EXHIBIT 23(H)(1)
TRANSFER AGENCY AGREEMENT
(THE "AGREEMENT")
THIS AGREEMENT is made as of this 6TH day of May, 2002, between
AEGON/TRANSAMERICA FUND ADVISERS, INC., a Florida corporation ("ATFA" or the
"Administrator"), and AEGON/TRANSAMERICA FUND SERVICES, INC., a Florida
corporation (the "Transfer Agent"), on behalf of TRANSAMERICA INDEX FUNDS, INC.
(the "Fund").
WHEREAS, ATFA, as Administrator of the Fund, desires to retain the
Transfer Agent to provide, and the Transfer Agent is willing to provide, such
services to the Fund as ATFA and the Transfer Agent may agree on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, ATFA and the Transfer Agent hereby agree as follows:
1. APPOINTMENT.
(a) ATFA hereby employs and appoints the Transfer Agent as the
Fund's transfer agent and dividend disbursing agent for all shares of beneficial
interest of the Fund, now or hereafter issued, and for any further class or
classes of shares that the Fund subsequently may issue.
(b) The Transfer Agent hereby accepts such employment and
appointment and agrees that it will act as the Fund's transfer agent and
dividend disbursing agent, and that in connection therewith, it will perform all
of the usual and ordinary services of a transfer agent and dividend disbursing
agent, including, without limitation, the following services and functions:
issuing, transferring and cancelling certificates of shares of beneficial
interest, maintaining all shareholder accounts, preparing shareholder meeting
lists, mailing proxies, receiving and tabulating proxies, mailing shareholder
reports and prospectuses, withholding taxes on non-resident alien and foreign
corporation accounts, for pension and deferred income, back-up withholding or
other instances agreed upon by the parties, preparing and mailing checks for
disbursement of income dividends and capital gains distributions, preparing and
filing Form 1099 for all shareholders, preparing and mailing confirmation forms
to shareholders and dealers for all transactions in shareholders accounts for
which confirmations are required, recording reinvestments of dividends and
distributions in Fund shares, recording redemptions of Fund shares and preparing
and mailing checks for payments upon redemptions and for disbursements to
systematic withdrawal plan holders.
(c) It is understood that the Transfer Agent is an affiliate of
the Fund's investment adviser, Transamerica Investment Management, LLC (the
"Adviser"), and the Fund's Principal Underwriter, AFSG Securities Corp.
("Distributor"), and that directors, officers, employees and agents of the
Transfer Agent may be interested in the Adviser, the Distributor or the Fund, or
all of them, as trustees, directors, officers, employees, agents, shareholders,
or otherwise, of the Adviser, the Distributor, the Fund or all of them.
(d) The Fund understands and agrees that the Transfer Agent may,
in its discretion, subcontract for certain of the services to be provided
hereunder.
2. REPRESENTATIONS AND WARRANTIES OF TRANSFER AGENT. Transfer
represents and warrants to the Fund that:
(a) It is a corporation duly organized and existing in good
standing under the laws of the State of Florida.
(b) It is registered as a transfer agent to the extent required
under the Securities Act of 1934.
3. REPRESENTATIONS AND WARRANTIES OF THE FUND. The Fund
represents and warrants to the Transfer Agent that:
(a) It is a corporation duly organized and existing in good
standing under the laws of the State of Maryland.
(b) It is an open-end diversified management investment company
registered under the Investment Company Act of 1940, as amended.
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(c) A registration statement under the Securities Act of 1933 has
been filed and is effective with respect of all shares of the Fund to be offered
for sale.
(d) The Fund has the power under applicable laws and under its
Articles of Incorporation and Bylaws to enter into and perform this Agreement.
