Exhibit 23(e)(1)
Amended and Restated Underwriting Agreement
AMENDED AND RESTATED UNDERWRITING AGREEMENT
TRANSAMERICA IDEX MUTUAL FUNDS AND TRANSAMERICA CAPITAL, INC.
This Agreement, made this 1st day of November, 2007 by and between
Transamerica IDEX Mutual Funds, a Delaware statutory trust (referred to herein
as the "Trust), and Transamerica Capital, Inc. (referred to herein as the
"Distributor").
WHEREAS, the Trust is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and has registered
its shares of beneficial interest ("Shares") of each of its series listed on
Schedule I hereto, as such schedule may be amended in writing by the Trust and
the Distributor from time to time (each such series, a "Fund"), for sale to the
public under the Securities Act of 1933, as amended (the "1933 Act") and filed
appropriate notices under various state securities laws; and
WHEREAS, the Trust wishes to retain the Distributor as the principal
underwriter in connection with the offering and sale of the Shares and to
furnish certain other services to the Trust as specified in this Agreement; and
WHEREAS, this Agreement has been approved by separate votes of the Trust's
Board of Trustees ("Board") and of those Trustees who are not "interested
persons" of the Trust, as defined in the 1940 Act and who have no direct or
indirect financial interest in the operation of the plan of distribution adopted
pursuant to Rule 12b-1 under the 1940 Act ("Plan") of a Fund or in any
agreements related to such plan ("Independent Board Members") in conformity with
Section 15 of, and Rule 12b-1 under, the 1940 Act; and
WHEREAS, the Distributor is willing and able to furnish such services on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. (a) The Trust hereby appoints the Distributor as its exclusive principal
underwriter and distributor in connection with the offering and sale of Shares
of each Fund to the public directly and through registered and qualified
securities dealers, banks and other intermediaries (collectively,
"Intermediaries"), and the Distributor hereby accepts such appointment, on the
terms and for the period set forth in this Agreement. The Distributor, as agent
for the Trust, shall, in accordance with applicable federal and state law and
the organizational documents of the Trust and the registration statement most
recently filed by the Trust with the SEC and effective under the 1940 Act and
1933 Act, as such Registration Statement may be amended or supplemented from
time to time ("Registration Statement"): (i) promote the Funds; (ii) solicit
orders for the purchase of the Shares subject to such terms and conditions as
the Trust may specify; and (iii) accept orders for the purchase of the Shares on
behalf of the Trust (collectively, "Distribution Services"). The Distributor
shall comply with all applicable federal and state laws and offer the Shares of
the Funds on an agency or "best efforts" basis under which the Trust shall issue
only such Shares as are actually sold.
(b) The Distributor may pay for ongoing shareholder liaison services,
including responding to shareholder inquiries, providing shareholders with
information on their investments, and any other services now or hereafter deemed
to be appropriate subjects for the payments of "service fees" under Conduct Rule
2830 of the Financial Industry Regulatory Authority ("FINRA") (collectively,
"Shareholder Services"), as appropriate.
2. The Distributor may also enter into dealer or similar agreements with
qualified Intermediaries it may select for the performance of Distribution
Services and Shareholder Services. The Distributor may also enter into
agreements with Intermediaries and other qualified entities to perform
recordkeeping, shareholder servicing and sub-accounting services. In making such
arrangements, the Distributor shall act only as principal and not as agent for
the Trust. No such Intermediary is authorized to act as agent for the Trust in
connection with the offering or sale of Shares to the public or otherwise,
except for the limited purpose of determining the time as of which orders for
the purchases, sales and exchanges of Shares are deemed to have been received.
3. The public offering price of the Shares of each Fund shall be the net
asset value per share (as determined by the Trust) of the outstanding Shares of
the Fund (or class thereof) next determined after receipt of an order by the
Fund or its designated agent plus any applicable sales charge, as described in
the Registration Statement of the Trust.
