EXHIBIT (8)(QQ)
RULE 22C-2 CUSTOMER INFORMATION AGREEMENT
ML Life Insurance Company of New York (hereinafter referred to as
"Intermediary") and the trusts, corporation and related entities executing this
Agreement ("Fund") have previously entered into a Participation Agreement to
offer Fund as an investment option under Intermediary's variable annuity and/or
life insurance contracts and/or the related agreements listed on Schedule A
hereto. This Rule 22c-2 Customer Information Agreement ("Customer Information
Agreement") describes, among other things, the rights and obligations of the
parties hereto with respect to certain customer information to be provided to
Fund, or a Fund's transfer agent or other entity designated in writing by Fund
(collectively Fund's "Designee"), by or on behalf of Intermediary in connection
with the processing of Intermediary's customers' purchase, redemption, transfer
and exchange transactions in accounts maintained with respect to the Fund
subject to the Participation Agreement.
Prior to the effective date of this Customer Information Agreement, the
Fund and the Intermediary agree that any request made to the Intermediary by the
Fund for Customer transaction information, and the Intermediary's response to
such request, shall be governed by the practices the Fund and the Intermediary
had utilized in the absence of a formal agreement, if any, to govern such
requests.
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 "Intermediary" shall mean an insurance company separate account.
The term "Fund" shall mean an open-end 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, administrator or
shareholder servicing agent 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 Customers 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 "Customer" 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 "Customer-Initiated Transfer Purchase" means a transaction that
is initiated or directed by a Customer 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
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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 "Customer-Initiated Transfer Redemption" means a transaction that
is initiated or directed by a Customer 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 payments, 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.
Accordingly, in consideration of the mutual covenants herein contained,
the parties hereto intending to be legally bound agree as follows:
1. CUSTOMER INFORMATION
(a) 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 Customer, if known, of any or all
Customer(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 with
the Fund during the period covered by the request. As specifically requested by
the Fund or Fund's Designee in writing, the Intermediary shall only be required
to provide underlying Contract activity information relating to
Customer-Initiated Transfer Purchases or Customer-Initiated Transfer
Redemptions.
(b) PERIOD COVERED BY REQUEST. As mutually agreed upon by the parties, the
Fund or Fund's Designee may request in writing transaction information 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 (the "Market Timing Policies").
(c) TIMING OF REQUESTS. Fund requests for Customer information shall be
made no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with the Fund's Market Timing Policies. Any requests made
more frequently than quarterly shall be made in writing and mutually agreed
upon.
(d) FORM AND TIMING OF RESPONSE.
(1) Intermediary agrees to provide, promptly upon written request of
the Fund or its designee, the requested information specified in 1(a). If such
request covers a period ninety (90) to one hundred eighty (180) days prior to
the date of the request,
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Intermediary agrees to use its best efforts to provide the information specified
in 1(a) within five (5) to ten (10) business days. If such request covers a
period older than 180 days prior to the date of the request, Intermediary will
provide the information as soon as reasonably practicable, as agreed to by the
parties at the time of Intermediary's receipt of the request for information
from the Fund or its designee. 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 it has received the identification and transaction information
specified in 1(a) is itself a financial intermediary ("indirect intermediary")
and, upon further written request of the Fund or its designee, promptly either:
(i) provide (or arrange to have provided) the information set forth in 1(a) for
those Customers 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).
(2) Responses required by this paragraph must be communicated in
writing and in a format mutually agreed upon by the Fund or Fund's Designee and
the Intermediary; and
(3) To the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the NSCC Standardized
Data Reporting Format.
2. LIMITATIONS ON USE OF INFORMATION. The 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 (as defined in 1(a)) to Fund or Fund's Designee is to
better enable Fund and/or Fund's Designee to monitor for violations of the
Fund's Market Timing Policies by Intermediary's customers, and (ii) Fund or
Fund's Designee is responsible for determining when Fund or the Fund's Designee
need Intermediary's assistance in monitoring and enforcing the Fund's Market
Timing Policies through a request for Customer Information pursuant to paragraph
1 or an instruction to prohibit further purchases or exchanges pursuant to
paragraphs 5 and 6 hereunder.
