EXHIBIT 23(h)
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 17th day of April, 2001, by and between
MAXIM SERIES FUND, INC., a Maryland corporation, having its principal office and
place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Fund"), and FINANCIAL ADMINISTRATIVE SERVICES CORPORATION, a Colorado
corporation, having its principal office and place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Agent").
WHEREAS, the Fund desires to appoint the Agent as its transfer agent,
dividend disbursing agent and shareholder servicing agent, and the Agent desires
to accept such appointment;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article I. TERMS OF APPOINTMENT; DUTIES OF THE AGENT
1.01. Subject to the terms and conditions set forth in this Agreement,
the Fund hereby employs and appoints the Agent to act as, and the Agent agrees
to act as, the transfer agent, dividend disbursing agent and shareholder
servicing agent for the Fund and all series and classes thereof, whether now or
hereafter authorized and issued ("Shares") set out in the currently effective
prospectus and statement of additional information ("Prospectus") of the Fund,
including without limitation any periodic investment plan or periodic withdrawal
program.
1.02. In accordance with procedures established from time to time by
agreement between the Fund and the Agent, the Agent shall:
a. Receive for acceptance, orders for the purchase of Shares, and promptly
deliver payment and appropriate documentation therefor to the custodian of the
assets of the Fund (the "Custodian");
b. Pursuant to purchase orders, issue the appropriate number of Shares and
hold such Shares in the appropriate shareholder account;
c. Receive for acceptance redemption requests and redemption directions and
deliver the appropriate documentation therefor to the Custodian;
d. At the appropriate time as and when it receives monies paid to it by the
Custodian with respect to any redemption, pay over or cause to be paid over in
the appropriate manner such monies as instructed by the redeeming shareholders;
e. Effect transfers of Shares by the registered owners thereof upon receipt
of appropriate instructions;
f. Prepare and transmit payments for dividends and distributions declared
by the Fund;
g. Calculate any sales charges payable by a shareholder on purchases and/or
redemptions of Shares of the Fund as such charges may be reflected in the
Prospectus;
h. Maintain records of account for and advise the Fund and its shareholders
as to the foregoing; and
i. Record the issuance of Shares of the Fund and maintain a record of the
total number of Shares of the Fund which are authorized, based upon data
provided to it by the Fund, and issued and outstanding. When recording the
issuance of Shares, the Agent shall have no obligation to take cognizance of any
Blue Sky laws relating to the issue or sale of such Shares, which functions
shall be the sole responsibility of the Fund.
1.03. In addition to and not in lieu of the services set forth in Section
1.02, the Agent shall:
(i) perform all of the customary services of a transfer agent, dividend
disbursing agent and shareholder servicing agent, including, but not limited to,
maintaining all shareholder accounts, preparing shareholder meeting lists,
withholding taxes on non-resident alien accounts, and
(ii) provide a system which will enable the Fund to monitor the total
number of Shares sold in each State or other jurisdiction.
1.04. The Fund shall (i) identify to the Agent in writing those
transactions and assets to be treated as exempt from Blue Sky reporting for each
State and (ii) verify the establishment of transactions for each State on the
system prior to activation and thereafter monitor the daily activity for each
State. The responsibility of the Agent for the Fund's registration status under
the Blue Sky or securities laws of any State or other jurisdiction is solely
limited to the initial establishment of transactions subject to Blue Sky
compliance by the Fund and the reporting of such transactions to the Fund as
provided above and as agreed from time to time by the Fund and the Agent.
1.05. The Agent may also provide such additional services and functions
not specifically described herein as may be mutually agreed between the Agent
and the Fund and set forth in Schedule A hereto. Procedures applicable to
certain of these services may be established from time to time by agreement
between the Fund and the Agent.
Article II. FEES AND EXPENSES
2.01. For performance by the Agent pursuant to this Agreement, the Fund
shall to pay the Agent those fees and expenses as agreed to by the parties from
time to time.
Article III. REPRESENTATIONS AND WARRANTIES OF THE AGENT
The Agent represents and warrants to the Fund that:
3.01. It is a corporation duly organized and existing and in good
standing under the laws of Colorado and it is duly qualified to carry on its
business in Colorado.
3.02. It is and will remain registered with the U.S. Securities and
Exchange Commission ("SEC") as a transfer agent pursuant to the requirements of
Section 17A of the Securities Exchange Act of 1934, as amended (the "1934 Act").
