for the iShares
Order; (ii) agrees to adhere to the terms and conditions of the iShares Order
and this Agreement and to participate in the proposed transactions in a manner
that addresses the concerns underlying the iShares Order; (iii) represents that
investments in the iShares Funds will be accomplished in compliance with its
investment restrictions and will be consistent with the investment policies set
forth in its registration statement; (iv) acknowledges that it may rely on the
iShares Order only to invest in iShares Funds and not in any other investment
company; and (v) agrees to promptly notify the iShares Funds if it fails to
comply with the iShares Order or this Agreement.
3. Indemnification.
Each Investing Fund agrees to hold harmless and indemnify the iShares
Funds, including any of their principals, directors or trustees, officers,
employees and agents, against and from any and all losses, expenses or
liabilities incurred by or claims or actions ("CLAIMS") asserted against the
iShares Funds, including any of their principals, directors or trustees,
officers, employees and agents, to the extent such Claims result from (i) a
violation or alleged violation by such Investing Fund of any provision of this
Agreement or (ii) a violation or alleged violation by such Investing Fund of the
terms and conditions of the iShares Order, such indemnification to include any
reasonable counsel fees and expenses incurred in connection with investigating
and/or defending such Claims.
The iShares Funds agree to hold harmless and indemnify an Investing Fund,
including any of its directors or trustees, officers, employees and agents,
against and from any Claims asserted against the Investing Fund, including any
of its directors or trustees, officers, employees and agents, to the extent such
Claims result from (i) a violation or alleged violation by the iShares Fund of
any provision of this Agreement or (ii) a violation or alleged violation by the
iShares Fund of the terms and conditions of the iShares Order, such
indemnification to include any reasonable counsel fees and expenses incurred in
connection with investigating and/or defending such Claims; provided that no
iShares Fund shall be liable for indemnifying any Investing Fund for any Claims
resulting from violations that occur as a result of incomplete or inaccurate
information provided by the Investing Fund to such iShares Fund pursuant to
terms and conditions of the iShares Order or this Agreement.
4. Materials.
To the extent an Investing Fund refers to one or more iShares Funds in any
prospectus, statement of additional information or otherwise, each Investing
Fund agrees to:
(a) Refer to such iShares Fund as, for example, the "iShares (R) [Index]
Fund"; and
(b) Include the following notice within reasonable proximity to the
reference to such iShares Fund:
iShares(R) is a registered trademark of Barclays Global Investors, N.A.
("BGI"). Neither BGI nor the iShares(R) Funds make any representations
regarding the advisability of investing in Transamerica Series Trust, on
behalf of itself or its separate series listed on Schedule A.
5. Notices.
All notices, including all information that either party is required to
provide under the terms of this Agreement and the terms and conditions of the
iShares Order, shall be in writing and shall be delivered by registered or
overnight mail, facsimile, or electronic mail to the address for each party
specified below (which address may be changed from time to time by notice to the
other party).
If to the Investing Fund:
Transamerica Series Trust
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Fax No.: 000-000-0000
Phone No.: 000-000-0000
If to the iShares Funds:
Xxxx Xxxxx
U.S. Intermediary Investors Business
Barclays Global Investors, N.A.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxxx.xxxxx@xxxxxxxxxxxxxx.xxx
With a copy to:
U.S. Legal Group
Attn: General Counsel
Barclays Global Investors, N.A.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000)000-0000
Email: xxxxx.xxxxx0@xxxxxxxxxxxxxx.xxx
U.S. Compliance Group
Attn: Xxxxxxxx Xxxxx
Barclays Global Investors, N.A.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Email: xxx00Xxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
6. Termination; Governing Law.
(a) This Agreement will continue until terminated in writing by either
party upon 60 days' notice to the other party, provided, however, that the
obligation of an Investing Fund in Section 2(d) above shall survive the
termination of this Agreement. This Agreement may not be assigned by either
party without the prior written consent of the other.
(b) This Agreement will be governed by Delaware law without regard to
choice of law principles.
(c) In any action involving the iShares Funds under this Agreement, each
Investing Fund agrees to look solely to the individual iShares Fund(s) that
is/are involved in the matter in controversy and not to any other series of
iShares Trust or iShares, Inc
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
NAME OF INVESTING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Investment Officer
ISHARES, INC., on behalf of each of its series
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
ISHARES TRUST, on behalf of each of its series
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
CLAYMORE EXCHANGE-TRADED FUND TRUST
CLAYMORE EXCHANGE-TRADED FUND TRUST 2
PURCHASING FUND AGREEMENT
This Purchasing Fund Agreement (the "Agreement") is made as of the date set
forth below between the Claymore Exchange-Traded Fund Trust and the Claymore
Exchange-Traded Fund Trust 2 (each a "Trust" and collectively, the "Trusts") and
Transamerica Series Trust, on behalf of itself or its separate series listed on
Schedule A (the "Purchasing Fund").
WHEREAS, Section 12(d)(1)(A) ("Section 12(d)(1)(A)") of the Investment
Company Act of 1940, as amended (the "1940 Act"), limits investment by an
investment company, as defined in the 1940 Act, and affiliates of such company,
in any other investment company that is registered under the 1940 Act; and
WHEREAS, each Trust is an investment company registered as such under the
1940 Act; and is organized as a series fund with multiple separate series (each
such series a "Fund" and collectively the "Funds"); and
WHEREAS, the Purchasing Fund is a registered investment company or
otherwise meets the definition of "investment company" under the 1940 Act; and
WHEREAS, the Securities and Exchange Commission (the "Commission") has
granted an order (Rel. No. IC-27483, September 18, 2006) exempting the Trusts
and certain investment companies investing in the Trusts from the limits of
Section 12(d)(1)(A) (such order and the application therefor together, the
"Order"); and
WHEREAS, in reliance on the Order, the Purchasing Fund may acquire shares
in the Funds ("Shares") in excess of the limits imposed by Section 12(d)(1)(A);
and
WHEREAS, pursuant to the conditions set forth in the Order, each Purchasing
Fund must enter into a written agreement with the Trusts prior to acquiring
Shares in excess of the limits imposed by Section 12(d)(1)(A);
NOW, THEREFORE, each Trust and the Purchasing Fund agree as follows:
1. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned such terms in the Order.
2. The members of the Purchasing Fund's Advisor Group will not control
(individually or in the aggregate) a Fund within the meaning of Section 2(a)(9)
of the 1940 Act. The members of a Purchasing Fund Sub-Advisory Group will not
control (individually or in the aggregate) a Fund within the meaning of Section
2(a)(9) of the 1940 Act. If, as a result of a decrease of the outstanding voting
securities of a Fund, the Purchasing Fund's Advisor Group or the Purchasing
Fund's Sub-Advisory Group, each in the aggregate, becomes a holder of more than
25 percent of the outstanding Fund Shares of a Fund, it will vote its shares of
the Fund in the same proportion as the vote of all other holders of the Fund's
Shares. This condition does not apply to the Purchasing Fund's Sub-Advisory
Group with respect to a Fund for which the Purchasing Fund's Sub-Adviser or a
person controlling, controlled by, or under common control with the Purchasing
Fund's Sub-Adviser acts as the investment adviser within the meaning of Section
2(a)(20)(A) of the 1940 Act (in the case of an Open-end Fund) or as the sponsor
(in the case of a UIT Fund).
For purposes of this Agreement, a "Purchasing Fund's Advisory Group" is
defined as the Purchasing Fund Adviser, or Sponsor, any person controlling,
controlled by, or under common control with such Adviser or Sponsor, and
any investment company or issuer that would be an investment company but
for Sections 3(c)(1) or 3(c)(7) of the 1940 Act that is advised by the
Purchasing Fund Adviser or sponsored by the Sponsor, or any person
controlling, controlled by, or under common control with such Adviser or
Sponsor. For purposes of this Application, a "Purchasing Fund's
Sub-Advisory Group" is defined as any Purchasing Fund Sub-Adviser, any
person controlling, controlled by, or under common control with the
Sub-Adviser, and any investment company or issuer that would be an
investment company but for Sections 3(c)(1) or 3(c)(7) of the 1940 Act (or
portion of such investment company or issuer) advised or sponsored by the
Sub-Adviser or any person controlling, controlled by or under common
control with the Sub-Adviser. The provision does not apply to the
Purchasing Fund Sub-Advisory Group with respect to a Fund for which the
Purchasing Fund Sub-Adviser or a person controlling, controlled by, or
under common control with the Purchasing Fund Sub-Adviser acts as the
investment adviser within the meaning of Section 2(a)(20)(A) of the 1940Act
(in the case of an Open-end Fund) or as the sponsor (in the case of a UIT
Fund).
3. The Purchasing Fund or Purchasing Fund Affiliate will not cause any
existing or potential investment by the Purchasing Fund in a Fund to influence
the terms of any services or transactions between the Purchasing Fund or
Purchasing Fund Affiliate and the Fund or Fund Affiliate.
"Fund Affiliate" is defined as an investment adviser, promoter, sponsor and
principal underwriter of a Fund and any person controlling, controlled by
or under common control with any of these entities. "Purchasing Fund
Affiliate" is defined as the Purchasing Fund Adviser, Purchasing Fund
Sub-Adviser, Sponsor, promoter and principal underwriter of a Purchasing
Fund, and any person controlling, controlled by or under common control
with any of these entities.
4. If the Purchasing Fund is a management company, as defined in Section 4
of the 1940 Act (a "Purchasing Management Company"), before the Purchasing Fund
relies on the Order, the board of directors or trustees of a Purchasing
Management Company, including a majority of the disinterested directors or
trustees, will adopt procedures reasonably designed to assure that the
Purchasing Fund Adviser and any Purchasing Fund Sub-Adviser are conducting the
investment program of the Purchasing Management Company without taking into
account any consideration received by the Purchasing Management Company or a
Purchasing Fund Affiliate from a Fund or Fund Affiliate in connection with any
services or transactions. Proper evidence of such approval, including but not
limited to, certified resolutions of the Board as to the foregoing approval,
shall be provided to each Trust upon request.
5. The Purchasing Fund or Purchasing Fund Affiliate will not cause a Fund
to purchase a security in any Affiliated Underwriting, except to the extent that
it is acting in its capacity as investment adviser to an Open-end Fund or
sponsor to a UIT Fund. Nothing in this Agreement, however, shall limit the
authority of each Trust to accept and satisfy in-kind creation orders and
redemption requests from a Purchasing Fund or an Underwriting Affiliate that is
also an Authorized Participant in the ordinary course of business.
For purposes of this Agreement, an "Underwriting Affiliate" is a principal
underwriter in any underwriting or selling syndicate that is an officer,
director, member of an advisory board, Purchasing Fund Adviser, Purchasing
Fund Sub-Adviser, employee or Sponsor of the Purchasing Fund, or a person
of which any such officer, director, member of an advisory board,
Purchasing Fund Adviser or Purchasing Fund Sub-Adviser, employee or Sponsor
is an affiliated person. An Underwriting Affiliate does not include any
person whose relationship to the Fund is covered by Section 10(f) of the
1940 Act. Also, an offering of securities during the existence of an
underwriting or selling syndicate of which a principal underwriter is an
Underwriting Affiliate is an "Affiliated Underwriting."
6. The Purchasing Fund will not acquire Shares in excess of the limits of
Section 12(d)(1)(A) unless and until the Purchasing Fund and the Trusts have
executed this Agreement and complied with the terms and conditions hereof. At
the time of its investment in Shares of a Fund in excess of the limit in Section
12(d)(1)(A)(i), a Purchasing Fund will notify the applicable Trust of the
investment. At such time, the Purchasing Fund will also transmit to such Trust a
list of the names of each Purchasing Fund Affiliate and Underwriting Affiliate.
The Purchasing Fund will notify the Trust of any changes to the list of names as
soon as reasonably practicable after the change occurs.
7. The Purchasing Fund and each Trust agree that each shall preserve a copy
of this Agreement, the list of Purchasing Fund Affiliates and Underwriting
Affiliates with any updated information and a copy of the Order for the duration
of the investment and for a period of not less than six (6) years thereafter,
the first two years shall be maintained by the Purchasing Fund and the Trusts in
an easily accessible place.
8. The Purchasing Fund represents and warrants to the Trusts that the
Purchasing Fund's board of directors or trustees, investment adviser or sponsor,
and trustee, as applicable, have received a copy of and have read and understand
the terms and conditions of the Order, and agree to fulfill their
responsibilities under the Order. The Purchasing Fund further represents and
warrants to the Trusts that the foregoing persons understand that the Order
pertains only to investments in the Trusts and not to investments in any other
investment company. The Purchasing Fund understands that this Agreement is
entered into in furtherance of, and pursuant to, the Order, and agrees that this
Agreement shall be interpreted consistently therewith.
Once an investment by a Purchasing Fund in the securities of a Fund exceeds
the limits of Section 12(d)(1)(A)(i) of the 1940 Act, the Board of an
Open-end Fund, including a majority of the disinterested Board members,
will determine that any consideration paid by the Open-end Fund to a
Purchasing Fund or Purchasing Fund Affiliate in connection with any
services or transactions (i) is fair and reasonable in relation to the
nature and quality of the services and benefits received by the Fund; (ii)
is within the range of consideration that the Open-end Fund would be
required to pay to another unaffiliated entity in connection with the same
services or transactions; and (iii) does not involve overreaching on the
part of any person concerned. This provision does not apply with respect to
any services
or transactions between an Open-end Fund and its investment adviser(s) or
any person controlling, controlled by, or under common control with such
investment adviser(s).
9. The Purchasing Fund agrees that it has sole responsibility under the
Order and this Agreement to monitor the limits of Section 12(d)(1)(A) as they
pertain to its acquisition of Shares.
10. The Purchasing Fund represents and warrants to the Trusts that, if it
is a Management Company, its investment adviser is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended, or is exempt from
such registration.
11. The Purchasing Fund represents and warrants to the Trusts that, if it
purchases Creation Units directly from the Trusts, it will do so only in
compliance with the Purchasing Fund's investment restrictions and only if so
doing is consistent with the investment policies set forth in the Purchasing
Fund's registration statement under the Securities Act of 1933.
12. The Purchasing Fund Adviser, Trustee or Sponsor as applicable, will
waive fees otherwise payable to it by the Purchasing Fund or Purchasing Trust,
as applicable, in an amount at least equal to any compensation (including fees
received pursuant to any plan adopted by an Open-end Fund under Rule 12b-1 under
the 0000 Xxx) received from a Fund by the Purchasing Fund Adviser, Trustee or
Sponsor, or an affiliated person of the Purchasing Fund Adviser, Trustee or
Sponsor, other than any advisory fees paid to the Purchasing Fund Adviser,
Trustee, or Sponsor or its affiliated person by an Open-end Fund, in connection
with the investment by the Purchasing Fund, in the Fund. Any Purchasing Fund
Sub-Adviser will waive fees otherwise payable to the Purchasing Fund
Sub-Adviser, directly or indirectly, by the Purchasing Management Company in an
amount at least equal to any compensation received by the Purchasing Fund
Sub-Adviser, or an affiliated person of the Purchasing Fund Sub-Adviser, other
than any advisory fees paid to the Purchasing Fund Sub-Adviser or its affiliated
person by an Open-end Fund, in connection with any investment by the Purchasing
Management Company in a Fund made at the direction of the Purchasing Fund
Sub-Adviser. In the event that the Purchasing Fund Sub-Adviser waives fees, the
benefit of the waiver will be passed through to the Purchasing Management
Company.
13. The Purchasing Fund represents and warrants to the Trusts that it
understands and complies with the National Association of Securities Dealers,
Inc. Conduct Rule 2830 and that any sales charge and/or service fees (other than
customary brokerage fees) charged with respect to shares in the Purchasing Fund
will not exceed the limits applicable to a fund of funds as set forth in that
rule.
14. If it is acquiring Shares in excess of either (i) the 5% limit of
Section 12(d)(1)(A)(ii) of the 1940 Act or (ii) the 10% limit of Section
12(d)(1)(A)(iii) of the 1940 Act, the Purchasing Fund represents and warrants to
the Trusts, and agrees, that its prospectus will disclose in "plain English" the
fact that it does or may invest in exchange-traded funds such as the Trusts, the
unique characteristics of a fund that invests in Funds, and the expenses of so
doing.
15. Before approving any advisory contract under Section 15 of the 1940
Act, the board of directors or trustees of each Purchasing Management Company,
including a majority of the disinterested directors or trustees, will find that
the advisory fees charged under such advisory contract are based on services
provided that will be in addition to, rather than duplicative of, the services
provided under the advisory contract(s) of any Open-end Fund in which the
Purchasing Management Company may invest. These findings and their basis will be
recorded fully in the minute books of the appropriate Purchasing Management
Company.
16. Any of the provisions of this Agreement notwithstanding, the Purchasing
Fund represents and warrants to the Trusts that it operates, and will continue
to operate, in compliance with the 1940 Act, and the Commission's rules and
regulations thereunder. The Purchasing Fund agrees that each Trust is entitled
to rely on the representations contained in this Agreement and that each Trust
has no independent duty to monitor the Purchasing Fund's compliance with this
Agreement, the Order, the 1940 Act, or the Commission's rules and regulations
thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
1st day of May, 2009.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
NAME OF PURCHASING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Investment Officer
ACCEPTED:
CLAYMORE EXCHANGE-TRADED FUND TRUST
By: /s/ Xxxxxxx X. Xxxxxx III
---------------------------------
Name: Xxxxxxx X. Xxxxxx III
Title: Vice President
ACCEPTED:
CLAYMORE EXCHANGE-TRADED FUND TRUST 2
By: /s/ Xxxxxxx X. Xxxxxx III
---------------------------------
Name: Xxxxxxx X. Xxxxxx III
Title: Vice President
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
POWERSHARES EXCHANGE-TRADED FUND TRUST
PURCHASING FUND AGREEMENT
This Purchasing Fund Agreement (the "Agreement") is made as of the date set
forth below between the PowerShares Exchange-Traded Fund Trust (the "Trust") and
Transamerica Series Trust, on behalf of itself or its separate series listed on
Schedule A (the "Purchasing Fund").
WHEREAS, Section 12(d)(1)(A) ("Section 12(d)(1)(A)") of the Investment
Company Act of 1940, as amended (the "1940 Act"), limits investment by an
investment company, as defined in the 1940 Act, and affiliates of such company,
in any other investment company that is registered under the 1940 Act; and
WHEREAS, the Trust is an investment company registered as such under the
1940 Act; and is organized as a series fund with multiple separate series (each
such series an "ETF" and collectively the "ETFs"); and
WHEREAS, the Purchasing Fund is a registered investment company or
otherwise meets the definition of "investment company" under the 1940 Act; and
WHEREAS, the Securities and Exchange Commission (the "Commission") has
granted an order (Rel. No. 1C-27743) exempting the Trust and certain investment
companies investing in the Trust from the limits of Section 12(d)(1)(A) (such
order and the application therefor together, the "Order"); and
WHEREAS, in reliance on the Order, the Purchasing Fund may acquire shares
in the ETFs ("Shares") in excess of the limits imposed by Section 12(d)(1)(A);
and
WHEREAS, pursuant to the conditions set forth in the Order, each Purchasing
Fund must enter into a written agreement with the Trust prior to acquiring
Shares in excess of the limits imposed by Section 12(d)(1)(A);
NOW, THEREFORE, the Trust and the Purchasing Fund agree as follows:
17. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned such terms in the Order.
