RULE 22C-2 SHAREHOLDER INFORMATION ACCESS AGREEMENT
(XXXXXXXXX XXXXXX FAMILY OF FUNDS)
THIS AGREEMENT is entered into as of March 1, 2007 by and between
XXXXXXXXX XXXXXX MANAGEMENT INC. ("NBMI") and the undersigned intermediary
("Intermediary")
WHEREAS, NBMI is the principal underwriter and adviser of registered
investment companies and their separately designated series (each such series or
series hereinafter established referred to herein as the "Fund") - the term does
not include any "excepted funds" as defined in SEC Rule 22c-2(b) under the
Investment Company Act of 1940, as amended (the "1940 Act") 1;
WHEREAS, Intermediary is (i) a broker, dealer, bank, or other entity that
holds securities of record issued by the Fund ("Fund shares") in nominee name;
(ii) in the case of a participant-directed employee benefit ("Plan") that owns
Fund shares, (a) a retirement plan administrator under the Employee Retirement
Income Security Act of 1974, as amended, or (b) any entity that maintains the
Plan's participant records; or (iii) an insurance company separate account;
WHEREAS, Intermediary provides services to clients who maintain an
interest in Fund shares held by the Intermediary in an account with the Fund as
(i) the beneficial owner of Fund shares, whether the shares are held directly or
by Intermediary in nominee name; or (ii) with respect to retirement and other
types of employee benefit plans, the Plan participant notwithstanding that the
Plan may be deemed to be the beneficial owner of Fund shares; or (iii) with
respect to insurance companies, the holder of interests in a variable annuity or
variable life insurance contract issued by Intermediary (a "Variable Contract")
Each type of client identified in clauses (i), (ii), or (iii) herein shall be
referred to herein as a "Shareholder;"
WHEREAS, 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 Variable 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 Variable
Contract to a Fund as a result of "dol1ar cost averaging" programs, insurance
company approved asset allocation programs, or automatic rebalancing programs;
(ii) pursuant to a Variable Contract death benefit; (iii) one-time step-up in
Variable Contract value pursuant to a Variable Contract death benefit; (iv)
allocation of assets to a Fund through a Variable Contract as a result of
payments such as loan repayments, scheduled contributions, retirement plan
salary reduction contributions, or planned premium payments to the Variable
Contract; or (v) pre-arranged transfers at the conclusion of a required free
look period
WHEREAS, 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 Variable Contract out of a Fund, but does not
include transactions that are executed: (i) automatically pursuant to a
contractual or
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1 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.
systematic program or enrollments such as transfers of assets within a Variable
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 Variable Contract; (iii) within a Variable Contract out of a Fund
as a result of scheduled withdrawals or surrenders from a Variable Contract; or
(iv) as a result of payment of a death benefit from a Variable Contract.
WHEREAS, NBMI and Intermediary have entered into a dealer agreement,
services agreement and/or fund participation agreement (the "Dealer/Services
Agreement"), pursuant to which Intermediary has agreed to solicit orders for
Fund shares and/or provide services with respect to the Fund;
WHEREAS, Intermediary is a "financial intermediary" within the meaning of
Rule 22c-2 of the 1940 Act, and directly submits orders on behalf of investors
in one or more Funds to purchase or redeem Fund shares;
WHEREAS, pursuant to Rule 22c-2 under the 1940 Act ("Rule 22c-2"), the
parties wish to enter into an agreement under which Intermediary agrees to
provide NBMI and the Fund with Shareholder identification and transaction
information in order to identify and preclude activity that may violate NBMI's
or a Fund's policies ("Trading Policies") established for the purpose of
eliminating or reducing any dilution of the value of Fund shares, including
restrictions on frequent trading of Fund shares that NBMI otherwise may deem
disruptive to the Fund and any policy to ensure appropriate administration of a
redemption fee, if any, established by the Fund;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, and intending to be legally bound
hereby, NBMI and Intermediary hereby agree as follows:
1. SHAREHOLDER INFORMATION
1.1 AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to cooperate
with the Fund's and NBMI's efforts to identify Shareholder
transaction activity that may violate the Trading Policies To that
end, Intermediary agrees to respond promptly to NBMI's requests
regarding Shareholder transaction activity in an account held by or
through the Intermediary. In response to such requests, Intermediary
shall provide the taxpayer identification number ("TIN"), the
Individual Taxpayer Identification ("ITIN"), or other
government-issued identifier ("GII"), if known, of any or all
Shareholder(s) of the account and the amount, date, name or other
identifier of any investment professional(s) associated with the
Shareholder(s) or account (if known), and the transaction type
(purchase, redemption, transfer, or exchange) of every purchase,
redemption, transfer or exchange of Fund shares held through an
account maintained by the Intermediary during the period covered by
the request With respect to information pertaining to Variable
Contracts and 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.