3.03. It is empowered under applicable laws and by its articles of
incorporation and bylaws to enter into and perform this Agreement.
3.04. All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.05. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
Article IV. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Fund represents and warrants to the Agent that:
4.01. It is a corporation duly organized and existing and in good standing
under the laws of Maryland.
4.02. It is empowered under applicable laws and by its articles of
incorporation and bylaws to enter into and perform this Agreement.
4.03. All corporate proceedings required by said articles of
incorporation and bylaws have been taken to authorize it to enter into and
perform this Agreement.
4.04. It is an investment company registered with the SEC under the
Investment Company Act of 1940, as amended (the "1940 Act").
4.05. A registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), is currently effective and will remain effective, and
appropriate state securities law filings have been made and will continue to be
made, with respect to all Shares of the Fund being offered for sale.
Article V. DUTY OF CARE AND INDEMNIFICATION
5.01. The Agent shall not be responsible for, and the Fund shall
indemnify and hold the Agent harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to:
a. All actions of the Agent or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in good
faith and without negligence or willful misconduct.
b. The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Fund hereunder.
c. The reliance on or use by the Agent or its agents or subcontractors of
information, records and documents which (i) are received by the Agent or its
agents or subcontractors and furnished to it by or on behalf of the Fund, and
(ii) have been prepared and/or maintained by the Fund or any other person or
firm on behalf of the Fund.
d. The reliance on, or the carrying out by the Agent or its agents or
subcontractors of, any instructions or
requests of the Fund.
e. The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations or the securities or Blue Sky laws of any
State or other jurisdiction that such Shares be registered in such State or
other jurisdiction or in violation of any stop order or other determination or
ruling by any federal agency or any State or other jurisdiction with respect to
the offer or sale of such Shares in such State or other jurisdiction. 5.02. The
Agent shall indemnify and hold the Fund harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to any action or failure or omission to act by
the Agent as a result of the Agent' lack of good faith, negligence or willful
misconduct.
5.03. At any time the Agent may apply to any officer of the Fund for
instructions, and may consult with legal counsel, with respect to any matter
arising in connection with the services to be performed by the Agent under this
Agreement, and the Agent and its agents or subcontractors shall not be liable
and shall be indemnified by the Fund for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. The Agent,
its agents and subcontractors shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Fund, reasonably believed
to be genuine and to have been signed by the proper person or persons, or upon
any instruction, information, data, records or documents provided to the Agent
or its agents or subcontractors by machine readable input, telex, CRT data entry
or other similar means authorized by the Fund, and shall not be held to have
notice of any change of authority of any person, until receipt of written notice
thereof from the Fund. The Agent, its agents and subcontractors shall also be
protected and indemnified in recognizing stock certificates which are reasonably
believed to bear the proper manual or facsimile signature of the officers of the
Fund, and the proper countersignature of any former transfer agent or registrar,
or of a co-transfer agent or co-registrar.
5.04. In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
5.05. Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
act or failure to act hereunder.
5.06. In order that the indemnification provisions contained in this
Article V shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article VI. DOCUMENTS AND COVENANTS OF THE TRUST AND THE AGENT
6.01. The Fund shall promptly furnish to the Agent the following:
a. The current registration statements and any amendments and supplements
thereto filed with the SEC pursuant to the requirements of the 1933 Act and the
1940 Act;
b. All account application forms or other documents relating to shareholder
accounts and/or relating to any plan, program or service offered or to be
offered by the Fund; and
c. Such other certificates, documents or opinions as the Agent deems to be
appropriate or necessary for the proper performance of its duties.
6.02. The Agent hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
6.03. The Agent shall prepare and keep records relating to the services
to be performed hereunder, in the form and manner as it may deem advisable. To
the extent required by Section 31 of the 1940 Act, and the rules and regulations
thereunder, the Agent agrees that all such records prepared or maintained by the
Agent relating to the services to be performed by the Agent hereunder are the
property of the Fund and will be preserved, maintained and made available in
accordance with such Section 31 of the 1940 Act, and the rules and regulations
thereunder, and will be surrendered promptly to the Fund on and in accordance
with its request.
6.04. The Agent and the Fund agree that all books, records, information
and data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential and shall not be voluntarily disclosed to any other person
except as may be required by law or with the prior consent of the Agent and the
Fund.
