EXHIBIT (d)(kkk)
SUB-ADVISORY AGREEMENT
BETWEEN
TRANSAMERICA FUND ADVISORS, INC.
AND
FUND ASSET MANAGEMENT, L.P.
SUB-ADVISORY AGREEMENT, made as of 7th day of November 2005, between
Transamerica Fund Advisors, Inc. ("Investment Adviser"), a corporation organized
and existing under the laws of the State of Florida, and Fund Asset Management,
L.P. ("Sub-Adviser"), a Limited Partnership organized and existing under the
laws of the State of Delaware.
WHEREAS, the Investment Adviser acts as an investment adviser to
Transamerica IDEX Mutual Funds ("Transamerica IDEX"), a Delaware statutory trust
which is engaged in business as an open-end management investment company
registered under the Investment Company Act of 1940, as amended ("1940 Act"),
pursuant to an investment advisory agreement dated November 7, 2005 (the
"Advisory Agreement");
WHEREAS, Transamerica IDEX is authorized to issue shares of TA IDEX Mercury
Tactical Allocation (the "Fund"), a separate series of Transamerica IDEX;
WHEREAS, the Sub-Adviser is engaged principally in the business of
rendering investment advisory services and is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended ("Advisers Act");
and
WHEREAS, the Investment Adviser desires to retain the Sub-Adviser as
sub-adviser to furnish certain investment advisory services to the Investment
Adviser with respect to the Fund and the Sub-Adviser is willing to furnish such
services.
NOW, THEREFORE, in consideration of the premises and mutual promises herein
set forth, the parties hereto agree as follows:
1. APPOINTMENT.
Investment Adviser hereby appoints the Sub-Adviser as its investment
sub-adviser with respect to the Fund for the period and on the terms set forth
in this Agreement. The Sub-Adviser accepts such appointment and agrees to render
the services herein set forth, for the compensation herein provided. By this
Agreement, the Investment Adviser authorizes Sub-Adviser to: (i) trade and deal
in any and all securities as Sub-Adviser may, in its discretion, select in its
performance of duties hereunder; and (ii) establish and deal through accounts
with one or more parties, including, but not limited to, securities brokers and
dealers, banks and custodians, as Sub-Adviser may select to effect the
transactions contemplated herein. The discretionary authority granted herein
shall remain in full force and effect until Sub-Adviser receives written notice
of its termination or the termination of this Agreement.
2. DUTIES OF THE SUB-ADVISER.
A. Investment Sub-Advisory Services. Subject to the supervision of the
Transamerica IDEX Board of Trustees ("Board") and the Investment Adviser, the
Sub-Adviser shall act as the investment sub-adviser and shall supervise and
direct the investments of the Fund in accordance with the Fund's investment
objectives, policies, and restrictions as provided in the Transamerica IDEX
Prospectus and Statement of Additional Information, as currently in effect and
as amended or supplemented from time to time (hereinafter referred to as the
"Prospectus") and provided to Sub-Adviser, and such other limitations as
directed by the appropriate officers of the Investment Adviser or Transamerica
IDEX by notice in writing to the Sub-Adviser (collectively, "Fund Policies").
The Sub-Adviser shall obtain and evaluate such information relating to the
economy, industries, businesses, securities markets, and securities as it may
deem necessary or useful in the discharge of its obligations hereunder and shall
formulate and implement a continuing program for the management of the assets
and resources of the Fund in a manner consistent with the Fund Policies. In
furtherance of this duty, the Sub-Adviser, on behalf of the Fund, is authorized,
in its discretion and without prior consultation with the Fund or the Investment
Adviser, to:
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(1) buy, sell, exchange, convert, lend, and otherwise trade in any
stocks, bonds and other securities or assets; and
(2) place orders and negotiate the commissions (if any) for the
execution of transactions in securities or other assets with or
through such brokers, dealers, underwriters or issuers as the
Sub-Adviser may select.