18. The members of the Purchasing Fund Adviser Group will not control
(individually or in the aggregate) an ETF within the meaning of Section 2(a)(9)
of the 1940 Act. The members of a Purchasing Fund Sub-adviser Group will not
control (individually or in the aggregate) an ETF within the meaning of Section
2(a)(9) of the 1940 Act. If, as a result of a decrease in the outstanding voting
securities of an ETF, the Purchasing Fund Adviser Group or the Purchasing Fund
Sub-adviser Group, each in the aggregate, becomes a holder of more than 25
percent of the outstanding voting securities of an ETF, it will vote its shares
of the ETF in the same proportion as the vote of all other holders of the ETF's
shares. This condition does not apply to the Purchasing Fund Sub-adviser Group
with respect to an ETF for which the Purchasing Fund Sub-adviser or a person
controlling, controlled by, or under common control with the Purchasing Fund
Sub-adviser acts as the investment adviser within the meaning of Section
2(a)(20)(A) of the 1940 Act (in the case of an open-end exchange-traded fund) or
as the sponsor (in the case of a UIT ETF).
For purposes of this Agreement, the "Purchasing Fund Adviser Group"
consists of the Purchasing Fund investment adviser or manager, sponsor,
and/or depositor, as applicable, and any person controlling, controlled by,
or under common control with the Purchasing Fund's investment adviser or
manager, sponsor and/or depositor, and any investment company or any issuer
that would be an investment company but for Sections 3(c)(1) or 3(c)(7) of
the 1940 Act that is advised by the Purchasing Fund's adviser or manager or
sponsored by the Purchasing Fund's sponsor and/or depositor, or any person
controlling, controlled by, or under common control with the Purchasing
Fund's investment adviser or manager, sponsor, and/or depositor, as
applicable. For purposes of this Agreement, a "Purchasing Fund Sub-adviser
Group" consists of any sub-adviser to such Purchasing Fund, any person
controlling, controlled by, or under common control with such sub-adviser,
and any investment company or issuer that would be an investment company
but for Sections 3(c)(1) or 3(c)(7) of the 1940 Act (or portion of such
investment company or issuer) advised or sponsored by such sub-adviser or
any person controlling, controlled by or under common control with such
sub-adviser.
19. The Purchasing Fund Adviser, or Trustee or Sponsor of the Purchasing
Fund, will waive fees otherwise payable to it by the Purchasing Fund in an
amount at least equal to any compensation (including fees received pursuant to
any
plan adopted by an ETF under Rule 12b-1 under the 0000 Xxx) received from an ETF
by the Purchasing Fund Adviser, Trustee or Sponsor, or an affiliated person of
the Purchasing Fund Adviser, Trustee or Sponsor, other than any advisory fees
paid to the Purchasing Fund Adviser, Trustee, or Sponsor or its affiliated
person by the ETF, in connection with the investment by the Purchasing Fund in
the ETF. Any Purchasing Fund Sub-adviser will waive fees otherwise payable to
the Purchasing Fund Sub-adviser, directly or indirectly, by the Purchasing Fund
in an amount at least equal to any compensation received from an ETF by the
Purchasing Fund Sub-adviser, or an affiliated person of the Purchasing Fund
Sub-adviser, other than any advisory fees paid to the Purchasing Fund
Sub-adviser or its affiliated person by the ETF, in connection with any
investment by the Purchasing Fund in the ETF made at the direction of the
Purchasing Fund Sub-adviser. In the event that the Purchasing Fund Sub-adviser
waives fees, the benefit of the waiver will be passed through to the Purchasing
Fund.
20. Before approving any advisory contract under Section 15 of the 1940
Act, the board of directors or trustees of the Purchasing Fund, including a
majority of the disinterested directors or trustees, will find that the advisory
fees charged under such advisory contract are based on services provided that
will be in addition to, rather than duplicative of, the services provided under
the advisory contract(s) of an ETF in which the Purchasing Fund may invest.
These findings and their basis will be recorded fully in the minute books of the
Purchasing Fund.
21. The Purchasing Fund or any Purchasing Fund Affiliate will not cause any
existing or potential investment by the Purchasing Fund in an ETF to influence
the terms of any services or transactions between the Purchasing Fund or
Purchasing Fund Affiliate and the ETF or ETF Affiliate.
For purposes of this Agreement, the term "Purchasing Fund Affiliate"
includes an investment adviser, sub-adviser, sponsor, promoter, and
principal underwriter of a Purchasing Fund, and any person controlling,
controlled by, or under common control with any of those entities within
the meaning of Section 2(a)(9) of the 1940 Act.
22. If the Purchasing Fund is a management company, as defined in Section 4
of the 1940 Act (a "Management Company"), before the Purchasing Fund relies on
the Order, the board of directors or trustees of the Purchasing Fund, including
a majority of the disinterested directors or trustees, will adopt procedures
reasonably designed to assure that the Purchasing Fund Adviser and any
Purchasing Fund Sub-adviser are conducting the investment program of the
Purchasing Fund without taking into account any consideration received by the
Purchasing Fund or a Purchasing Fund Affiliate from an ETF or an affiliate of an
ETF in connection with any services or transactions. Proper evidence of such
approval, including but not limited to, certified resolutions of the Board as to
the foregoing approval, shall be provided to the Trust upon request.
23. No Purchasing Fund or Purchasing Fund Affiliate will cause an ETF to
purchase a security in any Affiliated Underwriting, except to the extent that it
is acting in its capacity as an investment adviser to the Trust. Nothing in this
Agreement, however, shall limit the authority of the Trust to accept and satisfy
in-kind creation orders and redemption requests from a Purchasing Fund or an
Underwriting Affiliate that is also an Authorized Participant in the ordinary
course of business.
For purposes of this Agreement, the term "Affiliated Underwriting" means an
offering of Securities during the existence of an underwriting or selling
syndicate of which a principal underwriter is an Underwriting Affiliate.
For purposes of this Agreement, the term "Underwriting Affiliate" means a
principal underwriter in any underwriting or selling syndicate that is an
officer, director, member of an advisory board, investment adviser,
sub-adviser, employee or sponsor of the Purchasing Fund, or a person of
which any such officer, director, member of an advisory board, investment
adviser, sub-adviser, employee or sponsor is an affiliated person. An
Underwriting Affiliate does not include any person whose relationship to
the Trust is covered by Section 10(f) of the 1940 Act.
24. The Purchasing Fund will not acquire Shares in excess of the limits of
Section 12(d)(1)(A) unless and until the Purchasing Fund and the Trust have
executed this Agreement and complied with the terms and conditions hereof. At
the time of its investment in Shares of an ETF in excess of the limit in Section
12(d)(1)(A)(i), the Purchasing Fund will notify the Trust of the investment. At
such time, the Purchasing Fund will also transmit to the Trust a list of the
names of each Purchasing Fund Affiliate and Underwriting Affiliate. The
Purchasing Fund will notify the Trust of any changes to the list of names as
soon as reasonably practicable after the change occurs.
25. The Purchasing Fund represents and warrants to the Trust that the
Purchasing Fund's board of directors or trustees, trustee, investment adviser or
manager, sponsor, and/or depositor, as applicable, have received a copy of and
have read and understand the terms and conditions of the Order, and agree to
fulfill their responsibilities under the Order. The Purchasing Fund further
represents and warrants to the Trust that the foregoing persons understand that
the Order pertains only to investments in the Trust and not to investments in
any other investment company. The Purchasing Fund understands that this
Agreement is entered into in furtherance of, and pursuant to, the Order, and
agrees that this Agreement shall be interpreted consistently therewith.
26. The Purchasing Fund agrees that it has sole responsibility under the
Order and this Agreement to monitor the limits of Section 12(d)(1)(A) as they
pertain to its acquisition of Shares.
27. The Purchasing Fund represents and warrants to the Trust that, if it is
a Management Company, its investment adviser is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended, or is exempt from
such registration.
28. The Purchasing Fund represents and warrants to the Trust that, if it
purchases Creation Units directly from the Trust, it will do so only in
compliance with the Purchasing Fund's investment restrictions and only if so
doing is consistent with the investment policies set forth in the Purchasing
Fund's registration statement under the Securities Act of 1933.
29. The Purchasing Fund and the Trust agree that each shall preserve a copy
of this Agreement, the list of Purchasing Fund Affiliates and Underwriting
Affiliates and a copy of the Order for the duration of the investment and for a
period of not less than six (6) years thereafter, the first two years shall be
maintained by the Purchasing Fund and the Trust in an easily accessible place.
30. The Purchasing Fund represents and warrants to the Trust that it
understands and complies with the National Association of Securities Dealers,
Inc. Conduct Rule 2830 and that any sales charge and/or service fees (other than
customary brokerage fees) charged with respect to shares in the Purchasing Fund
will not exceed the limits applicable to a fund of funds as set forth in that
rule.
31. If it is acquiring Shares in excess of either (i) the 5% limit of
Section 12(d)(1)(A)(ii) of the 1940 Act or (ii) the 10% limit of Section
12(d)(1)(A)(iii) of the 1940 Act, the Purchasing Fund represents and warrants to
the Trust, and agrees, that its prospectus will disclose in "plain English" the
fact that it may invest in exchange-traded funds and the unique characteristics
of a fund that invests in exchange-traded funds, including but not limited to
the expense structure and any additional expenses of investing in
exchange-traded funds.
32. Any of the provisions of this Agreement notwithstanding, the Purchasing
Fund represents and warrants to the Trust that it operates, and will continue to
operate, in compliance with the 1940 Act, and the Commission's rules and
regulations thereunder. The Purchasing Fund agrees that the Trust is entitled to
rely on the representations contained in this Agreement and that the Trust has
no independent duty to monitor the Purchasing Fund's compliance with this
Agreement, the Order, the 1940 Act, or the Commission's rules and regulations
thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
1st day of May, 2009.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
NAME OF PURCHASING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Investment Officer
ACCEPTED:
POWERSHARES EXCHANGE-TRADED FUND TRUST
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
POWERSHARES EXCHANGE-TRADED FUND TRUST II
PURCHASING FUND AGREEMENT
This Purchasing Fund Agreement (the "Agreement") is made as of the date set
forth below between the PowerShares Exchange-Traded Fund Trust II (the "Trust")
and Transamerica Series Trust, on behalf of itself or its separate series listed
on Schedule A (the "Purchasing Fund").
WHEREAS, Section 12(d)(1)(A) ("Section 12(d)(1)(A)") of the Investment
Company Act of 1940, as amended (the "1940 Act"), limits investment by an
investment company, as defined in the 1940 Act, and affiliates of such company,
in any other investment company that is registered under the 1940 Act; and
WHEREAS, the Trust is an investment company registered as such under the
1940 Act; and is organized as a series fund with multiple separate series (each
such series an "ETF" and collectively the "ETFs"); and
WHEREAS, the Purchasing Fund is a registered investment company or
otherwise meets the definition of "investment company" under the 1940 Act; and
WHEREAS, the Securities and Exchange Commission (the "Commission") has
granted an order (Rel. No. 1C-27743) exempting the Trust and certain investment
companies investing in the Trust from the limits of Section 12(d)(1)(A) (such
order and the application therefor together, the "Order"); and
WHEREAS, in reliance on the Order, the Purchasing Fund may acquire shares
in the ETFs ("Shares") in excess of the limits imposed by Section 12(d)(1)(A);
and
WHEREAS, pursuant to the conditions set forth in the Order, each Purchasing
Fund must enter into a written agreement with the Trust prior to acquiring
Shares in excess of the limits imposed by Section 12(d)(1)(A);
NOW, THEREFORE, the Trust and the Purchasing Fund agree as follows:
33. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned such terms in the Order.
34. The members of the Purchasing Fund Adviser Group will not control
(individually or in the aggregate) an ETF within the meaning of Section 2(a)(9)
of the 1940 Act. The members of a Purchasing Fund Sub-adviser Group will not
control (individually or in the aggregate) an ETF within the meaning of Section
2(a)(9) of the 1940 Act. If, as a result of a decrease in the outstanding voting
securities of an ETF, the Purchasing Fund Adviser Group or the Purchasing Fund
Sub-adviser Group, each in the aggregate, becomes a holder of more than 25
percent of the outstanding voting securities of an ETF, it will vote its shares
of the ETF in the same proportion as the vote of all other holders of the ETF's
shares. This condition does not apply to the Purchasing Fund Sub-adviser Group
with respect to an ETF for which the Purchasing Fund Sub-adviser or a person
controlling, controlled by, or under common control with the Purchasing Fund
Sub-adviser acts as the investment adviser within the meaning of Section
2(a)(20)(A) of the 1940 Act (in the case of an open-end exchange-traded fund) or
as the sponsor (in the case of a UIT ETF).
For purposes of this Agreement, the "Purchasing Fund Adviser Group"
consists of the Purchasing Fund investment adviser or manager, sponsor,
and/or depositor, as applicable, and any person controlling, controlled by,
or under common control with the Purchasing Fund's investment adviser or
manager, sponsor and/or depositor, and any investment company or any issuer
that would be an investment company but for Sections 3(c)(1) or 3(c)(7) of
the 1940 Act that is advised by the Purchasing Fund's adviser or manager or
sponsored by the Purchasing Fund's sponsor and/or depositor, or any person
controlling, controlled by, or under common control with the Purchasing
Fund's investment adviser or manager, sponsor, and/or depositor, as
applicable. For purposes of this Agreement, a "Purchasing Fund Sub-adviser
Group" consists of any sub-adviser to such Purchasing Fund, any person
controlling, controlled by, or under common control with such sub-adviser,
and any investment company or issuer that would be an investment company
but for Sections 3(c)(1) or 3(c)(7) of the 1940 Act (or portion of such
investment company or issuer) advised or sponsored by such sub-adviser or
any person controlling, controlled by or under common control with such
sub-adviser.
35. The Purchasing Fund Adviser, or Trustee or Sponsor of the Purchasing
Fund, will waive fees otherwise payable to it by the Purchasing Fund in an
amount at least equal to any compensation (including fees received pursuant to
any
plan adopted by an ETF under Rule 12b-1 under the 0000 Xxx) received from an ETF
by the Purchasing Fund Adviser, Trustee or Sponsor, or an affiliated person of
the Purchasing Fund Adviser, Trustee or Sponsor, other than any advisory fees
paid to the Purchasing Fund Adviser, Trustee, or Sponsor or its affiliated
person by the ETF, in connection with the investment by the Purchasing Fund in
the ETF. Any Purchasing Fund Sub-adviser will waive fees otherwise payable to
the Purchasing Fund Sub-adviser, directly or indirectly, by the Purchasing Fund
in an amount at least equal to any compensation received from an ETF by the
Purchasing Fund Sub-adviser, or an affiliated person of the Purchasing Fund
Sub-adviser, other than any advisory fees paid to the Purchasing Fund
Sub-adviser or its affiliated person by the ETF, in connection with any
investment by the Purchasing Fund in the ETF made at the direction of the
Purchasing Fund Sub-adviser. In the event that the Purchasing Fund Sub-adviser
waives fees, the benefit of the waiver will be passed through to the Purchasing
Fund.
36. Before approving any advisory contract under Section 15 of the 1940
Act, the board of directors or trustees of the Purchasing Fund, including a
majority of the disinterested directors or trustees, will find that the advisory
fees charged under such advisory contract are based on services provided that
will be in addition to, rather than duplicative of, the services provided under
the advisory contract(s) of an ETF in which the Purchasing Fund may invest.
These findings and their basis will be recorded fully in the minute books of the
Purchasing Fund.
37. The Purchasing Fund or any Purchasing Fund Affiliate will not cause any
existing or potential investment by the Purchasing Fund in an ETF to influence
the terms of any services or transactions between the Purchasing Fund or
Purchasing Fund Affiliate and the ETF or ETF Affiliate.
For purposes of this Agreement, the term "Purchasing Fund Affiliate"
includes an investment adviser, sub-adviser, sponsor, promoter, and
principal underwriter of a Purchasing Fund, and any person controlling,
controlled by, or under common control with any of those entities within
the meaning of Section 2(a)(9) of the 1940 Act.
38. If the Purchasing Fund is a management company, as defined in Section 4
of the 1940 Act (a "Management Company"), before the Purchasing Fund relies on
the Order, the board of directors or trustees of the Purchasing Fund, including
a majority of the disinterested directors or trustees, will adopt procedures
reasonably designed to assure that the Purchasing Fund Adviser and any
Purchasing Fund Sub-adviser are conducting the investment program of the
Purchasing Fund without taking into account any consideration received by the
Purchasing Fund or a Purchasing Fund Affiliate from an ETF or an affiliate of an
ETF in connection with any services or transactions. Proper evidence of such
approval, including but not limited to, certified resolutions of the Board as to
the foregoing approval, shall be provided to the Trust upon request.
39. No Purchasing Fund or Purchasing Fund Affiliate will cause an ETF to
purchase a security in any Affiliated Underwriting, except to the extent that it
is acting in its capacity as an investment adviser to the Trust. Nothing in this
Agreement, however, shall limit the authority of the Trust to accept and satisfy
in-kind creation orders and redemption requests from a Purchasing Fund or an
Underwriting Affiliate that is also an Authorized Participant in the ordinary
course of business.
For purposes of this Agreement, the term "Affiliated Underwriting" means an
offering of Securities during the existence of an underwriting or selling
syndicate of which a principal underwriter is an Underwriting Affiliate.
For purposes of this Agreement, the term "Underwriting Affiliate" means a
principal underwriter in any underwriting or selling syndicate that is an
officer, director, member of an advisory board, investment adviser,
sub-adviser, employee or sponsor of the Purchasing Fund, or a person of
which any such officer, director, member of an advisory board, investment
adviser, sub-adviser, employee or sponsor is an affiliated person. An
Underwriting Affiliate does not include any person whose relationship to
the Trust is covered by Section 10(f) of the 1940 Act.
40. The Purchasing Fund will not acquire Shares in excess of the limits of
Section 12(d)(1)(A) unless and until the Purchasing Fund and the Trust have
executed this Agreement and complied with the terms and conditions hereof. At
the time of its investment in Shares of an ETF in excess of the limit in Section
12(d)(1)(A)(i), the Purchasing Fund will notify the Trust of the investment. At
such time, the Purchasing Fund will also transmit to the Trust a list of the
names of each Purchasing Fund Affiliate and Underwriting Affiliate. The
Purchasing Fund will notify the Trust of any changes to the list of names as
soon as reasonably practicable after the change occurs.
