EXHIBIT (h)(25)(a)
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
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/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.
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 investment professional(s) associated with the
Shareholder(s) or account (if known), and the transaction type
(purchase, redemption, 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 information pertaining 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.
Shareholder Information requests must be directed to the
Intermediary's representatives as identified in Appendix A to this
Agreement.
Written information requests must be received via overnight mail, and
any timing requirements will start from the date of Intermediary's
receipt of the request.
1.2 Period Covered by Request. In each request, NBMI shall set forth a
specific period, not to exceed 180 days from the date of the request,
for which it seeks transaction
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information and which shall cover a period ending no earlier than 10
business days preceding Intermediary's receipt of the written
request. NBMI may request transaction information older than 180 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 NSCC 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.
Restriction of Trading requests must be directed to the
Intermediary's representatives as identified in Appendix A to this
Agreement.
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.
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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 fifteen (15) 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 in Appendix A to
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 with sixty (60) days
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.
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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.
00.Xxxx Efforts and Good Faith. Both Parties mutually agree to act in good
faith, utilizing their best efforts to timely and effectively execute the
shareholder information sharing provisions of Rule 22c-2. Good faith and
best efforts means attempting to process all relevant requests in a timely
manner, or in the event such requests cannot be met within the time
provisions of this agreement, to make best efforts to fulfill such requests
as soon as reasonably practicable. Also, if Intermediary is aware of a
possible delay in the fulfillment of a request, Intermediary will provide
notice of the impending delay as soon as possible after the impending delay
is discovered.
In all other respects, this Agreement is controlled by the Participation
Agreement between the Parties.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
as of the date first above written.
XXXXXXXXX XXXXXX MANAGEMENT INC.
By:
-----------------------------
Name:
Title:
AMERICAN GENERAL LIFE INSURANCE COMPANY
By:
----------------------------- Attest: -----------------------------
Name:
----------------------------- Name: -----------------------------
Title:
----------------------------- Title: -----------------------------
(Seal)
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK
By:
----------------------------- Attest: -----------------------------
Name:
----------------------------- Name: -----------------------------
Title:
----------------------------- Title: -----------------------------
(Seal)
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK
By:
----------------------------- Attest: -----------------------------
Name:
----------------------------- Name: -----------------------------
Title:
----------------------------- Title: -----------------------------
(Seal)
AIG LIFE INSURANCE COMPANY
By:
----------------------------- Attest: -----------------------------
Name:
----------------------------- Name: -----------------------------
Title:
----------------------------- Title: -----------------------------
(Seal)
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Appendix A
Representatives of the Intermediary
Requests for Shareholder Information or Trading Restrictions must be directed
to:
Xxxxxxxx Xxxxxx
Senior Counsel
AIG American General
0000 Xxxxx Xxxxxxx, X00-00
Xxxxxxx, XX 00000
(000) 000-0000
and to:
Xxxxxxx XxXxxxxx
Variable Products Accounting
AIG American General
0000-X Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
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Market Timing
The Policies are not designed for professional market timing organizations
or other entities or individuals using programmed and frequent transfers
involving large amounts. Market timing carries risks with it, including:
. dilution in value of Fund shares underlying investment options of other
Policy Owners;
. interference with the efficient management of the Fund's portfolio; and
. increased administrative costs.
We have policies and procedures that require us to monitor the Policies to
determine if a Policy Owner requests:
. an exchange out of a variable investment option, other than the money
market investment option, within two calendar weeks of an earlier
exchange into that same variable investment option;
. an exchange into a variable investment option, other than the money
market investment option, within two calendar weeks of an earlier
exchange out of that same variable investment option; or
. exchanges into or out of the same variable investment option, other than
the money market investment option, more than twice in any one calendar
quarter.
If any of the above transactions occurs, we will suspend such Policy Owner's
same day or overnight delivery transfer privileges (including website, e-mail
and facsimile communications) with prior notice to prevent market timing
efforts that could be harmful to other Policy Owners or beneficiaries. Such
notice of suspension will take the form of either a letter mailed to your last
known address, or a telephone call from our Administrative Center to inform you
that effective immediately, your same day or overnight delivery transfer
privileges have been suspended. A Policy Owner's first violation of this policy
will result in the suspension of Policy transfer privileges for ninety days. A
Policy Owner's subsequent violations of this policy will result in the
suspension of Policy transfer privileges for six months. Transfers under dollar
cost averaging, automatic rebalancing or any other automatic transfer
arrangements to which we have agreed are not affected by these procedures.
The procedures above will be followed in all circumstances and we will treat
all Policy Owners the same.
In addition, Policy Owners incur a $25 charge for each transfer in excess of
12 each Policy year.
Restrictions Initiated By the Funds
The Funds have policies and procedures restricting transfers into the Fund.
For this reason or for any other reason the Fund deems necessary, a Fund may
instruct us to reject a Policy Owner's transfer request. Additionally, a Fund
may instruct us to restrict all purchases or transfers by a particular Policy
Owner, whether into or out of the Fund. We will follow the Fund's instructions.
Please read the Funds' prospectuses and supplements for information about
restrictions that may be initiated by the Funds.
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