B. Additional Duties of Sub-Adviser. In addition to the above,
Sub-Adviser shall:
(1) furnish continuous investment information, advice and
recommendations to Transamerica IDEX as to the acquisition, holding or
disposition of any or all of the securities or other assets which the
Fund may own or contemplate acquiring from time to time; and
(2) furnish oral or written reports, as Transamerica IDEX may
reasonably request, in order to keep Transamerica IDEX and its
officers and Board fully informed as to the condition of the
investment securities of the Fund, the investment recommendations of
the Sub-Adviser, and the investment considerations which have given
rise to those recommendations.
(3) furnish such statistical and analytical information and reports as
may reasonably be requested by Transamerica IDEX from time to time.
C. Further Duties of Sub-Adviser. In all matters relating to the
performance of this Agreement, the Sub-Adviser shall act in conformity with the
Transamerica IDEX Declaration of Trust and By-Laws, as each may be amended or
supplemented and provided to the Sub-Adviser; the currently effective
Registration Statement (as defined below) as provided to the Sub-Adviser; and
with the written instructions and directions of the Board and the Investment
Adviser that are provided to the Sub-Adviser, and shall comply with the
requirements of the 1940 Act, the Advisers Act, the rules thereunder, and all
other applicable federal and state laws and regulations. Notwithstanding the
foregoing, the Investment Adviser shall, subject to the Sub-Adviser's compliance
with its obligations, remain responsible for the Fund's overall compliance with
the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other
applicable federal and state laws and regulations.
D. Litigation. The Sub-Adviser shall have no power, authority,
responsibility, or obligation hereunder to take any action with regard to any
claim or potential claim in any bankruptcy proceedings, class action securities
litigation, or other litigation or proceeding affecting securities held at any
time in the Fund, including, without limitation, to file proofs of claim or
other documents related to such proceedings (the "Litigation"), or to
investigate, initiate, supervise, or monitor the Litigation involving Fund
assets, and the Investment Adviser acknowledges and agrees that no such power,
authority, responsibility or obligation is delegated hereunder. Nevertheless,
the Sub-Adviser agrees that it shall provide the Investment Adviser with any and
all documentation or information relating to the Litigation as may reasonably be
requested by the Investment Adviser.
3. COMPENSATION.
For the services provided and the expenses assumed by the Sub-Adviser
pursuant to this Agreement, the Sub-Adviser shall receive monthly an investment
management fee as specified in Schedule A of this Agreement. Such fee will be
computed daily and payable no later than the tenth (10th) business day following
the end of each month, from the Investment Adviser, calculated at an annual rate
based on the Fund's average daily net assets. If this Agreement becomes
effective or terminates before the end of any month, the investment management
fee for the period from the effective date to the end of such month or from the
beginning of such month to the date of termination, as the case may be, shall be
pro-rated according to the pro-ration which such period bears to the full month
in which such effectiveness or termination occurs. The Investment Adviser may
from time to time waive the compensation it is entitled to receive from
Transamerica IDEX; however, any such waiver will have no effect on the
Investment Adviser's obligation to pay the Sub-Adviser the compensation provided
for herein.
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4. DUTIES OF THE INVESTMENT ADVISER.
A. The Investment Adviser shall continue to have responsibility for
all services to be provided to the Fund pursuant to the Advisory Agreement and
shall oversee and review the Sub-Adviser's performance of its duties under this
Agreement. Notwithstanding the Advisory Agreement, the Sub-Adviser has the
authority to buy, sell, exchange, convert, lend, and otherwise trade in any
stocks, bonds and other securities or assets on behalf of the Fund.
B. The Investment Adviser has furnished the Sub-Adviser with copies of
each of the following documents and will furnish to the Sub-Adviser at its
principal office all future amendments and supplements to such documents, if
any, as soon as practicable after such documents become available:
(1) The Transamerica IDEX Declaration of Trust, as in effect on the
date hereof and as amended from time to time ("Trust");
(2) The By-Laws of Transamerica IDEX as in effect on the date hereof
and as amended from time to time ("By-Laws");
(3) Certified resolutions of the Board of Transamerica IDEX
authorizing the appointment of the Investment Adviser and the
Sub-Adviser and approving the form of the Advisory Agreement and this
Agreement;
(4) The Transamerica IDEX Registration Statement under the 1940 Act
and the Securities Act of 1933, as amended, on Form N-1A, as filed
with the Securities and Exchange Commission ("SEC") relating to the
Fund and its shares and all amendments thereto ("Registration
Statement");
(5) The Transamerica IDEX Prospectus (as defined above);
(6) A certified copy of any publicly available financial statement or
report prepared for Transamerica IDEX by certified or independent
public accountants, and copies of any financial statements or reports
made by the Fund to its shareholders or to any governmental body or
securities exchange;
(7) An executed copy of the Investment Advisory Agreement; and
(8) A list of each affiliated person (and any affiliated person of
such an affiliated person) of the Investment Adviser.