41. The Purchasing Fund represents and warrants to the Trust that the
Purchasing Fund's board of directors or trustees, trustee, investment adviser or
manager, sponsor, and/or depositor, as applicable, have received a copy of and
have read and understand the terms and conditions of the Order, and agree to
fulfill their responsibilities under the Order. The Purchasing Fund further
represents and warrants to the Trust that the foregoing persons understand that
the Order pertains only to investments in the Trust and not to investments in
any other investment company. The Purchasing Fund understands that this
Agreement is entered into in furtherance of, and pursuant to, the Order, and
agrees that this Agreement shall be interpreted consistently therewith.
42. The Purchasing Fund agrees that it has sole responsibility under the
Order and this Agreement to monitor the limits of Section 12(d)(1)(A) as they
pertain to its acquisition of Shares.
43. The Purchasing Fund represents and warrants to the Trust that, if it is
a Management Company, its investment adviser is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended, or is exempt from
such registration.
44. The Purchasing Fund represents and warrants to the Trust that, if it
purchases Creation Units directly from the Trust, it will do so only in
compliance with the Purchasing Fund's investment restrictions and only if so
doing is consistent with the investment policies set forth in the Purchasing
Fund's registration statement under the Securities Act of 1933.
45. The Purchasing Fund and the Trust agree that each shall preserve a copy
of this Agreement, the list of Purchasing Fund Affiliates and Underwriting
Affiliates and a copy of the Order for the duration of the investment and for a
period of not less than six (6) years thereafter, the first two years shall be
maintained by the Purchasing Fund and the Trust in an easily accessible place.
46. The Purchasing Fund represents and warrants to the Trust that it
understands and complies with the National Association of Securities Dealers,
Inc. Conduct Rule 2830 and that any sales charge and/or service fees (other than
customary brokerage fees) charged with respect to shares in the Purchasing Fund
will not exceed the limits applicable to a fund of funds as set forth in that
rule.
47. If it is acquiring Shares in excess of either (i) the 5% limit of
Section 12(d)(1)(A)(ii) of the 1940 Act or (ii) the 10% limit of Section
12(d)(1)(A)(iii) of the 1940 Act, the Purchasing Fund represents and warrants to
the Trust, and agrees, that its prospectus will disclose in "plain English" the
fact that it may invest in exchange-traded funds and the unique characteristics
of a fund that invests in exchange-traded funds, including but not limited to
the expense structure and any additional expenses of investing in
exchange-traded funds.
48. Any of the provisions of this Agreement notwithstanding, the Purchasing
Fund represents and warrants to the Trust that it operates, and will continue to
operate, in compliance with the 1940 Act, and the Commission's rules and
regulations thereunder. The Purchasing Fund agrees that the Trust is entitled to
rely on the representations contained in this Agreement and that the Trust has
no independent duty to monitor the Purchasing Fund's compliance with this
Agreement, the Order, the 1940 Act, or the Commission's rules and regulations
thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
1st day of May, 2009.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
NAME OF PURCHASING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Investment Officer
ACCEPTED:
POWERSHARES EXCHANGE-TRADED FUND
TRUST II
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
FUND OF FUNDS PARTICIPATION AGREEMENT
FOR PROSHARES TRUST EXCHANGE TRADED FUNDS
THIS FUND OF FUNDS PARTICIPATION AGREEMENT, dated as of May 1, 2009, (the
"Agreement") is by and between ProShares Trust, a Delaware business trust
("Trust") and Transamerica Series Trust, a Delaware Statutory Trust, on behalf
of itself or its separate series listed on Schedule B, severally and not jointly
("Fund of Funds").
RECITALS
WHEREAS, the Trust engages in business as an open-end management investment
company;
WHEREAS, the shares of beneficial interest in the Trust are divided into
several series of shares (each designated a "Fund" and collectively the "Funds")
and each Fund represents the interest in a particular managed portfolio of
securities and other assets;
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and shares of the Funds are registered under the Securities Act of 1933, as
amended, (the "1933 Act");
WHEREAS, the Fund of Funds is engaged in business as an open-end management
investment company operating as a fund of funds and as such, in accordance with
its investment objectives and policies, may invest in the Funds listed on
Schedule A hereto, as it may be amended from time to time by mutual written
agreement;
WHEREAS, the Fund of Funds is advised by an investment adviser within the
meaning of section 2(a)(20)(A) of the 1940 Act and registered under the
Investment Advisers Act of 1940, as amended ("Investment Advisers Act") or is
exempt from registration;
WHEREAS, the Fund of Funds may invest in the Funds in excess of the
limitations of Section 12(d)(1)(A) and (B) of the 1940 Act pursuant to and under
the terms and conditions of an order granted by the Securities and Exchange
Commission ("SEC") dated January 9, 2007 (the "Order") in response to an
application, as amended, submitted by the Trust and its affiliates (the
"Application").
NOW, THEREFORE, in consideration of their mutual promises, the Fund of
Funds and the Trust agree as follows:
ARTICLE I
ADMINISTRATION
1.1 Sale of Fund Shares. Subject to Article VI hereof and the terms set forth in
its registration statement, as amended from time to time, the Trust agrees to
make available to the Fund of Funds shares of the Funds, such purchases to be
effected at net asset value. Notwithstanding the foregoing, (i) the Funds (other
than those listed on Schedule A) in existence now or that may be established in
the future will be made available to the Fund of Funds only as the Trust may so
provide, and (ii) the Board of Trustees of the Trust may suspend or terminate
the offering of shares of any Fund or class thereof, if such action is required
by law or by regulatory authorities having jurisdiction or if, in the sole
discretion of the Board of Trustees of the Trust acting in good faith and in
light of its fiduciary duties under federal and any applicable state laws,
suspension or termination is necessary in the best interests of the shareholders
of such Fund. The Trust reserves the right, upon prior written notice to the
Fund of Funds (given at the earliest practicable time but in no event less than
60 days), to take all actions, including but not limited to, the dissolution,
reorganization, liquidation, merger or sale of all assets of the Trust or any
Fund upon the sole authorization of the Board of Trustees of the Trust, acting
in good faith.
1.2 Issuance and Transfer. Issuance and transfer of Trust shares shall be by
book entry only. Share certificates will not be issued to the Fund of Funds.
Purchase and redemption orders for Fund shares shall be recorded in an
appropriate ledger for the Fund of Funds.
1.3 Other Investments. The parties hereto acknowledge that the arrangement
contemplated by this Agreement is not exclusive; the Trust's shares may be sold
to other Fund of Funds.
1.4 Cessation. The Trust reserves the right to cease offering shares of any Fund
in the discretion of the Trust.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE FUND OF FUNDS
The Fund of Funds represents and warrants to the Trust that:
2.1 Fund of Funds Organization. The Fund of Funds is an open-end management
investment company, and at all times, as required under the 1940 Act, has been
duly registered with the SEC as an investment company under the 1940 Act and has
been duly organized, is validly existing and in good standing under the laws of
the jurisdiction of its organization and has the requisite power and authority
to own its material properties and assets, and to carry on its business as it is
now being conducted.
2.2 Authorization of Agreement. The Fund of Funds has the requisite power and
authority and has taken all necessary actions to authorize the execution,
delivery and performance of this Agreement. This Agreement constitutes the valid
and binding obligation of the Funds of Funds enforceable against it in
accordance with its terms.
2.3 Conflicts. The execution, delivery and performance of this Agreement will
not (i) violate, contravene or conflict with the Declaration of Trust or By-laws
of the Fund of Funds or with any resolutions adopted by the board of directors
or trustees or the shareholders of the Fund of Funds; (ii) conflict with, or
result in the breach, violation, or constitute a default under any contract or
agreement to which the Fund of Funds is a party or by which it or its properties
are bound; (iii) require the Fund of Funds to obtain the consent, waiver,
authorization, approval of, or give notice to, any person or entity under any
contract or agreement; or (iv) constitute a violation of any law applicable to
the Fund of Funds.
2.4 Compliance with Law. As of the date hereof (i) the Fund of Funds' investment
adviser is not subject to disqualification pursuant to Section 203(e) of the
Investment Advisers Act regarding service as a registered investment adviser or
as a person associated with a registered investment adviser unless the Fund of
Funds has received exemptive relief from the SEC with respect to such
disqualification or except as would not reasonably be expected to materially
impair the ability of the Fund of Funds to perform its obligations hereunder;
(ii) the Fund of Funds' distributor or principal underwriter is not subject to
disqualification to serve as a broker-dealer under Section 15 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") unless the Fund of Funds
has received exemptive relief from the SEC with respect to such disqualification
or except as would not reasonably be expected to materially impair the ability
of the Fund of Funds to perform its obligations hereunder. As of the date
hereof, neither the Fund of Funds nor any "affiliated person" (as defined under
the 0000 Xxx) thereof is subject to disqualification regarding service as an
investment adviser or any other capacity contemplated by the 1940 Act for any
investment company under Section 9(a) of the 1940 Act unless in each case the
Fund of Funds has received exemptive relief from the SEC with respect to such
disqualification or except as would not reasonably be expected to materially
impair the ability of the Fund of Funds to perform its obligations hereunder. As
of the date hereof, the Fund of Funds is not the subject of any investigation or
inquiry or, to its knowledge, its investment adviser is not reasonably likely to
result in becoming disqualified regarding services as an investment adviser or
in any other capacity contemplated by the 1940 Act for any investment company
under Section 9(a) of the 1940 Act.
2.5 Section 17(e). Receipt of any compensation by (a) an affiliated person of a
Fund of Funds, or an affiliated person of such person, for the purchase by the
Fund of Funds of shares of a Fund, or (b) an affiliated person of a Fund, or an
affiliated person of such person, for the sale by the Fund of its shares to a
Fund of Funds is subject to section 17(e) of the 1940 Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Fund of Funds that:
3.1 Trust Organization. The Trust is an open-end management investment company,
and at all times, as required under the 1940 Act, has been duly registered with
the SEC as an investment company under the 1940 Act and has been duly organized,
is validly existing and in good standing under the laws of the jurisdiction of
its organization and has the requisite power and authority to own its material
properties and assets, and to carry on its business as it is now being
conducted.
3.2 Authorization of Agreement. The Trust has the requisite power and authority
and has taken all necessary actions to authorize the execution, delivery and
performance of this Agreement. This Agreement constitutes the valid and binding
obligation of the Trust enforceable against it in accordance with its terms.
3.3 Conflicts. The execution, delivery and performance of this Agreement will
not (i) violate, contravene or conflict with the Declaration of Trust or By-laws
of the Trust or with any resolutions adopted by the board of directors or
trustees or the shareholders of the Trust; (ii) conflict with, or result in the
breach, violation, or constitute a default under any contract or
agreement to which the Trust is a party or by which it or its properties are
bound; (iii) require the Trust to obtain the consent, waiver, authorization,
approval of, or give notice to, any person or entity under any contract or
agreement; or (iv) constitute a violation of any law applicable to the Trust.
3.4 Compliance with Law. As of the date hereof (i) the Trust's investment
adviser is not subject to disqualification pursuant to Section 203(e) of the
Investment Advisers Act regarding service as a registered investment advisor or
as a person associated with a registered investment adviser unless the Trust has
received exemptive relief from the SEC with respect to such disqualification or
except as would not reasonably be expected to materially impair the ability of
the Trust to perform its obligations hereunder; (ii) the Trust's distributor or
principal underwriter is not subject to disqualification to serve as a
broker-dealer under Section 15 of the Exchange Act unless the Trust has received
exemptive relief from the SEC with respect to such disqualification or except as
would not reasonably be expected to materially impair the ability of the Trust
to perform its obligations hereunder. As of the date hereof, neither the Trust
nor any "affiliated person" (as defined under the 0000 Xxx) thereof is subject
to disqualification regarding service as an investment adviser or any other
capacity contemplated by the 1940 Act for any investment company under Section
9(a) of the 1940 Act unless in each case the Trust has received exemptive relief
from the SEC with respect to such disqualification or except as would not
reasonably be expected to materially impair the ability of the Trust to perform
its obligations hereunder. As of the date hereof, the Trust is not the subject
of any investigation or inquiry or, to its knowledge, its investment adviser is
not reasonably likely to result in becoming disqualified regarding services as
an investment adviser or in any other capacity contemplated by the 1940 Act for
any investment company under Section 9(a) of the 1940 Act.
ARTICLE IV
COVENANTS OF THE FUND OF FUNDS
4.1 Compliance with Law. The Fund of Funds will comply with all applicable state
and federal laws, including but not limited to the 1940 Act and the Exchange
Act, and the rules and regulations of applicable governmental or regulatory
agencies.
4.2 Order as to the Trust Only. The Fund of Funds agrees to adhere to the terms
and conditions of the Order and acknowledges that it may rely on the Order and
agrees that such Order shall not be deemed to permit the purchase of shares in a
series of any other registered investment company.
4.3 Compliance with Policy. The Fund of Funds agrees that the obligations of the
parties hereto and the operation and/or continuation of this Agreement are
subject to any applicable policies of the Trust, the Funds and their affiliates,
as they may be amended from time to time.
4.4 Disclosure. The Fund of Funds' prospectus, will disclose, in plain English:
(i) that the Fund of Funds may invest in the Funds; and (ii) the unique
characteristics of the Fund of Funds investing in the Funds, including, but not
limited to, the expense structure and any additional expenses of investing in
the Funds.
4.5 Review of and Procedures Related to the Order. The Fund of Funds
acknowledges that, prior to an investment in shares of a Fund in excess of the
limits in Section 12(d)(1)(A), the Fund of Funds' board of directors or trustees
and their investment advisers understand the terms and conditions of the Order
and agree to fulfill their responsibilities under the Order. At the time of its
investment in shares of the Funds in excess of the limit in Section
12(d)(1)(A)(i), the Fund of Funds will notify the Funds of its investment. At
that time, the Fund of Funds will also transmit to the Trust a list of the names
of each Fund of Funds Affiliate and Underwriting Affiliate and will notify the
particular Fund of any changes thereto as soon as is reasonably practicable
after a change occurs. The Fund of Funds will maintain and preserve a copy of
the Order, the agreement, and the list with any updated information for a period
of not less than six years from the end of the fiscal year in which any
investment occurs, and with respect to the first two years, in an easily
accessible place.
4.6 No Consideration. Neither the Fund of Funds nor a Fund of Funds Affiliate
will accept any consideration from the Funds or the Trust or any of their
affiliates in connection with any services or transactions hereunder.
4.7 Purchases of Securities. Neither the Fund of Funds nor a Fund of Funds
Affiliate (except to the extent it is acting in its capacity as an investment
adviser or sponsor to a Fund) will cause the Funds to purchase a security from
any Affiliated Underwriting, and agree that the Funds will not purchase a
security from an Affiliated Underwriting.
4.8 Noncompliance with Order. If the Fund of Funds fails to comply with any or
all of the conditions set forth in the Application and/or the Order, the Trust
shall be notified immediately of such non-compliance. Upon such notice, or if
either party learns of such failure by other means, the parties shall take all
necessary steps to correct such non-compliance, including redemption by the Fund
of Funds of as much of its shares of the Funds necessary to cause the Fund of
Funds' investment in the
Funds to come within the limits of Section 12(d)(1) of the 1940 Act.
4.9 No Control. The Fund of Funds agrees that the members of a Fund of Funds
Advisory Group will not control (individually or in the aggregate) a Fund within
the meaning of section 2(a)(9) of the 1940 Act. Any investment adviser to the
Fund of Funds that meets the definition of section 2(a)(20)(B) of the 1940 Act
("Sub-adviser"), any person controlling, controlled by, or under common control
with the Sub-adviser, and any investment company or issuer that would be an
investment company but for section 3(c)(1) or 3(c)(7) of the 1940 Act (or
portion of such investment company or issuer) advised by the Sub-adviser or any
person controlling, controlled by, or under common control with the Sub-adviser
(collectively, the "Sub-adviser Group") will not control (individually or in the
aggregate) a Fund within the meaning of section 2(a)(9) of the 1940 Act. If, as
a result of a decrease in the outstanding voting securities of a Fund, a Fund of
Funds Advisory Group or the Sub-adviser Group, each in the aggregate, becomes a
holder of more than 25% of the outstanding voting securities of a Fund, it
(except for any member of the Fund of Funds Advisory Group or Sub-adviser Group
that is a separate account) will vote its shares of the Fund in the same
proportion as the vote of all other holders of the Fund's shares.
Notwithstanding the foregoing, this section shall not apply to the Sub-adviser
Group with respect to a Fund for which the Sub-adviser or a person controlling,
controlled by, or under common control with the Sub-adviser acts as the
investment adviser within the meaning of section 2(a)(20)(A) of the 1940 Act or
as the sponsor. A registered separate account will seek voting instructions from
its contract holders and will vote its shares in accordance with the
instructions received and will vote those shares for which no instructions were
received in the same proportion as the shares for which instructions were
received. An unregistered separate account will either (i) vote its shares of
the Fund in the same proportion as the vote of all other holders of the Fund's
shares; or (ii) seek voting instructions from its contract holders and vote its
shares in accordance with the instructions received and vote those shares for
which no instructions were received in the same proportion as the shares for
which instructions were received.
4.10 No Conflict. The Fund of Funds and the Fund of Funds Affiliate agree that
they will not cause any existing or potential investment by the Fund of Funds in
shares of a Fund to influence the terms of any services or transactions between
the Fund of Funds or a Fund of Funds Affiliate and the Fund or a Fund Affiliate.
4.11 Oversight of Fund of Funds Adviser. The Fund of Funds agrees that its board
of directors or trustees, including a majority of the directors or trustees who
are not "interested persons" (within the meaning of Section 2(a)(19) of the 1940
Act)("disinterested directors/trustees") will adopt procedures reasonably
designed to assure that the Fund of Funds Adviser and any Sub-adviser is
conducting the investment program of the Fund of Funds without taking into
account any consideration received by the Fund of Funds or a Fund of Funds
Affiliate from a Fund or a Fund Affiliate in connection with any services or
transactions.
4.12 Fund of Funds' Advisory Contracts. Prior to approving any advisory contract
under Section 15 of the 1940 Act, the Fund of Funds' board of
directors/trustees, including a majority of the disinterested directors or
trustees will find that the advisory fees charged under such advisory contract
are based on services provided that will be in addition to, rather than
duplicative of, the services provided under the advisory contract of any Fund in
which the Fund of Funds may invest. These findings and their basis will be
recorded fully in the minute books of the Fund of Funds.
4.13. Waiver of Fees. The Fund of Funds agrees that any Fund of Funds Adviser,
or trustee or sponsor of a Fund of Funds, as applicable, will waive fees
otherwise payable to it by the Fund of Funds in an amount at least equal to any
compensation (including fees received pursuant to any plan adopted by a Fund
under Rule 12b-1 under the 0000 Xxx) received from a Fund by the Fund of Funds
Adviser, trustee or sponsor or an affiliated person of the Funds of Funds
Adviser, trustee or sponsor, other than any advisory fees paid to the Fund of
Funds Adviser or its affiliated person by the Fund, from the Funds in connection
with investment by the Fund of Funds in the Funds. Any Sub-adviser will waive
fees otherwise payable to the Sub-adviser, directly or indirectly, by the Fund
of Funds in an amount at least equal to any compensation received by the
Sub-adviser, or an affiliated person of the Sub-adviser, other than any advisory
fees paid to the Sub-adviser or its affiliated person by the Fund, from the Fund
in connection with the investment by the Fund of Funds in the Fund made at the
direction of the Sub-adviser. In the event that the Sub-adviser waives fees, the
benefit of the waiver will be passed through to the Fund of Funds.