4. DOCUMENTS TO BE SUPPLIED.
(a) On or before the effective date of this Agreement, the Fund
shall deliver to the Transfer Agent the following documents:
(1) A certified copy of the Fund's Articles of
Incorporation and all amendments thereto;
(2) A certified copy of the Bylaws of the Fund as then in
effect;
(3) Certified copies of the resolutions of the Directors
of the Fund authorizing the execution of this Agreement and designating certain
authorized persons to give instructions to Transfer Agent and to sign
certificates of shares of beneficial interest of the Fund;
(4) A specimen certificate for shares of the Fund in the
form approved by Directors, accompanied by a certificate of the Secretary of the
Fund as to such approval;
(5) Specimens of the signatures of the officers of the
Fund authorized to sign certificates of shares of beneficial interest and of
individuals authorized to sign written instructions and requests;
(6) copies of account application forms and other
documents relating to shareholder accounts;
(7) Copies of registration statement and amendments
thereto, filed with the Securities and Exchange Commission;
(8) Copies of all agreements then in effective between
the Fund and any agent with respect to the issuance, sale or cancellation of
shares;
(9) A legal memorandum with respect to the status of
shares of beneficial interest of the Fund under state securities laws; and
(10) An opinion of counsel for the Fund with respect to
the validity of the shares of beneficial interest of the Fund.
(b) From time to time during the term of this agreement, the Fund
shall also furnish the Transfer Agent with the following documents:
(1) A certified copy of any amendment to the Articles of
Incorporation and Bylaws of the Fund;
(2) Certified copies of each additional resolution of the
Directors of the Fund designating authorized persons to give instructions to the
Transfer Agent;
(3) Certificates as to any change in officers, trustees
or authorized persons of the Fund;
(4) Each registration statement filed with the Securities
and Exchange Commission, and each amendment and/or with respect thereto, with
respect to the sale of shares to the Fund'
(5) Specimens of any new certificates for Fund shares
accompanied by appropriate resolutions of the Trustees of the Fund approving
such forms;
(6) Such other documents, certificates or opinions as the
Transfer Agent may agent may reasonably request.
5. COMPENSATION AND EXPENSES.
(a) In consideration for its services hereunder as transfer agent
and dividend disbursing agent, the Fund shall pay to Transfer Agent monthly fees
on a cost-incurred basis.
(b) The compensation agreed to in this Agreement may be changed
from time to time by the parties by attaching to this Agreement a revised Fee
Schedule, dated and signed by an authorized officer of each party, and a
certified resolution of the Directors of the Fund authorizing such revised Fee
Schedule.
(c) In addition to the Transfer Agent fee paid pursuant to
subparagraph (a), above, Fund agrees to reimburse Transfer Agent for all
reasonable out-of-pocket expenses or advances in connection with the performance
of services under this Agreement, including, without limitation, postage,
envelopes, printing, check forms, forms for reports and statements, stationary,
microfilming,
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telephone and telegraph charges, including charges for a telephone drop line,
and similar items. Transfer Agent will provide to Fund, not less frequently than
monthly, a detailed accounting of all out-of-pocket expenditures made by
Transfer Agent on behalf of the Fund.
(d) Transfer Agent shall xxxx the Fund as soon as practicable after
the end of each calendar month for the fee due for that month, and said xxxxxxxx
shall be detailed in accordance with the Fee Schedule of the Fund. The Fund
shall promptly pay to the Transfer Agent the amount of such billing.
6. SALE OF SHARES.
(a) Whenever the Fund shall sell or cause to be sold any shares of
beneficial interest, the Fund shall provide or cause to be provided to the
Transfer Agent information concerning such sales, including: (i) the number of
shares sold, the trade date and price; (ii) the amount of money to be delivered
to the Custodian of the Fund for the sale of such shares; (iii) in the case of a
new account, a new account application or sufficient information to establish an
account.
(b) The Transfer Agent will, upon receipt by it of a check or other
payment identified by it as an investment in shares of the Fund and drawn or
endorsed to the Transfer Agent as agent for, or identified as being for the
account of, the Fund, promptly deposit such check or other payment to the
appropriate account and shall cause the investment to be duly recorded on the
shareholder records of the Fund. The Transfer Agent will notify the Fund, or its
designee, and the Custodian of all purchases and related account adjustments.
