Exhibit 8(b)(xi)
RULE 22c-2 SHAREHOLDER INFORMATION ACCESS AGREEMENT
(XXXXXXXXX XXXXXX FAMILY OF FUNDS)
This Agreement is entered into as of April 16, 2007 by and between
Xxxxxxxxx Xxxxxx Management Inc. ("NBMI") and the undersigned intermediary
("Intermediary").
WHEREAS, NBMI is the principal underwriter and adviser of registered
investment companies and their separately designated series (each such series or
series hereinafter established referred to herein as the "Fund") - the term does
not include any "excepted funds" as defined in SEC Rule 22c-2(b) under the
Investment Company Act of 1940, as amended (the "1940 Act")(1);
WHEREAS, Intermediary is (i) a broker, dealer, bank, or other entity
that holds securities of record issued by the Fund ("Fund shares") in nominee
name; (ii) in the case of a participant-directed employee benefit ("Plan") that
owns Fund shares, (a) a retirement plan administrator under the Employee
Retirement Income Security Act of 1974, as amended, or (b) any entity that
maintains the Plan's participant records; or (iii) an insurance company separate
account;
WHEREAS, Intermediary provides services to clients who maintain an
interest in Fund shares held by the Intermediary in an account with the Fund as
(i) the beneficial owner of Fund shares, whether the shares are held directly or
by Intermediary in nominee name; or (ii) with respect to retirement and other
types of employee benefit plans, the Plan participant notwithstanding that the
Plan may be deemed to be the beneficial owner of Fund shares; or (iii) with
respect to insurance companies, the holder of interests in a variable annuity or
variable life insurance contract issued by Intermediary (a "Variable Contract").
Each type of client identified in clauses (i), (ii), or (iii) herein shall be
referred to herein as a "Shareholder;"
WHEREAS, 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 Contract to a Fund, 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 Variable
Contract to a Fund as a result of "dollar cost averaging" programs, insurance
company approved asset allocation programs, or automatic rebalancing programs;
(ii) pursuant to a Variable Contract death benefit; (iii) one-time step-up in
Variable Contract value pursuant to a Variable Contract death benefit; (iv)
allocation of assets to a Fund through a Variable Contract as a result of
payments such as loan repayments, scheduled contributions, retirement plan
salary reduction contributions, or planned premium payments to the Variable
Contract; or (v) pre-arranged transfers at the conclusion of a required free
look period.
WHEREAS, 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 Contract out of a Fund, 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 Contract out of a Fund as a result of annuity payouts, loans,
systematic withdrawal programs, insurance company approved asset allocation
programs and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Variable Contract; (iii) within a Variable Contract
out of a Fund as a result of scheduled withdrawals or surrenders from a Variable
Contract; or (iv) as a result of payment of a death benefit from a Variable
Contract.
WHEREAS, NBMI and Intermediary have entered into a dealer agreement,
services agreement and/or fund participation agreement (the "Dealer/Services
Agreement"), pursuant to which Intermediary has agreed to solicit orders for
Fund shares and/or provide services with respect to the Fund;
WHEREAS, Intermediary is a "financial intermediary" within the meaning
of Rule 22c-2 of the 1940 Act, and directly submits orders on behalf of
investors in one or more Funds to purchase or redeem Fund shares;
WHEREAS, pursuant to Rule 22c-2 under the 1940 Act ("Rule 22c-2"), the
parties wish to enter into an agreement under which Intermediary agrees to
provide NBMI and the Fund with Shareholder identification and transaction
information in order to identify and preclude activity that may violate NBMI's
or a Fund's policies ("Trading Policies") established for the purpose of
eliminating or reducing any dilution of the value of Fund shares, including
restrictions on frequent trading of Fund shares that NBMI otherwise may deem
disruptive to the Fund and any policy to ensure appropriate administration of a
redemption fee, if any, established by the Fund;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, which consideration is full and complete, and intending to be legally
bound hereby, NBMI and Intermediary hereby agree as follows:
1. Shareholder Information
1.1 Agreement to Provide Information. Intermediary agrees to
cooperate with the Fund's and NBMI's efforts to identify
Shareholder transaction activity that may violate the Trading
Policies. To that end, Intermediary agrees to respond promptly
to NBMI's requests regarding Shareholder transaction activity
in an account held by or through the Intermediary. In response
to such requests, Intermediary shall provide the taxpayer
identification number ("TIN"), the Individual Taxpayer
Identification ("ITIN"), or other government-issued identifier
("GII"), if known, of any or all Shareholder(s) of the account
and the amount, date, name or other identifier of any invest-
ment professional(s) associated with the Shareholder(s) or '
account (if known), and the transaction type (purchase, redemp-
tion, transfer, or exchange) of every purchase, redemption,
transfer or exchange of Fund shares held through an account
maintained by the Intermediary during the period covered by the
request. With respect to informationpertaining to Variable
Contracts and unless otherwise specifically requested by the
Fund, the Intermediary shall only be required to provide
information relating to Shareholder-Initiated Transfer
Purchases or Shareholder-Initiated Transfer Redemptions.
