[Exhibit (8)(ccc)]
Shareholder Information Agreement
Franklin Xxxxxxxxx Investments
This Shareholder Information Agreement ("Agreement") is entered into as of
April 16, 2007, and is among Franklin Xxxxxxxxx Distributors, Inc.
("Distributors") on behalf of each Fund, as defined below, and the Intermediary,
as defined below. Unless otherwise specified, capitalized terms have the meaning
set out under "Definitions," below.
WHEREAS, Intermediary is a "financial intermediary" as that term is defined
in Rule 22c-2 under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, Distributors serves as the principal underwriter to the Funds; and
WHEREAS, Distributors and Intermediary wish to enter into this Agreement in
accordance with Rule 22c-2 under the 1940 Act.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, Distributors and Intermediary hereby
agree as follows:
1. Shareholder Information
1.1 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 any 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
Intermediary during the period covered by the request. Unless otherwise
specifically requested by the Fund or its designee, Intermediary shall only be
required to provide information relating to Shareholder-Initiated Transfer
Purchases or Shareholder-Initiated Transfer Redemptions.
1.1.1 Period Covered by Request. Requests must set forth a specific period,
not to exceed ninety (90) days from the date of the request, for which
transaction information is sought. The Fund or its designee may request
transaction information older than ninety (90) days from the date of the request
as it 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.
(a) Timing of Requests. Requests from the Fund or its designee for
Shareholder information shall be made no more frequently than quarterly except
as the Fund or its designee deems necessary to investigate compliance with
policies established by the Fund or its designee for the purpose of eliminating
or reducing any dilution of the value of the outstanding shares issued by the
Fund.
1.1.2 Form and Timing of Response.
(a) Intermediary agrees to provide, promptly upon request of the Fund or
its designee, but in any event not later than ten (10) business days after
receipt of such request unless otherwise agreed by the parties, the requested
information specified in Section 1.1, above. If such request covers a period
ninety (90) to one hundred eighty (180) days prior to the date of the request,
Intermediary agrees to use its best efforts to provide the information specified
in 1.1 within five (5) to ten (10) business days. If Intermediary determines
during the course of investigation that due to the scope of the request,
Intermediary will need additional time to provide the requested information,
Intermediary shall promptly notify Fund. If requested by the Fund or its
designee, Intermediary agrees to use best efforts to determine promptly whether
any specific person about whom Intermediary has received the identification and
transaction information specified in Section 1.1 above 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 Section 1.1 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 or its designee whether Intermediary plans to perform (i) or (ii); and
(b) Responses required by this Section 1.1 must be communicated in writing
and in a format mutually agreed upon by the Fund or its designee and
Intermediary; and
(c) To the extent practicable and agreed by the parties, the format for any
transaction information provided to the Fund or its designee should be
consistent with the NSCC Standardized Data Reporting Format.
1.1.3 Limitations on Use of Information. Unless the Intermediary provides
prior written consent, Fund agrees not to use the information received pursuant
to this Agreement 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.
(a) Fund acknowledges that (i) the purpose for providing intermediary's
customer information to Fund is to better enable Fund to monitor for violations
of the Fund's Market Timing Policies by Intermediary's customers, and (ii) Fund
is responsible for determining when Fund needs Intermediary's assistance in
monitoring and enforcing Fund's market timing policies through a request for
customer information.