Out of the money received in payment for shares, Transfer Agent shall pay to the
Custodian the net asset value per share and shall pay to the Fund's Principal
Underwriter its commission.
(c) Upon receipt of the information required under sub-paragraph (a)
and notification from the Custodian that such money has been received by it, the
Transfer Agent shall issue to the purchaser or his authorized agent such shares
as he is entitled to receive, based upon the appropriate net asset value of the
Fund's shares, determined in accordance with applicable federal law or
regulation, as described in the Fund's current prospectus. In issuing shares to
a purchaser or his authorized agent, the Transfer Agent shall be entitled to
rely upon the latest written directions, if any, previously received by the
Transfer Agent from the purchaser or his authorized agent concerning the
delivery of such shares.
(d) In connection with wire orders or telephone orders for shares,
Transfer Agent will follow such procedures which may be established by the Fund
from time to time. All wire or telephone purchases will be subject to such
additional requirements as may be described in the Fund's current prospectus.
The Fund and the Transfer Agent reserve the right to modify or terminate the
procedures for wire orders or telephone orders at any time.
7. TRANSFERS AND EXCHANGES. The Transfer Agent is authorized to review
and process transfers of shares of the Fund and exchanges between the Fund and
other mutual funds as permitted in the current prospectus for the Fund. If
shares to be transferred are represented by outstanding certificates, the
Transfer Agent shall, upon surrender to it of the certificates in proper form
for transfer, and upon cancellation thereof, countersign and issue new
certificates for a like number of shares and deliver the same. If the shares are
to be transferred are not represented by outstanding certificates, the Transfer
Agent shall, upon an order thereof by or on behalf of the registered holder
thereof in proper form, credit the same to the transferee on its books. If the
shares are to be exchanged for shares of another mutual fund, the Transfer Agent
will process such exchange in the same manner as a redemption and sale of
shares, except that it may, in its discretion, waive requirements for
information and documentation.
8. REDEMPTION.
(a) Transfer Agent shall redeem shares of the Fund upon receipt by
Transfer Agent of: (i) a written request for redemption, signed by each
registered owner exactly as the shares are registered; (ii) any certificates
which have been issued for such shares, properly endorsed; (iii) signature
guarantees to the extent required by the Transfer Agent as described in the
current prospectus for the Fund; (iv) any additional documents required by the
Transfer Agent for redemption by corporations, executors, administrators,
guardians and others acting in a representative capacity. The Transfer Agent
will, consistent with procedures which may be established by the Fund from time
to time for redemption by wire or telephone, upon receipt of such a wire order
or telephone redemption request, redeem shares and transmit the proceeds of such
redemption to the redeeming shareholder as directed. All wire or telephone
redemptions will be subject to such additional requirements as may be described
in the Fund's current prospectus. The Fund and the Transfer Agent reserve the
right to modify or terminate the procedures for wire orders or telephone
redemptions at any time.
(b) If the Transfer Agent has received a completed application and
authorization of redemption by draft signed by the registered owner in
accordance with procedures established by the Fund, Transfer Agent will, as
agent for the shareholder, upon receipt of a redemption draft cause the Fund to
redeem a sufficient number of shares in the shareholder's account to cover the
amount of the draft. All draft redemptions will be subject to such additional
requirements as may be described in the Fund's current prospectus and the rules
and regulations of the Transfer Agent.
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(c) Upon receipt of all necessary information and documentation
relating to a redemption, the Transfer Agent will issue to the Custodian an
advice setting forth the number of shares of the Fund received by the Transfer
Agent for redemption and that such shares are valid and in good form for
redemption. The Transfer Agent shall, upon notification that the Custodian has
transferred funds for the redemption of shares to a redemption account at the
Custodian or at another bank, pay such monies to the shareholder, his authorized
agent or legal representative.
9. CONFIRMATIONS. Upon each transaction in a shareholder's account,
Transfer Agent shall mail confirmations of such transactions to shareholders and
dealers in a timely fashion.