4.14 Sales Charges. The Fund of Funds agrees that: (i) with respect to
registered separate accounts that invest in a Fund of Funds, no sales load will
be charged at the Fund of Funds level or at the Fund level; (ii) other sales
charges and service fees, as defined in Rule 2830 of the Conduct Rules of the
NASD, if any, will only be charged at the Fund of Funds level or at the Fund
level and not at both levels; and (iii) with respect to other investments in a
Fund of Funds, any sales charges and/or service fees charged with respect to
shares of the Fund of Funds will not exceed the limits applicable to a fund of
funds set forth in Rule 2830 of the NASD Conduct Rules.
4.15 Anti-Money Laundering. The Fund of Funds acknowledges that it is a
financial institution subject to the USA Patriot Act of 2001 and the Bank
Secrecy Act (collectively, the "AML Acts"), which require among other things,
that financial
institutions adopt compliance programs to guard against money laundering. The
Fund of Funds further acknowledges that it is in compliance and will continue to
comply with the AML Acts and applicable anti-money laundering rules of
self-regulatory organizations, including NASD Conduct Rule 3011, in all relevant
respects.
4.16 Privacy. The Fund of Funds agrees that, with respect to Non-Public Personal
Information, as that term is defined under SEC Regulation S-P, it will comply
with SEC Regulation S-P and any other applicable regulations and that it will
not disclose any Non-Public Personal Information received in connection with
this Agreement to any other party, except to the extent required to carry out
the services set forth in this Agreement or as otherwise permitted by law.
4.18 Procedures. The Fund of Funds agrees that it will maintain procedures
regarding (i) the Fund of Fund's use of ProFunds pursuant to this Agreement;
(ii) compliance with section 12(d)(1) of the 1940 Act in relation to this
Agreement; (iii) diversification matters; and (iv) the calculation of advisory
and/or sub-advisory fees on investments in the Funds.
4.19 Rule 22c-1. The Fund of Funds agrees that it will comply at all times with
the provisions of Rule 22c-1 of the 1940 Act. Purchase and redemption orders,
and payment for shares of a Fund ordered from the Trust, must be received at the
time, and in the manner, as determined by the Trust. All orders are subject to
acceptance or rejection by the Trust or the relevant Fund in the sole discretion
of either, or by the distributor acting on the Trust's or the Fund's behalf, and
orders shall be effective only upon receipt in proper form. The Trust may, if
necessary, delay redemption of shares of a Fund to the extent permitted by the
1940 Act. The Fund of Funds may submit a purchase, exchange or redemption order
(a "Submitted Order") for shares of a Fund on behalf of a customer to such
Trust's designated contact in the manner determined by the Trust. Receipt and
acceptance of any such Submitted Order on any day the New York Stock Exchange is
open for trading and on which a Fund calculates its net asset value (a "Business
Day") pursuant to SEC rules by the Fund of Funds as limited agent of the Fund
prior to the time that the Fund ordinarily calculates its net asset value as
described from time to time in the Fund's prospectus (which as of the date of
execution of this Agreement is 4:00 p.m. Eastern Time) shall constitute receipt
and acceptance by the Fund on that same Business Day.
4.20 Investment Restrictions. The Fund of Funds agrees that the purchase of
shares from a ProFund will be accomplished in compliance with the investment
restrictions of the Fund of Funds and will be consistent with the investment
policies set forth in the Fund of Funds' registration statement.
4.21 Confidential Information. The Fund of Funds agrees that the Funds' net
asset information which it obtains pursuant to this Agreement will (a) be kept
confidential; (b) be used only for a legitimate business purpose; and (c) not be
used for trading by the Fund of Funds other than for the purposes set forth
herein.
ARTICLE V
COVENANTS OF THE TRUST AND THE FUNDS
5.1 Compliance with Law. The Trust will comply with all applicable state and
federal laws, including but not limited to the 1940 Act, the Exchange Act and
the rules and regulations of applicable governmental or regulatory agencies.
5.2 Maintenance of Order. The Trust has been provided with a copy of the Order
and will maintain and preserve a copy of the Order, along with this Agreement
and the list of affiliates described above for a period of not less than six
years from the end of the fiscal year in which any investment occurred, and with
respect to the first two years in an easily accessible place.
5.3 Acquisition of Securities. No Fund will acquire securities of any other
investment company or company relying on section 3(c)(1) or 3(c)(7) of the 1940
Act in excess of the limits contained in Section 12(d)(1)(A) of the 1940 Act,
except to the extent permitted by Section 12(d)(1)(E) of the 1940 Act, an
exemptive order that allows a Fund to purchase shares of affiliated money market
fund for short-term cash management purposes or rule 12d1-1 under the 0000 Xxx.
5.4 Compliance with Order. The Trust understands that the Fund of Funds'
investment in the Funds in excess of the limits set out in Section 12(d)(1)(A)
of the 1940 Act is conditioned expressly upon, among other things, the Funds'
compliance with the conditions of the Order and the Fund of Funds' compliance
with the conditions of the Order as set forth in the Application.
5.5 Noncompliance with Order. If the Trust fails to comply with any or all of
the conditions set forth in the Application and/or the Order, the Fund of Funds
shall be notified immediately of such non-compliance. Upon such notice, or if
either party learns of such failure by other means, the parties shall take all
necessary steps to correct such non-compliance, including redemption by the Fund
of Funds of as much of its shares of the Funds necessary to cause the Fund of
Funds' investment in the Funds to come within the limits of Section 12(d)(1) of
the 1940 Act.
5.6 Investment Not Compelled. The Trust acknowledges and agrees that the Fund of
Funds is not compelled to invest in any of the Funds.
5.7 Propriety of Consideration. The Trust agrees that, once an investment by the
Fund of Funds in the securities of a Fund exceeds the limits in section
12(d)(1)(A)(i) of the 1940 Act, the Board of Trustees of the Trust, including a
majority of the trustees who are not "interested persons" (within the meaning of
Section 2(a)(19) of the 0000 Xxx) of the Trust (the "Disinterested Trustees"),
will determine that any consideration paid by a Fund to a Fund of Funds or a
Fund of Funds Affiliate in connection with any services or transactions: (a) is
fair and reasonable in relation to the nature and quality of the services and
benefits received by the Fund; (b) is within the range of consideration that the
Fund would be required to pay to an unaffiliated entity in connection with the
same services or transactions; and (c) does not involve overreaching on the part
of any person concerned. However, the provisions of this section shall not apply
with respect to any services or transactions between a ProFund and its
investment adviser(s), or any person controlling, controlled by, or under common
control with such investment adviser(s).
5.8 Monitoring of Securities Transactions. The Trust agrees that the Board of
Trustees of the Trust, including a majority of the Disinterested Trustees, will
adopt procedures reasonably designed to monitor any purchases of securities by a
Fund in an Affiliated Underwriting once an investment by the Fund of Funds in
the securities of the Fund exceeds the limit in Section 12(d)(1)(A)(i) of the
1940 Act, including any purchases made directly from an Underwriting Affiliate.
The Board of Trustees of the Trust will review these purchases periodically, but
no less frequently than annually, to determine whether the purchases were
influenced by the investment by the Fund of Funds in shares of the Fund. The
Board of Trustees of the Trust shall consider, among other things, (i) whether
the purchases were consistent with the investment objectives and policies of the
Fund; (ii) how the performance of securities purchased in an Affiliated
Underwriting compares to the performance of comparable securities purchased
during a comparable period of time in underwritings other than Affiliated
Underwritings or to a benchmark such as a comparable market index; and (iii)
whether the amount of securities purchased by the Fund in Affiliated
Underwritings and the amount purchased directly from an Underwriting Affiliate
have changed significantly from prior years. The Board of Trustees of the Trust
shall take any appropriate actions based on its review, including if
appropriate, the institution of procedures designed to assure that purchases of
securities from Affiliated Underwritings are in the best interest of
shareholders. The Trust shall maintain and preserve permanently in an easily
accessible place a written copy of the procedures described herein, and any
modifications, and shall maintain and preserve for a period not less than six
years from the end of the fiscal year in which any purchase from an Affiliated
Underwriting occurred, and with respect to the first two years in an easily
accessible place, a written record of each purchase made once an investment by
the Fund of Funds in the securities of a Fund exceeds the limit in section
12(d)(1)(A)(i) of the 1940 Act, setting forth from whom the securities were
acquired, the identity of the underwriting syndicate's members, the terms of the
purchase, and the information or materials upon which the Trust's Board of
Trustees' determinations were made.
5.9 Review of and Procedures Related to Order. Upon receipt of notice from the
Fund of Funds concerning an investment in shares of a Fund in excess of the
limits in section 12(d)(1)(A)(i) of the 1940 Act, the Trust will provide the
Fund of Funds with a list of the names of each Fund Affiliate. The Trust will
notify the Fund of Funds of any changes to the list of the names as soon as
reasonably practicable after a change occurs. The Trust will maintain and
preserve a copy of the Order, the agreement, and the list with any updated
information for a period of not less than six years from the end of the fiscal
year in which any investment occurred, and with respect to the first two years,
in an easily accessible place.
5.10 Anti-Money Laundering. The Trust acknowledges that it is a financial
institution subject to the USA Patriot Act of 2001 and the Bank Secrecy Act
(collectively, the "AML Acts"), which require among other things, that financial
institutions adopt compliance programs to guard against money laundering. The
Trust further acknowledges that it is in compliance and will continue to comply
with the AML Acts and applicable anti-money laundering rules of self-regulatory
organizations, including NASD Conduct Rule 3011, in all relevant respects.
5.11 Privacy. The Trust agrees that, with respect to Non-Public Personal
Information, as that term is defined under SEC Regulation S-P, it will comply
with SEC Regulation S-P and any other applicable regulations and that it will
not disclose any Non-Public Personal Information received in connection with
this Agreement to any other party, except to the extent required to carry out
the services set forth in this Agreement or as otherwise permitted by law.
ARTICLE VI
TERM AND TERMINATION
6.1 Term and Termination. This Agreement shall continue in full force and effect
until the first to occur of:
(a) termination by any party, for any reason with respect to some or all
ProFunds, by thirty (30) days advance written notice delivered to the other
parties; or
(b) termination by the Trust upon ten calendar days' prior written notice to the
Fund of Funds if an administrative or judicial decision is entered against the
Fund of Funds which the Trust determines in its sole judgment exercised in good
faith, has or will have a material impact on the Fund of Fund's ability to
perform its obligations under this Agreement; or
(c) termination by the Fund of Funds upon ten calendar days' prior written
notice to the Trust if an administrative or judicial decision is entered against
the Trust which the Fund of Funds determines in its sole judgment exercised in
good faith, has or will have a material impact on the Trust's ability to perform
its obligations under this Agreement; or
(d) termination by the Trust by written notice to the Fund of Funds, if the Fund
of Funds gives the Trust the written notice specified in Section 1.3(ii) hereof
and at the time such notice was given there was no notice of termination
outstanding under any other provision of this Agreement; or
(e) termination by the Trust if the Board of Trustees of the Trust has decided
to (i) refuse to sell shares of any Fund to the Fund of Funds; (ii) suspend or
terminate the offering of shares of any Fund; or (iii) dissolve, reorganize,
liquidate, merge or sell all assets of the Trust or any Fund.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by the Fund of Funds. (a) The Fund of Funds shall indemnify,
defend and hold harmless the Trust, the ProFunds and their affiliates and
respective officers, directors, employees, agents, successors and assigns
(collectively, the "Trust Indemnified Parties" or each a "Trust Indemnified
Party") from and against, and shall reimburse the Trust Indemnified Parties for,
any and all actions, suits, proceedings, claims, demands, fines, assessments,
settlements, corrective or remedial actions, judgments, damages, costs
liabilities, losses and expenses (including reasonable expenses of investigation
and reasonable attorneys' fees and expenses)(collectively referred to herein as
"Losses") directly or indirectly based upon, arising out of, resulting from,
relating to or in connection with:
(i) any breach of or inaccuracy in any representation, warranty or
covenant of the Fund of Funds;
(ii) any actions or omissions of the Fund of Funds caused by its negligence
or willful misconduct; and
(iii) any breach or violation of, or failure to fully perform, any
agreement, covenant, undertaking or obligation of the Fund of Funds
set forth in this Agreement and any Schedules hereto.
(b) The Fund of Funds shall not be liable under this indemnification provision
with respect to any Losses to which a Trust Indemnified Party would otherwise be
subject by reason of a Trust Indemnified Party's willful misfeasance, bad faith,
or gross negligence in the performance of such Trust Indemnified Party's duties
or by reason of such Trust Indemnified Party's reckless disregard of its
obligations or duties under this Agreement.
(c) The Fund of Funds shall not be liable under this indemnification provision
with respect to any claim made against any of the Trust Indemnified Parties
unless such Trust Indemnified Party shall have notified the Fund of Funds in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Trust Indemnified Party (or after such Trust Indemnified Party shall have
received notice of such service on any designated agent), but failure to notify
the Fund of Funds of any such claim shall not relieve the Fund of Funds from any
liability which it may have to the Trust Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against a Trust Indemnified Party, the Fund
of Funds shall be entitled to participate, at its own expense, in the defense of
such action. The Fund of Funds also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action. After
notice from the Fund of Funds to such party of the Fund of Funds' election to
assume the defense thereof, the Trust Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund of Funds will
not be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
7.2 Indemnification by the Trust. (a) The Trust shall indemnify, defend and hold
harmless the Fund of Funds and its respective officers, directors, employees,
agents, successors and assigns (collectively, the "Fund of Funds Indemnified
Parties" or each a Fund of Funds Indemnified Party) from and against, and shall
reimburse the Fund of Funds Indemnified Parties for, any and all actions, suits,
proceedings, claims, demands, fines, assessments, settlements, corrective or
remedial actions, judgments, damages, costs liabilities, losses and expenses
(including reasonable expenses of investigation and reasonable attorneys' fees
and expenses)(collectively referred to herein as "Losses") directly or
indirectly based upon, arising out of, resulting from, relating to or in
connection with:
(i) any breach of or inaccuracy in any representation, warranty or
covenant of the Trust;
(ii) any actions or omissions of the Trust caused by its negligence or
willful misconduct; and
(iii) any breach or violation of, or failure to fully perform, any
agreement, covenant, undertaking or obligation of the Trust set forth
in this Agreement and any Schedules hereto.
(b) The Trust shall not be liable under this indemnification provision with
respect to any Losses to which a Fund of Funds Indemnified Party would otherwise
be subject by reason of such Fund of Funds Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such Fund of
Funds Indemnified Party's duties or by reason of such Fund of Funds Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
the Trust.
(c) The Trust shall not be liable under this indemnification provision with
respect to any claim made against any of the Fund of Funds Indemnified Parties
unless such Fund of Funds Indemnified Party shall have notified the Trust in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Fund of Funds Indemnified Party (or after such Fund of Funds Indemnified Party
shall have received notice of such service on any designated agent), but failure
to notify the Trust of any such claim shall not relieve the Trust from any
liability which it may have to the Fund of Funds Indemnified Party against whom
such action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against a Fund of Funds
Indemnified Party, the Trust will be entitled to participate, at its own
expense, in the defense thereof. The Trust also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Trust to such party of the Trust's election to assume the
defense thereof, the Fund of Funds Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Trust will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
ARTICLE VIII
MISCELLANEOUS
8.1 Entire Agreement. This Agreement (with its Schedules) between the Trust and
the Fund of Funds, contains, and is intended as, a complete statement of all of
the terms of the arrangements between the parties with respect to the matters
provided for, supersedes any previous agreements and understandings between the
parties with respect to those matters and cannot be changed or terminated
orally.
8.2 Jurisdiction and Governing Law. The Trust and the Fund of Funds each hereby
consent to personal jurisdiction in any action brought with respect to this
Agreement and the transactions contemplated hereunder in any federal or state
court within the City of New York, State of New York and agree that service of
process may be accomplished pursuant to the provisions of Section 8.4 below. The
parties agree to bring any action with respect to this Agreement and the
transactions contemplated hereunder exclusively in federal or state court within
the City of New York, State of New York. This Agreement shall be governed by and
construed in accordance with the law of the State of New York without giving
effect to conflicts of law principles thereof.
8.3 Schedules; Tables of Contents and Headings. The table of contents and
section headings of this Agreement and titles given to Schedules to this
Agreement are for reference purposes only and are to be given no effect in the
construction or interpretation of this Agreement.
8.4 Notices. All notices and other communications under this Agreement shall be
in writing and shall be deemed given when delivered personally (including by
confirmed legible telecopier transmission) or mailed by certified mail, return
receipt requested, to the parties at the following addresses (or to such address
as a party may have specified by notice given to the other parties pursuant to
this provision):
If to the Funds, to:
ProShares Trust
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
If to the Fund of Funds, to:
Transamerica Series Trust
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Fax No.: 000-000-0000
Phone No.: 000-000-0000
8.5 Separability. In the event that any provision hereof would, under applicable
law, be invalid or unenforceable in any respect, such provision shall be
construed by modifying or limiting it so as to be valid and enforceable to the
maximum extent compatible with, and permissible under, applicable law. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement
which shall remain in full force and effect, unless such construction would be
unreasonable.
8.6 Waiver. Any party may waive compliance by another with any of the provisions
of this Agreement. No waiver of any provision shall be construed as a waiver of
any other provision. Any waiver must be in writing.
8.7 Binding Effect/Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and permitted
assigns. Nothing in this Agreement shall create or be deemed to create any third
party beneficiary rights in any person or entity not a party to this Agreement.
No assignment of this Agreement or of any rights or obligations hereunder may be
made by either party without the prior written consent of the other and any
attempted assignment without the required consent shall be void.
8.8 Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original, but which together shall constitute one and the same
Agreement. Copies of executed counterparts transmitted by telecopy or other
electronic transmission service shall be considered original executed
counterparts, provided receipt of copies of such counterparts is confirmed.
8.9 Waiver of Jury Trial. Each party hereto hereby acknowledges and agrees that
any controversy that may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a trial
by jury in respect of any litigation directly or indirectly arising out of or
relating to this Agreement or the transactions contemplated hereby. Each party
certifies and acknowledges that (i) no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver, (ii) each
such party understands and has considered the implications of this waiver, (iii)
each such party makes this waiver voluntarily, and (iv) each such party has been
induced to enter into this agreement by, among other things, the mutual waivers
and certifications in this Section 8.9.
8.10. Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Trustees of the Trust.
8.11 Survival. The following provisions shall survive termination of this
Agreement: Articles VII, VIII and IX.
8.12 Limitation of Liability of Trustees and Shareholders. A copy of the
Declaration of Trust of the Trust is on file with the Secretary of State of
Delaware, and notice is hereby given that this instrument is executed on behalf
of the Trustees of the Trust as Trustees and not individually and that the
obligations of this instrument are not binding upon any of the Trustees or
shareholders individually but are binding only upon the assets and property of
the Trust.
