Rule 22c-2 Shareholder Information Agreement
Related to Variable Insurance Products
SHAREHOLDER INFORMATION AGREEMENT entered into as of March 9, 2007 by and
between the Fidelity Distributors Corporation ("Underwriter") and First Security
Benefit Life Insurance and Annuity Company of New York on its own behalf and on
behalf of its separate accounts (the "Company") with an effective date of
October 16, 2007.
WHEREAS, the Company, the Underwriter and Variable Insurance Products Fund,
Variable Insurance Products Fund II and Variable Insurance Products Fund III
(the "Fund") have entered into one or more participation agreements regarding
the purchase and redemption of shares of the Fund by the Company on behalf of
its separate accounts for the benefit of the holders of interests in variable
annuity or variable life insurance contracts issued by the Company; and
WHERAS, the Company, and Underwriter desire to enter into a shareholder
information agreement to comply with the provisions of SEC Rule 22c-2 under the
Investment Company Act of 1940 and for other purposes;
NOW, THEREFORE, in consideration of their mutual promises, the Company and
the Underwriter agree as follows:
1. AGREEMENT TO COMPLY WITH POLICIES. Company represents and warrants that it
will comply with its policies and procedures designed to prevent excessive
trading as approved by the Fund, or will comply with the Fund's policies and
procedures regarding excessive trading as set forth in the Fund's prospectus.
2. AGREEMENT TO PROVIDE INFORMATION. The Company 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 Contract Owner number or
participant account number associated with the Contract Owner, if known, of any
or all Contract Owner(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 Company during the period covered by the request. Unless otherwise
specifically requested by the Fund or its designee, the Company shall only be
required to provide information relating to Contract Owner-Initiated Transfer
Purchases or Contract Owner-Initiated Transfer Redemptions. Upon further request
by the Fund or its designee, the Company agrees to provide the name or other
identifier of any
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* According to the IRS' website, the ITIN refers to the Individual Taxpayer
Identification number, which is a nine-digit number that always begins with the
number 9 and has a 7 or 8 in the fourth digit, example 9XX-7X-XXXX. The IRS
issues ITINs to individuals who are required to have a U.S. taxpayer
identification number but who do not have, and are not eligible to obtain a
Social Security Number (SSN) from the Social Security Administration (SSA). SEC
Rule 22c-2 inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
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investment professionals (if known) associated with any Contract Owner(s)
account which has been identified by the Fund as having violated 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.
2.1 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.
2.2 FORM AND TIMING OF RESPONSE. (a) The Company agrees to transmit the
requested information that is on its books and records to the Portfolio or its
designee promptly, but in any event not later than 10 business days, after
receipt of a request. If requested by the Fund or its designee, the Company
agrees to use best efforts to determine promptly whether any specific person
about whom it has received the identification and transaction information
specified in Section 2 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 for those Contract Owners 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. The Company 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 Fund or its designee and the Company; and
(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 or another mutually acceptable format.
2.3 LIMITATIONS ON USE OF INFORMATION. The Underwriter agrees not to use the
information received pursuant to this Agreement for marketing or any other
similar purpose without the prior written consent of the Company.
3. AGREEMENT TO RESTRICT TRADING. The Company agrees to execute written
instructions from the Fund or its designee to restrict or prohibit further
purchases or exchanges of Shares by a Contract Owner that has been identified by
the Fund as having engaged in transactions of the Fund's Shares (directly or
indirectly through the Company'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 its designee, any such restrictions or prohibitions shall only apply to
Contract Owner-Initiated Transfer Purchases or Contract Owner-Initiated Transfer
Redemptions that are effected directly or indirectly through the Company.
3.1 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII and
the specific individual Contract Owner number or participant account number
associated
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with the Contract Owner, 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 Contract Owner is not known, the
instructions must include an equivalent identifying number of the Contract
Owner(s) or account(s) or other agreed upon information to which the instruction
relates. Upon request of the Company, Underwriter agrees to provide to the
Company, along with any written instructions to prohibit further purchases or
exchanges of Shares by Contract Owner, information regarding those trades of the
contract holder that violated the Fund's policies.
3.2 TIMING OF RESPONSE. The Company agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after receipt of
the instructions by the Company.
3.3 CONFIRMATION BY COMPANY. The Company must provide written confirmation
to the Underwriter that instructions have been executed. The Company agrees to
provide confirmation as soon as reasonably practicable, but not later than ten
business days after the instructions have been executed.
4. 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. 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.
5. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreements or upon mutual consent of the parties.
6. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings, unless a different meaning is clearly required by the
contexts:
The term "Fund" includes the Fund's principal underwriter, transfer agent or
other designated affiliates. The term does not include any "excepted funds" as
defined in SEC Rule 22c-2(b) under the Investment Company Act of 1940.(1)
The term "Shares" means the interests of Contract Owners corresponding to the
redeemable securities of record issued by the Fund under the Investment Company
Act of 1940 that are held by the Company.
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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.
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The term "Contract Owner" means the holder of interests in a variable annuity or
variable life insurance contract issued by the Company ("Contract"), or a
participant in an employee benefit plan with a beneficial interest in a
contract.
The term "Contract Owner-Initiated Transfer Purchase" means a transaction that
is initiated or directed by a Contract Owner 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) pursuant to 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 "Contract Owner-Initiated Transfer Redemption" means a transaction that
is initiated or directed by a Contract Owner 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.
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The term "written" includes electronic writings and facsimile transmissions.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
FIRST SECURITY BENEFIT LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
By: Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Its: President
FIDELITY DISTRIBUTORS CORPORATION
By: Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
Date: 3/16/07
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