10. DUTIES AS DIVIDEND DISBURSING AGENT.
(a) Transfer Agent will maintain one or more deposit accounts as
dividend disbursing agent for the Fund, into which the funds for payment of
dividends and distributions provided for hereunder will be deposited and against
which checks will be drawn.
(b) The Fund will promptly notify the Transfer Agent of the declaration
of any dividend or distribution. The Fund shall furnish to the Transfer Agent a
certificate of an authorized person specifying the date of the declaration of
such dividend or distribution, the payment date thereof, the record date as of
which shareholders entitled to payment shall be determined, the amount payable
per share to shareholders of record as of that date, and the total amount
payable to the Transfer Agent on the payment date.
(c) On or before the payable date of any dividend or distribution, the
Transfer Agent shall notify the Fund's Custodian of the estimated amount of cash
required to pay said dividend or distribution, and the Fund agrees that, on or
before the mailing date of such dividend or distribution, the Fund shall
instruct the Custodian to place in a dividend disbursing account at such bank as
may be directed by the Transfer Agent, the funds equal to the cash amount to be
paid out to shareholders. Transfer Agent shall, in accordance with shareholder
instructions, calculate, prepare and mail checks to or (where appropriate)
credit such dividends or distributions to the account of, Fund shareholders, and
maintain and safeguard all underlying records.
(d) Transfer Agent shall replace lost checks upon receipt of properly
executed affidavits and maintain stop payment orders against such replaced
checks.
(e) Transfer Agent shall not be liable for any improper payments made
in accordance with resolutions of the Directors of the Fund. (f) Transfer Agent
shall prepare and mail to each Fund shareholder such information with respect to
each dividend or distribution as is required by applicable federal and state
income tax laws and regulations and by the Investment Company Act of 1940.
11. CERTIFICATES.
(a) The Fund shall supply Transfer Agent with an adequate supply of
blank share certificates to meet the Transfer Agent's requirements therefor.
Such share certificates will be signed manually or by facsimile signatures of
the officers of the Fund authorized by law and by the Bylaws of the Fund to sign
such share certificates. The Fund agrees that, notwithstanding the death,
resignation or removal of any officer of the Fund whose signature appears on
such certificates, the Transfer Agent may continue to countersign certificates
that bear such signatures until otherwise directed in writing by the Fund.
(b) The Transfer Agent shall maintain a record of each share issued and
the number of shares represented thereby and the holder of record of such
shares, and shall maintain a stop transfer record on lost and/or replaced
certificates.
(c) The Transfer Agent agrees to prepare, issue and mail certificates
for shares as requested by shareholders of the Fund in accordance with the
instructions of the Fund and to confirm such issuance to the shareholder and the
Fund or its designee.
(d) The Fund hereby authorizes the Transfer Agent to issue replacement
share certificates in lieu of certificates which have been lost, stolen or
destroyed, without any further action of the Directors or any officer of the
Fund, upon receipt by the Transfer Agent of properly executed affidavits or lost
certificate bonds in form satisfactory to the Transfer Agent, and the Fund and
the Transfer Agent shall be obligees under any such bond.
(e) The Transfer Agent may establish such rules and regulations
governing the transfer or registration of shares as it deems advisable and
consistent with such rules and regulations generally adopted by transfer agents.
12. RECORDS AND REPORTS.
(a) Transfer Agent shall maintain and safeguard records for each
shareholder's account showing at least the following information: (i) name,
address, taxpayer identification numbers and account numbers; (ii) number of
shares held; (iii) historical account information, including dividends paid and
date and price of all transactions on a shareholder's account; (iv) certificate
numbers and denominations for any shareholders holding share certificates; (v)
dealer identification and commission information;
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(vi) any stop order or restraining order placed against the shareholder's
account; (vii) information concerning withholdings in the case of a foreign
shareholder; (viii) any capital gain or dividend reinvestment order,
Check-o-Matic Plan, Systematic Withdrawal Plan, Letter of Intention or
retirement plan information.
(b) Transfer Agent shall maintain records of (i) issued shares and (ii)
number of shareholders and their aggregate shareholding, classified according to
their residence in each state of the United States or foreign country.