ARTICLE IX
DEFINITIONS
9.1 "Affiliated Underwriting" shall mean an offering of securities during the
existence of an underwriting or selling syndicate of which a principal
underwriter is an Underwriting Affiliate.
9.2 "Fund of Funds Adviser" shall mean an investment adviser of the Fund of
Funds.
9.3 "Fund of Funds Advisory Group" shall mean any and all investment advisers of
the Fund of Funds, any person controlling, controlled by, or under common
control with the Fund of Funds Adviser, and any investment company and any
issuer that would be an investment company but for Section 3(c)(1) or 3(c)(7) of
the 1940 Act that is advised by the Fund of Funds Adviser or any person
controlling, controlled by, or under common control with a Fund of Funds
Adviser.
9.4 "Fund of Funds Affiliate" shall mean a Fund of Funds Adviser, a promoter, or
a principal underwriter of a Fund of Funds, and any person controlling,
controlled by, or under common control with any of those entities.
9.5 "Fund Affiliate" shall mean an investment adviser, promoter or principal
underwriter of a ProShares Fund, and any person controlling, controlled by, or
under common control with any of those entities.
9.6 "Underwriting Affiliate" shall mean a principal underwriter in any
underwriting or selling syndicate that is an officer, director, member of an
advisory board, investment adviser, or employee of the Fund of Funds, or a
person of which any such officer, director, member of an advisory board,
investment adviser, or employee is an affiliated person. An Underwriting
Affiliate does not include any person whose relationship to the Fund is covered
by section 10(f) of the 1940 Act.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as
of the date first set forth above.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule B
NAME OF FUND OF FUNDS
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Investment Officer
ProShares Trust
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: President
SCHEDULE A
ULTRA S&P 500 PROSHARES
SHORT S&P 500 PROSHARES
ULTRA MID-CAP 400 PROSHARES
SHORT MID-CAP 400 PROSHARES
ULTRA DOW 30 PROSHARES
SHORT DOW 30 PROSHARES
ULTRA QQQ PROSHARES
SHORT QQQ PROSHARES
ULTRASHORT S&P 500 PROSHARES
ULTRASHORT MID-CAP 400 PROSHARES
ULTRASHORT DOW 30 PROSHARES
ULTRASHORT QQQ PROSHARES
ULTRA XXXXXXX 2000(R) PROSHARES
ULTRA BASIC MATERIALS PROSHARES
ULTRA CONSUMER GOODS PROSHARES
ULTRA CONSUMER SERVICES PROSHARES
ULTRA FINANCIALS PROSHARES
ULTRA HEALTH CARE PROSHARES
ULTRA INDUSTRIALS PROSHARES
ULTRA OIL & GAS PROSHARES
ULTRA REAL ESTATE PROSHARES
ULTRA SEMICONDUCTORS PROSHARES
ULTRA S&P SMALLCAP 600 PROSHARES
ULTRA TECHNOLOGY PROSHARES
ULTRA UTILITIES PROSHARES
XXXXX XXXXXXX 2000(R) PROSHARES
SHORT S&P SMALLCAP 600 PROSHARES
ULTRASHORT XXXXXXX 2000(R) PROSHARES
ULTRASHORT S&P SMALLCAP 600 PROSHARES
ULTRASHORT BASIC MATERIALS PROSHARES
ULTRASHORT CONSUMER GOODS PROSHARES
ULTRASHORT CONSUMER SERVICES PROSHARES
ULTRASHORT FINANCIALS PROSHARES
ULTRASHORT HEALTH CARE PROSHARES
ULTRASHORT INDUSTRIALS PROSHARES
ULTRASHORT OIL & GAS PROSHARES
ULTRASHORT REAL ESTATE PROSHARES
ULTRASHORT SEMICONDUCTORS PROSHARES
ULTRASHORT TECHNOLOGY PROSHARES
ULTRASHORT UTILITIES PROSHARES
ULTRA XXXXXXX 1000 VALUE PROSHARES
ULTRA XXXXXXX 1000 GROWTH PROSHARES
ULTRA XXXXXXX XXXXXX VALUE PROSHARES
ULTRA XXXXXXX MIDCAP GROWTH PROSHARES
ULTRA XXXXXXX 2000 VALUE PROSHARES
ULTRA XXXXXXX 2000 GROWTH PROSHARES
ULTRASHORT XXXXXXX 1000 VALUE PROSHARES
ULTRASHORT XXXXXXX 1000 GROWTH PROSHARES
ULTRASHORT XXXXXXX XXXXXX VALUE PROSHARES
ULTRASHORT XXXXXXX MIDCAP GROWTH PROSHARES
ULTRASHORT XXXXXXX 2000 VALUE PROSHARES
ULTRASHORT XXXXXXX 2000 GROWTH PROSHARES
SHORT MSCI EAFE PROSHARES
SHORT MSCI EMERGING MARKETS PROSHARES
ULTRASHORT MSCI EAFE PROSHARES
ULTRASHORT MSCI EMERGING MARKETS PROSHARES
ULTRASHORT FTSE/XINHUA CHINA 25 PROSHARES
ULTRASHORT MSCI JAPAN PROSHARES
SCHEDULE B
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
RYDEX FUNDS PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of May 1, 2009, between Transamerica Series Trust
(the "Company"), a Delaware Statutory Trust organized under the laws of
Delaware, on behalf of itself or its separate series listed on Schedule A,
severally and not jointly (each an "Investing Fund"), and Rydex Series Funds,
Rydex Dynamic Funds, and Rydex ETF Trust, statutory trusts organized under the
laws of the State of Delaware on behalf of their separate series, severally and
not jointly (each a "Rydex Fund" and collectively the "Rydex Funds").
WHEREAS, the Company and the Rydex Funds each are registered with the U.S.
Securities and Exchange Commission ("SEC") as open-end management investment
companies under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, section 12(d)(1)(A) and (B) of the 1940 Act limits the ability of
an investment company to invest in shares of another investment company, and
therefore limits the ability of an Investing Fund to invest in shares of a Rydex
Fund;
WHEREAS, Rydex ETF Trust, on behalf of each Rydex ETF, have obtained an
order from the SEC dated January 4, 2006 (the "Rydex Order"), amending a prior
Rydex Series Funds and Rydex Dynamic Funds order dated October 31, 2000, that
permits registered investment companies to invest in the Rydex Funds in excess
of the limits set forth in section 12(d)(1)(A) and (B) in accordance with the
conditions of the Rydex Order and the representations in the application filed
to obtain such Order (the "Rydex Application"); and
WHEREAS, an Investing Fund may, from time to time, invest in shares of one
or more Rydex Funds in excess of the limitations of section 12(d)(1)(A) and (B)
in reliance on the Rydex Order;
NOW THEREFORE, in consideration of the potential benefits to the Investing
Funds and the Rydex Funds arising out of the Investing Funds' investment in
Rydex Funds, the parties agree as follows.
1. Representations and Obligations of the Rydex Funds.
(a) The Rydex Funds have provided to the Company a copy of the Rydex
Order and the related SEC Notice of Application for such Order. The
Rydex Funds will promptly provide the Company with (i) a copy of any
amendments to the Rydex Order, and (ii) a copy of the Rydex
Application upon request.
(b) In connection with any investment by an Investing Fund in a Rydex
Fund, the Rydex Fund agrees (i) to comply with the terms and
conditions of the Rydex Order and this Agreement, and (ii) to promptly
notify the Company if such Rydex Fund fails to comply with the terms
and conditions of the Rydex Order or this Agreement.
2. Representations and Obligations of the Company.
(a) Pursuant to Condition 8 of the Rydex Order, the Company represents
that the board of trustees of the Company and each Investing Fund's
advisor understand the terms and conditions of the Rydex Order and
that each agrees to fulfill its responsibilities under the Rydex
Order.
(b) Pursuant to Condition 8 of the Rydex Order, the Company will
promptly notify the Rydex Funds in writing at the time of any
investment by an Investing Fund in a Rydex Fund in excess of the 3%
limit in Section 12(d)(1)(A)(i) and send the Rydex Fund a list of the
names of the Company's affiliates (the Company also must notify the
Rydex Fund of any changes to the list as soon as reasonably
practicable).
(c) To the extent the Investing Funds, in the aggregate, hold 25% or
more of the total outstanding voting securities of a Rydex Fund, the
Company agrees to vote the Investing Funds' shares in the same
proportion as the vote of all other holders of shares of such Rydex
Fund.
(d) The Company: (i) acknowledges that it has received a copy of the
Rydex Order and the related SEC Notice of Application for such Order;
(ii) agrees to adhere to the terms and conditions of the Rydex Order
and this Agreement and to participate in the proposed transactions in
a manner that addresses the concerns underlying the Rydex Order; (iii)
represents that investments in the Rydex Funds will be accomplished in
compliance with its investment restrictions and will be consistent
with the investment policies set forth in its registration statement;
(iv) acknowledges that it may rely on the Rydex Order only to invest
in Rydex Funds and not in any other investment company; and (v) agrees
to promptly notify the Rydex Funds if it fails to comply with the
Rydex Order or this Agreement.
3. Indemnification.
Each Investing Fund agrees to hold harmless and indemnify the Rydex
Funds, including any principals, trustees, officers, employees and
agents, against and from any and all losses, expenses or liabilities
incurred by or claims or actions ("Claims") asserted against the Rydex
Funds, including any principals, directors or trustees, officers,
employees and agents, to the extent such Claims result from (i) a
violation or alleged violation by the Investing Fund of any provision
of this Agreement or (ii) a violation or alleged violation by the
Investing Fund of the terms and conditions of the Rydex Order, such
indemnification to include any reasonable counsel fees and expenses
incurred in connection with investigating and/or defending such
Claims.
The Rydex Funds agree to hold harmless and indemnify the Company,
including any directors or trustees, officers, employees and agents,
against and from any Claims asserted against the Company, including
any directors or trustees, officers, employees and agents, to the
extent such Claims result from (i) a violation or alleged violation by
the Rydex Fund of any provision of this Agreement or (ii) a violation
or alleged violation by the Rydex Fund of the terms and conditions of
the Rydex Order, such indemnification to include any reasonable
counsel fees and expenses incurred in connection with investigating
and/or defending such Claims.
4. Materials.
To the extent the Company, on behalf of an Investing Fund, refers to
one or more Rydex Funds in any prospectus, statement of additional
information or otherwise, the Company agrees to refer to the Rydex
Fund as, for example, the "Rydex [Index Name] [ETF/Fund]."
5. Notices.
All notices, including all information that either party is required
to provide under the terms of this Agreement and the terms and
conditions of the Rydex Order, shall be in writing and shall be
delivered by registered or overnight mail, facsimile, or electronic
mail to the address for each party specified below (which address may
be changed from time to time by written notice to the other party).
If to the Company:
Transamerica Series Trust
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Fax No.: 000-000-0000
Phone No.: 000-000-0000
If to the Rydex Funds:
Rydex Trust
c/o Rydex Investments
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Fax: 000-000-0000
Email: xxxxx@xxxxxxxxxx.xxx
6. Termination; Governing Law.
(a) This Agreement will continue until terminated in writing by either
party upon sixty (60) days' notice to the other party, provided,
however, that the obligation of an Investing Fund in Section 2(c)
above shall survive the termination of this Agreement. This Agreement
may not be assigned by either party without the prior written consent
of the other.
(b) This Agreement will be governed by Delaware law without regard to
choice of law principles.
7. Company Liability.
The Rydex Funds acknowledge and agree that the obligations of the
Company entered into in the name or on behalf thereof by any of the
trustees, officers, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of
the trustees, officers, shareholders or representatives of the Company
personally, but bind only the Company's property. The Rydex Funds
further acknowledge and agree that all persons dealing with the
Company must look solely to the property belonging to the Company for
the enforcement of any claims against the Company. The Rydex Funds
specifically acknowledges and agrees that any liability of the Company
under this Agreement with respect to an Investing Fund, or in
connection with the transactions contemplated herein with respect to
an Investing Fund, shall be discharged only out of the assets of such
Investing Fund and that no other series of a Company shall be liable
with respect thereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
NAME OF INVESTING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Investment Officer
RYDEX ETF TRUST, RYDEX SERIES FUNDS,
RYDEX DYNAMIC FUNDS, on behalf of
each of its series
By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: President
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
SCHEDULE B - LIST OF RYDEX FUNDS
RYDEX SERIES FUNDS (advised by PADCO I)
Nova
S&P 500
Inverse S&P 500 Strategy
Commodities Strategy
OTC
Inverse OTC Strategy
Mid-Cap 1.5x Strategy
Xxxxxxx 2000(R) 1.5x Strategy
Government Long Bond 1.2x Strategy
Inverse Government Long Bond Strategy
Europe 1.25x Strategy
Japan 2x Strategy
Banking
Basic Materials
Biotechnology
Consumer Products
Electronics
Energy
Energy Services
Financial Services
Health Care
Absolute Return Strategies
Sector Rotation
Essential Portfolio Conservative
Essential Portfolio Aggressive
High Yield Strategy
International Rotation
RYDEX DYNAMIC FUNDS (advised by PADCO I)
S&P 500 2x Strategy
OTC 2x Strategy
Dow 2x Strategy
Xxxxxxx 2000 2x Strategy
Xxxxxxx 2000(R)
Inverse Xxxxxxx(R) 2000 Strategy
Large-Cap Value
Large-Cap Growth
Mid-Cap Value
Mid-Cap Growth
Inverse Mid-Cap Strategy
Small-Cap Value
Small-Cap Growth
Weakening Dollar 2x Strategy
Strengthening Dollar 2x Strategy
U.S. Government Money Market
Internet
Leisure
Precious Metals
Real Estate
Retailing
Technology
Telecommunications
Transportation
Utilities
Hedged Equity
Multi-Cap Core Equity
Essential Portfolio Moderate
Managed Futures Strategy
Inverse High Yield Strategy
Alternative Strategies Allocation
Inverse S&P 500 2x Strategy
Inverse OTC 2x Strategy
Inverse Dow 2x Strategy
Inverse Xxxxxxx 2000 2x Strategy
RYDEX ETF TRUST (advised by PADCO II)
S&P Equal Weight ETF
S&P 500 Pure Growth ETF
S&P MidCap 400 Pure Growth ETF
S&P SmallCap 600 Pure Growth ETF
S&P Equal Weight Consumer Discretionary ETF
S&P Equal Weight Consumer Staples ETF
S&P Equal Weight Energy ETF
S&P Equal Weight Financials ETF
S&P Equal Weight Health Care ETF
Rydex 2x S&P 000 XXX
Xxxxx Xxxxxxx 0x S&P 500 ETF
Rydex 2x S&P Midcap 400 ETF
Rydex 2x S&P Select Sector Energy ETF
Rydex Inverse 2x S&P Select Sector Energy ETF
Rydex 2x S&P Select Sector Health Care ETF
Rydex Inverse 2x S&P Select Sector Health Care ETF
Xxxxxxx Top 50(R) ETF
S&P 500 Pure Value ETF
S&P MidCap 400 Pure Value ETF
S&P SmallCap 600 Pure Value ETF
S&P Equal Weight Industrials ETF
S&P Equal Weight Materials ETF
S&P Equal Weight Technology ETF
S&P Equal Weight Utilities ETF
Rydex 2x Xxxxxxx 2000(R) ETF
Rydex Inverse 2x Xxxxxxx 2000(R) ETF
Rydex Inverse 2x S&P Midcap 400 ETF
Rydex 2x S&P Select Sector Financial ETF
Rydex Inverse 2x S&P Select Sector Financial ETF
Rydex 2x S&P Select Sector Technology ETF
Rydex Inverse 2x S&P Select Sector Technology ETF
DIAMONDS(R) TRUST, SERIES 1
STANDARD & POOR'S DEPOSITARY RECEIPTS ("SPDR") TRUST, SERIES 1
PURCHASING FUND AGREEMENT
This Purchasing Fund Agreement ("Agreement") is made as of the date set
forth below between STATE STREET BANK AND TRUST COMPANY (the "Trustee"), in its
capacity as trustee and on behalf of the DIAMONDS Trust, Series 1 and SPDR(R)
Trust, Series 1 (each, a "Trust" and collectively, the "Trusts"), severally and
not jointly, and the registered investment companies named on Schedule A,
severally and not jointly, each on behalf of their current and any future series
as an investing fund (each, a "Purchasing Fund" and collectively, the
"Purchasing Funds").
WHEREAS, Section 12(d)(1)(A) ("Section 12(d)(1)(A)") of the Investment
Company Act of 1940, as amended (the "1940 Act"), limits investment by an
"investment company", as defined in the 1940 Act and affiliates of such company
in any other investment company that is registered under the 1940 Act; and
WHEREAS, each Trust is an investment company registered as such under the
1940 Act; and
WHEREAS, each Purchasing Fund is a registered investment company or
otherwise meets the definition of "investment company" under the 1940 Act; and
WHEREAS, the Securities and Exchange Commission (the "Commission") has
granted an order (Rel.No.IC-26419, April 19, 2004) exempting the Trusts and
certain registered investment companies investing in the Trusts from the limits
of Section 12(d)(1)(A) (such order and the application therefore together, the
"Order"); and
WHEREAS, in reliance on the Order, each Purchasing Fund may acquire units
in each Trust ("Units") in excess of the limits imposed by Section 12(d)(1)(A);
and
WHEREAS, pursuant to the conditions set forth in the Order, each Purchasing
Fund must enter into a written agreement with each Trust prior to acquiring
Units in excess of the limits imposed by Section 12(d)(1)(A).
NOW, THEREFORE, the Trustee and each Purchasing Fund agree as follows:
1. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned such terms in the Order.
2. The members of a Purchasing Fund's Advisory Group (individually or in
the aggregate) will not hold or beneficially own more than 25 percent of the
outstanding Units or otherwise control a trust within the meaning of Section
2(a)(9) of the 1940 Act. The members of any Purchasing Fund's Sub-advisory Group
(individually or in the aggregate) will not hold or beneficially own more than
25 percent of the outstanding Units or otherwise control a Trust within the
meaning of Section 2(a)(9) of the 1940 Act. If, as a result of a decrease in a
Trust's outstanding Units, a Purchasing Fund's Advisory Group or any Purchasing
Fund's Sub-advisory Group, each in the aggregate, becomes a holder or beneficial
owner of more than 25 percent of the outstanding Units, each Purchasing Fund
agrees that the Purchasing Fund's Advisory Group or the relevant Purchasing
Fund's Sub-advisory Group, as applicable, will vote its Units in the same
proportion as the vote of all other unit holders. For purposes of this
Agreement, a "Purchasing Fund's Advisory Group" consists of an investment
adviser to a Purchasing Fund and any person controlling, controlled by, or under
common control with such investment adviser, and any investment company and any
issuer that would be an investment company but for Sections 3(c)(1)or3(c)(7) of
the 1940 Act that is advised by such investment adviser, or any person
controlling, controlled by, or under common control with such investment
adviser. For purposes of this Agreement, a "Purchasing Fund's Sub-advisory
Group" consists of any sub-adviser to a Purchasing Fund, any person controlling,
controlled by, or under common control with such sub-adviser, and any investment
company or issuer that would be an investment company but for Sections
3(c)(1)or3(c)(7) of the 1940 Act (or portion of such investment company or
issuer) advised by such sub-adviser or any person controlling, controlled by or
under common control with such sub-adviser.
