EXHIBIT (8)(tt)
SHAREHOLDER INFORMATION AGREEMENT
FRANKLIN XXXXXXXXX VARIABLE INSURANCE PRODUCTS TRUST
This Shareholder Information Agreement ("Agreement") is entered into as of
April 16, 2007, and is among Franklin/Xxxxxxxxx Distributors, Inc.
("Distributors") on behalf of each Fund, as defined below, and the Intermediary,
as defined below. Unless otherwise specified, capitalized terms have the meaning
set out under "Definitions," below.
WHEREAS, Intermediary is a "financial intermediary" as that term is
defined in Rule 22c-2 under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, Distributors serves as the principal underwriter to the Funds;
and
WHEREAS, Distributors and Intermediary wish to enter into this Agreement
in accordance with Rule 22c-2 under the 1940 Act.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, Distributors and Intermediary hereby
agree as follows:
1. SHAREHOLDER INFORMATION
1.1 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 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
Intermediary during the period covered by the request. Unless otherwise
specifically requested by the Fund or its designee, Intermediary shall only be
required to provide information relating to Shareholder-Initiated Transfer
Purchases or Shareholder-Initiated Transfer Redemptions.
1.1.1 PERIOD COVERED BY REQUEST. Requests must set forth a specific
period, not to exceed ninety (90) days from the date of the request, for
which transaction information is sought. The Fund or its designee may
request transaction information older than ninety (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.
(a) TIMING OF REQUESTS. Requests from the Fund or its designee for
Shareholder information shall be made no more frequently than
quarterly except as the Fund or its designee deems necessary
to investigate compliance with policies established by the
Fund or its designee for the purpose of eliminating or
reducing any dilution of the value of the outstanding shares
issued by the Fund.
1.1.2 FORM AND TIMING OF RESPONSE.
(a) Intermediary agrees to provide, promptly upon request of the
Fund or its designee, the requested information specified in
Section 1.1, above. If such request covers a period ninety
(90) to one hundred eighty (180) days prior to the date of the
request, Intermediary agrees to use its best efforts to
provide the information specified in 1.1 within five (5) to
ten (10) business days. If Intermediary determines during the
course of investigation that due to the scope of the request,
Intermediary will need additional time to provide the
requested information, Intermediary shall promptly notify
Fund. If requested by the Fund or its designee, Intermediary
agrees to use best efforts to determine promptly whether any
specific person about whom Intermediary has received the
identification and transaction information specified in
Section 1.1 above 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 1.1 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 or its designee whether
Intermediary plans to perform (i) or (ii); and
(b) Responses required by this Section 1.1 must be communicated in
writing and in a format mutually agreed upon by the Fund or
its designee and Intermediary; and
(c) To the extent practicable and agreed by the parties, the
format for any transaction information provided to the Fund or
its designee should be consistent with the NSCC Standardized
Data Reporting Format.
1.1.3 LIMITATIONS ON USE OF INFORMATION. Unless the Intermediary
provides prior written consent, Fund 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.
(a) Fund acknowledges that (i) the purpose for providing
intermediary's customer information to Fund is to better
enable Fund to monitor for
violations of the Fund's Market Timing Policies by
Intermediary's customers, and (ii) Fund is responsible for
determining when Fund needs Intermediary's assistance in
monitoring and enforcing Fund's market timing policies through
a request for customer information.
(b) Notwithstanding anything herein to the contrary, to the extent
Fund receives customer information or any other Confidential
Information (as defined below, and together with the customer
information hereinafter referred to as the "Data"), Fund
covenants, represents and warrants either that: (i) Fund shall
not use any Data except to the extent necessary to carry out
the purpose of this Agreement and for no other purpose
(including, without limitation, any marketing, sales or other
promotional efforts by any of Fund) or; (ii) Fund shall not
disclose any Data to any third party, including, without
limitation, third party service providers without
Intermediary's prior written consent and an agreement in
writing from the third party to use or disclose such Data only
to the extent necessary to carry out the purpose of this
Agreement and for no other purposes; (iii) Fund shall
maintain, and shall require all third parties approved under
clause (ii) to maintain, effective information security
measures to protect the Data from unauthorized disclosure or
use; and (iv) Fund shall provide Intermediary with information
regarding such security measures upon Intermediary's
reasonable request and promptly provide Intermediary with
information regarding any failure of such security measures or
any security breach related to the Data of which Fund is
aware. For the purposes of this Agreement, "Confidential
Information" means the nonpublic personal information (as
defined in 15 U.S.C. Section 6809(4)) of Intermediary (and/or
Intermediary's parent, affiliated or subsidiary companies) of
customers or prospective customers received by Fund under the
terms of this Agreement including, but not limited to: (a) an
individual's name, address, e-mail address, IP address, social
security number, and/or telephone number; (b) the fact that an
individual has a relationship with Intermediary and/or
Intermediary's parent, affiliated or subsidiary companies; or
(c) an individual's other account information.
