EXHIBIT (h)(43)(a)
Rule 22c-2 Information Sharing and Restricted Trading Agreement
AGREEMENT entered into as of April 16, 2007, or such other compliance date
mandated by Rule 22c-2 of the Investment Company Act of 1940 ("Rule 22c-2"),
whichever shall last occur, by and between Xxxx Xxxxx & Company, Inc. ("Fund
Agent") and American General Life Insurance Company and The United States Life
Insurance Company in the City of New York ("Intermediary").
This Agreement is an addendum to the Participation Agreement dated ______
between Fund Agent and Intermediary. This Agreement changes the terms of the
Participation Agreement only to the extent specifically so required by this
Agreement.
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the contexts:
"Shareholders" shall mean those contract or policy owners of the Intermediary
who maintain an interest in an Account with the mutual funds of Fund Agent (the
"Funds"). The term not does include any "excepted funds" as defined in SEC Rule
22c-2(b) under the Investment Company Act of 1940./1/
"Shares" shall mean 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.
"Written" shall include electronic writings and facsimile transmissions.
WHEREAS, the Intermediary offers or otherwise makes available the Funds to or
for contract and/or policy owners of Intermediary;
WHEREAS, pursuant to Rule 22c-2, Fund Agent is required to enter into a
shareholder information agreement with every intermediary who holds shares of
the Funds in omnibus accounts and submits orders directly to Fund Agent's
transfer agent or to a registered clearing agency;
WHEREAS, this Agreement sets forth the terms and conditions for information
sharing for the Fund Agent and Intermediary in accordance with Rule 22c-2; and
WHEREAS, this Agreement shall inure to the benefit of and shall be binding upon
the undersigned and each such entity shall be either a Fund Agent or
Intermediary for purposes of this Agreement (the Fund Agent and the
Intermediary shall be collectively referred to herein as the "Parties" and
individually as a "Party");
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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.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
Fund Agent and Intermediary hereby agree as follows:
Shareholder Information
1. Agreement to Provide Information. Intermediary agrees to provide the Fund
Agent, upon written request, the taxpayer identification number ("TIN"), or an
equivalent identifying number such as a contract or policy identification
number, of any or all Shareholder(s) of the Funds, 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.
Intermediary shall only be required to provide the information in regard to
transactions that are initiated or directed by the Shareholder, and shall not
be required to provide information in regard to transactions that are executed
automatically by the Intermediary, such transactions resulting from dollar cost
averaging programs, automatic rebalancing programs, periodic deduction of fees,
and redemptions pursuant to a systematic withdrawal plan.
Shareholder Information requests must be directed to the Intermediary's
representatives as identified in Appendix A to this Agreement.
Fund Agent shall initiate any request for information as described above in
writing, and shall state why Intermediary's anti-market timing policies and
procedures are inadequate to address the purpose of the information request. In
this regard, Intermediary's anti-market timing policies and procedures and Fund
Agent's policies established for the purpose of eliminating or reducing any
dilution of the value of the outstanding shares of the Funds, are attached to
and made a part of 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.
1.1 Period Covered by Request. Requests must set forth a specific period to be
examined, not to exceed 180 days from the date of the request, and which shall
cover a period ending no earlier than 10 business days preceding Intermediary's
receipt of the written request. Any such information request must be reasonable
as to the period covered, and Fund Agent shall not initiate any such request
without a reasonable basis for concern.
1.2 Timing of Requests. Notwithstanding paragraph 1.1 above, Fund requests for
Shareholder information may be made annually. The Fund may request Shareholder
information more frequently than annually if information received by Fund Agent
shows a reasonable basis for concern.
1.3 Form and Timing of Response. Intermediary agrees to make a reasonable
effort to transmit the requested information that is on its books and records
to the Fund or its designee promptly, but in any event not later than 10
business days after receipt of a request. If the requested information is not
on the Intermediary's books and records, Intermediary agrees to use reasonable
efforts to provide or arrange to provide to the Fund the requested information
from Shareholders who hold an account with an
indirect intermediary. Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the Parties.
Information regarding transactions resulting from dollar cost averaging
programs, automatic rebalancing programs, periodic deduction of fees, and
redemptions pursuant to a systematic withdrawal plan will not be provided in
Shareholder Information sent to the Fund Agent; therefore, the Shareholder
Information provided for a certain period will not be equal to the omnibus
trades made during that same period.
1.4 Limitations on Use of Information. [I am bracketing this, pending review of
your proposed language] The Fund agrees not to use the Shareholder Information
received for any purpose (i) other than as necessary to comply with the
provisions of Rule 22c-2, nor (ii) 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. Agreement to Restrict Trading. Intermediary agrees to use reasonable efforts
to execute written instructions from Fund Agent to restrict or prohibit further
purchases or exchanges of Shares by a Shareholder that has been identified by
Fund Agent 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. The Fund will only
request a restriction on trading for a Shareholder after that Shareholder has
been identified by the Fund as having potentially engaged in transactions of
Fund 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 securities issued by the
Fund.
Restriction of Trading requests must be directed to the Intermediary's
representatives as identified in Appendix A to this Agreement.
2.1 Form of Instructions for Restriction of Trading. Restriction of trading
instructions must include the TIN or an equivalent identifying number of the
Shareholder(s) or Account(s) or other agreed upon information to which the
instruction relates.
2.2 Timing of Response. Intermediary agrees to use its best efforts to execute
Fund Agent's instructions as soon as reasonably practicable, but not later than
10 business days after Fund Agent's instructions are received by the
Intermediary.
2.3 Confirmation by Intermediary. Intermediary agrees to use its best efforts
to provide confirmation to Fund Agent that Fund Agent's instructions have been
executed. Intermediary agrees to use its best efforts to provide confirmation
as soon as reasonably practicable, if possible not later than fifteen business
days after the instructions have been executed. Intermediary also agrees to use
its best efforts to provide notice to Fund Agent within the same amount of time
in the event Intermediary cannot or has not executed such instructions.
2.4 Force Majeure. Either Party 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.
2.5 Best 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.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
XXXX XXXXX & COMPANY, INC.
By:
-------------------------- Attest: --------------------------
Name:
-------------------------- Name: --------------------------
Title:
-------------------------- Title: --------------------------
AMERICAN GENERAL LIFE INSURANCE
COMPANY
By:
-------------------------- Attest: --------------------------
Name:
-------------------------- Name: --------------------------
Title:
-------------------------- Title: --------------------------
The United States Life Insurance Company in the City of New York
By:
-------------------------- Attest: --------------------------
Name:
-------------------------- Name: --------------------------
Title:
-------------------------- Title: --------------------------
(Seal)
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