The Investment Adviser shall furnish the Sub-Adviser with any further
documents, materials, procedures adopted by the Board applicable to the
Sub-Adviser ("Board Procedures"), or information that the Sub-Adviser may
reasonably request to enable it to perform its duties pursuant to this
Agreement. Until Investment Adviser delivers any such amendment or supplement to
the documents listed in this section 4.B., to the Fund Policies or to the Board
Procedures, the Sub-Adviser shall be fully protected in relying on the most
recent versions of such documents or policies previously furnished to the
Sub-Adviser.
C. During the term of this Agreement, the Investment Adviser shall
furnish to the Sub-Adviser at its principal office all prospectuses, proxy
statements, reports to shareholders, sales and marketing literature, or other
material prepared for distribution to shareholders of the Fund or the public,
which refer to the Fund, the Sub-Adviser or investment companies or other
advisory accounts advised or sponsored by the Sub-Adviser or investment
companies or other advisory accounts advised or sponsored by the Sub-Adviser in
any way, prior to the use thereof, and the Investment Adviser shall not use any
such materials without the prior written consent of the Sub-Adviser, which shall
not be unreasonably withheld. The Sub-Adviser agrees to respond to the
Investment Adviser within fifteen business days (or such other time as may be
mutually agreed) after receipt thereof to signify its consent or rejection.
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5. BROKERAGE.
A. The Sub-Adviser agrees that, in placing orders with broker-dealers
for the purchase or sale of portfolio securities, it shall attempt to obtain
quality execution at favorable security prices (best price and execution);
provided that, on behalf of the Fund, the Sub-Adviser may, in its discretion,
agree to pay a broker-dealer that furnishes brokerage or research services as
such services are defined under Section 28(e) of the Securities Exchange Act of
1934, as amended ("1934 Act"), a higher commission than that which might have
been charged by another broker-dealer for effecting the same transactions, if
the Sub-Adviser determines in good faith that such commission is reasonable in
relation to the brokerage and research services provided by the broker-dealer,
viewed in terms of either that particular transaction or the overall
responsibilities of the Sub-Adviser with respect to the accounts as to which it
exercises investment discretion (as such term is defined under Section 3(a)(35)
of the 1934 Act). Pursuant to such factors, the Sub-Adviser may utilize one or
more of its affiliates as broker for transactions for the Fund. In no instance
will portfolio securities be purchased from or sold to the Sub-Adviser, or any
affiliated person thereof, except in accordance with the federal securities laws
and the rules and regulations thereunder. The Sub-Adviser shall not be deemed to
have acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having exercised its discretionary authority
pursuant to this section 5.
B. On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of the Fund, as well as other clients of the
Sub-Adviser, the Sub-Adviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be purchased or sold to attempt to obtain a more favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-Adviser in the manner the Sub-Adviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Fund and to its other clients. The Investment Adviser hereby acknowledges
that such aggregation of orders may not result in more favorable pricing or
lower brokerage commissions in all instances.
C. In addition to the foregoing, the Sub-Adviser agrees that orders
with broker-dealers for the purchase or sale of portfolio securities by the Fund
shall be placed in accordance with the standards set forth in the Advisory
Agreement, as provided to Sub-Adviser.
D. In accordance with Section 11(a) of the 1934 Act and Rule 11a2-2(T)
thereunder, and subject to any other applicable laws and regulations including
Section 17(e) of the 1940 Act and Rule 17e-1 promulgated thereunder, the
Sub-Adviser may engage its affiliates, the Investment Adviser and its affiliates
or any other subadviser to the Fund and its respective affiliates, as
broker-dealers or futures commission merchants to effect transactions in
securities and other investments for the Fund.
