Exhibit 8(b)(viii)
RULE 22c-2 AGREEMENT
This Rule 22c-2 Agreement ("Agreement") is entered into by and among Xxxxxxx &
Xxxx, Inc. ("W&R"), as principal underwriter for the Ivy Funds Variable
Insurance Portfolios (the "Portfolios"), and the intermediary firm which is a
signatory to this Agreement below (the "Intermediary"), effective as of May 1,
2014.
WHEREAS, the Intermediary issues certain variable life insurance and/or variable
annuity contracts "collectively, "Variable Products") that are supported by one
or more separate accounts of the Intermediary (each, an "Account");
WHEREAS, the Intermediary and the Distributor are parties to an agreement
("Participation Agreement") under which the Intermediary may submit orders for
the purchase and redemption of shares on behalf of the Accounts to fund the
Variable Products in accordance with Variable Product owner instructions and the
terms of the Variable Product contracts;
WHEREAS, the Distributor and the Intermediary desire to enter into this
Agreement pursuant to Rule 22c-2 under the Investment Company Act of 1940, as
amended ("Investment Company Act"), which requires the Intermediary, as a
financial intermediary (as that term is defined by the Rule), to provide a
Portfolio, upon request, with certain shareholder and Account information in
order that the Portfolio can implement its frequent trading policies, and, if
requested by the Portfolio, impose certain of the Portfolio's restrictions, as
applicable.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which
consideration is full and complete, the Distributor and the Intermediary hereby
agree as follows:
1. SHAREHOLDER INFORMATION
1.1 AGREEMENT TO PROVIDE INFORMATION. The Intermediary agrees to provide
the Portfolio, upon written request, the taxpayer identification
number ("TIN"), if known, of any or all Shareholder(s) of the Account,
the amount and date of the Shareholder transaction, the name or other
identifier of any investment professional(s) associated with the
Shareholder(s) or Account (if known), and transaction type (purchase,
redemption, transfer, or exchange) of every purchase, redemption,
transfer, or exchange of Shares held through an Account maintained by
the Intermediary during the period covered by the request.
1.1.1 PERIOD COVERED BY REQUEST. Requests must set forth a
specific period, not to exceed 180 days from the date of the
request, for which transaction information is sought. The
Portfolio may request transaction information older than 180 days
from the date of the request as they deem necessary to
investigate compliance with policies established by the Portfolio
for the purpose of eliminating or reducing any dilution of the
value of the outstanding shares issued by the Portfolio. If
requested by the
Portfolio, the Intermediary agrees to provide the information
specified in 1.1 for each trading day. Unless otherwise
specifically requested by the Portfolio, Intermediary shall only
be required to provide information relating to
Shareholder-Initiated Purchases or Shareholder-Initiated Transfer
Redemptions.
1.1.2 FORM AND TIMING OF RESPONSE. The Intermediary agrees to
transmit the requested information that is on its books and
records to the Portfolio or its designee promptly, but in any
event not later than five (5) business days, after receipt of a
request. If the requested information is not on the
Intermediary's books and records, the Intermediary agrees to: (i)
provide or arrange to provide to the Portfolio the requested
information from Shareholders who hold an account with an
indirect intermediary; or (ii) if directed by the Portfolio,
block further purchases of Portfolio Shares from such indirect
intermediary. In such instance, the Intermediary agrees to inform
the Portfolio whether it plans to perform (i) or (ii). Responses
required by this paragraph must be communicated in writing and in
a format mutually agreed upon by the parties. To the extent
practicable, the format for any transaction information provided
to the Portfolio should be consistent with the NSCC Standardized
Data Reporting Format. For purposes of this provision, an
"indirect intermediary" has the same meaning as in the amendment
to Rule 22c-2 under the Investment Company Act proposed February
28, 2006 or as subsequently defined in any adopted amendment to
Rule 22c-2.
1.1.3 LIMITATIONS ON USE OF INFORMATION. The Portfolio and the
Distributor agree not to use the information received for
marketing or any other similar purpose without the prior written
consent of the Intermediary.
2. AGREEMENT TO RESTRICT TRADING. The Intermediary agrees to execute
written instructions from the Portfolio to restrict or prohibit
further purchases or exchanges of Shares by a Shareholder that has
been identified by the Portfolio as having engaged in transactions of
the Portfolio's Shares (directly or indirectly through the
Intermediary's (or indirect intermediary's) Account) that violate
policies established by the Portfolio for the purpose of eliminating
or reducing any dilution of the value of the outstanding Shares issued
by the Portfolio.
2.1 FORM OF INSTRUCTIONS. Instructions must include the TIN, if
known, and the specific restriction(s) to be executed, including
the length of time such restriction(s) shall remain in place. If
the TIN is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or Account(s) or other
information to which the instruction relates agreed upon by the
Intermediary and the Portfolio. Unless otherwise directed by the
Portfolio, any such restrictions or prohibitions shall only apply
to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected
directly or indirectly through Intermediary.
2.2 TIMING OF RESPONSE. The Intermediary agrees to execute
instructions as soon as reasonably practicable, but not later
than five (5) business days after receipt of the instructions by
the Intermediary.