(b) Notwithstanding anything herein to the contrary, to the extent Fund or
Fund's Designee receives Customer Information or any other Confidential
Information pursuant to this Agreement (as defined below, and together with the
Customer Information hereinafter referred to as the "Data"), Fund covenants,
represents and warrants for Fund, Fund's Designee and any parent, subsidiary or
affiliate of either that: (i) Fund shall not use any such 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 such
Data to any unaffiliated third party, including, without limitation, Fund's
third party service providers without Intermediary's prior written consent and
an agreement in writing from the third party to use or disclose any data
received from Fund's financial intermediaries in response to requests from the
Fund for data pursuant to Rule 22c-2 only to the extent necessary to assist the
Fund to comply with Rule 22c-2 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
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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. For the purposes
of this Agreement, "Confidential Information" means the nonpublic personal
information (as defined in 15 U.S.C. Section 6809(4)) of the customers of
Intermediary (and/or Intermediary's parent, affiliated or subsidiary companies)
received by Fund or Fund's Designee 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) Intermediary hereby agrees that this Agreement constitutes
Intermediary's prior written consent, as required by Section 2(b) and 2 (c) of
this Agreement, to the transmittal of Data via SunGard Institutional Brokerage's
SunGard Transaction Network 22c-2 Services and the National Securities Clearing
Corporation.
(d) 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.
I would prefer to delete this paragraph as:
1. It is very unlikely that we would get this type of information upon a
request for transaction data pursuant to Rule 22c-2
2. We do receive certain of this information from Merrill in a daily
spreadsheet & it is used for sales tracking purposes which is known and
permitted by Merrill. This is completely separate from any transaction
information that will be requested for Rule 22c-2 which will go to SunGard. This
paragraph as originally written covered information, other than "Data" requested
pursuant to Rule 22c-2, received pursuant to any agreement with Merrill, and
required that all information received under any agreement only be used for the
purposes of complying with this Agreement. Although I have narrowed it to cover
only information, other than "Data" requested pursuant to Rule 22c-2, I am
reluctant to include it given the information we receive and use for sales
tracking.
(e) Fund shall safeguard and preserve as confidential and not use, except
as expressly provided in this Agreement, any or all non-public information
received pursuant to this Agreement, other than the Data provided pursuant to,
or in connection with, this Agreement to Fund or Fund's Designee, 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 pursuant to this
Agreement, or learned by Fund or Fund's Designee while on Intermediary's
premises in connection with this Agreement and its subject matter.
(f) Except as expressly provided for herein, Fund will not, without first
obtaining Intermediary's prior written consent, disclose to any unaffiliated
person, firm or enterprise that is not under an obligation of confidentiality to
the Fund or its Designee, or use for Fund's benefit, any Data received pursuant
to this Agreement. Fund and Fund's Designee, if any, shall limit
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Fund's disclosure of the Data received pursuant to this Agreement to as few
persons as possible and only to those persons with a need to know that are
Fund's or Fund's Designee's employees or independent contractors engaged by Fund
or Fund's Designee and subject to an agreement to maintain the confidentiality
of information provided to such independent contractors. Fund and Fund's
Designee, if any, shall take all steps necessary to prevent disclosure of any
Data received pursuant to this Agreement in a manner consistent with Fund's
obligations under this Agreement. Fund and Fund's Designee, if any, shall have
no obligation with respect to particular information to the extent, but only to
the extent, that such information: (i) is demonstrably known to Fund or Fund's
Designee at the time it is obtained from Intermediary, free from any obligation
to keep such information confidential; (ii) is or becomes publicly known through
no wrongful act of Fund or Fund's Designee's 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; or (iv) independently developed by Fund or Fund's Designee in the
ordinary course of business outside of this Agreement, (v) generally employed by
the trade at the time that Fund or Fund's Designee learns of such information;
or (vi) is required to be disclosed by law, regulation, (other than in the
course of a routine regulatory examination or request) or court order (provided
that, if legally permitted to do so, Fund or Fund's Designee 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).
(g ) Upon Intermediary's request, Fund and Fund's Designee, if any, 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.
3. REMEDIES. Fund and Fund's Designee acknowledge that in the event of a breach
or threatened breach of this Agreement, Intermediary 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. Intermediary shall be entitled to legal damages and/or equitable
relief from Fund as well as from Fund's Designee for any breach of this
Agreement by Fund's Designee.
4. ADOPTION OF INTERMEDIARY'S MARKET TIMING POLICIES. If Fund considers, at any
time, the adoption of Intermediary's or Intermediary's affiliate(s) Market
Timing Policies in lieu of the Fund's Market Timing Policies for Customers
investing through Intermediary, Fund shall provide Intermediary written notice
of any such consideration at least 90 (ninety) days in advance of implementing
any such policy and secure Intermediary's prior written consent to such
arrangements.