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1.2 PERIOD COVERED BY REQUEST. In each request, NBMI shall set forth a
specific period, not to exceed 90 days from the date of the
request, for which it seeks transaction information. NBMI may
request transaction information older than 90 days from the date
of the request as it deems necessary to investigate compliance with
the Trading Policies.
1.3 FORM AND TIMING OF RESPONSE. Intermediary agrees to transmit all
requested information that is on its books and records to NBMI and
the Fund or their designee promptly, but in any event not later than
ten (10) business days, after receipt of a request. If the requested
information is not on Intermediary's books and records, Intermediary
agrees to: (i) provide or arrange to provide to NBMI and the Fund
the requested information with respect to Shareholders who hold an
account with an indirect intermediary; or (ii) if directed by NBMI,
prohibit further purchases of Fund shares from such indirect
intermediary. In such instance, Intermediary agrees to inform NBMI
whether it plans to perform (i) or (ii). Responses required by this
paragraph must be communicated in writing and in a format mutually
agreed upon by the parties. To the extent practicable, the format
for any transaction information provided to NBMI and the Fund should
be consistent with the DTCC Standardized Data Reporting Format. For
purposes of this provision, an "indirect intermediary" has the same
meaning as in Rule 22c-2(c)(5)(iii) under the 1940 Act or as
"indirect intermediary" is subsequently defined in any amendment to
Rule 22c-2.
1.4 LIMITATIONS ON USE OF INFORMATION. NBMI agrees not to use the
information received pursuant to this Agreement for any purpose not
permitted under the privacy provisions of Title V of the
Xxxxx-Xxxxx-Xxxxxx Act and comparable state laws, including, but not
limited to marketing or any other similar purpose without the prior
written consent of Intermediary.
2. RESTRICTING TRADING.
2.1 AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute
written instructions from NBMI to restrict or prohibit further
purchases or exchanges of or into Fund shares by a Shareholder that
has been identified by NBMI as having engaged in transactions of
Fund shares (directly or indirectly through Intermediary's (or
indirect intermediary's) account) that violate the Trading Policies.
Unless otherwise directed by the Fund, any such restrictions or
prohibitions shall only apply to Shareholder Initiated Transfer
Purchases or Shareholder Initiated Transfer Redemptions (pertaining
to Variable Contracts) that are effected directly or indirectly
through the Intermediary.
2.2 FORM OF INSTRUCTIONS. In the instructions, NBMI shall include the
Shareholder's TIN, if known, and the specific restriction(s) to be
executed If NBMI does not know the TIN, NBMI shall include an
equivalent identifying number of the Shareholder(s) or account(s) or
other agreed upon information to which the instruction relates.
2.3 TIMING OF RESPONSE. Intermediary agrees to execute instructions as
soon as reasonably practicable, but not later than five (5) business
days after receipt of the instructions by Intermediary.
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2.4 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written
confirmation to NBMI that instructions have been executed.
Intermediary agrees to provide confirmation as soon as reasonably
practicable, but not later than ten (10) business days after the
instructions have been executed.
3. NOTICES. All notices required or permitted under this Agreement shall be
in writing and shall be sent by personal delivery or registered or
certified mail, postage prepaid, or by telecopier confirmed in writing
within three (3) business days, unless otherwise indicated herein, as
follows:
(a) If to NBMI or the Fund:
Xxxxxxxxx Xxxxxx Management Inc.