E. The Adviser acknowledges that Sub-Adviser may invest cash balances
of the Fund in one or more money market funds that are managed by the
Sub-Adviser or any of its affiliates which arrangements Sub-Adviser agrees will
comply with applicable federal and state laws and rules concerning affiliated
transactions and the conditions imposed by the Securities and Exchange
Commission in ICA Release No. 25100 (August 3, 2001).
6. OWNERSHIP OF RECORDS.
The Sub-Adviser shall maintain all books and records required to be
maintained by the Sub-Adviser pursuant to the 1940 Act, and the rules and
regulations promulgated thereunder, with respect to transactions on behalf of
Transamerica IDEX. In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Sub-Adviser hereby agrees: (i) that all records that it maintains
for the Fund are the property of Transamerica IDEX, (ii) to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act any records that it
maintains for the Fund and that are required to be maintained by Rule 31a-1
under the 1940 Act and (iii) to surrender promptly to Transamerica IDEX any
records that it maintains for the Fund upon written request by Transamerica
IDEX; provided, however, the Sub-Adviser may retain copies of such records.
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7. REPORTS.
The Sub-Adviser shall furnish to the Board or the Investment Adviser, or
both, as appropriate, such information, reports, evaluations, analyses and
opinions as the Sub-Adviser and the Board or the Investment Adviser, as
appropriate, may mutually agree upon from time to time.
8. SERVICES TO OTHER CLIENTS.
Nothing contained in this Agreement shall limit or restrict (i) the freedom
of the Sub-Adviser, or any affiliated person or entity thereof, to render
investment management, investment advisory and corporate administrative services
to other investment companies or other managed accounts, to act as investment
manager or investment adviser or counselor to other persons, firms, or
corporations, or to engage in any other business activities, or (ii) the right
of any director, officer, employee, partner, agent, controlling person, limited
partner and any other person or entity affiliated with the Sub-Adviser, who may
also be a director, officer, or employee of Transamerica IDEX, to engage in any
other business or to devote his or her time and attention in part to the
management or other aspects of any other business, whether of a similar nature
or a dissimilar nature, or (iii) the freedom of the Sub-Adviser or any director,
officer, employee, partner, agent, controlling person, limited partner or other
person or entity affiliated with the Sub-Adviser, to buy, sell or trade any
securities or other investment instruments for its or their own account or for
the account of others for whom it or they may be acting, provided that such
activities do not adversely affect or otherwise impair the performance by the
Sub-Adviser of its duties, responsibilities, and obligations under this
Agreement, or are in violation of any applicable federal and state laws and
regulations.
9. SUB-ADVISER'S USE OF THE SERVICES OF OTHERS.
The Sub-Adviser may (at its cost except as contemplated by Section 5 of
this Agreement) employ, retain, or otherwise avail itself of the services or
facilities of other persons or organizations for the purpose of obtaining such
statistical and other factual information, such advice regarding economic
factors and trends, such advice as to occasional transactions in specific
securities, or such other information, advice, or assistance as the Sub-Adviser
may deem necessary, appropriate, or convenient for the discharge of its
obligations hereunder or otherwise helpful to the Sub-Adviser, as appropriate,
or in the discharge of Sub-Adviser's overall responsibilities with respect to
the other accounts that it serves as investment manager or adviser, provided
that the Sub-Adviser shall at all times retain responsibility for making
investment recommendations with respect to the Fund.
