Exhibit 8(c)(ix)
RULE 22c-2 AGREEMENT
This Rule 22c-2 Agreement is entered into by and between Xxxxxx Fiduciary Trust
Company ("PFTC"), transfer agent, dividend-disbursing agent and shareholder
servicing agent for the Fund, Xxxxxx Retail Management Limited Partnership
("PRM"), underwriter and distributor of the Fund, and Lincoln Life & Annuity
Company of New York ("Intermediary").
WHEREAS, Xxxxxx Variable Trust, PRM and Intermediary have entered into
a Participation Agreement (the "Existing Agreement"), pursuant to which
Intermediary purchases shares in the Fund on behalf of variable annuity and
variable life insurance separate accounts ("separate accounts") to be offered as
investment options within variable life and/or variable annuity contracts
("Contracts");
WHEREAS, PRM, PFTC and Intermediary desire to enter into this Rule
22c-2 Agreement ("22c-2 Agreement") in compliance with Rule 22c-2 of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), which
shall supplement the terms of the Existing Agreement.
NOW THEREFORE, in consideration of the promises herein, PFTC, PRM and
Intermediary agree as follows:
I. Agreement to Provide Information. Intermediary agrees to provide the
Fund, PFTC and/or PRM, upon written request from any of them, 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, if known,
associated with Shareholder(s) holding or owning Shares through the separate
account(s) and the amount, date and transaction type (purchase, redemption,
transfer, or exchange), for each such Shareholder, of every purchase,
redemption, transfer, or exchange of Shares held or owned through a separate
account maintained by Intermediary during the period covered by the request, as
well as the name or other identifier of any investment professional(s)
associated with the Shareholder(s) or separate account(s) (if known). Unless
otherwise specifically requested by the Fund, PFTC and/or PRM, Intermediary
shall only be required to provide information relating to Shareholder-Initiated
Transfer Purchases or Shareholder-Initiated Transfer Redemptions. The foregoing
information shall be collectively referred to herein as the "Shareholder
Information."
a. Period Covered by Request. Requests must set forth a specific
period, not to exceed 90 days from the date of the request,
for which Shareholder Information is sought. Notwithstanding
the foregoing, the Fund, PFTC and/or PRM may request
Shareholder Information older than 90 days from the date of
the request as deemed necessary or desirable to investigate
compliance with policies established from time to time by the
Fund for the purpose of eliminating or reducing any dilution
of the value of the outstanding shares issued by the Fund.
b. Form and Timing of Response. Intermediary agrees to provide promptly,
upon request of the Fund, PFTC and/or PRM, the Shareholder
Information. If requested by the Fund, PFTC and/or PRM, Intermediary
agrees to use best efforts to determine promptly whether any specific
person about whom the Fund, PFTC and/or PRM has received Shareholder
Information is itself a financial intermediary ("indirect
intermediary," within the meaning of Rule 22c-2 of the Investment
Company Act). If such person is determined to be an indirect
intermediary, then, upon further request of the Fund, PFTC and/or PRM,
Intermediary shall promptly do either of the following: (i) provide
(or arrange to have provided), to the Fund, PFTC and/or PRM, the
Shareholder Information 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, PFTC and/or PRM 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 Fund, PFTC and/or PRM should
be consistent with the NSCC Standardized Data Reporting Format.
c. Limitations on Use of Information. Without the prior written
consent of Intermediary, PFTC and PRM agree not to use the
information received for any purpose other than as necessary
to comply with the provisions of Rule 22c-2 or to fulfill
other regulatory or legal requirements of the Fund, PFTC
and/or PRM; and in all cases such information shall be subject
to the privacy provisions of Title V of the Xxxxx-Xxxxx-Xxxxxx
Act (Public Law 106-102) as may be applicable to PFTC and PRM.
II. Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from the Fund, PFTC and/or PRM to restrict or prohibit further
purchases or exchanges of Shares by a Shareholder that has been identified by
the Fund, PFTC and/or PRM as having engaged in transactions in Shares (directly
or indirectly through Intermediary's separate 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, PFTC and/or PRM, 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.
a. Form of Instructions. Instructions must include the TIN, ITIN,
or GII, and the specific individual Contract owner number or
participant account number associated with Shareholder, if
known, and the specific restriction(s) to be executed. If the
TIN, ITIN, or GII or the specific individual Contract owner
number or participant account number associated with
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.
b. Timing of Response. Intermediary agrees to promptly execute
instructions from the Fund, PFTC and/or PRM to restrict or
prohibit trading.
c. Confirmation by Intermediary. Intermediary must provide
written confirmation to the Fund, PFTC and/or PRM 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.
III. Remedy. In the event that Intermediary fails or refuses to comply with
Sections I and II above, the Fund, PFTC and/or PRM may restrict or prohibit
Intermediary from purchasing, on behalf of itself or other persons, including
without limitation indirect intermediaries, securities issued by the Fund. For
purposes of this Section III, "purchasing" does not include the automatic
reinvestment of dividends.
IV. Amendment. PFTC and PRM, acting for themselves or on instructions
from the Fund, may amend this 22c-2 Agreement to the extent necessary to comply
with any changes to Rule 22c-2 by providing written notice of such amendment to
Intermediary.
V. Effective Date. This 22c-2 Agreement shall be effective as of April
16, 2007; provided that the provisions dealing with the Fund's ability to
request and receive transmissions of shareholder data shall be effective as of
October 16, 2007.
VI. Instructions. PFTC and PRM are entering into this 22c-2
Agreement on their own behalf, as well as on behalf of the Fund, and any
instructions or directions given by PFTC or PRM shall be deemed to be
given by the Fund as well.
VII. Definitions. For purposes of this paragraph:
a. The term "Fund" means each Xxxxxx mutual fund covered under
the Existing Agreement, and any amendment thereto, that
constitutes a "Fund" as defined in Rule 22c-2(c)(2), and that
does not constitute an "excepted fund" as defined in Rule
22c-2(b), under the Investment Company Act.
b. The term "promptly" means as soon as reasonably practicable,
but not later than ten business days after Intermediary
receives instructions or a request from the Fund, PFTC and/or PRM.
c. "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) prearranged
transfers at the conclusion of a required free look period.
d. 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.
e. The term "Shares" means the redeemable securities issued by a
Fund that are held of record by Intermediary.
f. The term "Shareholder" includes the beneficial owner of Shares,
whether the Shares are held directly or by Intermediary in nominee
name.
g. The term "written" includes electronic writings and facsimile
transmissions.
IN WITNESS WHEREOF, Intermediary, PRM and PFTC have caused this 22c-2
Agreement to be executed by their duly authorized officers.
XXXXXX FIDUCIARY TRUST LINCOLN LIFE & ANNUITY
COMPANY COMPANY OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxxxxx
Title: President Title: Second Vice President
Date: February 12, 2007 Date: Xxxxx 00, 0000
XXXXXX RETAIL MANAGEMENT
LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director
Date: February 12, 2007