6.05. In case of any requests or demands for the inspection of the
shareholder records of the Fund, the Agent will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. The Agent reserves the right, however, to exhibit the shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the shareholder records to such person.
Article VII. TERMINATION OF AGREEMENT
7.01. This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
7.02. Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and other materials will be
borne by the Fund. Additionally, the Agent reserves the right to charge for any
other reasonable fees and expenses associated with such termination.
Article VIII. ASSIGNMENT
8.01. Except as provided in Section 8.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
8.02. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
8.03. The Agent may, with prior written consent by the Fund,
subcontract, in whole or in part, for the performance of its obligations and
duties hereunder with any person or entity, including, but not limited to, a
registered broker-dealer which is a subsidiary or affiliate of Agent duly
registered as a broker-dealer and/or a transfer agent pursuant to the 1934 Act;
provided, however, that the Agent shall be as fully responsible to the Fund for
the acts and omissions of any agent or subcontractor as it is for its own acts
and omissions.
Article IX. AFFILIATIONS
9.01. The Agent may now or hereafter, without the consent of or notice
to the Fund, function as transfer agent and/or shareholder servicing agent for
any other investment company registered with the SEC under the 1940 Act.
9.02. It is understood and agreed that the directors, officers,
employees, agents and shareholders of the Fund, and the directors, officers,
employees, agents and shareholders of the Fund's investment adviser and/or
distributor, are or may be interested in the Agent as directors, officers,
employees, agents, shareholders or otherwise, and that the directors, officers,
employees, agents or shareholders of the Agent may be interested in the Fund as
directors, officers, employees, agents, shareholders or otherwise, or in the
investment adviser and/or distributor as officers, directors, employees, agents,
shareholders or otherwise.
Article X. AMENDMENT
10.01. 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 Directors of the Fund.
Article XI. APPLICABLE LAW
11.01. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Colorado.
Article XII. MISCELLANEOUS
12.01. In the event that any check or other order for payment of money
on the account of any shareholder or new investor is returned unpaid for any
reason, the Agent will (a) give prompt notification to the Fund's distributor
("Distributor") of such non-payment; and (b) take such other action, including
imposition of a reasonable processing or handling fee, as the Agent may, in its
sole discretion, deem appropriate or as the Fund and the Distributor may
instruct the Agent.
12.02. Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or to the Agent shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Fund:
Maxim Series Fund, Inc.
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
To the Agent:
Financial Administrative Services Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
12.03. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
MAXIM SERIES FUND, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: President
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇
Title: Treasurer
FINANCIAL ADMINISTRATIVE SERVICES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Wooden
Name: D.L. Wooden
ATTEST: Title: President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
SCHEDULE A The services to be performed by the Transfer Agent or its agent shall
be as follows:
A. Daily Records
Maintain daily the following information with respect to each shareholder
account received:
Name and Address (Zip Code)
Class of Shares
Taxpayer Identification Number
Beneficial Owner Code; i.e., male, female, joint tenant, etc.
Dividend Code (reinvestment)
Number of Shares Held
B. Other Daily Activity
Answer written inquiries relating to shareholder accounts (matters relating to
portfolio management, distribution of shares and other management policy
questions will be referred to the Fund). Process dividends and disbursements
into established shareholder accounts in accordance with written instruction by
shareholder. Upon receipt of proper instructions and all required documentation,
process requests for repurchase of Shares. Identify redemption requests made
with respect to accounts in which shares have been purchased within an
agreed-upon period of time for determining whether good funds have been
collected with respect to such purchase and process as agreed by the Transfer
Agent in accordance with written instructions of the Fund.
Examine and process all transfers of shares, ensuring that all transfer
requirements and legal documents have been supplied. Issue and mail replacement
checks. Open new accounts and maintain records or exchanges between accounts.
C. Dividend Activity
Calculate and process share dividends and distributions as instructed by the
Fund.
Compute, prepare and mail all necessary reports to shareholders or various
authorities as requested by the Fund.
D. Meetings of shareholders
Cause to be mailed proxy and related material for all meetings of shareholders.
Tabulate returned proxies. Prepare and submit to the Fund an Affidavit of
Mailing. At the time of the meeting, furnish a certified list of shareholders,
hard copy, microfilm or microfiche, and, if requested by the Fund, Inspection of
Election.
E. Periodic Activities
Cause to be mailed reports, prospectuses, and any other enclosures requested by
the Fund.