1.2 Period Covered by Request. In each request, NBMI shall set
forth a specific period, not to exceed 90 days from the date
of the request, for which it seeks transaction information.
NBMI may request transaction information older than 90 days
from the date of the request as it deems necessary to
investigate compliance with the Trading Policies.
1.3 Form and Timing of Response. Intermediary agrees to transmit
all requested information that is on its books and records to
NBMI and the Fund or their designee promptly, but in any event
not later than ten (10) business days, after receipt of a
request. If the requested information is not on Intermediary's
books and records, Intermediary agrees to: (i) provide or
arrange to provide to NBMI and the Fund the requested
information with respect to Shareholders who hold an account
with an indirect intermediary; or (ii) if directed by NBMI,
prohibit further purchases of Fund shares from such indirect
intermediary. In such instance, Intermediary agrees to inform
NBMI 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 NBMI and the Fund should be consistent with the
DTCC Standardized Data Reporting Format. For purposes of this
provision, an "indirect intermediary" has the same meaning as
in Rule 22c-2(c)(5)(iii) under the 1940 Act or as "indirect
intermediary" is subsequently defined in any amendment to Rule
22c-2.
1.4 Limitations on Use of Information. NBMI agrees not to use the
information received pursuant to this Agreement for any
purpose not permitted under the privacy provisions of Title V
of the Xxxxx-Xxxxx-Xxxxxx Act and comparable state laws,
including, but not limited to marketing or any other similar
purpose without the prior written consent of Intermediary.
2. Restricting Trading.
2.1 Agreement to Restrict Trading. Intermediary agrees to execute
written instructions from NBMI to restrict or prohibit further
purchases or exchanges of or into Fund shares by a Shareholder
that has been identified by NBMI as having engaged in
transactions of Fund shares (directly or indirectly through
Intermediary's (or indirect intermediary's) account) that
violate the Trading Policies. Unless otherwise directed by the
Fund, any such restrictions or prohibitions shall only apply
to Shareholder Initiated Transfer Purchases or Shareholder
Initiated Transfer Redemptions (pertaining to Variable
Contracts) that are effected directly or indirectly through
the Intermediary.
2.2 Form of Instructions. In the instructions, NBMI shall include
the Shareholder's TIN, if known, and the specific
restriction(s) to be executed. If NBMI does not know the TIN,
NBMI shall include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon information
to which the instruction relates.
2.3 Timing of Response. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not later
than ten (10) business days after receipt of the instructions
by Intermediary.
2.4 Confirmation by Intermediary. Intermediary must provide
written confirmation to NBMI that instructions have been
executed. 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. Notices. All notices required or permitted under this Agreement shall
be in writing and shall be sent by personal delivery or registered or
certified mail, postage prepaid, or by telecopier confirmed in writing
within three (3) business days, unless otherwise indicated herein, as
follows:
(a) If to NBMI or the Fund:
Xxxxxxxxx Xxxxxx Management Inc.