(c) Any records required to be maintained by Rule 31a-1 under the
Investment Company Act of 1940 shall be preserved for the period prescribed in
Rule 31a-2 under such Act. Such records may be inspected by the Fund at all
reasonable times. The Transfer Agent may, at its option at any time, and shall
forthwith upon the Fund's demand, turn over to the Fund and cease to retain in
Transfer Agent's files, records and documents created and maintained by the
Transfer Agent in performance of its services hereunder or for its protection.
At the end of the prescribed retention period, such records and documents shall
either be turned over to the Fund or destroyed, in accordance with the Fund's
authorization.
(d) Transfer Agent will furnish to the Fund and to properly authorized
auditors, examiners and other persons designated by the Fund, access to records
and reports maintained by Transfer Agent in connection with its duties
hereunder.
(e) Except as otherwise agreed between the parties or as otherwise
required by law, Transfer Agent will keep confidential all records of and
information in its possession relating to the Fund or its shareholders or
shareholder accounts and will not disclose the same to any person except at the
request of or with the consent of the Fund.
13. SHAREHOLDER SERVICING.
(a) Transfer Agent will respond promptly to correspondence and
telephone inquiries from shareholders and shall investigate all shareholder
inquiries.
(b) In connection with any meeting of shareholders, upon receiving
appropriate instructions and written materials prepared by the Fund, the
Transfer Agent will prepare shareholder lists and proxy cards, mail and certify
as to the mailing of proxy materials, process and tabulate returned proxy cards,
furnish one or more reports of proxies voted prior to the meeting, and certify
to the Secretary of the Fund the shares voted at the meeting.
(c) Transfer Agent shall address and mail all communications to
shareholders or their nominees, including proxy material and periodic reports to
shareholders.
14. INSTRUCTIONS.
(a) The Transfer Agent be protected in acting upon any paper or
document believed by it to be genuine and to be signed by an authorized person
of the Fund and shall not be held to have any notice of any change of authority
of any person until receipt of written notice thereof from the Fund. It shall
also be protected in processing shares which it reasonably believes to bear the
proper manual or facsimile signatures of the officers of the Fund and the proper
counter-signature of the Transfer Agent.
(b) Transfer Agent may apply at any time to any officer of the Fund for
written instructions, and, at the expense of the Fund, may seek advice from
legal counsel for the Fund, with respect to any matter arising in connection
with this Agreement, and it shall not be liable for any action taken or not
taken or suffered by it in good faith in accordance with such written
instructions or with the opinion of such counsel. In addition, the Transfer
Agent, its officers, agents or employees, shall accept instructions or requests
given to them by any person representing or acting on behalf of the Fund only if
said representative is known by the Transfer Agent, its officers, agents or
employees, to be an authorized person of the Fund. The Transfer Agent shall have
no duty or obligation to inquire into, nor shall the Transfer Agent be
responsible for, the legality or any act done by it upon the request or
direction of authorized persons of the Fund.
(c) Notwithstanding any provision of this Agreement, the Transfer Agent
shall have no duty or obligation to inquire into, and shall not be liable for:
(i) the legality of the issue or sale of any shares of the Fund or the
sufficiency of the amount to be received therefor; (ii) the legality of the
redemption of any shares of the Fund or priority of the amount to be paid
therefore; (iii) the legality of the declaration of any dividend of the Fund, or
the legality of the issue of any shares of the Fund in payment of any stock
dividend; or (iv)the legality of any recapitalization or readjustment of the
shares of the Fund.
15. INDEMNIFICATION AND STANDARD OF CARE.
(a) Transfer Agent shall at all times use reasonable care and act in
good faith in performing its duties hereunder.