4. As compensation for providing Distribution Services under this
Agreement, the Distributor shall retain the sales charge, if any, on purchases
of Shares or retain deferred sales charges upon redemption of Shares, as set
forth in the Registration Statement. The Distributor is authorized to collect
the gross proceeds derived from the sale of the Shares, remit the net asset
value thereof to the Trust upon receipt of the proceeds and retain the sales
charge, if any. The Distributor may pay any or all of the distribution fees and
service fees that it has received under this Agreement to such Intermediaries as
it may from time to time determine, consistent with the Registration Statement
and applicable law. The Distributor shall receive from each Fund fees at the
rates and under the terms and conditions of the Plan adopted by the Trust with
respect to each Fund, as such Plan is in effect from time to time, and subject
to any further limitations on such fees as the Board may impose. The Distributor
may reallow any or all of the sales charges that it has received under this
Agreement to such Intermediaries as it may from time to time determine,
consistent with the Registration Statement and applicable law. The Distributor
may securitize or borrow against amounts to be received by the Distributor under
the Plan, in which case payments of the fees under the Plan by a Fund may be
made directly to the lender, security-holder or an agent thereof pursuant to
written instructions of the Distributor; provided, however, that no such
arrangement shall be deemed to give rise to any obligation on the part of the
Trust or its Board to continue such payments if the Board determines that such
payments are not in the best interests of the Fund or its shareholders, or to
create any obligation of the Fund or Trust to the lender.
5. As used in this Agreement, the terms "Prospectus" and "Statement of
Additional Information" shall mean, respectively, the form of prospectus and
statement of additional information with respect to the Funds filed by the Trust
as part of the Registration Statement, or as they may be amended or supplemented
from time to time.
6. The Distributor shall print and distribute to prospective investors
current Prospectuses, and shall print and distribute, upon request, to
prospective investors current Statements of Additional Information, and may
print and distribute such other sales literature, reports, forms and
advertisements in connection with the sale and offers of sale of the Shares as
it deems appropriate. In connection with such sales and offers of sale, the
Distributor and any Intermediary shall give only such information and make only
such statements or representations as are contained in the Funds' Registration
Statement, or in information furnished in writing to the Distributor by the
Trust and intended for such use or approved in writing by authorized
representatives of the Trust or the Trust's investment adviser, and the Trust
shall not be responsible in any way for any other information, statements or
representations given or made by the Distributor or any Intermediary. Except as
specifically provided in this Agreement, the Trust shall bear none of the
expenses of the Distributor in connection with its offer and sale of the Shares.
7. Subject to the right of the Trust to cease to offer Shares as set forth
in paragraph 11 hereof, the Trust agrees at its own expense to register, qualify
or determine the exemption for registration or qualification of the Shares then
offered with the SEC, state and other regulatory bodies, and to prepare and file
from time to time each Fund's Registration Statement, amendments thereto,
reports and other documents as may be necessary to maintain the registration or
qualification. The Distributor shall provide the Trust promptly with all
information required for such registration or qualification. Each Fund shall
bear all expenses related to preparing and typesetting such Prospectuses,
Statements of Additional Information, and other materials required by law and
such other expenses,
including printing and mailing expenses, related to the Fund's communications
with persons who are shareholders of that Fund.
8. (a) The Distributor shall act as distributor of Shares in compliance in
all material respects with all applicable laws, rules and regulations,
including, without limitation, all rules and regulations made or adopted
pursuant to (i) the 1940 Act, (ii) the ▇▇▇▇ ▇▇▇, (▇▇▇) the Securities Exchange
Act of 1934 ("1934 Act"), (iv) any securities association registered under the
1934 Act, including without limitation the FINRA Conduct Rules or rules of any
other applicable self-regulatory organization. The Distributor shall offer the
Shares, and accept purchases, redemptions and exchanges for Shares, in
compliance with each Fund's Registration Statement and applicable law.
(b) The Distributor shall be responsible for reviewing and making such
filings with the FINRA, as required, of advertisements and sales literature
relating to each Fund. The Distributor shall be responsible for reviewing the
Registration Statement of each Fund, as applicable, for compliance with the
requirement of the FINRA Conduct Rules that a Fund's prospectus contain
disclosure of the details of any arrangement by which special cash compensation
arrangements are made available to an FINRA member distributing the Fund's
securities, which arrangements are not made available on the same terms to all
FINRA members who distribute the Fund's securities.
(c) The Distributor shall adopt and follow procedures for the
confirmation of sales to investors and Intermediaries, the timeliness of orders,
the collection of amounts payable by investors and Intermediaries on such sales,
the correction of errors related to distribution of Shares, the cancellation of
unsettled transactions, and assisting with the solicitation of proxies, and any
other matters governed by Rule 38a-1 under the 1940 Act (as may apply to a
principal underwriter for a registered investment company), each as may be
necessary to comply with the requirements of the FINRA, any other
self-regulatory organization, and the federal and state securities laws. The
Distributor shall provide reports or other information to the Trust at the
Trust's reasonable request, including, without limitation, reports related to
the operation and implementation of the Funds' policies related to customer
privacy, safeguarding of customer information, sales and marketing practices or
other policies and procedures of the Trust.