Xxxxxxxxx Xxxxxx Funds
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, President, NBMI
Chairman and Chief Executive Officer,
Xxxxxxxxx Xxxxxx Funds
cc: Xxxxx Xxxxxxxxx
telephone: (000) 000-0000
telecopier: (000) 000-0000
email: xxxxxxxxxx@xx.xxx
(b) If to Intermediary, to the address set forth next to
its signature line at the end of this Agreement.
Such addresses may be changed from time to time by any party by
providing written notice in the manner set forth above. All notices
shall be effective upon delivery or when deposited in the mail
addressed as set forth above.
4. Applicability to Affiliates. The Intermediary acknowledges and agrees
that the Intermediary has identified and/or will identify to NBMI all
persons affiliated with the Intermediary and known to the Intermediary
who meet the definition of "Applicable Intermediary" as set forth in
Section 4 herein. The term "Applicable Intermediary" shall mean an
affiliate of Intermediary that is (i) any broker, dealer, bank or other
entity that holds securities of record issued by a Fund in nominee
name; and (ii) in the case of a participant-directed employee benefit
plan that owns securities issued by a Fund, (1) a retirement plan
administrator under the Employee Retirement Income Security Act of
1974, or (2) any entity that maintains the plan's participant records.
In the event that any such person is not so identified, such person
shall be deemed to be subject to the terms and conditions of this
Agreement until such person has entered into a separate agreement with
NBMI.
5. Amendments. NBMI may unilaterally modify this Agreement at any time by
written notice to Intermediary to comport 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
placed by Intermediary subsequent to the receipt of such notice shall
be deemed acceptance by Intermediary of the modification to the
Agreement described in such notice. Except as set forth in this Section
5, this Agreement may not be amended without written consent by the
parties hereto.
6. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving
effect to principles of conflicts of laws.
7. Assignment. Neither party may assign the Agreement, or any of the
rights, obligations, or liabilities under the Agreement, without the
written consent of the other party. Notwithstanding the foregoing, this
Agreement shall be deemed assigned to the extent the Dealer/Services
Agreement is deemed assigned.
8. Dealer/Services Agreement. To the extent that the provisions of this
Agreement and the provisions of the Dealer/Services 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
Dealer/Services Agreement. This Agreement shall terminate upon
termination of the Dealer/Services Agreement.
9 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but both of which shall
together constitute one and the same instrument.
10. Third-Party Beneficiaries. As permitted by Rule 22c-2, NBMI is entering
into this Agreement on the Fund's behalf. Any requests from NBMI for
information or instructions from NBMI to restrict or prohibit further
purchases or exchanges of Fund shares are made by NBMI on Fund's
behalf. The Fund 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.
11. Force Majeure. Either the Fund or the Intermediary is excused from
performance and shall not be liable for any delay in performance or
non-performance, in whole or in part, caused by the occurrence of any
event or contingency beyond the control of the parties including, but
not limited to, work stoppages, fires, civil disobedience, riots,
rebellions, natural disasters, acts of God, acts of war or terrorism,
actions or decrees of governmental bodies, and similar occurrences.
The party who has been so affected shall, if physically possible,
promptly give written notice to the other party and shall use its best
efforts to resume performance. Upon receipt of such notice, all
obligations under this Agreement shall be immediately suspended for
the duration of such event or contingency.
12. Right to Suspend Trading by Intermediary. The Fund may, in its
discretion, suspend or cease offering Fund shares for purchase through
the Intermediary if the Intermediary fails to satisfy its obligations
under this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as
of the date first above written.
XXXXXXXXX XXXXXX The Lincoln National Life Insurance Company
MANAGEMENT INC.
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
By: /s/ Xxxxx Xxxxxxx Title: Vice President
Name: Xxxxx Xxxxxxx
Title: President Lincoln Life & Annuity Company of New York
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Second Vice President
Jefferson-Pilot Life Insurance Company
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
Address: 0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
cc: Xxxxx Xxxxxxx
telephone: 000-000-0000
telecopier: _________________________
(1) 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.
