EXHIBIT 26(h)(5)(iii)
SHAREHOLDER INFORMATION AGREEMENT
This Shareholder Information Agreement (hereinafter "Agreement") is entered into
as of April 12, 2007 by and among Ivy Funds Distributor, Inc. ("IFDI"), as
principal underwriter for the funds in the Ivy Family of Funds, Xxxxxxx & Xxxx,
Inc. ("W&R"), as distributor for each of the W&R Target Funds, Inc. and
Minnesota Life Insurance Company (hereinafter the "Intermediary" or "Minnesota
Life") with an Agreement effective date of April 16, 2007 and such other
effective dates as are recited herein, provided, however, that the provisions
dealing with the Fund's ability to request and receive transmissions of
shareholder data shall be effective October 16, 2007..
Each of the funds in the Ivy Funds and W&R Target Funds shall be referred to
herein as "the Fund." IFDI and W&R shall be referred to herein as the
"Distributor," and that term shall mean IFDI and/or W&R, as applicable to the
particular Fund.
WHEREAS, prior to the effective date of this Agreement, the Distributor and the
Intermediary agree that any request made to the Intermediary by the Distributor
for shareholder transaction information, and the Intermediary's response to such
request, shall be governed by whatever informal practices the Distributor and
the Intermediary have utilized in the absence of a formal agreement, if any, to
govern such requests.
WHEREAS, Rule 22c-2 under the Investment Company Act of 1940, as amended (the
"1940 Act") requires mutual funds to enter into "shareholder information
agreements" with "financial intermediaries" that hold fund shares on behalf of
other investors in omnibus accounts and submit orders to purchase or redeem fund
shares on behalf of such investors directly to the fund ("Rule 22c-2"); and
WHEREAS, Minnesota Life has established one or more separate accounts ("Account"
or "Accounts"), which may also be composed of several Sub-Accounts, through
which Minnesota Life offers certain group and individual variable life or
annuity contracts ("Contract" or "Contracts") that make available as investment
options one or more of such Sub-Accounts which, in turn, invest in shares of one
or more of the Fund's portfolios ("Portfolios"); and
WHEREAS, in accordance with the terms of a Contract, the owner of the Contract
may allocate and reallocate Contract values among Sub-Accounts and Portfolios
from time to time; and
WHEREAS, Minnesota Life has been identified by the Distributor as a "financial
intermediary" as defined in Rule 22c-2.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises set
forth below, Intermediary and the Distributor agree as follows:
Section 1
Terms
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the context:
1.1. The term "Intermediary" shall include an Account.
1.2. The term "Fund" does not include any "excepted funds" as defined in Rule
22c-2(b).1
1.3. The term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the 1940 Act that are
held by the Intermediary.
1.4. The term "Shareholder" means the holder of interests in a Contract issued
by the Intermediary, or a participant in an employee benefit plan with a
beneficial interest in a Contract.
1.5. 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 Portfolio, 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 Portfolio 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; or (iv) allocation of assets to a Portfolio 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.
1.6. 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 Portfolio, 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
Portfolio as a result of annuity payouts, loans, systematic withdrawal programs,
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 Portfolio 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.
1.7. The term "written" includes electronic writings and facsimile
transmissions.
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(1) As defined in 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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Section 2
Shareholder Information
The provisions of this Agreement, with respect to the ability of Fund or
Distributor to request and promptly receive shareholder identity and transaction
information pursuant to this Agreement and this Section 2, shall be effective
October 16, 2007, or such other date as may be established by law or regulation.
2.1. Agreement to Provide Information. Intermediary agrees to provide the
Distributor, 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.
This section shall be read to require Intermediary to provide only that
information relating to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions.
If the Distributor wishes to request Intermediary to provide information
in addition to that recited in this Section 2.1, it shall provide Intermediary
with the details of that additionally requested information together with a
suggested format for Intermediary's response.
Requests from the Distributor to Intermediary should include the Fund name
and identification number, Intermediary's Fund Account number and method of
response, and the address to which Intermediary must respond with the requested
information.