(b) Notwithstanding anything herein to the contrary, to the extent Fund
receives customer information or any other Confidential Information (as defined
below, and together with the customer information hereinafter referred to as the
"Data"), Fund covenants, represents and warrants either that: (i) Fund shall not
use any Data except to the extent necessary to carry out the purpose of this
Agreement and for no other purpose (including, without limitation, any
marketing, sales or other promotional efforts by any of Fund) or; (ii) Fund
shall not disclose any Data to any third party, including, without limitation,
third party service providers without Intermediary's prior written consent and
an agreement in writing from the third party to use or disclose such Data only
to the extent necessary to carry out the purpose of this Agreement and for no
other purposes; (iii) Fund shall maintain, and shall require all third parties
approved under clause (ii) to maintain, effective information security measures
to protect the Data from unauthorized disclosure or use; and (iv) Fund shall
provide Intermediary with information regarding such security measures upon
Intermediary's reasonable request and promptly provide Intermediary with
information regarding any failure of such security measures or any security
breach related to the Data of which Fund is aware. For the purposes of this
Agreement, "Confidential Information" means the nonpublic personal information
(as defined in 15 U.S.C. ss. 6809(4)) of Intermediary (and/or Intermediary's
parent, affiliated or subsidiary companies) of customers or prospective
customers received by Fund under the terms of this Agreement including, but not
limited to: (a) an individual's name, address, e-mail address, IP address,
social security number, and/or telephone number; (b) the fact that an individual
has a relationship with Intermediary and/or Intermediary's parent, affiliated or
subsidiary companies; or (c) an individual's other account information.
(c) Fund explicitly acknowledges that all of the Data is Intermediary's
exclusive property and shall remain so notwithstanding any release thereof in
accordance with the terms of this Agreement.
(d) Fund shall safeguard and preserve as confidential and not use, except
as expressly provided herein, any or all information other than the Data
provided pursuant to, or in connection with, this Agreement to Fund, including,
but not limited to, Intermediary's affiliate's branch office names and
identification numbers, Xxxxxxx Xxxxx Financial Advisor names, as well as
Intermediary's affiliate's, parent's or subsidiary's systems, business, plans
and operations, which information collectively shall include any such
information that is orally disclosed to Fund or Fund's Designee, or learned by
Fund or Fund's Designee while on Intermediary's premises or derived as a result
of, or in connection with, this Agreement and its subject matter or any other
agreement between Intermediary and Fund associated with the distribution of or
services with respect to the Funds.
(e) Except as expressly provided for herein, Fund will not, without first
obtaining Intermediary's prior written consent, disclose to any person, firm or
enterprise, or use for Fund's benefit, any Data. Fund shall limit Fund's
disclosure of the Data to as few persons as possible and only to those persons
with a need to know that are Fund's employees or independent contractors engaged
by Fund. Fund shall take all steps necessary to prevent disclosure of any Data
in a manner consistent with Fund's obligations under this Agreement. Fund shall
have no obligation with respect to particular information to the extent, but
only to the extent, that such information: (i) is already rightfully known to
Fund at the time it is obtained from Intermediary, free from any obligation to
keep such information confidential, as demonstrated by competent evidence; (ii)
is or becomes publicly known through no wrongful act of Fund or without breach
of any terms and conditions of this Agreement; (iii) is rightfully received from
a third party without restriction and without breach of any terms and conditions
of this Agreement, as demonstrated by competent evidence; or (iv) is required to
be disclosed by law, regulation, or customer order (provided that Fund shall
promptly notify Intermediary of any such use or requirement prior to disclosure
in order to afford such Intermediary an opportunity to seek a protective order
to prevent or limit public disclosure of the information).
(f) Upon Intermediary's request and subject to Fund's recordkeeping
obligations, Fund shall promptly return the Data (and any copies, extracts, and
summaries thereof) to Intermediary, or, with Intermediary's written consent,
shall promptly destroy, in a manner satisfactory to Intermediary, such materials
(and any copies, extracts, and summaries thereof) and shall further provide
Intermediary with written confirmation of same.
2. Restriction of Trading
2.1 Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from the Fund or its designee to restrict or prohibit further
purchases or exchanges of Shares by a Shareholder that has been identified by
the Fund or its designee 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 or its designee 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 or its designee, 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 shall in writing and
sent to Intermediary at email address xxxxxxxxxxx@xxx.xx.xxx or facsimile at
000-000-0000. Other notices under this Agreement shall be sent to Intermediary
at:
Xxxxxxx Xxxxx Insurance Group Services, Inc.
Attention: Service Center Controller
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
with a copy to:
Financial Data Services, Inc.