9. The Distributor agrees that it has adopted and implemented an
anti-money-laundering program in compliance with the USA PATRIOT Act of 2001,
the regulations thereunder and FINRA Conduct Rules, including, without
limitation, customer identification program procedures and monitoring for
suspicious activity. The Distributor additionally agrees that it has adopted and
implemented procedures to comply with applicable law and regulation related to
cash transaction reporting requirements, as well as monitoring and reporting
under FinCEN, OFAC and other government watch lists. The Distributor shall
provide reports or other information to the Trust at the Trust's reasonable
request, related to the operation and implementation of any of the Trust's
anti-money-laundering policies for which the Distributor is responsible.
10. (a) The Trust agrees to indemnify, defend and hold the Distributor, its
officers, directors and employees and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
reasonable cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
Distributor, its officers, directors and employees or any such controlling
person may incur, under the 1933 Act or under common law or otherwise, arising
out of or based upon any alleged untrue statement of a material fact contained
in the Registration Statement or arising out of or based upon any alleged
omission to state a material fact required to be stated or necessary to make the
Registration Statement not misleading, provided that in no event shall anything
contained in this Agreement be construed so as to protect the Distributor or
such other parties against any liability to the Trust or its shareholders to
which the Distributor or such other parties would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance of
their duties, or by reason of reckless disregard of their obligations and duties
under this Agreement, and further provided that, notwithstanding the foregoing,
the Trust shall not indemnify the Distributor or such other parties if such
indemnification obligations arose, directly or indirectly, as a result of
conduct as set forth in paragraph 10(b). The Distributor agrees that it shall
look only to the assets of the applicable Fund, and not to any other series of
the Trust, for satisfaction of any obligation created by this paragraph or
otherwise arising under this Agreement.
(b) The Distributor agrees to indemnify, defend and hold the Trust,
its several officers and Trustees, and any person who controls the Trust within
the meaning of Section 15 of the 1933 Act, free and harmless from and against
any and all claims, demands, liabilities and expenses (including the cost of
investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) which the Trust, its officers or Trustees, or any such
controlling person may incur, under the 1933 Act or under common law or
otherwise, on account of any act of the Distributor or its directors, officers,
employees or agents, constituting willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement or arising out of
or based upon any alleged untrue statement of a material fact contained in
information furnished in writing by the Distributor to the Trust for use in the
Registration Statement or arising out of or based upon any alleged omission to
state a material fact in connection with such information required to be stated
in the Registration Statement or necessary to make such information not
misleading. As used in this paragraph, the term "employee" shall not include a
corporate entity under contract to provide services to any Fund, or any employee
of such a corporate entity, unless such person is otherwise an employee of the
Trust.
(c) Each party agrees to promptly notify the other of the commencement
of any litigation or proceedings involving any indemnified party. The
indemnification provisions of this paragraph 10 shall survive the termination of
this Agreement.
11. The Trust reserves the right at any time to withdraw any or all
offerings of the Shares of a Fund, and at its discretion to recommence offering
any time thereafter, by written notice to the Distributor at its principal
office.
12. The Distributor may at its sole discretion, directly or through
Intermediaries, repurchase Shares offered for sale by the shareholders or
Intermediaries. Repurchase of Shares by the Distributor shall be at the net
asset value (less any applicable sales, redemption or other charges, as
described in each Fund's Registration Statement) next determined after a
repurchase order has been received. The Distributor will receive no commission
or other remuneration for repurchasing Shares, other than deferred sales charges
as described in the Registration Statement. At the end of each business day, the
Distributor shall notify, by means of electronic transmission (as may be
agreed-upon by the parties to this Agreement) or in writing, the Trust and the
Trust's transfer agent, of the orders for repurchase of Shares received by the
Distributor since the last such report, the amount to be paid for such Shares,
and the identity of the shareholders or Intermediaries offering Shares for
repurchase. Upon such notice, the Trust shall pay the Distributor such amounts
as are required by the Distributor to pay for the repurchase of such Shares in
cash or in the form of a credit against moneys due the Trust from the
Distributor as proceeds from the sale of Shares. The Trust reserves the right to
suspend such repurchase right upon written notice to the Distributor. The
Distributor further agrees to act as agent for the Trust to receive and transmit
promptly to the Trust's transfer agent shareholder and Intermediary requests for
redemption of Shares.
13. The Distributor is an independent contractor and shall be agent for the
Trust only in respect to the sale, redemption and exchange of the Shares,
including for the limited purpose of determining the time as of which Share
transactions are deemed to have been received.
14. The services of the Distributor to the Trust under this Agreement are
not to be deemed exclusive, and the Distributor shall be free to render similar
services or other services to others so long as its services hereunder are not
impaired thereby.