10. REPRESENTATIONS OF SUB-ADVISER.
The Sub-Adviser represents, warrants, and agrees as follows:
A. The Sub-Adviser: (i) is registered as an investment adviser under
the Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or the
Advisers Act from performing the services contemplated by this Agreement; (iii)
has met, and will continue to meet for so long as this Agreement remains in
effect, any applicable federal or state requirements, or the applicable
requirements of any regulatory or industry self-regulatory agency, necessary to
be met in order to perform the services contemplated by this Agreement; (iv) has
the authority to enter into and perform the services contemplated by this
Agreement; and (v) will immediately notify the Investment Adviser of the
occurrence of any event that would disqualify the Sub-Adviser from serving as an
investment adviser of an investment company pursuant to Section 9 (a) of the
1940 Act or otherwise.
B. The Sub-Adviser has adopted a written code of ethics complying with
the requirements of Rule 17j-1 under the 1940 Act and, if it has not already
done so, will provide the Investment Adviser and Transamerica IDEX with a copy
of such code of ethics, together with evidence of its adoption.
C. The Sub-Adviser has provided the Investment Adviser and
Transamerica IDEX with a copy of its Form ADV as most recently filed with the
SEC and will, promptly after filing any amendment to its Form ADV with the SEC,
furnish a copy of such amendment to the Investment Adviser.
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11. REPRESENTATIONS OF INVESTMENT ADVISER.
The Investment Adviser represents, warrants and agrees as follows:
A. The Investment Adviser: (i) is registered as an investment adviser
under the Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or the
Advisers Act from performing the services contemplated by this Agreement; (iii)
has met, and will continue to meet for so long as this Agreement remains in
effect, any applicable federal or state requirements, or the applicable
requirements of any regulatory or industry self-regulatory agency, necessary to
be met in order to perform the services contemplated by this Agreement; (iv) has
the authority to enter into and perform the services contemplated by this
Agreement; and (v) will immediately notify the Sub-Adviser of the occurrence of
any event that either prevents the Investment Adviser from serving as an
investment adviser of any investment company pursuant to Section 9(a) of the
1940 Act or otherwise or disqualifies it from serving in its designated
capacities with respect to the Fund.
B. The Investment Adviser acknowledges that it has received a copy of
the Sub-Adviser's Form ADV at least 48 hours prior to the execution of this
Agreement and has delivered a copy of the same to the Fund.
C. The Fund is registered as an open-end management investment company
under the 1940 Act and that the Fund's shares are registered under the
Securities Act of 1933 and under any applicable state securities laws.
D. The Investment Adviser hereby acknowledges that in performing its
obligations pursuant to this agreement Sub-Adviser will be acting in reliance on
the information provided by Investment Adviser relating to the financial
condition, tax status, and investment objectives of the Fund and Transamerica
IDEX. The Investment Adviser represents and warrants to Sub-Adviser that all
such information is, and will be, accurate in all material respects, and that
Investment Adviser will not fail to disclose any information which, if omitted,
might render the information misleading.
12. LIABILITY AND INDEMNIFICATION.
A. The Sub-Adviser may rely on information reasonably believed by it
to be accurate and reliable. Except as may otherwise be provided by the 1940
Act, neither the Sub-Adviser nor any affiliated person of the Sub-Adviser, its
officers, directors, employees or agents shall be subject to any liability to
the Investment Adviser, the Fund or any shareholder of the Fund for any error of
judgment, mistake of law or any loss arising out of any investment or other act
or omission in the course of, connected with or arising out of any service to be
rendered hereunder, except by reason of willful misfeasance, bad faith or gross
negligence in its performance of its obligations and duties or by reason of its
reckless disregard of its obligations and duties under this Agreement.
B. Subject to the foregoing, the Sub-Adviser shall indemnify and hold
harmless the Investment Adviser, the Fund and their respective directors,
trustees, officers, employees or agents from any and all claims, losses,
expenses, obligation and liabilities (including, without limitation, reasonable
attorney's fees) arising or resulting from the Sub-Adviser's willful
misfeasance, bad faith or gross negligence in its performance of its obligations
and duties or by reason of its reckless disregard of its obligations and duties
under this Agreement. The Sub-Adviser shall not be liable to the Investment
Adviser, it officers, directors, agents, employees, controlling persons or
shareholders or the Fund or its shareholders for (i) any acts of the Investment
Adviser or any other subadviser to Transamerica IDEX with respect to the portion
of the assets of Transamerica IDEX not managed by the Sub-Adviser and (ii) acts
of the Sub-Adviser which result from or are based upon acts or omissions of the
Investment Adviser, including, but not limited to, failure of the Investment
Adviser to provide accurate and current information with respect to records
maintained by Investment Adviser or any other subadviser to Transamerica IDEX
relevant to the Fund.