Xxxxxxxxx Xxxxxx Funds
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, President, NBMI
Chairman and Chief Executive Officer,
Xxxxxxxxx Xxxxxx Funds
cc : Xxxxx Xxxxxxxxx
telephone: (000) 000-0000
telecopier: (000) 000-0000
email: xxxxxxxxxx@xx.xxx
(b) If to Intermediary, to the address set forth next to
its signature line at the end of this Agreement
Such addresses may be changed from time to time by any party by providing
written notice in the manner set forth above. All notices shall be
effective upon delivery or when deposited in the mail addressed as set
forth above.
4. APPLICABILITY TO AFFILIATES. The Intermediary acknowledges and agrees that
the Intermediary has identified and/or will identify to NBMI all persons
affiliated with the Intermediary and known to the Intermediary who meet
the definition of "Applicable Intermediary" as set forth in Section 4
herein. The term "Applicable Intermediary" shall mean an affiliate of
Intermediary that is (i) any broker, dealer, bank or other entity that
holds securities of record issued by a Fund in nominee name; and (ii) in
the case of a participant-directed employee benefit plan that owns
securities issued by a Fund, (1) a retirement plan administrator under the
Employee Retirement Income Security Act of 1974, or (2) any entity that
maintains the plan's participant records. In the event that any such
person is not so identified, such person shall be deemed to be subject to
the terms and conditions of this Agreement until such person has entered
into a separate agreement with NBMI.
5. AMENDMENTS. NBMI may unilaterally modify this Agreement at any time by
written notice to Intermediary only to comport with the requirements of
applicable law, any amendments to Rule 22c-2 and any interpretation by the
Staff of the Securities and Exchange Commission. The first order placed by
Intermediary subsequent to the receipt of such notice shall be deemed
acceptance
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by Intermediary of the modification to the Agreement described in such
notice, unless Intermediary notifies NBMI of its objection within fifteen
(15) business days after the placement of first order. Any other
modifications or amendments will require written consent of Intermediary.
6. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect
to principles of conflicts of laws.
7. ASSIGNMENT. Neither party may assign the Agreement, or any of the rights,
obligations, or liabilities under the Agreement, without the written
consent of the other party. Notwithstanding the foregoing, this Agreement
shall be deemed assigned to the extent the Dealer/Services Agreement is
deemed assigned.
8. DEALER/SERVICES AGREEMENT. To the extent that the provisions of this
Agreement and the provisions of the Dealer/Services Agreement are in
conflict, the provisions of this Agreement shall control with respect to
the subject matter of this Agreement. Termination of this Agreement by
either party shall not automatically result in a termination of the
Dealer/Services Agreement. This Agreement shall terminate upon termination
of the Dealer/Services Agreement.
9. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but both of which shall together
constitute one and the same instrument.
10. THIRD-PARTY BENEFICIARIES. As permitted by Rule 22c-2, NBMI is entering
into this Agreement on the Fund's behalf. Any requests from NBMI for
information or instructions from NBMI to restrict or prohibit further
purchases or exchanges of Fund shares are made by NBMI on Fund's behalf.
The 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.
11. FORCE MAJEURE. Either the Fund or the Intermediary 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, fires, civil disobedience, natural disasters, acts of God,
acts of war or terrorism, actions or decrees of governmental bodies, and
similar occurrences. The party who has been so affected shall, if
physically possible, 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 event or contingency.
12. RIGHT TO SUSPEND TRADING BY INTERMEDIARY. The Fund may, in its discretion,
suspend or cease offering Fund shares for purchase through the
Intermediary if the Intermediary fails to satisfy its obligations under
this Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
as of the date first above written
XXXXXXXXX XXXXXX Security Distributors, Inc.
MANAGEMENT INC. Legal Name of Intermediary
BY: /s/ Xxxxx X. Xxxxxxx BY: /s/ Xxxxxxx X. Xxxxxx
--------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: Pres
Address: One Security Benefit Xxxxx
Xxxxxx, XX 00000-0000
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Attention: IRT
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cc: xxxxxxx Xxxxxxxx
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telephone: 000-000-0000
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telecopier: 000-000-0000
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email address: xxxxxxxxxxxx@xxxxxxxxxxxxxxx.xxx
CC: xxxxxxx.xxxxxxxx@xxxxxxxxxxxxxxx.xxx
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