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 Customer 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
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by the Fund. Unless otherwise directed by the Fund, any such restrictions or
prohibitions shall only apply to Customer-Initiated Transfer Purchases or
Customer-Initiated Transfer Redemptions that are effected directly or indirectly
through Intermediary. Instructions shall in writing and sent to Intermediary
xxxxxxxxxxx@xxx.xx.xxx or facsimile at 000-000-0000:
Instructions shall be in writing and 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
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 Customer, 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 Customer is not known, the
instructions must include an equivalent identifying number of the Customer(s) or
account(s) or other agreed upon information to which the instruction relates.
Upon request of the Intermediary, in addition to any written instructions to
prohibit further purchases or exchanges of Shares by Customer, Fund agrees to
identify for the Intermediary those trades of the contract holder that violated
the Fund's policies relating to eliminating or reducing any dilution of the
value of the Fund's outstanding Shares.
7. 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.
8. CONFIRMATION BY INTERMEDIARY. Intermediary must provide written confirmation
to the Fund that instructions 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.
9. NOTICE. All notices in connection with this Agreement shall be in writing and
sent to Intermediary at:
Xxxxxxx Xxxxx Insurance Group, Inc.
Attention: General Counsel
0000 Xxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
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Financial Data Services, Inc.
Attention: President
0000 Xxxx Xxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
, and sent to Fund at the address Fund has provided at the end of this
Agreement.
Notice shall be deemed to have been given on the date it was delivered
personally to the other party or any officer or was either received by express
delivery or telecopy (with receipt) by the other party at its address specified
in this Agreement. Either party may change the address to which notices to it
shall be sent by giving notice thereof in accordance with this provision.
10. 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.
11. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreements except as specifically provided in paragraph 15.
12. GOVERNING LAW. The validity of this Agreement, the construction and
enforcement of its terms, and interpretation of the rights and duties of the
parties shall be governed by the laws of the State of New York without giving
effect to provisions relating to conflict of laws.
13. NAMING OF A DESIGNEE. If Fund desires to name an entity as a "Designee" for
the purposes of this Agreement, Fund shall do so in writing in advance of the
provision of any Data to that entity. Fund shall be fully responsible for Fund's
Designee's compliance with the terms and conditions of this Agreement.
Intermediary hereby acknowledges and agrees that this Agreement constitutes
prior written notice to Intermediary that each entity included in the definition
of Fund in this Agreement may also be considered a Designee.
14. AMENDMENT. No modification, amendment, supplement to, or waiver of this
Agreement or any of its provisions or any schedule hereto shall be binding upon
the parties hereto unless made in writing and duly signed by the party against
whom enforcement thereof is sought. Intermediary's failure or delay to enforce
at any time any of the provisions of this Agreement, or to exercise any option
which is herein provided, or to require at any time performance of any of the
provisions hereof, shall in no way be construed to be a waiver of such
provisions of this Agreement.
15. SEVERABILITY. In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable,
the remaining provisions of this Agreement shall be unimpaired, and the invalid,
illegal, or unenforceable provision(s) shall be replaced by a mutually
acceptable provision(s), which being valid, legal, and enforceable, comes
closest to the intention of the parties underlying the invalid, illegal, or
unenforceable provision(s).
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16. SURVIVAL OF TERMINATION. The following paragraphs shall survive the
termination of this Agreement: 2, 3, 8, 11, 12, and this paragraph 16.
17. EFFECTIVE DATE. This Agreement shall become effective as of the later of
dates set forth below when executed by each of the parties hereto.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date first above written.
-------------------------------------
By:
Title:
ML Life Insurance Company of New York
JPMORGAN DISTRIBUTION SERVICES, INC.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
By:
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Name:
--------------------------------
Title:
-------------------------------
Date:
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JPMORGAN TRUST I
JPMORGAN TRUST II,
X.X. XXXXXX XXXXXXX MUTUAL FUND GROUP, INC.
X.X. XXXXXX FUND MUTUAL FUND GROUP
X.X. XXXXXX FUND MUTUAL FUND INVESTMENT TRUST
UNDISCOVERED MANAGERS FUNDS
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
By:
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Name:
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Title:
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Date:
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JPMORGAN VALUE OPPORTUNITIES FUND INC.
0000 Xxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
By:
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Name:
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Title:
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Date:
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JPMORGAN INVESTMENT ADVISORS INC.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
By:
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Name:
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Title:
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Date:
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JPMORGAN INVESTMENT ADVISORS INC.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
By:
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Name:
--------------------------------
Title:
-------------------------------
Date:
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X.X. XXXXXX INVESTMENT MANAGEMENT INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
By:
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Name:
--------------------------------
Title:
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Date:
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SECURITY CAPITAL RESEARCH & MANAGEMENT INCORPORATED
00 Xxxxx Xxxxxxxx
Xxxxxxx, XX 00000
By:
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Name:
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Title:
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Date:
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