3. Each Purchasing Fund agrees that its investment adviser will waive fees
otherwise payable to it by the Purchasing Fund in an amount at least equal to
any compensation received by such investment adviser, or trustee or sponsor, or
an affiliated person of the investment adviser, or trustee or sponsor, from a
Trust in connection with the acquisition by the Purchasing Fund of Units. Each
Purchasing Fund further agrees that any sub-adviser(s) of such Purchasing Fund
will waive fees otherwise payable to such sub-adviser(s), directly or
indirectly, by the Purchasing Fund in an amount at least equal to any
compensation received by the sub-adviser(s), or an affiliated person of such
sub-adviser(s), in connection with any investment(s) by the Purchasing Fund in a
Trust made at the direction of such sub-adviser(s). In the event that a
sub-adviser
waives fees, under the preceding sentence, each Purchasing Fund agrees that it
will require the relevant sub-adviser(s) to pass the benefit of the waiver
through to the Purchasing Fund.
4. No Purchasing Fund will cause, nor will it permit any Purchasing Fund
Affiliate to cause, any existing or potential acquisition of Units by such
Purchasing Fund to influence the terms of any services or transactions between a
Purchasing Fund or Purchasing Fund Affiliate and a Trust or any Trust Affiliate.
For purposes of this Agreement, the term "Purchasing Fund Affiliate" includes
the investment adviser, sub-adviser and any promoter and principal underwriter
of a Purchasing Fund, and any person controlling, controlled by, or under common
control with any of those entities within the meaning of Section 2(a)(9) of the
1940 Act. For purposes of this Agreement, the term "Trust Affiliate" includes a
promoter, sponsor or principal underwriter of a Trust, and any person
controlling, controlled by, or under common control with any of those entities.
5. Before any Purchasing Fund relies on the Order, the board of directors
or trustees of the Purchasing Fund, including a majority of disinterested
directors or trustees, will adopt procedures reasonably designed to assure that
the investment adviser (or sub-adviser, if appropriate) is conducting the
Purchasing Fund's investment program without taking into account any
consideration received by the Purchasing Fund or any Purchasing Fund Affiliate
from a Trust or any Trust Affiliate in connection with any services or
transactions.
6. No Purchasing Fund or Purchasing Fund Affiliate will cause a Trust to
purchase a security from any Affiliated Underwriting. Nothing in this Agreement,
however, shall limit the authority of the Trustee to accept and satisfy in-kind
creation orders and redemption requests from a Purchasing Fund or an
Underwriting Affiliate that is also an authorized participant in the ordinary
course of business. For purposes of this Agreement, the term "Affiliated
Underwriting" means an offering of securities during the existence of an
underwriting or selling syndicate of which a principal underwriter is an
Underwriting Affiliate. For purposes of this Agreement, the term "Underwriting
Affiliate" means a principal underwriter in any underwriting or selling
syndicate that is an officer, director, member of an advisory board, investment
adviser, sub-adviser, employee or sponsor of the Purchasing Fund, or a person of
which any such officer, director, member of an advisory board, investment
adviser, sub-adviser, employee or sponsor is an affiliated person.
7. No Purchasing Fund will acquire Units in excess of the limits of Section
12(d)(1)(A) unless and until such Purchasing Fund and such Trust have executed
this Agreement and complied with the terms and conditions hereof.
8. Each Purchasing Fund represents and warrants to each Trust that the
Purchasing Fund's board of directors or trustees, its investment adviser and any
sub-adviser have received a copy of and have read and understand the terms and
conditions of the Order, and agree to fulfill their responsibilities under the
Order. Each Purchasing Fund further represents and warrants to each Trust that
the foregoing persons understand that the Order pertains only to investments in
the Trusts and not to investments in any other investment company. Each
Purchasing Fund understands that this Agreement is entered into in furtherance
of, and pursuant to, the Order, and agrees that this Agreement shall be
interpreted consistently therewith and that it will promptly notify the
applicable Trust if it fails to comply with the Order with respect to such
Trust.
9. Each Purchasing Fund agrees that it has sole responsibility under the
Order and this Agreement to monitor the limits of Section 12(d)(1)(A) as they
pertain to its acquisition of Units.
10. Each Purchasing Fund represents and warrants to each Trust that its
investment adviser is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended.
11. Each Purchasing Fund represents and warrants to each Trust that
investments in a Trust will be accomplished in compliance with the Purchasing
Fund's investment restrictions and consistent with the investment policies set
forth in the Purchasing Fund's registration statement under the Securities Act
of 1933 and the 1940 Act.
12. Each Purchasing Fund and each Trust agree to preserve a copy of this
Agreement, together with copies of the Order, for a period of not less than six
years from the end of the fiscal year in which the most recent investment by the
Purchasing Fund in a Trust in reliance on the Order occurred. For the first two
years of such six-year period, the foregoing documents shall be maintained by
the Purchasing Fund and the Trust in an easily accessible place.
13. Each Purchasing Fund represents and warrants to each Trust that it
understands and complies with the National Association of Securities Dealers,
Inc. Conduct Rule 2830 and that any sales charge and/or service fees (other than
customary brokerage fees) charged with respect to shares in the Purchasing Fund
will not exceed the limits applicable to a fund-of-funds as set forth in that
rule.
14. Each Purchasing Fund that may acquire Units in excess of either (i) the
5% limit of Section 12(d)(1)(A)(ii) of the
1940 Act or (ii) the 10% limit of Section 12(d)(1)(A)(iii) of the 1940 Act
represents and warrants to each Trust, and agrees, that its prospectus will
disclose in "plain English" the fact that it does or may invest in
exchange-traded funds such as the Trusts, the unique characteristics of a fund
that invests in exchange-traded funds, and the related expenses.
15. This Agreement is binding upon and inures to the benefit of the parties
and their respective successors and assigns. No party may assign any of its
rights under this Agreement without the prior written consent of the other
party. Any purported assignment of rights in violation of this Section is void.
16. The parties may execute this Agreement in multiple counterparts, each
of which constitutes an original, and all of which, collectively, constitute
only one agreement. The signatures of all of the parties need not appear on the
same counterpart. This Agreement is effective upon delivery of one executed
counterpart from each party to the other parties. In proving this Agreement, a
party must produce or account only for the executed counterpart of the party to
be charged.
17. The laws of the Commonwealth of Massachusetts (without regard to choice
of law principles) govern all matters arising out of or related to this
Agreement.
18. Any dispute arising out of or related to this Agreement which cannot be
resolved through discussions between the parties shall be settled by binding
arbitration before a panel of three arbitrators in accordance with and subject
to the Commercial Arbitration Rules of the American Arbitration Association then
applicable. Unless otherwise agreed upon by the parties, the arbitration
hearings will be held in Boston, Massachusetts.
19. This Agreement will continue until terminated in writing by either
party:
(i) upon thirty (30) days written notice to the other; or (ii) in the event
of a material breach of this Agreement, upon written notice to the breaching
party, which may be given in the sole discretion of the non-breaching party.
20. The Purchasing Funds, severally and not jointly, agree to hold
harmless, indemnify and defend each Trust, including any principals, directors
or trustees, officers, employees and agents ("Trust Agents"), against and from
any and all losses, costs, expenses or liabilities incurred by or claims or
actions ("Claims") asserted against a Trust, including any Trust Agents, to the
extent such Claims result from (i) a violation or alleged violation of any
provision of this Agreement or (ii) a violation or alleged violation of the
terms and conditions of the Order, in each case by the Purchasing Fund, its
principals, directors or trustees, officers, employees, agents, advisers or if
applicable, sub-advisers. Any indemnification pursuant to this Section shall
include any reasonable counsel fees and expenses incurred in connection with
investigating and/or defending the applicable Claims. This Section shall survive
any termination of this Agreement.
21. Each party giving or making any notice, including any information that
either party is required to deliver to the other by the Order or this Agreement,
shall give the notice in writing and shall use one of the following methods of
delivery, each of which for purposes of this Agreement is a writing: (a)
personal delivery; (b) registered or certified mail, in each case, return
receipt requested and postage prepaid; (c) nationally recognized overnight
courier, with all fees prepaid; or (d) e-mail (to all parties set forth below).
Such notice shall be delivered to the address or email address set forth below
(which may be changed from time to time upon written notice to the other party).
If to a Purchasing Fund:
Transamerica Series Trust
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Fax No.: 000-000-0000
Phone No.: 000-000-0000
e-mail:
If to a Trust:
Xxxx Xxxxxx
State Street Bank and Trust Company
Mail Stop CPH0326
Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
email: xxxxxxxx@xxxxxxxxxxx.xxx
With a copy to: Fund Administration Legal Department
email: xxxxxxxx@xxxxxxxxxxx.xxx and xxxxxxxx@xxxxxxxxxxx.xxx
22. With the exception of the contact information listed in Section 21,
which may be changed from time to time upon written notice to the other party,
the parties may amend this Agreement only by a written agreement signed by the
party against whom enforcement of the amendment is sought.
23. If any provision of this Agreement is determined to be invalid, illegal
or unenforceable, the remaining provisions of this Agreement remain in full
force and effect, if the essential terms and conditions of this Agreement for
both parties remain valid, legal and enforceable.
24. Any of the provisions of this Agreement notwithstanding, each
Purchasing Fund represents and warrants to each Trust that it operates, and will
continue to operate, in compliance with the 1940 Act, and the Commission's rules
and regulations thereunder. Each Purchasing Fund agrees that each Trust is
entitled to rely on the representations contained in this Agreement and that the
Trusts have no independent duty to monitor the Purchasing Fund's or its
investment adviser's or, if applicable, its sub- adviser's compliance with this
Agreement, the Order, the 1940 Act, or the Commission's rules and regulations
thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
1st day of May, 2009.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
NAME OF PURCHASING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Investment Officer
DIAMONDS(R) TRUST, SERIES 1
By: State Street Bank and Trust
Company, Trustee
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
STANDARD & POOR'S DEPOSITARY RECEIPTS
TRUST, SERIES 1
By: State Street Bank and Trust
Company, Trustee
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
THE SELECT SECTOR SPDR(R) TRUST
SPDR(R) INDEX SHARES FUNDS
SPDR(R) SERIES TRUST
INVESTING FUND AGREEMENT
This Investing Fund Agreement ("Agreement") is made as of the date set
forth below between The Select Sector SPDR Trust, SPDR Series Trust and SPDR
Index Shares Funds (each, a "Trust" and collectively, the "Trusts"), severally
and not jointly, and the registered investment companies named on Schedule A,
severally and not jointly, each on behalf of their current and any future series
as an investing fund (each, an "Investing Fund" and collectively, the "Investing
Funds").
WHEREAS, Section 12(d)(1)(A) ("Section 12(d)(1)(A)") of the Investment
Company Act of 1940, as amended (the "1940 Act"), limits investment by an
"investment company", as defined in the 1940 Act and affiliates of such company
in any other investment company that is registered under the 1940 Act; and
WHEREAS, each Trust is an investment company registered as such under the
1940 Act; and
WHEREAS, each Trust is organized as a series fund with multiple separate
series (each such series, a "Portfolio"); and
WHEREAS, each Investing Fund is a registered investment company or
otherwise meets the definition of "investment company" under the 1940 Act; and
WHEREAS, the Securities and Exchange Commission (the "Commission") has
granted an order (Rel.No.IC-26419, April 19, 2004) exempting the Trusts and
certain registered investment companies investing in the Trusts from the limits
of Section 12(d)(1)(A) (such order and the application therefore together, the
"Order"); and
WHEREAS, in reliance on the Order, each Investing Fund may acquire shares
in each Trust ("Shares") in excess of the limits imposed by Section 12(d)(1)(A);
and
WHEREAS, pursuant to the conditions set forth in the Order, each Investing
Fund must enter into a written agreement with each Trust prior to acquiring
Shares in excess of the limits imposed by Section 12(d)(1)(A).
NOW, THEREFORE, each Trust and each Investing Fund agree as follows:
1. The term "Trust" as used herein shall be deemed to also refer to each
Portfolio. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned such terms in the Order.
2. The members of an Investing Fund Adviser Group (individually or in the
aggregate) will not hold or beneficially own more than 25 percent of the
outstanding Shares or otherwise control a trust within the meaning of Section
2(a)(9) of the 1940 Act. The members of an Investing Fund Sub-adviser Group
(individually or in the aggregate) will not hold or beneficially own more than
25 percent of the outstanding Shares or otherwise control a Trust within the
meaning of Section 2(a)(9) of the 1940 Act. If, as a result of a decrease in a
Trust's outstanding Shares, an Investing Fund Adviser Group or any Investing
Fund Sub-adviser Group, each in the aggregate, becomes a holder or beneficial
owner of more than 25 percent of the outstanding Shares, each Investing Fund
agrees that its Investing Fund Adviser Group or Investing Fund Sub-adviser
Group, as applicable, will vote its Shares in the same proportion as the vote of
all other shareholders. For purposes of this Agreement, an "Investing Fund
Adviser Group" consists of an Investing Fund's investment adviser or manager,
sponsor and/or depositor, as applicable, and any person controlling, controlled
by, or under common control with the Investing Fund's investment adviser or
manager, sponsor and/or depositor, and any issuer that would be an investment
company but for Sections 3(c)(1)or3(c)(7) of the 1940 Act that is advised by the
Investing Fund's investment adviser or manager or sponsored by the Investing
Fund's sponsor and/or depositor, or any person controlling, controlled by, or
under common control with the Investing Fund's investment adviser or manager,
sponsor and/or depositor, as applicable. For purposes of this Agreement, an
"Investing Fund Sub-adviser Group" consists of any sub-adviser to an Investing
Fund, any person controlling, controlled by, or under common control with such
sub-adviser, and any investment company or issuer that would be an investment
company but for Sections 3(c)(1)or3(c)(7) of the 1940 Act (or portion of such
investment company or issuer) advised by such sub-adviser or any person
controlling, controlled by or under common control with such sub-adviser. This
condition does not apply to an Investing Fund Sub-Advisory Group to the extent
that the sub-adviser or a person controlled by or under common control with the
sub-adviser acts as the investment adviser to a Trust.
3. Each Investing Fund agrees that its investment adviser, or trustee or
sponsor, as applicable, will waive fees
otherwise payable to it by the Investing Fund in an amount at least equal to any
compensation (including fees received pursuant to any plan adopted by a Trust
under rule 12b-1 under the 0000 Xxx) received by such investment adviser, or
trustee or sponsor, or an affiliated person of the investment adviser, or
trustee or sponsor, from a Trust, other than any investment advisory fees paid
to the investment adviser or trustee or sponsor or its affiliated person by such
Trust, in connection with the acquisition by the Investing Fund of Shares. Each
Investing Fund further agrees that any sub-adviser(s) of such Investing Fund
will waive fees otherwise payable to such sub-adviser(s), directly or
indirectly, by the Investing Fund in an amount at least equal to any
compensation (including fees received pursuant to any plan adopted by a Trust
under rule 12b-1 under the 0000 Xxx) received by the sub-adviser(s), or an
affiliated person of the such sub-adviser(s), other than any advisory fees paid
to the investment sub-adviser or its affiliated person by such Trust, in
connection with any investment(s) by the Investing Fund in such Trust made at
the direction of such sub-adviser(s). In the event that a sub-adviser waives
fees under the preceding sentence, the Investing Fund agrees that it will
require the relevant sub-adviser(s) to pass the benefit of the waiver through to
the Investing Fund.
4. No Investing Fund or Investing Fund Affiliate will cause any existing or
potential acquisition of Shares by an Investing Fund to influence the terms of
any services or transactions between the Investing Fund or Investing Fund
Affiliate and a Trust or any Trust Affiliate. For purposes of this Agreement,
the term "Investing Fund Affiliate" includes an investment adviser, sub-adviser,
sponsor, promoter, and principal underwriter of an Investing Fund, and any
person controlling, controlled by, or under common control with any of those
entities within the meaning of Section 2(a)(9) of the 1940 Act. For purposes of
this Agreement, the term "Trust Affiliate" includes an investment adviser,
promoter, sponsor, and principal underwriter of a Trust, and any person
controlling, controlled by, or under common control with any of those entities.
5. If an Investing Fund is a "management company," as defined in Section 4
of the 1940 Act (a "Management Company"), before that Investing Fund relies on
the Order, the board of directors or trustees of such Investing Fund, including
a majority of disinterested directors or trustees, will adopt procedures
reasonably designed to assure that the Investing Fund's investment adviser, (and
sub-adviser, if appropriate) is conducting the Investing Fund's investment
program without taking into account any consideration received by the Investing
Fund or any Investing Fund Affiliate from a Trust or any Trust Affiliate in
connection with any services or transactions. Proper evidence of such approval,
including but not limited to, certified resolutions of the Board as to the
foregoing approval, shall be provided to a Trust upon request.
6. No Investing Fund or Investing Fund Affiliate will cause a Trust to
purchase a security from any Affiliated Underwriting, except to the extent that
it is acting in its capacity as an investment adviser to the Trust. Nothing in
this Agreement, however, shall limit the authority of a Trust to accept and
satisfy in-kind creation orders and redemption requests from an Investing Fund
or an Underwriting Affiliate that is also an authorized participant in the
ordinary course of business. For purposes of this Agreement, the term
"Affiliated Underwriting" means an offering of securities during the existence
of an underwriting or selling syndicate of which a principal underwriter is an
Underwriting Affiliate. For purposes of this Agreement, the term "Underwriting
Affiliate" means a principal underwriter in any underwriting or selling
syndicate that is an officer, director, member of an advisory board, investment
adviser, sub-adviser, employee or sponsor of an Investing Fund, or a person of
which any such officer, director, member of an advisory board, investment
adviser, sub-adviser, employee or sponsor is an affiliated person. An
Underwriting Affiliate does not include any person whose relationship to a Trust
is covered by Section 10(f) of the 1940 Act.
7. No Investing Fund will acquire Shares in excess of the limits of Section
12(d)(1)(A) unless and until such Investing Fund and the applicable Trust have
executed this Agreement and complied with the terms and conditions hereof. An
Investing Fund will promptly notify a Trust in writing (as defined in Section 21
below) at the time its investment in Shares of such Trust exceeds the limits in
Section 12(d)(1)(A)(i) or thereafter falls below the limits of Section
12(d)(1)(A)(i). At such time, the Investing Fund will also transmit to such
Trust a list of the names of each Investing Fund Affiliate and Underwriting
Affiliate. The Investing Fund will notify such Trust of any changes to the list
of names as soon as reasonably practicable after the change occurs.