15. The Distributor shall prepare reports for the Board on a quarterly
basis, or more frequently as reasonably requested by the Board, showing such
information concerning expenditures related to this Agreement or related to the
operation and implementation of a Fund's Plan.
16. As used in this Agreement, the terms "assignment," "interested person"
and "majority of the outstanding voting securities" shall have the meanings
given to them by Section 2(a) of the 1940 Act, subject to such exemptions as may
be granted by the SEC or its staff, as appropriate, by any rule, regulation,
order, or no-action or interpretative letter.
17. This Agreement will become effective with respect to each Fund on the
date first written above or such other date specified on the schedule hereto and
shall continue in effect, unless sooner terminated as provided herein, for so
long as such continuance is specifically approved at least annually (i) by the
Board or (ii) by a vote of a majority of the outstanding voting securities of
the Fund, provided that in either event the continuance is also approved by a
majority of the Trust's Independent Board Members, by vote cast in person at a
meeting called for the purpose of voting on such approval.
18. This Agreement is terminable with respect to some or all of the Funds
without penalty by the Board, by vote of a majority of the outstanding voting
securities of the Fund, or by the Distributor, on not less than 60 days' written
notice to the other party, and such notice period may be waived upon the mutual
written consent of the Distributor and the Trust. This Agreement will also
automatically and immediately terminate in the event of its assignment.
19. Shares of any Fund may have been divided into separate classes, as
described in the applicable Fund's Registration Statement, and may have sales
charges or discounts or waivers available for certain categories of investor.
20. The Funds and the Distributor agree that the information exchanged
hereunder and information about the respective customers and potential customers
of each is confidential and as such shall not be disclosed, sold or used in any
way except to carry out the terms of this Agreement. Notwithstanding the
foregoing, such confidential information may be disclosed on a "need to know"
basis as set forth in applicable privacy rules and regulations. The obligations
regarding confidentiality hereunder shall not apply to any information which is
(i) otherwise publicly available, (ii) already possessed by the entity to whom
the information was disclosed prior to disclosure hereunder, (iii) independently
developed by the entity, or (iv) disclosed pursuant to law, rule, regulation or
court or administrative order. The Distributor shall have the right to use any
list of shareholders of each Fund or any other list of investors which it
obtains in connection with its provision of services under this Agreement,
provided that such use is consistent with applicable law and the privacy
policies of the Distributor and the Fund. The Distributor further agrees to take
commercially reasonable steps, in accordance with applicable law, to safeguard
customer information. The provisions of this paragraph 20 will survive
termination of this Agreement.
21. From time to time, each Fund may implement policies, procedures or
charges in an effort to avoid the potential adverse effects on the Funds of
short-term trading by market timers. The Distributor agrees to cooperate in good
faith with the Trust in the implementation of (i) any such policies, procedures
and/or charges, and (ii) the imposition and payment over to the Fund of
redemption fees specified in the Registration Statement. The Distributor agrees,
where appropriate, to make reasonable efforts to obtain the agreement of
Intermediaries to comply with the Funds' frequent trading and other policies set
forth in the Funds' Registration Statement or to take alternative actions
reasonably designed to achieve compliance with these policies.
22. No provision of this Agreement may be changed, waived, discharged or
terminated, except by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. This
Agreement may be executed in multiple counterparts.
23. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida and the applicable provisions of the 1940 Act.
24. Notices shall be provided to each party, as noted below:
To the Distributor:
Transamerica Capital, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
To the Trust:
Transamerica IDEX Mutual Funds
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
25. Notice is hereby given that this Agreement has been adopted on behalf
of the Fund by the Trustees of the Trust in their capacity as Trustee of the
Trust and not individually and that the obligations of or arising out of this
instrument are not binding upon any of the Trustees, officers or shareholders
individually but are binding only upon the assets and property of the Fund.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed
by their officers thereunto duly authorized.