C. The Investment Adviser shall indemnify and hold harmless the
Sub-Adviser, and its trustees/directors, officers, employees or agents, from any
and all claims, losses, expenses, obligations and liabilities (including,
without limitation, reasonable attorney's fees) arising or resulting from the
Investment Adviser's violation of
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applicable law, willful misfeasance, bad faith or gross negligence in Investment
Adviser's performance of its respective obligations or by reason of Investment
Adviser's reckless disregard of its respective obligations and duties under this
Agreement. The Investment Adviser acknowledges and agrees that the Sub-Adviser
makes no representation or warranty, express or implied, that any level of
performance or investment results will be achieved by the Fund or that the Fund
will perform comparably with any standard or index, including other clients of
the Sub-Adviser, whether public or private.
13. TERM OF AGREEMENT.
This Agreement shall become effective upon the date first above written,
provided that this Agreement shall not take effect unless it has first been
approved (i) by a vote of a majority of those members of the Board who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting of the Board called for the purpose of voting on such
approval, and (ii) by vote of a majority of the Fund's outstanding voting
securities. Unless sooner terminated as provided herein, this Agreement shall
continue in effect for two years from its effective date. Thereafter, this
Agreement shall continue in effect from year to year, with respect to the Fund,
subject to the termination provisions and all other terms and conditions hereof,
so long as such continuation shall be specifically approved at least annually
(a) by either the Board, or by vote of a majority of the outstanding voting
securities of the Fund; and (b) in either event, by the vote, cast in person at
a meeting of the Board called for the purpose of voting on such approval, of a
majority of the members of the Board who are not parties to this Agreement or
interested persons of any such party. The Sub-Adviser shall furnish to
Transamerica IDEX, promptly upon its request such information as may reasonably
be necessary to evaluate the terms of this Agreement or any extension, renewal,
or amendment hereof.
14. NOTICES.
Any notice shall be sufficiently given when sent by certified U.S. mail,
national expenses deliver service, or facsimile to the parties at the address
below:
If to Transamerica IDEX:
Transamerica IDEX Mutual Funds
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Investment Adviser:
Transamerica Fund Advisors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Sub-Adviser:
Fund Asset Management, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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15. TERMINATION OF AGREEMENT.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Investment Adviser or by the Fund's Board by giving 60 days'
advance written notice of such termination to the Sub-Adviser provided that, if
terminated by the Fund, such termination is approved by vote of the Board or by
a vote of a majority of the outstanding voting securities of the Fund, or per
the terms of any applicable exemptive order under Section 6(c) of the Act from
Section 15(a) and Rule 18f-2 under the Act. The Sub-Adviser may terminate this
Agreement at any time, or preclude its renewal without the payment of any
penalty, on at least 60 days' prior notice to the Investment Adviser. This
Agreement shall terminate automatically in the event of its assignment or upon
termination of the Advisory Agreement.
16. AMENDMENT OF AGREEMENT.
No provision of this Agreement may be changed, waived, discharged, or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge, or termination is
sought, and no amendment of this Agreement shall be effective until approved by
vote of a majority of the Fund's outstanding voting securities, unless otherwise
permitted in accordance with the 1940 Act.
17. SUB-ADVISER NAME.
It is understood and hereby agreed that "Mercury", "▇▇▇▇▇▇▇ ▇▇▇▇▇", and any
derivative or logo or trademark or service ▇▇▇▇ or trade name (including, but
not limited to, depictions of bulls), are the valuable property of the
Sub-Adviser and its affiliates for copyright and other purposes and may not be
used by the Investment Adviser without Sub-Adviser's prior written approval. The
Investment Adviser further agrees that, in the event that the Sub-Adviser shall
cease to act as an investment adviser with respect to the investment of assets
allocated to the Fund, both the Investment Adviser and the Fund shall promptly
take all necessary and appropriate action to change their product names to names
which do not include "Mercury" or "▇▇▇▇▇▇▇ ▇▇▇▇▇" or any derivative or logo or
trademark or service ▇▇▇▇ or trade name (including, but not limited to,
depictions of bulls) provided, however, that the Investment Adviser and the Fund
may continue to use the words "Mercury" or "▇▇▇▇▇▇▇ ▇▇▇▇▇" or any derivative or
logo or trademark or service ▇▇▇▇ or trade name if the Sub-Adviser consents
specifically in writing to such use.
