RULE 22C-2 AMENDMENT TO PARTICIPATION AGREEMENT
AMENDMENT entered into as of March 21, 2007, by and between Xxxx Xxxxx
& Company, Incorporated ("Xxxxx"), the principal underwriter for The Xxxxx
Funds, The Xxxxx Institutional Funds, The Xxxxx American Fund, The Spectra Funds
and The China-U.S. Growth Fund (each a "Trust" and, collectively, the "Trusts")
and Columbus Life Insurance Company ("Intermediary").
WHEREAS, Intermediary, pursuant to a Participation Agreement (as
defined below), purchases Shares of the Trusts to fund certain variable life
insurance or variable annuity contracts issued by Intermediary ("Contracts");
and
WHEREAS, Xxxxx and Intermediary (each a "Party" and, together, the
"Parties") seek to enter into this Amendment in order for the Trusts, Xxxxx and
Intermediary to comply with the requirements of Rule 22c-2 ("Rule 22c-2") under
the Investment Company Act of 1940, as amended (the "1940 Act"), and to make
other changes to the Participation Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, which consideration is full and complete, Xxxxx and Intermediary
hereby agree as follows:
A. DEFINITIONS. As used in this Amendment, the following terms shall have the
following meanings, unless a different meaning is clearly required by the
contexts:
The term "Intermediary" means an insurance company separate account.
The term "Fund" means an open-ended management investment company of the Trusts
that is registered or required to register under section 8 of the Investment
Company Act of 1940 and includes (i) an investment adviser to or administrator
for the Fund; (ii) the principal underwriter or distributor for the Fund; or
(iii) the transfer agent for the Fund. The term not does include any "excepted
funds" as defined in SEC Rule 22c-2(b) under the Investment Company Act of
1940.(1)
The term "Participation Agreement" means the Participation Agreement and/or
similar agreement(s) relating to transactions in Shares to which Intermediary or
any of the Intermediary's predecessors, successors or affiliates (on
Intermediary's behalf) is a party.
The term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the Investment Company
Act of 1940 that are held by the Intermediary.
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(1) As defined in SEC Rule 22c-2(b), 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.
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The term "Shareholder" means the holder of interests in a variable annuity or
variable life insurance contract issued by the Intermediary ("Contract"), or a
participant in an employee benefit plan with a beneficial interest in a
contract.
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 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 a 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 Contract death
benefit; (iii) one-time step-up in Contract value pursuant to a Contract death
benefit; (iv) allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, retirement plan
salary reduction contributions, or planned premium payments to the Contract; or
(v) pre-arranged transfers at the conclusion of a required free look period.
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 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 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 Contract; (iii)
within a Contract out of a Fund as a result of scheduled withdrawals or
surrenders from a Contract; or (iv) as a result of payment of a death benefit
from a Contract.
The term "written" includes electronic writings and facsimile transmissions.
B. SHAREHOLDER INFORMATION.
B.1. AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide the Fund
or its designee, upon written request, the taxpayer identification number
("TIN"), the Individual/International Taxpayer Identification Number ("ITIN"),
or other government-issued identifier ("GII") and the Contract owner number or
participant account number associated with the Shareholder, if known, of any or
all Shareholder(s) of the account, and the amount, date 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. 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.
B.2. PERIOD COVERED BY REQUEST. Requests must set forth a specific period, not
to exceed 90 days from the date of the request, for which transaction
information is sought. The Fund may request transaction information older than
90 days from the date of the request as it deems necessary to investigate
compliance with policies established by the
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Fund for the purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Fund.
B.3 TIMING OF REQUESTS. Fund requests for Shareholder information shall be made
no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
B.4 FORM AND TIMING OF RESPONSE. (a) Intermediary agrees to provide, promptly
upon request of the Fund or its designee, the requested information specified in
B.1. If requested by the Fund or its designee, Intermediary agrees to use best
efforts to determine promptly whether any specific person about whom it has
received the identification and transaction information specified in B.1 is
itself a financial intermediary ("indirect intermediary") and, upon further
request of the Fund or its designee, promptly either (i) provide (or arrange to
have provided) the information set forth in B.1 for those shareholders who hold
an account with an indirect intermediary or (ii) restrict or prohibit the
indirect intermediary from purchasing, in nominee name on behalf of other
persons, securities issued by the Fund. Intermediary additionally agrees to
inform the Fund whether it plans to perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing and in
a format mutually agreed upon by the Fund or its designee and the Intermediary;
and
(c) To the extent practicable, the format for any transaction information
provided to the Fund should be consistent with the NSCC Standardized Data
Reporting Format.
B.5. LIMITATIONS ON USE OF INFORMATION. The Fund agrees not to use the
information received pursuant to this Amendment for any purpose other than as
necessary to comply with the provisions of Rule 22c-2 or to fulfill other
regulatory or legal requirements subject to the privacy provisions of Title V of
the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and comparable state laws.
C. TRADING RESTRICTION INSTRUCTIONS.
C.1. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the Fund as
having engaged in transactions of the Fund's Shares (directly or indirectly
through the Intermediary's account) that violate policies established by the
Fund for the purpose of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Fund. Unless otherwise directed by the Fund,
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. Instructions must be
received by Intermediary at the address that Intermediary may communicate to
Fund in writing from time to time.
C.2. FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract owner number or participant account number
associated with
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the Shareholder, if known, and the specific restriction(s) to be executed,
including how long the restriction(s) is(are) to remain in place. If the TIN,
ITIN, GII or the specific individual Contract owner number or participant
account number associated with the Shareholder is not known, the instructions
must include an equivalent identifying number of the Shareholder(s) or
account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, Fund agrees to provide to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Shareholder, information regarding those trades of the contract
holder that violated the Fund's policies relating to eliminating or reducing any
dilution of the value of the Fund's outstanding Shares.
C.3. TIMING OF RESPONSE. Intermediary agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt of
the instructions by the Intermediary.
C.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to the Fund that instructions have been executed. Intermediary agrees to provide
confirmation as soon as reasonably practicable, but not later than ten business
days after the instructions have been executed.
D. EFFECTIVE DATE. This Amendment shall be effective upon its execution or, if
later, upon the effectiveness of the provisions of 22c-2 relating to agreements
with "financial intermediaries" (as such term is defined in Rule 22c-2). Prior
to the effective date of this Amendment, the Fund and the Intermediary agree
that any request made to the Intermediary by the Fund for shareholder
transaction information, and the Intermediary's response to such request, shall
be governed by whatever practices the Fund and the Intermediary had utilized in
the absence of a formal agreement, if any, to govern such requests.
E. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreements.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as
of the date first above written.
XXXX XXXXX & COMPANY COLUMBUS LIFE INSURANCE COMPANY
INCORPORATED
By: ___________________________ By: ___________________________
Name: Xxxx Xxxx Name: X.X. Xxxxxx
Title: Vice President Title: President
By: ___________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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