2.2. Period Covered by Request. Requests must set forth a specific period, not
to exceed 180 days from the date of the request, for which transaction
information is sought. The Distributor may request transaction information older
than 180 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.
2.3. Timing of Requests. Distributor requests for Shareholder information shall
be made no more frequently than quarterly except as the Distributor 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.
2.4. Form and Timing of Response. (a) Intermediary agrees to provide, promptly
upon request of the Distributor or its designee, the requested information
specified in 2.1. If requested by the Distributor 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 2.1 is itself a financial intermediary ("indirect intermediary")
and, upon further request of the Distributor or its designee, promptly either
(i) provide (or arrange to have provided) the information set forth in 2.1 for
those shareholders who hold an account with an indirect intermediary or (ii)
restrict or prohibit the indirect intermediary from purchasing, in
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nominee name on behalf of other persons, securities issued by the Fund.
Intermediary additionally agrees to inform the Distributor 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 Distributor or its designee and the
Intermediary; and
(c) To the extent practicable, the format for any transaction information
provided to the Distributor should be consistent with the NSCC Standardized Data
Reporting Format provided, however, that the Distributor shall not require the
Intermediary to report to the Distributor using the NSCC Standardized Data
Reporting Service.
2.5. Limitations on Use of Information. The Distributor 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.
Section 3
Procedures
3.1. Indemnification. Each party agrees to indemnify and hold harmless the other
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable attorney's fees) arising in connection with third party
claim or action brought against a party as a result of any unauthorized
disclosure of a shareholder's taxpayer identification number provided to the
other in response to a request for information or the transmission of
instructions pursuant to the terms of this Agreement. This Section shall survive
termination of this Agreement.
3.2. Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from the Distributor 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 or
Distributor, 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 following address, or such
other address that Intermediary may communicate to Distributor in writing from
time to time, including, if applicable, an e-mail and/or facsimile telephone
number:
Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxx
Phone: 000-000-0000
E-mail: xxxxxxxxx.xxxxx@xxxxxxxx.xxx
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3.3. Form of Instructions. Instructions must include the TIN, ITIN, or GII and
the 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.
Upon request of the Intermediary, Distributor agrees to provide to the
Intermediary, along with any written instructions to prohibit further purchases
or exchanges of Shares by Shareholder, a copy of the Fund's publicly disclosed
policies relating to eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Fund.
3.4. 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.
3.5. Confirmation by Intermediary. Intermediary must provide written
confirmation to the Distributor 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.
3.6. 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, pandemic or epidemic
disease, but excluding failure caused by a party's financial condition or
negligence and similar occurrences. The party who has been so affected shall
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 Force Majeure
Event.
Section 4
Miscellaneous
4.1. Construction of the Agreement; Fund Participation Agreements. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Fund by the Accounts in
connection with the Contracts. This Agreement supplements those Fund
Participation Agreements. To the extent the terms of this Agreement conflict
with the terms of a Fund Participation Agreement, the terms of this Agreement
shall control. This Agreement shall be governed by and construed with the laws
of the state designated in the Fund Participation Agreement.
4.2. Mutual Cooperation. The Distributor and Intermediary agree to cooperate
with one another in the development of abusive trading policies that take into
consideration the legality of enforcing these limits with respect to certain
Shareholders whose existing Contracts impose no or inconsistent trading limits.
Distributor and Intermediary also agree to cooperate with one
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another in the development of Intermediary's own market timing policies with
respect to its contracts.
4.3 Assignment. Neither party may assign this Agreement, or any of the rights,
obligations, or liabilities under this Agreement, without the written consent of
the other party.
4.4 Third-Party Beneficiaries. Each 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. A request by the
Distributor or the Fund's transfer agent shall be deemed a request by the Fund,
and information or communications from the Intermediary to the Distributor shall
be deemed provided to the Fund.
4.5. Termination. This Agreement will terminate upon the termination of the Fund
Participation Agreements.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date first above written.
IVY FUNDS DISTRIBUTOR, INC.
XXXXXXX & XXXX, INC.
__________________________
By:
Title:
MINNESOTA LIFE INSURANCE COMPANY
______________________________
By: Xxxxx X. Xxxx
Title: Senior Vice President
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