18. EXPENSES.
The Sub-Adviser will pay its own expenses incurred in furnishing the
services to be provided by it pursuant to this Agreement, excluding
determination of net asset value per share, fund accounting and shareholder
accounting services. Except for expenses specifically assumed or agreed to be
paid by the Sub-Adviser pursuant hereto, the Sub-Adviser shall not be liable for
any expenses of the Investment Adviser or the Fund, including, without
limitation: (a) interest expenses of the Fund and taxes levied against the Fund
or any of its property, (b) brokerage commissions and other costs in connection
with the purchase or sale of securities or other investment instruments with
respect to the Fund, (c) fees and expenses of any custodian, transfer agent and
other service providers who are not employees of the Sub-Adviser and (d) fees of
the Fund's independent public accountants.
19. CONFIDENTIAL RELATIONSHIP.
All information and advice furnished by either party to the other pursuant
to this Agreement shall be kept confidential; and shall not be disclosed to any
other person, except as may be necessary or appropriate to permit Sub-Adviser to
perform its duties hereunder, or as may be required by law, or by the rules of
securities industry self regulatory organizations such as stock exchanges and
the National Association of Securities Dealers, Inc.
20. MISCELLANEOUS.
A. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York without giving effect to the conflicts of laws
principles thereof, and the 1940 Act. To the extent that the applicable laws of
the State of New York conflict with the applicable provisions of the 1940 Act,
the latter shall control.
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B. Captions. The captions contained in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
C. Entire Agreement. This Agreement represents the entire agreement
and understanding of the parties hereto and shall supersede any prior agreements
between the parties relating to the subject matter hereof, and all such prior
agreements shall be deemed terminated upon the effectiveness of this Agreement.
D. Interpretation. Nothing herein contained shall be deemed to require
Transamerica IDEX to take any action contrary to its Trust or By-Laws, or any
applicable statutory or regulatory requirement to which it is subject or by
which it is bound, or to relieve or deprive the Board of its responsibility for
and control of the conduct of the affairs of Transamerica IDEX.
E. Definitions. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to interpretations thereof, if any, by the United
States courts or, in the absence of any controlling decision of any such court,
by rules, regulations, or orders of the SEC validly issued pursuant to the 1940
Act. As used in this Agreement, the terms "majority of the outstanding voting
securities," "affiliated person," "interested person," "assignment," "broker,"
"investment adviser," "net assets," "sale," "sell," and "security" shall have
the same meaning as such terms have in the 1940 Act, subject to such exemption
as may be granted by the SEC by any rule, regulation, or order. Where the effect
of a requirement of the federal securities laws reflected in any provision of
this Agreement is made less restrictive by a rule, regulation, or order of the
SEC, whether of special or general application, such provision shall be deemed
to incorporate the effect of such rule, regulation, or order, unless the
Investment Adviser and the Sub-Adviser agree to the contrary.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized signatories as of the date and year first
above written.
ATTEST: TRANSAMERICA FUND ADVISORS, INC.
By
------------------------------------- -------------------------------------
Name: Name:
-------------------------------- ----------------------------------
Title: Title:
------------------------------- ---------------------------------
ATTEST FUND ASSET MANAGEMENT, L.P.
By
------------------------------------- -------------------------------------
Name: Name:
-------------------------------- ----------------------------------
Title: Title:
------------------------------- ---------------------------------
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SUB-ADVISORY AGREEMENT
SCHEDULE A
FUND SUB-ADVISER COMPENSATION
---- ------------------------
TA IDEX MERCURY TACTICAL ALLOCATION 0.44% of assets up to $100 million of
average daily net assets and 0.32% of
average daily net assets in excess of $100
million
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