8. Each Investing Fund represents and warrants to each Trust that the
Investing Fund's board of directors or trustees, trustee, investment adviser or
manager, sponsor, and/or depositor, as applicable, have received a copy of and
have read and understand the terms and conditions of the Order, and agree to
fulfill their responsibilities under the Order. Each Investing Fund further
represents and warrants to each Trust that the foregoing persons understand that
the Order pertains only to investments in the Trusts and not to investments in
any other investment company. Each Investing Fund understands that this
Agreement is entered into in furtherance of, and pursuant to, the Order, and
agrees that this Agreement shall be interpreted consistently therewith and that
it will promptly notify the applicable Trust if it fails to comply with the
Order with respect to such Trust.
9. Each Investing Fund agrees that it has sole responsibility under the
Order and this Agreement to monitor the limits of Section 12(d)(1)(A) as they
pertain to its acquisition of Shares.
10. Each Investing Fund represents and warrants to each Trust that, if it
is a Management Company, its investment adviser is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended, or is exempt from
such registration.
11. Each Investing Fund represents and warrants to each Trust that
investments in a Trust will be accomplished in compliance with the Investing
Fund's investment restrictions and consistent with the investment policies set
forth in the Investing Fund's registration statement under the Securities Act of
1933 and the 1940 Act.
12. Each Investing Fund and each Trust agree that each shall preserve a
copy of this Agreement, together with copies of the Order for a period of not
less than six (6) years from the end of the fiscal year in which the most recent
investment by the Investing Fund in a Trust occurred. For the first two (2)
years of such six-year period, the foregoing documents shall be maintained by
the Investing Fund and the Trust in an easily accessible place.
13. Each Investing Fund represents and warrants to each Trust that it
understands and complies with the National Association of Securities Dealers,
Inc. Conduct Rule 2830 and that any sales charge and/or service fees (other than
customary brokerage fees) charged with respect to shares in an Investing Fund
will not exceed the limits applicable to a fund-of-funds as set forth in that
rule.
14. If it is acquiring Shares in excess of either (i) the 5% limit of
Section 12(d)(1)(A)(ii) of the 1940 Act or (ii) the 10% limit of Section
12(d)(1)(A)(iii) of the 1940 Act, each Investing Fund represents and warrants to
each Trust, and agrees, that its prospectus will disclose in "plain English" the
fact that it does or may invest in exchange-traded funds ("ETFs") such as the
Trusts, the unique characteristics of a fund that invests in ETFs, and the
related expenses.
15. This Agreement is binding upon and inures to the benefit of the parties
and their respective successors and assigns. No party may assign any of its
rights under this Agreement without the prior written consent of the other
party. Any purported assignment of rights in violation of this Section is void.
16. The parties may execute this Agreement in multiple counterparts, each
of which constitutes an original, and all of which, collectively, constitute
only one agreement. The signatures of all of the parties need not appear on the
same counterpart. This Agreement is effective upon delivery of one executed
counterpart from each party to the other parties. In proving this Agreement, a
party must produce or account only for the executed counterpart of the party to
be charged.
17. The laws of the Commonwealth of Massachusetts (without regard to choice
of law principles) govern all matters arising out of or related to this
Agreement.
18. Any dispute arising out of or related to this Agreement which cannot be
resolved through discussions between the parties shall be settled by binding
arbitration before a panel of three arbitrators in accordance with and subject
to the Commercial Arbitration Rules of the American Arbitration Association then
applicable. Unless otherwise agreed upon by the parties, the arbitration
hearings will be held in Boston, Massachusetts.
19. This Agreement will continue until terminated in writing by either
party:
(i) upon thirty (30) days written notice to the other; or (ii) in the event
of a material breach of this Agreement, upon written notice to the breaching
party, which may be given in the sole discretion of the non-breaching party.
20. The Investing Funds, severally and not jointly, agree to hold harmless,
indemnify and defend each Trust, including any principals, directors or
trustees, officers, employees and agents ("Trust Agents"), against and from any
and all losses, costs, expenses or liabilities incurred by or claims or actions
("Claims") asserted against a Trust, including any Trust Agents, to the extent
such Claims result from (i) a violation or alleged violation of any provision of
this Agreement or (ii) a violation or alleged violation of the terms and
conditions of the Order, in each case by the Investing Fund, its principals,
directors or trustees, officers, employees, agents, advisers or if applicable,
sub-advisers. Any indemnification pursuant to this Section shall include any
reasonable counsel fees and expenses incurred in connection with investigating
and/or defending the applicable Claims. This Section shall survive any
termination of this Agreement.
21. Each party giving or making any notice, including any information that
either party is required to deliver to the other by the Order or this Agreement,
shall give the notice in writing and shall use one of the following methods of
delivery, each of which for purposes of this Agreement is a writing: (a)
personal delivery; (b) registered or certified mail, in each case, return
receipt requested and postage prepaid; (c) nationally recognized overnight
courier, with all fees prepaid; or (d) e-mail (to all parties set forth below).
Such notice shall be delivered to the address or email address set forth below
(which may be changed from time to time upon written notice to the other party).
If to a Purchasing Fund:
Transamerica Series Trust
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Fax No.: 000-000-0000
Phone No.: 000-000-0000
e-mail:
If to a Trust:
Xxxx Xxxxxx
State Street Bank and Trust Company
Mail Stop CPH0326
Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
email: xxxxxxxx@xxxxxxxxxxx.xxx
With a copy to: Fund Administration Legal Department
email: xxxxxxxx@xxxxxxxxxxx.xxx and xxxxxxxx@xxxxxxxxxxx.xxx
22. With the exception of the contact information listed in Section 21,
which may be changed from time to time upon written notice to the other party,
the parties may amend this Agreement only by a written agreement signed by the
party against whom enforcement of the amendment is sought.
23. If any provision of this Agreement is determined to be invalid, illegal
or unenforceable, the remaining provisions of this Agreement remain in full
force and effect, if the essential terms and conditions of this Agreement for
both parties remain valid, legal and enforceable.
24. Any of the provisions of this Agreement notwithstanding, each Investing
Fund represents and warrants to the Trusts that it operates, and will continue
to operate, in compliance with the 1940 Act, and the Commission's rules and
regulations thereunder. Each Investing Fund agrees that a Trust is entitled to
rely on the representations contained in this Agreement and that the Trusts have
no independent duty to monitor the Investing Fund's or its investment adviser's
or, if applicable, its sub- adviser's compliance with this Agreement, the Order,
the 1940 Act, or the Commission's rules and regulations thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
1st day of May, 2009.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
NAME OF INVESTING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Investment Officer
THE SELECT SECTOR SPDR(R) TRUST, ON
BEHALF OF EACH OF ITS SERIES
By: State Street Bank and Trust
Company, Trustee
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: President
SPDR(R) SERIES TRUST, ON BEHALF OF
EACH OF ITS SERIES
By: State Street Bank and Trust
Company, Trustee
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
SPDR(R) INDEX SHARES FUND, ON BEHALF
OF EACH OF ITS SERIES
By: State Street Bank and Trust
Company, Trustee
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
12(D)(1) INVESTING AGREEMENT
This INVESTING AGREEMENT (the "Agreement"), dated effective as of May 1,
2008, is between Transamerica Series Trust, a Delaware Statutory Trust organized
under the laws of Delaware, on behalf of itself and its separate series listed
on Schedule A (each, an "Investing Fund"), severally and not jointly, and the
investment trusts listed on Schedule B (the "Vanguard Trusts"), on behalf of
themselves and their respective series listed on Schedule B (each, a "Vanguard
Fund"), severally and not jointly.
WHEREAS, the Investing Funds and the Vanguard Funds are open-end management
investment companies that are registered with the U.S. Securities and Exchange
Commission ("SEC") under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, Sections 12(d)(1)(A) and (B) of the 1940 Act limit the ability of
an investment company to invest in shares of another investment company, and
therefore limit the ability of an Investing Fund to invest in shares of a
Vanguard Fund;
WHEREAS, the Vanguard Trusts, on behalf of each of the Vanguard Funds, have
obtained from the SEC an order, Investment Company Act Release No. 27386, dated
May 31, 2006 (the "Order") that permits the Investing Funds to acquire shares of
the Vanguard Funds in excess of the limits set forth in Sections 12(d)(1)(A) and
(B) in accordance with the representations and conditions in the application
filed to obtain the Order, File No. 812-13157, dated May 17, 2006 (the
"Application"); and
WHEREAS, the Investing Funds, from time to time, may want to acquire shares
of one or more Vanguard Funds in excess of the limitations of Sections
12(d)(1)(A) and (B) in reliance on the Order.
NOW, THEREFORE, in consideration of the potential benefits to the Investing
Funds and the Vanguard Funds arising out of the investment by the Investing
Funds in the Vanguard Funds, the parties agree as follows:
4. Representations and Obligations of the Vanguard Funds
(a) The Vanguard Funds have provided to the Investing Funds through their
investment adviser and designated agent, Transamerica Asset Management,
Inc., true copies of: (i) the Application, (ii) the Notice of Application,
Investment Company Act Release No. 27314, dated May 5, 2006 (the "Notice")
and (iii) the Order.
(b) Pursuant to Condition 8 of the Order, each Vanguard Fund represents and
warrants that its board of trustees and its investment adviser understand
the terms and conditions of the Order and that each agrees to fulfill its
responsibilities under the Order.
(c) The Vanguard Funds agree (i) to adhere to the terms and conditions of
the Order and this Agreement and to participate in the proposed
transactions in a manner that addresses the concerns underlying the Order
and (ii) to promptly notify the Investing Funds if a Vanguard Fund fails to
comply with the terms and conditions of the Order or this Agreement.
5. Representations and Obligations of the Investing Funds
(a) The Investing Funds hereby acknowledge receipt of the Application, the
Notice of Application and the Order.
(b) Pursuant to Condition 8 of the Order, each Investing Fund represents
and warrants that its board of trustees and its investment adviser
understand the terms and conditions of the Order and that each agrees to
fulfill its responsibilities under the Order.
(c) Pursuant to Condition 8 of the Order, each Investing Fund will promptly
notify the Vanguard Funds in writing (which notification may be via
electronic mail to their designated Vanguard sales executive) at such time
as its investment in the Vanguard Funds (i) exceeds any of the limits in
Section 12(d)(1)(A)(i) or thereafter, (ii) falls below
any of the limits in Section 12(d)(1)(A)(i). Each Investing Fund hereby
acknowledges and agrees that it may rely on the Order to invest in shares
of the Vanguard Funds only.
(d) Each Investing Fund: (i) agrees to adhere to the terms and conditions
of the Order and this Agreement, and to participate in the proposed
transactions in a manner that addresses the concerns underlying the Order;
(ii) represents that investments in the Vanguard Funds will be consistent
with the investment policies set forth in the Investing Fund's registration
statement; (iii) in the event that it exceeds the 5% or 10% limitation in
Sections 12(d)(1)(A)(ii) and (iii), agrees to disclose in its prospectus
the unique characteristics of investing in investment companies, including
but not limited to, the expense structure and any additional expenses of
investing in investment companies; and (iv) agrees to promptly notify the
Vanguard Fund if such Investing Fund fails to comply with the terms and
conditions of the Order or this Agreement.
6. Indemnification
(a) The Investing Funds, severally and not jointly, agree to hold harmless,
indemnify and defend the Vanguard Funds, including any principals,
directors or trustees, officers, employees and agents ("Vanguard Agents"),
against and from any and all losses, costs, expenses or liabilities
incurred by or claims or actions ("Claims") asserted against the Vanguard
Fund, including any Vanguard Agents, to the extent such Claims result from
(i) a violation or alleged violation of any provision of this Agreement or
(ii) a violation or alleged violation of the terms and conditions of the
Order, in each case by the Investing Fund, its principals, directors or
trustees, officers, employees, agents, advisors or if applicable,
subadvisors.
(b) The Vanguard Funds, severally and not jointly, agree to hold harmless,
indemnify and defend each Investing Fund, including any principals,
directors or trustees, officers, employees and agents ("Investing Fund
Agents"), against and from any and all losses, costs, expenses or
liabilities incurred by or Claims asserted against an Investing Fund,
including any Investing Fund Agents, to the extent such Claims result from
(i) a violation or alleged violation of any provision of this Agreement or
(ii) a violation or alleged violation of the terms and conditions of the
Order, in each case by the Vanguard Fund, its principals, directors or
trustees, officers, employees, agents or advisors.
(c) Any indemnification pursuant to this Section shall include any
reasonable counsel fees and expenses incurred in connection with
investigating and/or defending the applicable Claims.
4. Notices
Except as otherwise noted, all notices, including all information that
either party is required to provide under the terms of this Agreement and
the terms and conditions of the Order, shall be in writing and shall be
delivered to the contact identified below by (i) Federal Express or other
comparable overnight courier, (ii) registered or certified mail, postage
prepaid, return receipt requested, or (iii) facsimile with confirmation
during normal business hours. All notices, demands or requests so given
will be deemed given when actually received as evidenced by written
confirmation thereof.
If to an Investing Fund:
Xxxxxx X. Xxxxxxxxx, General Counsel
Transamerica Series Trust
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxx.xxx
If to the Vanguard Funds:
Xxxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxxxxxxx, X00
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx_xxxxxxxxx@xxxxxxxx.xxx
5. Termination; Governing Law, Dispute Resolution
(a) This Agreement will continue until terminated in writing by either
party (i) upon thirty (30) days' notice to the other party or (ii)
immediately if the other party breaches any of its material obligations
under this Agreement and such breach is not cured within fifteen (15) days
following delivery of written notice of such breach.
(b) This Agreement will be governed by Pennsylvania law without regard to
choice of law principles.
(c) Any dispute arising out of or related to this Agreement which cannot be
resolved through discussions between the parties shall be settled by
binding arbitration before a panel of three arbitrators in accordance with
and subject to the Commercial Arbitration Rules of the American Arbitration
Association then applicable. Unless otherwise agreed upon by the parties,
the arbitration hearings will be held in Philadelphia, Pennsylvania.
6. Miscellaneous
(a) This Agreement may not be assigned by either party without the prior
written consent of the other. In the event either party assigns this
Agreement to a third party as provided in this Section, such third party
shall be bound by the terms and conditions of this Agreement applicable to
the assigning party. Any assignment in contravention of this Section shall
be null and void.
(b) Except as expressly set forth herein, nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto
and their respective successors and permitted assigns.
(c) With the exception of Schedules A, B, and C, no amendment,
modification, or supplement of any provision of this Agreement will be
valid or effective unless made in writing and signed by a duly authorized
representative of each party.
(d) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the same instrument. This Agreement shall become binding
when any two or more counterparts thereof, individually or taken together,
bear the signatures of both parties hereto. For purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto,
shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Transamerica Series Trust, on behalf of itself and
each Investing Fund listed on Schedule A
/s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Print Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Chief Investment Officer
EACH OF THE VANGUARD TRUSTS, on behalf of
itself and the Vanguard Funds listed on Schedule B
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
SCHEDULE A
List of Investing Funds
Transamerica Index 50 VP
Transamerica Index 75 VP
Transamerica Efficient Markets VP
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
SCHEDULE B
LIST OF VANGUARD TRUSTS AND VANGUARD FUNDS THAT OFFER AN ETF SHARE CLASS
VANGUARD BOND INDEX FUNDS
Vanguard Intermediate-Term Bond Index Fund
Vanguard Long-Term Bond Index Fund
Vanguard Short-Term Bond Index Fund
Vanguard Total Bond Market Index Fund
VANGUARD INDEX FUNDS
Vanguard Extended Market Index Fund
Vanguard Growth Index Fund
Vanguard Mid-Cap Index Fund
Vanguard Mid-Cap Growth Index Fund
Vanguard Mid-Cap Value Index Fund
Vanguard Small-Cap Index Fund
Vanguard Small-Cap Growth Index Fund
Vanguard Small-Cap Value Index Fund
Vanguard Total Stock Market Index Fund
Vanguard Value Index Fund
Vanguard Large-Cap Index Fund
VANGUARD INTERNATIONAL EQUITY INDEX FUNDS
Vanguard Emerging Markets Stock Index Fund
Vanguard European Stock Index Fund
Vanguard FTSE All-World ex-US Index Fund
Vanguard FTSE All-World ex-US Small-Cap Index Fund
Vanguard Pacific Stock Index Fund
Vanguard Total World Stock Index Fund
VANGUARD SPECIALIZED FUNDS
Vanguard Dividend Appreciation Index Fund
Vanguard REIT Index Fund
VANGUARD TAX-MANAGED FUNDS
Vanguard Europe Pacific ETF
VANGUARD WHITEHALL FUNDS
Vanguard High Dividend Yield Index Fund
SCHEDULE B
LIST OF VANGUARD TRUSTS AND VANGUARD FUNDS THAT OFFER AN ETF SHARE CLASS
VANGUARD WORLD FUNDS
Vanguard Consumer Discretionary Index Fund
Vanguard Consumer Staples Index Fund
Vanguard Energy Index Fund
Vanguard Extended Duration Treasury Index Fund
Vanguard Financials Index Fund
Vanguard Health Care Index Fund
Vanguard Industrials Index Fund
Vanguard Information Technology Index Fund
Vanguard Materials Index Fund
Vanguard Mega Cap 300 Index Fund
Vanguard Mega Cap 300 Growth Index Fund
Vanguard Mega Cap 300 Value Index Fund
Vanguard Telecommunication Services Index Fund
Vanguard Utilities Index Fund
SCHEDULE C
INFORMATION PROVIDED WITH RESPECT TO MONITORING PROCEDURES
Pursuant to the Order granted by the SEC and this Agreement, the Investing Funds
must monitor their individual and aggregate ownership of each Vanguard Fund. In
order to accurately monitor ownership levels, the Vanguard Funds must provide
the Investing Funds with the information necessary to calculate the Investing
Funds' individual and aggregate ownership levels.
Consequently, in connection with this Agreement, Vanguard agrees to
electronically deliver a spreadsheet showing the total assets in each Vanguard
portfolio, which includes each Vanguard ETF Fund, as listed in Schedule B
("MONITORING INFORMATION"), as of the close of trading on the New York Stock
Exchange ("BUSINESS DAY").
- Vanguard will automatically provide this Monitoring Information to the
individuals listed below once a month by the close of trading on the
NYSE (generally, 4 p.m. U.S. Eastern Time) on the first Business Day
of each month and on the record date for any shareholder vote.
- Vanguard also agrees to provide such Monitoring Information upon
request by an Investing Fund, or on behalf of an Investing Fund, for a
specific Vanguard Fund and a specific time so that the Investing Funds
can monitor compliance.