ATTEST TRANSAMERICA IDEX MUTUAL FUNDS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------- ------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager Title: Vice President
ATTEST TRANSAMERICA CAPITAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------- ------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager Title: Assistant Vice President
SCHEDULE I
UNDERWRITING AGREEMENT
The following series and classes of shares are offered effective as of November
1, 2007:
TA IDEX ALLIANCEBERNSTEIN INTERNATIONAL TA IDEX AMERICAN CENTURY LARGE COMPANY TA IDEX ASSET ALLOCATION - CONSERVATIVE
VALUE VALUE PORTFOLIO
Class I Class A Class A
Class B Class B
Class C Class C
Class I Class R
TA IDEX ASSET ALLOCATION - GROWTH TA IDEX ASSET ALLOCATION - MODERATE TA IDEX ASSET ALLOCATION - MODERATE
PORTFOLIO GROWTH PORTFOLIO PORTFOLIO
Class A Class A Class A
Class B Class B Class B
Class C Class C Class C
Class R Class R Class R
TA IDEX ▇▇▇▇▇▇▇, ▇▇▇▇▇ MICRO EMERGING TA IDEX BLACKROCK GLOBAL ALLOCATION TA IDEX BLACKROCK LARGE CAP VALUE
GROWTH
Class I Class I Class I
TA IDEX BLACKROCK NATURAL RESOURCES TA IDEX CLARION GLOBAL REAL ESTATE TA IDEX EVERGREEN HEALTH CARE
SECURITIES
Class I Class A Class A
Class B Class B
Class C Class C
Class I Class I
TA IDEX EVERGREEN INTERNATIONAL SMALL CAP TA IDEX FEDERATED MARKET OPPORTUNITY TA IDEX JPMORGAN INTERNATIONAL BOND
Class I Class I Class I
TA IDEX JPMORGAN MID CAP VALUE TA IDEX ▇▇▇▇▇▇▇▇ GROWTH TA IDEX ▇▇▇▇ ▇▇▇▇▇ PARTNERS ALL CAP
Class I Class A Class A
Class B Class B
Class C Class C
Class I
TA IDEX ▇▇▇▇ ▇▇▇▇▇ PARTNERS INVESTORS TA IDEX ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ IDEX MFS INTERNATIONAL EQUITY
VALUE
Class A Class I Class A
Class B Class B
Class C Class C
Class I
TA IDEX ▇▇▇▇▇▇▇ GROWTH TA IDEX ▇▇▇▇▇▇▇ INTERNATIONAL GROWTH TA IDEX MELLON MARKET NEUTRAL STRATEGY
Class A Class I Class I
Class B
Class C
Class I
TA IDEX MULTI-MANAGER ALTERNATIVE TA IDEX MULTI-MANAGER INTERNATIONAL FUND TA IDEX ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL
STRATEGIES FUND
Class A Class A Class I
Class C Class B
Class C
TA IDEX ▇▇▇▇▇▇▇▇▇▇▇ DEVELOPING MARKETS TA IDEX ▇▇▇▇▇▇▇▇▇▇▇ SMALL- & MID-CAP TA IDEX PIMCO REAL RETURN TIPS
VALUE
Class I Class I Class A
Class B
Class C
Class I
TA IDEX PIMCO TOTAL RETURN TA IDEX PROTECTED PRINCIPAL STOCK TA IDEX ▇▇▇▇▇▇▇▇▇ TRANSAMERICA GLOBAL
Class A Class A Class A
Class B Class B Class B
Class C Class C Class C
Class I Class M Class I
TA IDEX THIRD AVENUE VALUE TA IDEX TRANSAMERICA BALANCED TA IDEX TRANSAMERICA CONVERTIBLE
SECURITIES
Class I Class A Class A
Class B Class B
Class C Class C
Class I Class I
TA IDEX TRANSAMERICA EQUITY TA IDEX TRANSAMERICA FLEXIBLE INCOME TA IDEX TRANSAMERICA GROWTH OPPORTUNITIES
Class A Class A Class A
Class B Class B Class B
Class C Class C Class C
Class I Class I Class I
Class T
TA IDEX TRANSAMERICA HIGH-YIELD ▇▇▇▇ ▇▇ IDEX TRANSAMERICA MONEY MARKET TA IDEX TRANSAMERICA SCIENCE & TECHNOLOGY
Class A Class A Class A
Class B Class B Class B
Class C Class C Class C
Class I Class I Class I
TA IDEX TRANSAMERICA SHORT-TERM ▇▇▇▇ ▇▇ IDEX TRANSAMERICA SMALL/MID CAP VALUE TA IDEX TRANSAMERICA VALUE BALANCED
Class A Class A Class A
Class C Class B Class B
Class I Class C Class C
Class I Class I
TA IDEX UBS DYNAMIC ALPHA TA IDEX UBS LARGE CAP VALUE TA IDEX ▇▇▇ ▇▇▇▇▇▇ EMERGING MARKETS DEBT
Class I Class I Class I
TA IDEX ▇▇▇ ▇▇▇▇▇▇ MID-CAP GROWTH TA IDEX ▇▇▇ ▇▇▇▇▇▇ SMALL COMPANY GROWTH
Class I Class I