2.3 CONFIRMATION BY INTERMEDIARY. The Intermediary must provide
written confirmation to the Portfolio that instructions have been
executed. The Intermediary agrees to provide confirmation as soon
as reasonably practicable, but not later than ten (10) business
days after the instructions have been executed.
3. DEFINITIONS. For purposes of this Agreement:
3.1 The term "Portfolio" does not include any "excepted funds" as
defined in Rule 22c-2(b) under the Investment Company Act.(i)
3.2 The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by
the Portfolio under the Investment Company Act that are held by
the Intermediary.
3.3 The term "Shareholder" means, as applicable, (i) the beneficial
owner of Shares, whether the Shares are held directly or by the
Intermediary in nominee name; (ii) the Plan participant
notwithstanding that the Plan may be deemed to be the beneficial owner
of Shares; or (iii) the holder of interests in a variable annuity or
variable life insurance contract issued by the Intermediary.
3.4 The term "written" includes electronic writings and facsimile
transmissions and such other means as the parties may agree to from
time-to-time.
3.5 The term "Shareholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Shareholder that
results in a transfer of assets within a Variable Product to a
Portfolio, but does not include transactions that are executed: (i)
automatically pursuant to a contractual or systematic program or
enrollment such as transfer of assets within a Variable Product to a
Portfolio as a result of "dollar cost averaging" programs,
Intermediary-approved asset allocation programs, or automatic
rebalancing programs; (ii) pursuant to a Variable Product death
benefit; (iii) one-time step-up in Variable Product contract value
pursuant to a death benefit; (iv) step-ups in contract value pursuant
to a Variable Product living benefit; (v) allocation of assets to a
Portfolio through a Variable Product as a result of payments such as
loan repayments, scheduled contributions, retirement plan salary
reduction contributions, or planned premium payments to the Variable
Product; or (vi) pre-arranged transfers at the conclusion of a
required free look period.
3.6 The term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that
results in a transfer of assets within a Variable Product out of a
Portfolio, but does not include transactions that are executed: (i)
automatically pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Variable Product out
of a Portfolio as a result of annuity payouts, loans, systematic
withdrawal programs, Intermediary-approved asset allocation programs
and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Variable Product; (iii) within a Variable
Product out of a Portfolio as a result of scheduled withdrawals or
surrenders from the Variable Product; or (iv) as a result of payment
of a death benefit from a
Variable Product.
4. AMENDMENTS. The Distributor may unilaterally modify this Agreement at
any time by written notice to the Intermediary to comply with the
requirements of applicable law, any amendments to Rule 22c-2 and any
interpretation by the Staff of the Securities and Exchange Commission. The
first order in Shares placed by the Intermediary subsequent to the receipt
of such notice shall be deemed acceptance by the Intermediary of the
modification to this Agreement described in such notice.
5. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state indicated in the Participation
Agreement's choice of law provision, without giving effect to principles of
conflicts of laws.
6. ASSIGNMENT. Neither party may assign this Agreement, or any of the
rights, obligations, or liabilities under this Agreement, without the
written consent of the other party.
7. PARTICIPATION AGREEMENT. To the extent that the provisions of this
Agreement and the provisions of the Participation Agreement are in
conflict, the provisions of this Agreement shall control with respect to
the subject matter of this Agreement. Termination of this Agreement by
either party shall not automatically result in a termination of the
Participation Agreement.
8. THIRD-PARTY BENEFICIARIES. Each Portfolio shall have the right to
enforce all terms and provisions of this Agreement against any and all
parties hereto and or otherwise involved in the activities contemplated
herein. A request by the Distributor or the Portfolio's transfer agent
shall be deemed a request by the Portfolio, and information or
communications from the Intermediary to the Distributor shall be deemed
provided to the Portfolio.
9. RIGHT TO SUSPEND TRADING BY INTERMEDIARY. Each Portfolio may, in its
discretion, suspend or cease offering Shares for purchase through the
Intermediary if the Intermediary fails to satisfy its obligations under
this Agreement.
10. INDEMNIFICATION. The Intermediary shall indemnify and hold harmless the
Distributor and each Portfolio and their respective directors, officers,
employees, affiliates and agents ("Indemnified Parties") from and against
any and all losses, claims, liabilities and expenses (including reasonable
attorney's fees and expenses) ("Losses") incurred by any of them arising
out of (i) any breach by the Intermediary of any representation, warranty
or agreement contained in this Agreement, (ii) any willful misconduct or
negligence by the Intermediary in the performance of, or failure to
perform, its obligations under this Agreement, including but not limited
to, the Intermediary's failure to timely provide information that is
accurate and in proper form, as required under Section 1 of this Agreement,
or to timely restrict trading in accordance with Section 2 of this
Agreement. This Section shall survive termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
IVY FUNDS DISTRIBUTOR, INC.
XXXXXXX & XXXX, INC.
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By: Xxxxxx Xxxxx
Title: President
Date:
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
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By:
Title:
Date:
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(i) As defined in SEC Rule 22c-2(b), the term "excepted fund" means any: (1)
money market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly and prominently discloses that the fund
permits short-term trading of its securities and that such trading may result in
additional costs for the fund.