(b) Except to the extent that Transfer Agent is covered by and receives
payment from any insurance coverage, Transfer Agent shall incur no liability to
the Fund in connection with its performance of services hereunder, unless such
liability should arise from any error, omission or negligent act within the
scope of its duties hereunder, including but not limited to failure to discover
any dishonest act, or acts done with intent to cause damage to the Fund. Without
limiting the generality of the foregoing, Transfer Agent shall not be liable or
responsible for delays or errors occurring by reason of circumstances beyond its
control, including acts of civil, military, banking or other regulatory
authority, national emergencies, labor difficulties, fire, flood or other
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catastrophes, acts of God, insurrection, war, riots, failure of transportation,
communication or power supply, or malfunctions of, or unavoidable difficulties
with, Transfer Agent's records or equipment.
(c) The Fund hereby agrees to indemnify and hold harmless the Transfer
Agent from and against any and all claims, demands, expenses and liabilities
(whether with or without basis in fact or law) or any and every nature which the
Transfer Agent may sustain or incur or which may be asserted against Transfer
Agent by any person by reason of, or as a result of: (i) any action taken or
omitted to be taken by the Transfer Agent in good faith in reliance upon any
certificate, instrument, order or share certificate believed by it to be genuine
and to be signed, countersigned or executed by any duly authorized person of the
Fund upon the oral or written instructions of any authorized person of the Fund
or upon the opinion of legal counsel for the Fund or its own counsel; or (ii)
any action taken or omitted to be taken by the Transfer Agent in connection with
its appointment in good faith in reliance upon any law, act, regulation or
interpretation of the same even though the same may thereafter have been
altered, changed, amended or repealed. However, this indemnification shall not
apply to actions or omissions of the Transfer Agent or its directors, officers,
employees or agents in cases of its own gross negligence, willful misconduct,
bad faith, or reckless disregard of its or their duties hereunder.
16. TERM AND TERMINATION.
(a) This Agreement shall become effective on May 6, 2002 and shall
continue in effect until terminated in accordance with the provisions hereof.
(b) Either party may terminate this Agreement by giving 60 days written
notice to the other party. In the event such notice is given by the Fund, it
shall be accompanied by a certified resolution of the Directors of the Fund,
stating the election to terminate this Agreement and designating a successor
transfer agent.
(c) In addition to any other rights or remedies it may have under this
Agreement or by law, the Fund shall have the right to terminate this Agreement
immediately upon the occurrence at any time of any of the following events:
(1) any interruption or cessation of operations by
Transfer Agent or its assigns or subcontractors which materially interferes with
the business and operation of the Fund;
(2) the bankruptcy of Transfer Agent or the appointment
of a receiver; or
(3) failure by Transfer Agent or its assigns or
subcontractors to perform its duties in accordance with this Agreement, which
failure materially adversely affects the business and operations of the Fund and
which failure continues for 30 days after receipt of written notice from the
Fund to Transfer Agent.
(d) If this Agreement is terminated by the Fund pursuant to subsection
(b) above, the Fund will have and is hereby granted the right, at its option, to
use or cause its agents, employees or independent contractors to use for as long
as the Fund deems necessary its operations, and without payment of any
compensation or reimbursement to Transfer Agent, Transfer Agent's system,
including all of the programs, manuals and other materials and information
necessary to operate the system.
(e) In the event of termination, Transfer Agent agrees to cooperate
with the Fund in effecting all necessary transfers of the Fund's records to the
Fund or to the successor transfer agent.
17. APPLICABLE LAW. This Agreement is executed and delivered in the
State of Florida and shall be governed by the laws of the State of Florida.
18. AMENDMENT. No provisions of this Agreement may be amended or
modified in any manner except by written instrument executed by both parties
hereto.
19. ASSIGNMENT. This Agreement shall not be assigned by either party
except with the written consent of the other party.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
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ATTEST: AEGON/TRANSAMERICA FUND SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------------- ---------------------------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxxxx
Assistant Vice President and Senior Vice President, General Counsel,
Assistant Secretary Compliance Officer and Secretary
ATTEST: AEGON/TRANSAMERICA FUND ADVISERS, INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------------- ---------------------------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxxxx
Assistant Vice President and Senior Vice President, General Counsel,
Assistant Secretary Compliance Officer and Secretary
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