On behalf of the Vanguard Funds, the Monitoring Information must be sent, as
described above, to the names and email addresses of the following individuals:
NAME TITLE EMAIL ADDRESS PHONE NUMBER
---- -------------------- --------------------------- ------------
Xxxx Xxxxxx Compliance xxxxxxx@xxxxxxxx.xxx 727.557.3102
Xxxxxxxxxxx Xxxx Compliance xxxxx@xxxxxxxx.xxx 727.557.2926
Xxxx Xxxx Compliance xxxxx@xxxxxxxx.xxx 727.557.3127
When requesting updated Monitoring Information, the Investing Funds must direct
their request to the following individuals:
NAME TITLE EMAIL ADDRESS PHONE NUMBER
---- -------------------- --------------------------- ------------
Xxxxx Xxxxxxx Sales Analyst xxxxx_xxxxxxx@xxxxxxxx.xxx 000.000.0000
Xxxx Xxxxx Sales Executive xxxx_xxxxx@xxxxxxxx.xxx 610.669.0151
Xxx Xxxxxx Relationship Manager xxx_xxxxxx@xxxxxxxx.xxx 610.669.4454
Xxx Xxxxxxxx Relationship xxxxx_xxxxxxxx@xxxxxxxx.xxx 610.669.8039
Administrator
MARKET VECTORS ETF TRUST
INVESTING FUND AGREEMENT
This Investing Fund Agreement (the "Agreement") is made as of the date set
forth below between the Market Vectors ETF Trust (the "Trust") and Transamerica
Series Trust ("TST"), on behalf of itself or each of its series listed on
Exhibit A attached hereto (each, an "Investing Fund").
WHEREAS, Section 12(d)(1)(A) ("Section 12(d)(1)(A)") of the Investment
Company Act of 1940, as amended (the "1940 Act"), limits investment by an
investment company, as defined in the 1940 Act, and affiliates of such company,
in any other investment company that is registered under the 1940 Act; and
WHEREAS, the Trust is an investment company registered as such under the
1940 Act; and is organized as a series fund with multiple separate series (each
such series an "ETF" and collectively the "ETFs"); and
WHEREAS, TST is a registered investment company under the 1940 Act, and
each Investing Fund has been duly formed or organized as a series of TST; and
WHEREAS, the Securities and Exchange Commission (the "Commission") has
granted orders (Rel. No. IC-27311 dated May 2, 2006, Rel. No. IC-27694 dated
January 31, 2007 and Rel. No. IC-28007 dated September 29, 2007) exempting the
Trust and certain investment companies investing in the Trust from the limits of
Section 12(d)(1)(A) (such orders and the application therefor together, the
"Order"); and
WHEREAS, in reliance on the Order, the Investing Fund may acquire shares in
the ETFs ("Shares") in excess of the limits imposed by Section 12(d)(1)(A); and
WHEREAS, pursuant to the conditions set forth in the Order, each Investing
Fund must enter into a written agreement with the Trust prior to acquiring
Shares in excess of the limits imposed by Section 12(d)(1)(A);
NOW, THEREFORE, the Trust and TST, on behalf of each Investing Fund, agree
as follows:
1. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned such terms in the Order.
2. The members of the Investing Fund Adviser Group will not control
(individually or in the aggregate) an ETF within the meaning of Section
2(a)(9) of the 1940 Act. The members of an Investing Fund Sub-adviser Group
will not control (individually or in the aggregate) an ETF within the
meaning of Section 2(a)(9) of the 1940 Act. If, as a result, of a decrease
of the outstanding voting securities of an ETF, the Investing Fund Adviser
Group or the Investing Fund Sub-adviser Group, each in the aggregate,
becomes a holder of more than 25 percent of the outstanding voting
securities of an ETF, it will vote its shares of the ETF in the same
proportion as the vote of all other holders of the ETF's shares. This
condition does not apply to the Investing Fund Sub-adviser Group with
respect to an ETF for which the Investing Fund Sub-adviser or a person
controlling, controlled by, or under common control with the Investing Fund
Sub-adviser acts as the investment adviser within the meaning of Section
2(a)(20)(A) of the 1940 Act (in the case of an Open-end ETF) or as the
sponsor (in the case of a UIT ETF).
For purposes of this Agreement, the "Investing Fund Adviser Group" consists
of the Investing Fund investment adviser or manager, sponsor, and/or
depositor, as applicable, and any person controlling, controlled by, or
under common control with the Investing Fund's investment adviser or
manager, sponsor and/or depositor, and any investment company and any
issuer that would be an investment company but for Sections 3(c)(1) or
3(c)(7) of the 1940 Act that is advised by the Investing Fund's adviser or
manager or sponsored by the Investing Fund's sponsor and/or depositor, or
any person controlling, controlled by, or under common control with the
Investing Fund's investment adviser or manager, sponsor, and/or depositor,
as applicable. For purposes of this Agreement, a "Investing Fund
Sub-adviser Group" consists of any sub-adviser to such Investing Fund, any
person controlling, controlled by, or under common control with such
sub-adviser, and any investment company or issuer that would be an
investment company but for Sections 3(c)(1) or 3(c)(7) of the 1940 Act (or
portion of such investment company or issuer) advised by such sub-adviser
or any person controlling, controlled by or under common control with such
sub-adviser.
3. The Investing Fund Adviser, or Trustee or Sponsor of an Investing Trust,
will waive fees otherwise payable to it by the Investing Management Company
or Investing Trust, as applicable, in an amount at least equal to any
compensation
(including fees received pursuant to any plan adopted by an ETF under Rule
12b-1 under the 0000 Xxx) received from an ETF by the Investing Fund
Adviser, Trustee or Sponsor, or an affiliated person of the Investing Fund
Adviser, Trustee or Sponsor, other than any advisory fees paid to the
Investing Fund Adviser, Trustee, or Sponsor or its affiliated person by the
ETF, in connection with the investment by the Investing Management Company
or Investing Trust, as applicable, in the ETF. Any Investing Fund
Sub-adviser will waive fees otherwise payable to the Investing Fund
Sub-adviser, directly or indirectly, by the Investing Management Company in
an amount at least equal to any compensation received from an ETF by the
Investing Fund Sub-adviser, or an affiliated person of the Investing Fund
Sub-adviser, other than any advisory fees paid to the Investing Fund
Sub-adviser or its affiliated person by the ETF, in connection with any
investment by the Investing Management Company in the ETF made at the
direction of the Investing Fund Sub-adviser. In the event that the
Investing Fund Sub-adviser waives fees, the benefit of the waiver will be
passed through to the Investing Management Company.
4. Before approving any advisory contract under Section 15 of the 1940 Act,
the board of directors or trustees of each Investing Management Company,
including a majority of the disinterested directors or trustees, will find
that the advisory fees charged under such advisory contract are based on
services provided that will be in addition to, rather than duplicative of,
the services provided under the advisory contract(s) of an ETF in which the
Investing Management Company may invest. These findings and their basis
will be recorded fully in the minute books of the appropriate Investing
Management Company
5. The Investing Fund or Investing Fund Affiliate will not cause any existing
or potential investment by the Investing Fund in an ETF to influence the
terms of any services or transactions between the Investing Fund or
Investing Fund Affiliate and the ETF or ETF Affiliate.
For purposes of this Agreement, the term "Investing Fund Affiliate"
includes an investment adviser, sub-adviser, sponsor, promoter, and
principal underwriter of a Investing Fund, and any person controlling,
controlled by, or under common control with any of those entities within
the meaning of Section 2(a)(9) of the 1940 Act.
6. If the Investing Fund is a management company, as defined in Section 4 of
the 1940 Act (a "Management Company"), before the Investing Fund relies on
the Order, the board of directors or trustees of an Investing Management
Company, including a majority of the disinterested directors or trustees,
will adopt procedures reasonably designed to assure that the Investing Fund
Adviser and any Investing Fund Sub-adviser are conducting the investment
program of the Investing Management Company without taking into account any
consideration received by the Investing Management Company or an Investing
Fund Affiliate from an ETF or an affiliate of an ETF in connection with any
services or transactions. Proper evidence of such approval, including but
not limited to, certified resolutions of the Board as to the foregoing
approval, shall be provided to the Trust upon request.
7. No Investing Fund or Investing Fund Affiliate will cause a ETF to purchase
a security in any Affiliated Underwriting, except to the extent that it is
acting in its capacity as an investment adviser to the Trust. Nothing in
this Agreement, however, shall limit the authority of the Trust to accept
and satisfy in-kind creation orders and redemption requests from an
Investing Fund or an Underwriting Affiliate that is also an Authorized
Participant in the ordinary course of business.
For purposes of this Agreement, the term "Affiliated Underwriting" means an
offering of Securities during the existence of an underwriting or selling
syndicate of which a principal underwriter is an Underwriting Affiliate.
For purposes of this Agreement, the term "Underwriting Affiliate" means a
principal underwriter in any underwriting or selling syndicate that is an
officer, director, member of an advisory board, investment adviser,
sub-adviser, employee or sponsor of the Investing Fund, or a person of
which any such officer, director, member of an advisory board, investment
adviser, sub-adviser, employee or sponsor is an affiliated person. An
Underwriting Affiliate does not include any person whose relationship to
the Trust is covered by Section 10(f) of the 1940 Act.
8. The Investing Fund will not acquire Shares in excess of the limits of
Section 12(d)(1)(A) unless and until the Investing Fund and the Trust have
executed this Agreement and complied with the terms and conditions hereof.
At the time of its investment in Shares of a ETF in excess of the limit in
Section 12(d)(1)(A)(i), an Investing Fund will notify the Trust of the
investment. At such time, the Investing Fund will also transmit to the
Trust a list of the names of each Investing Fund Affiliate and Underwriting
Affiliate. The Investing Fund will notify the Trust of any changes to the
list of names as soon as reasonably practicable after the change occurs.
9. TST, on behalf of each Investing Fund, represents and warrants to the Trust
that TST's board of directors or trustees, trustee, investment adviser or
manager, sponsor, and/or depositor, as applicable, have received a copy of
and have read and understand the terms and conditions of the Order, and
agree to fulfill their responsibilities under the Order. TST, on behalf of
each Investing Fund, further represents and warrants to the Trust that the
foregoing persons understand that the Order
pertains only to investments in the Trust and not to investments in any
other investment company. TST understands that this Agreement is entered
into in furtherance of, and pursuant to, the Order, and agrees that this
Agreement shall be interpreted consistently therewith.
10. TST, on behalf of each Investing Fund, agrees that it has sole
responsibility under the Order and this Agreement to monitor the limits of
Section 12(d)(1)(A) as they pertain to its acquisition of Shares.
11. TST, on behalf of each Investing Fund, represents and warrants to the Trust
that, if it is a Management Company, its investment adviser is registered
as an investment adviser under the Investment Advisers Act of 1940, as
amended, or is exempt from such registration.
12. TST, on behalf of each Investing Fund, represents and warrants to the Trust
that, if it purchases Creation Units directly from the Trust, it will do so
only in compliance with the Investing Fund's investment restrictions and
only if so doing is consistent with the investment policies set forth in
the Investing Fund's registration statement under the Securities Act of
1933.
13. TST and the Trust agree that each shall preserve a copy of this Agreement,
the list of Investing Fund Affiliates and Underwriting Affiliates and a
copy of the Order for the duration of the investment and for a period of
not less than six (6) years thereafter, the first two years shall be
maintained by the Investing Fund and the Trust in an easily accessible
place.
14. TST, on behalf of each Investing Fund, represents and warrants to the Trust
that it understands and complies with the National Association of
Securities Dealers, Inc. Conduct Rule 2830 and that any sales charge and/or
service fees (other than customary brokerage fees) charged with respect to
shares in the Investing Fund will not exceed the limits applicable to a
fund of funds as set forth in that rule.
15. If it is acquiring Shares in excess of either (i) the 5% limit of Section
12(d)(1)(A)(ii) of the 1940 Act or (ii) the 10% limit of Section
12(d)(1)(A)(iii) of the 1940 Act, TST, on behalf of each Investing Fund,
represents and warrants to the Trust, and agrees, that its prospectus will
disclose in "plain English" the fact that it does or may invest in
exchange-traded funds such as the Trust, the unique characteristics of a
fund that invests in ETFs, and the expenses of so doing.
16. Any of the provisions of this Agreement notwithstanding, TST, on behalf of
each Investing Fund, represents and warrants to the Trust that it operates,
and will continue to operate, in compliance with the 1940 Act, and the
Commission's rules and regulations thereunder. TST, on behalf of each
Investing Fund, agrees that the Trust is entitled to rely on the
representations contained in this Agreement and that the Trust has no
independent duty to monitor the Investing Fund's compliance with this
Agreement, the Order, the 1940 Act, or the Commission's rules and
regulations thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the 1st
day of May, 2009.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
----------------------------------------
NAME OF INVESTING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and
Chief Investment Officer
ACCEPTED:
MARKET VECTORS ETF TRUST
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
WISDOMTREE TRUST
ACQUIRING FUND AGREEMENT
This Acquiring Fund Agreement ("Agreement") is made as of this 1st day of
May, 2009, by and between WISDOMTREE TRUST (the "Trust"), on behalf of each of
its current and future series, other than the WisdomTree India Earnings Fund
(each a "Fund"), and Transamerica Series Trust ("TST"), on behalf of its
separate series listed on Schedule A, severally and not jointly (each, an
"Acquiring Fund").
WHEREAS, TST and the Trust are registered as open-end management investment
companies with the U.S. Securities and Exchange Commission ("SEC") under the
Investment Company Act of 1940, as amended ("1940 Act") and
WHEREAS, Section 12(d)(1)(A) and (B) of the 1940 Act limits investment by
an investment company, as defined in the 1940 Act, and affiliates of such
company in any other investment company that is registered under the 1940 Act;
and
WHEREAS, TST desires that each Acquiring Fund, from time to time, be
permitted to acquire shares of each Fund ("Shares") in excess of the limits
imposed by Section 12(d)(1)(A) and (B); and
WHEREAS, the Trust has received an order from the SEC (Investment Company
Act Release No. 27324, June 12, 2006) (the "Order") exempting each Fund and
certain registered investment companies acquiring Shares of each Fund from the
limits of Section 12(d)(1)(A) and (B) in accordance with the representations and
conditions in the application filed to obtain the Order, File No. 812-13280,
dated May 8, 2006 ("Application"); and
WHEREAS, in reliance on the Order, each Acquiring Fund may acquire Shares
in excess of the limits imposed by Section 12(d)(1)(A) and (B).
NOW, THEREFORE, in consideration of the potential benefits to an Acquiring
Fund and the funds arising out of the investment by the Acquiring Funds in the
Funds, the parties agree as follows:
1. Representation and Warranties of the Trust.
(a) The Trust has provided to the Acquiring Funds through their investment
adviser and/or its designated agent, TST, true copies of (i) the Application,
(ii) the Notice of the Application, Investment Company Act Release No. 27324,
dated May 18, 2006; and (iii) the Order. The Trust will provide TST with any
amendments to the Order.
(b) The Trust will (i) comply with this Agreement and the terms and conditions
of the Order with respect to the Acquiring Fund and (ii) notify the Acquiring
Funds if a Fund fails to comply with the terms and conditions of this Agreement
or of the Order.
2. Representation and Warranties of the Acquiring Funds.
(a) The Acquiring Funds hereby acknowledge receipt of the Application, Notice of
Application and the Order.
(b) Pursuant to Condition 15 of the Order, each Acquiring Fund represents and
warrants that their boards of directors or trustees and their investment
advisers, or Sponsor and Trustee, as applicable, understand the terms and
conditions of the Order, and agree to fulfill their responsibilities under the
Order.
(c) Pursuant to Condition 15 of the Order, each Acquiring Fund will promptly
notify the Funds in writing at the time of any investment in Shares of a Fund in
excess of the 3% limit in section 12(d)(1)(A)(i). Upon such investment, each
Acquiring Fund will also transmit to the Fund in writing a list of the names of
each Acquiring Fund Affiliate and Underwriting Affiliate. The Acquiring Fund
will notify the Fund of any changes to the list of the names as soon as
reasonably practicable after a change occurs. Each Acquiring Fund hereby
acknowledges and agrees that it may rely upon the Order only to invest in shares
of the Funds and will not rely upon the Order to invest in shares of any other
investment company.
(d) An Acquiring Fund that exceeds either the (i) 5% limit of Section
12(d)(1)(A)(ii) or (ii) the 10% limit of Section 12(d)(1)(A)(iii), will disclose
in "plain English" the fact that it does or may invest in exchange-traded funds
such as the Funds, the unique characteristics of a fund that invests in ETFs,
and the expenses of so doing.
(e) An Acquiring Fund will promptly notify the Trust in writing of any purchase
or acquisition of Shares that causes such
Acquiring Fund to (i) hold 5% or more of a Fund's outstanding voting securities,
and (ii) 10% or more of a Fund's outstanding voting securities.
(f) An Acquiring Fund holding 5% or more of the total outstanding voting
securities will vote its Shares in proportion to the vote of all other holders
of Shares of such Fund.
(g) An Acquiring Fund that purchases Shares directly from the Trust will do so
only in compliance with such Acquiring Fund's investment restrictions and only
if so doing is consistent with the investment policies set forth in such
Acquiring Fund's registration statement under the Securities Act of 1933.
3. Termination; Governing Law.
(a) This Agreement will continue until terminated in writing by either party
upon thirty (30) days written notice to the other. Provided, however, that
Section 2(f), shall survive termination of this Agreement.
(b) This Agreement will be governed by Delaware law without regard to choice of
law principles.
4. Notices.
All notices, including any information that either party is required to deliver
to the other by the Order or by this Agreement shall be in writing and shall be
delivered by registered or overnight mail, facsimile or electronic mail to the
address for each party set forth below (which may be changed from time to time
upon written notice to the other party). All notices, demands or requests so
given will be deemed given when actually received as evidenced by written
confirmation thereof. Facsimile or email notice shall not be deemed to have been
delivered unless followed promptly by written notice delivered by registered or
overnight mail.
If to the Acquiring Fund:
Transamerica Series Trust
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Fax No.: 000-000-0000
Phone No.: 000-000-0000
If to the Trust:
Legal Department
WisdomTree Investments, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Email: xxxxxxxxxxx@xxxxxxxxxx.xxx
5. Miscellaneous.
(a) Assignment. The terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
representatives, heirs and estate, as applicable. This Agreement shall not
assignable. Any purported assignment in violation of the immediately preceding
sentence shall be void and of no effect.
(b) Amendment. With the exception of the contact information listed in Section
4, which may be changed from time to time upon notice to the other party, the
parties may amend this Agreement only by a written agreement signed by both
parties.
(c) Counterparts. This Agreement may be executed in two counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered (by facsimile or otherwise) to the other party, it being understood
that all parties need not sign the same counterpart. Any counterpart or other
signature hereupon delivered by facsimile shall be deemed for all purposes as
constituting good and valid execution and delivery of this Agreement by the
party delivering it.
IN WITNESS WHEREOF, the parties have duly executed this Acquiring Fund Agreement
as of the date first set forth above.
Transamerica Series Trust, on behalf of
itself or its separate series listed on
Schedule A
----------------------------------------
NAME OF INVESTING FUND
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President and
Chief Investment Officer
WISDOMTREE TRUST
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: President
SCHEDULE A
Transamerica Foxhall Global Conservative VP
Transamerica Foxhall Emerging Markets/Pacific Rim VP
Transamerica Foxhall Global Growth VP
Transamerica Foxhall Global Hard Asset VP
Transamerica Xxxxxx Balanced VP
Transamerica Xxxxxx Growth VP
Transamerica Xxxxxx Growth and Income VP
Transamerica Xxxxxx Managed Income VP