(c) Fund explicitly acknowledges that all of the Data is
Intermediary's exclusive property and shall remain so
notwithstanding any release thereof in accordance with the
terms of this Agreement.
(d) Fund shall safeguard and preserve as confidential and not use,
except as expressly provided herein, any or all information
other than the Data provided pursuant to, or in connection
with, this Agreement to Fund, including, but not limited to,
Intermediary's affiliate's branch office names and
identification numbers, Xxxxxxx Xxxxx Financial Advisor names,
as well as Intermediary's affiliate's, parent's or
subsidiary's systems, business, plans and operations, which
information collectively
shall include any such information that is orally disclosed to
Fund or Fund's Designee, or learned by Fund or Fund's Designee
while on Intermediary's premises or derived as a result of, or
in connection with, this Agreement and its subject matter or
any other agreement between Intermediary and Fund associated
with the distribution of or services with respect to the
Funds.
(e) Except as expressly provided for herein, Fund will not,
without first obtaining Intermediary's prior written consent,
disclose to any person, firm or enterprise, or use for Fund's
benefit, any Data. Fund shall limit Fund's disclosure of the
Data to as few persons as possible and only to those persons
with a need to know that are Fund's employees or independent
contractors engaged by Fund. Fund shall take all steps
necessary to prevent disclosure of any Data in a manner
consistent with Fund's obligations under this Agreement. Fund
shall have no obligation with respect to particular
information to the extent, but only to the extent, that such
information: (i) is already rightfully known to Fund at the
time it is obtained from Intermediary, free from any
obligation to keep such information confidential, as
demonstrated by competent evidence; (ii) is or becomes
publicly known through no wrongful act of Fund or without
breach of any terms and conditions of this Agreement; (iii) is
rightfully received from a third party without restriction and
without breach of any terms and conditions of this Agreement,
as demonstrated by competent evidence; or (iv) is required to
be disclosed by law, regulation, or customer order (provided
that Fund shall promptly notify Intermediary of any such use
or requirement prior to disclosure in order to afford such
Intermediary an opportunity to seek a protective order to
prevent or limit public disclosure of the information).
(f) Upon Intermediary's request, Fund shall promptly return the
Data (and any copies, extracts, and summaries thereof) to
Intermediary, or, with Intermediary's written consent, shall
promptly destroy, in a manner satisfactory to Intermediary,
such materials (and any copies, extracts, and summaries
thereof) and shall further provide Intermediary with written
confirmation of same.
2. RESTRICTION OF TRADING
2.1 AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from the Fund or its designee to restrict or prohibit further
purchases or exchanges of Shares by a Shareholder that has been identified by
the Fund or its designee 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 or its designee 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 Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Intermediary. Instructions shall in writing and sent to
Intermediary at email address xxxxxxxxxxx@xxx.xx.xxx or facsimile at
000-000-0000. Other notices under this Agreement shall be sent to Intermediary
at:
Xxxxxxx Xxxxx Insurance Group Services, Inc.
Attention: Service Center Controller
0000 Xxxx Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
with a copy to:
Financial Data Services, Inc.
Attention: President
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
2.1.1 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.
2.1.2 TIMING OF RESPONSE. Intermediary agrees to execute
instructions as soon as reasonably practicable, but not later than five
business days after Intermediary receives the instructions.
2.1.3 CONFIRMATION BY INTERMEDIARY. Intermediary must provide
written confirmation to the Fund or its designee 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.