Attention: President
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
2.1.1 Form of Instructions. Instructions must include the TIN, ITIN, or GII
and any specific individual contract owner number or participant account number
associated with 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.
2.1.2 Timing of Response. Intermediary agrees to execute instructions as
soon as reasonably practicable, but not later than five business days after
Intermediary receives the instructions.
2.1.3 Confirmation by Intermediary. Intermediary must provide written
confirmation to the Fund or its designee 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.
2.2 Construction of the Agreement; Selling and Service Agreements. The
parties or an affiliate may have entered into one or more agreements between or
among them governing the purchase and redemption of shares of the Funds
(collectively, "Selling and Service Agreements"). This Agreement supplements
those Selling and Service Agreements. To the extent the terms of this Agreement
conflict with the terms of a Selling and Service Agreement with regard to the
requirements of Rule 22c-2, the terms of this Agreement shall control.
3. Miscellaneous Provisions
3.1 Requests prior to April 16, 2007. Intermediary shall be able to
promptly respond to requests for Shareholder information by no later than
October 16, 2007. Information requests prior to April 16, 2007, shall be
governed by whatever practices, if any, that Fund and Intermediary have
previously utilized to govern such requests.
3.2 Termination. This Agreement will terminate upon the termination of the
Selling and Service Agreements and redemption of all shares in the Fund held by
the Intermediary, except as specifically provided for in Section 3.6.
3.3 Indemnification. Distributors agrees to indemnify and hold Intermediary
harmless from any and all liability, claim, loss, demand, damages, costs and
expenses (including reasonable attorneys' fees) arising in connection with a
third party claim or action brought against Intermediary as a result of any
unauthorized disclosure by Distributors of a shareholder's taxpayer
identification number provided to the Fund or its designee in response to a
request for information pursuant to the terms of this Agreement ("Losses").
Distributors shall not be liable for Losses unless the Intermediary has provided
adequate written notice to Distributors promptly after the summons or other
first legal process. In addition, Distributors will be entitled to participate
in, at its own expense, or shall be entitled to assume the defense thereof,
consistent with the terms of the Participation Agreement.
3.4 Force Majeure. The parties to this Agreement are 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, and acts of war or terrorism. Each party so affected shall promptly
give written notice to the other parties 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 force majeure
event.
3.5 Remedies. The parties to this Agreement acknowledge that in the event
of a breach or threatened breach of this Agreement, any party may have no
adequate remedy at law, and, accordingly, shall be entitled to obtain an
injunction against such breach. However, no specification in this Agreement of a
specific legal or equitable remedy shall be construed as a waiver of or a
prohibition against any other legal or equitable remedies in the event of a
breach of a provision of this Agreement. Each party to this Agreement shall be
entitled to legal damages and/or equitable relief from any other party to this
Agreement for any breach of this Agreement by such other party.
4. Definitions
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the context:
The term "Intermediary" shall have the meaning set forth under Rule 22c-2
under the 1940 Act .
The term "Fund" shall mean certain open-end management investment
companies, and separate series of such companies which are registered under the
Investment Company Act of 1940 and for which Distributors serves as principal
underwriter, except the Franklin Xxxxxxxxx Variable Insurance Products Trust and
includes: (i) an administrator for the Fund; (ii) the principal underwriter or
distributor for the Fund; and (iii) the transfer agent for the Fund. The term
does not include any "excepted funds" as defined in Rule 22c-2(b) under the 0000
Xxx.
The term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by a Fund under the 1940 Act that are
held by Intermediary.
The term "Shareholder" shall have the meaning set forth under Rule 22c-2
under the 1940 Act.
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) as part of a one-time step-up in Contract value pursuant to a
Contract death benefit; (iv) as part of an 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) as 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.
IN WITNESS WHEREOF, each party has caused a duly authorized officer or
representative to execute this Agreement.
FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
ML LIFE INSURANCE COMPANY OF NEW YORK
on behalf of itself and the Separate
Accounts referenced in this Agreement
and its Attachment
By:
Name:
Title:
