Exhibit 8(b)(viii)(1)
Dear Financial Services Firm ("you" or Intermediary"),
As principal underwriter of the DWS Funds, we (or a predecessor firm)
or our affiliate have entered into a selling group or other agreement or
agreements (the "Agreement") with you to permit you, as applicable, to sell,
service, or facilitate trading in shares of the DWS Funds (collectively, the
"Shares").
This amendment to the Agreement is entered into as of the dated
indicated in the signature block below, with an effective date of October 16,
2007, or such earlier date as of which you begin providing the Shareholder
information described below, and includes the following provisions:
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 Contact 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.
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 Fund for the purpose of eliminating
or reducing any dilution of the value of the outstanding shares issued by the
Fund.
3. Form and Timing of Response. a. Intermediary agrees to provide,
promptly upon request of the Fund or its designee, the requested information
specified in paragraph 1 above. 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 paragraph 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 paragraph 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 parties. 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.
4. 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.
5. 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, except that this provision shall not
require the Intermediary to breach any terms of its existing Contracts with
Contract Owners or violate any state insurance law or regulation. 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 following
address, or such other address that Intermediary may communicate to Fund in
writing from time to time, including, if applicable, an e-mail and/or facsimile
telephone number:
6. 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.
7. Timing of Response. Intermediary agrees to execute instructions from
the Fund to restrict or prohibit trading as soon as reasonably practicable, but
not later than ten business days after receipt of the instructions by the
Intermediary.
8. Confirmation by Intermediary. Intermediary must provide written confirmation
to the Fund that instructions from the Fund to restrict or prohibit trading 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.
a. Restrictions Prohibited by Contract: To the extent there is a
legal or contractual impediment to restricting or prohibiting trading by the
Contract Owner, Intermediary agrees to take the following steps and the Fund or
its designee has to restrict or prohibit trading by a Contract Owner:
i. Review the terms of the Contract and Contract prospectus as
well as applicable law to determine the extent of the legal rights of the
Contract Owner to trade into and out of Accounts that purchase shares of
Fund portfolios.
ii. If upon review there does not exist any legal or
contractual impediment to restricting or prohibiting trading by the Contract
Owner then Intermediary will comply with the request.
If upon review there does not exist any legal or contractual impediment to
restricting or prohibiting trading by the Contract Owner then Intermediary will
review the availability of any alternatives that may be implemented to ensure
that policies of the Funds established for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares issued by the Funds
are not violated. Such alternatives may include requiring that trades be
submitted by the Contract Owner in writing by mail; imposition of fees for
transfers between subaccounts as may be permitted under the terms of the
Contract and/or Contract prospectus; limitations on the total number of trades
in a calendar year as permitted under the terms of the Contract and/or Contract
prospectus. Working in conjunction with the Fund or its designee Company will
implement mutually agreed to measures to achieve the goal of preventing dilution
of the value of the Fund's outstanding Shares.
9. 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 Funds by the
Accounts in connection with the Contracts. To the extent the terms of this
Amendment conflict with the terms of a Fund Participation Agreement, the
terms of this Amendment shall control.
10. Termination. This Amendment will terminate upon the termination of the Fund
Participation Agreement.
11. 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" shall mean (i) any broker, dealer, bank, or other
entity that holds securities of record issued by the Fund in nominee name;
(ii) in the case of a participant-directed employee benefit plan that owns
securities issued by the Fund (1) a retirement plan administrator under
ERISA or (2) any entity that maintains the plan's participant records; and
(iii) an insurance company separate account.
The term "Fund" shall mean an open-ended management investment company 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.
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.
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.
The term "purchase" does not include the automatic reinvestment of
dividends.
The term "promptly" as used in paragraph 3(a) shall mean as soon as
practicable but in no event later than ten business days from the
Intermediary's receipt of the request of information from the Fund or its
designee.
DWS XXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
FIRM: The Lincoln National Life Insurance Company
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Date: 4/3/07
FIRM: Lincoln Life & Annuity Company of New York
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Second Vice President
Date: 4/3/07
FIRM: Jefferson Pilot Financial Insurance Company
And Jefferson Pilot LifeAmerica Insurance Company
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
Date: 4/2/07
* As defined in SEC Rule 22c-2(b), the 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.