2.2 CONSTRUCTION OF THE AGREEMENT; PARTICIPATION AGREEMENTS. The parties
have entered into one or more agreements between or among them governing the
purchase and redemption of shares of the Funds in connection with the Contracts
(collectively, "Participation Agreements"). This Agreement supplements those
Participation Agreements. To the extent the terms of this Agreement conflict
with the terms of a Participation Agreement with regard to the requirements of
Rule 22c-2, the terms of this Agreement shall control.
3. MISCELLANEOUS PROVISIONS
3.1 REQUESTS PRIOR TO APRIL 16, 2007. Intermediary shall be able to
promptly respond to requests for Shareholder information by no later than
October 16, 2007.
Information requests prior to April 16, 2007, shall be governed by whatever
practices, if any, that Fund and Intermediary have previously utilized to govern
such requests.
3.2 TERMINATION. This Agreement will terminate upon the termination of the
Participation Agreements and redemption of all shares in the Fund held by the
Intermediary, except as specifically provided for in Section 3.6.
3.3 INDEMNIFICATION. Distributors agrees to indemnify and hold
Intermediary harmless from any and all liability, claim, loss, demand, damages,
costs and expenses (including reasonable attorneys' fees) arising in connection
with a third party claim or action brought against Intermediary as a result of
any unauthorized disclosure of a shareholder's taxpayer identification number
provided to the Fund or its designee in response to a request for information
pursuant to the terms of this Agreement ("Losses"). Distributors shall not be
liable for Losses unless the Intermediary has provided adequate written notice
to Distributors promptly after the summons or other first legal process. In
addition, Distributors will be entitled to participate in, at its own expense,
or shall be entitled to assume the defense thereof, consistent with the terms of
the Participation Agreement.
3.4 FORCE MAJEURE. The parties to this Agreement are 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, and acts of war or terrorism. Each party so affected shall promptly
give written notice to the other parties 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.
3.5 REMEDIES. The parties to this Agreement acknowledge that in the event
of a breach or threatened breach of this Agreement, any party may have no
adequate remedy at law, and, accordingly, shall be entitled to obtain an
injunction against such breach. However, no specification in this Agreement of a
specific legal or equitable remedy shall be construed as a waiver of or a
prohibition against any other legal or equitable remedies in the event of a
breach of a provision of this Agreement. Each party to this Agreement shall be
entitled to legal damages and/or equitable relief from any other party to this
Agreement for any breach of this Agreement by such other party.
4. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the context:
The term "INTERMEDIARY" means: (i) the insurance company separate accounts
listed on Attachment A of this Agreement (which is a part of this
Agreement) as well as those identified in Schedule B of the Participation
Agreement(s) to which Distributors and Intermediary are parties, as such
Participation Agreement(s) may be amended
from time to time; and (ii) the life insurance company depositor of such
separate accounts.
The term "FUND" shall mean each series of Franklin Xxxxxxxxx Variable
Insurance Products Trust in which Intermediary invests and includes: (i)
an administrator for the Fund; (ii) the principal underwriter or
distributor for the Fund; and (iii) the transfer agent for the Fund. The
term does not include any "excepted funds" as defined in Rule 22c-2(b)
under the 0000 Xxx.
The term "SHARES" means the interests of Shareholders corresponding to the
redeemable securities of record issued by a Fund under the 1940 Act that
are held by Intermediary.
The term "SHAREHOLDER" means the holder of interests in a variable annuity
or variable life insurance contract issued by 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) as
part of a one-time step-up in Contract value pursuant to a Contract death
benefit; (iv) as part of an 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) as 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.
IN WITNESS WHEREOF, each party has caused a duly authorized officer or
representative to execute this Agreement.
FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Senior Vice President
ML LIFE INSURANCE COMPANY OF NEW YORK
on behalf of itself and the Separate Accounts
referenced in this Agreement and its Attachment
By:
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Name:
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Title:
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ATTACHMENT A TO SHAREHOLDER INFORMATION AGREEMENT
Name of Insurance Company:
ML Life Insurance Company of New York
Name of Separate Account(s):
ML of New York Variable Annuity Separate Account A
