Item 26(h)(xiii)(a)
SHAREHOLDER INFORMATION SHARING AGREEMENT
(UNDER RULE 22c-2(a)(2) OF THE INVESTMENT COMPANY ACT OF 1940)
VARIABLE INSURANCE PRODUCT OWNER(S) INFORMATION AGREEMENT (the "Agreement")
entered into as of March 29th, 2007 by and between THIRD AVENUE VARIABLE SERIES
TRUST, THIRD AVENUE MANAGEMENT LLC, and WESTERN RESERVE LIFE ASSURANCE CO. OF
OHIO and the intermediary (the "Intermediary").
Prior to the effective date of this Agreement, the Fund and the Intermediary
agree that any request made to the Intermediary by the Fund for Variable
Insurance Product owner transaction information, and the Intermediary's response
to such request, shall be governed by whatever practices the Fund and the
Intermediary had utilized in the absence of a formal agreement, if any, to
govern such requests.
Unless otherwise defined in this Agreement, capitalized terms herein shall have
the meanings assigned in the Participation Agreement:
The term "Intermediary" shall mean 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 does not include any "excepted funds" as
defined in SEC Rule 22c-2(b) under the Investment Company Act of 1940.(1)
The term "Variable Insurance Product owner" means the holder of interests in a
variable life insurance contract (the "Contract") issued by the Intermediary.
The term "Variable Insurance Product owner-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Variable Insurance Product 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) 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 "Variable Insurance Product owner-Initiated Transfer Redemption" means
a transaction that is initiated or directed by a Variable Insurance Product
owner that results in a
----------
(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.
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 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.
WHEREAS, the parties hereto have entered into a Participant Agreement dated as
of August 8, 2002, as amended (the "Participation Agreement"), pursuant to which
the Adviser has agreed to make shares of certain Portfolios of the Fund
available for purchase and redemption by certain Accounts of the Company in
connection with the Company's Variable Insurance Products; and
WHEREAS, the parties desire to comply with the SEC's revised provisions for Rule
22c-2, the redemption fee rule; and
WHEREAS, this Agreement shall inure to the benefit of and shall be binding upon
the undersigned;
NOW, THEREFORE, the Fund and the Intermediary hereby agree as follows:
Variable Insurance Product owner Information
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 associated
with the Variable Insurance Product owner, if known, of any or all Variable
Insurance Product 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 Fund 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 Variable Insurance Product
owner-Initiated Transfer Purchases or Variable Insurance Product owner-Initiated
Transfer Redemptions.
1.1 PERIOD COVERED BY REQUEST. Requests must set forth a specific period,
not to exceed 90 calendar days from the date of the request, for which
transaction information is
----------
* 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.
2
sought. The Fund may request transaction information older than 90 calendar 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.
1.2 TIMING OF REQUESTS. Fund requests for Variable Insurance Product owner
information shall be made no more frequently than quarterly except as the Fund
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.
1.3 FORM AND TIMING OF RESPONSE. (a) Intermediary agrees to provide,
promptly upon request of the Fund or its designee, the requested information
specified in 1. 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 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 1 for those Variable Insurance
Product 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. 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 Fund or its designee and the
Intermediary; 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.
1.4 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.
2. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Fund shares by a Variable Insurance Product owner 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 Fund shares issued by the Fund. Unless
otherwise directed by the Fund, any such restrictions or prohibitions shall only
apply to Variable Insurance Product owner-Initiated Transfer Purchases or
Variable Insurance Product owner-Initiated Transfer Redemptions that are
effected directly or indirectly through the Intermediary. Instructions must be
received by the Intermediary at the following address, or such other address
that the Intermediary may communicate to the Fund in writing from time to time,
including, if applicable, an e-mail and/or facsimile telephone number:
3
FMG SEPARATE ACCOUNTS GROUP
0000 XXXXXXXX XXXX, XX
MAIL DROP 0000
XXXXX XXXXXX, XX 00000
FAX: (000) 000-0000
PRIMARY EMAIL: XXXXxxxxxxxXxxxxxxxXxxxx@XXXXXXXX.xxx
XXXXXX XXXX XXXXX XXXXXX
PHONE: (000) 000-0000 PHONE: (000) 000-0000
xxxxx@XXXXXXXX.xxx xxxxxxx@XXXXXXXX.xxx
2.1 FORM OF INSTRUCTIONS. Instructions must include the TIN, ITIN, or GII
and the specific individual Contract number associated with the Variable
Insurance Product 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 number associated with
the Variable Insurance Product owner is not known, the instructions must include
an equivalent identifying number of the Variable Insurance Product owner (s) or
other agreed upon information to which the instruction relates. Upon request of
the Intermediary, Fund agrees to provide to the Intermediary, along with any
written instructions to prohibit further purchases or exchanges of Fund shares
by Variable Insurance Product owner, information regarding 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 Fund shares.
2.2 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.
2.3 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written
confirmation to the Fund 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. Such
confirmation should be sent to:
Attn: General Counsel
Third Avenue Management LLC
000 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
3. CONSTRUCTION OF THE AGREEMENT; PARTICIPATION AGREEMENT. The parties have
entered into a Participation Agreement between or among them for the purchase
and redemption of Fund shares of the Fund by the Accounts in connection with the
Contracts. This Agreement supplements the Participation Agreement. To the extent
the terms of this Agreement conflict with the terms of the Participation
Agreement, the terms of this Agreement shall control.
4. TERMINATION. This Agreement will terminate upon the termination of the
Participation Agreement.
4
5. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless
Intermediary from any and all liability, claim, loss, demand, damages, costs and
expenses (including reasonable attorney's fees) arising in connection with third
party claim or action brought against Intermediary as a result of any
unauthorized disclosure of a Variable Insurance Product owner 's taxpayer
identification number provided to the Fund in response to a request for
information pursuant to the terms of this Agreement.
6. FORCE MAJEURE. Either party 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, work stoppages, fires, civil
disobedience, riots, rebellions, natural disasters, acts of God, and acts of war
or terrorism. The party who has been so affected shall 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 Force Majeure Event.
7. DISPUTE RESOLUTION. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of Ohio.
8. This Agreement shall be subject to the provisions of the 1933 Act, the
1934 Act and the 1940 Act and the rules and regulations and rulings there under,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Shared Funding Order) and the
terms of this Agreement shall be interpreted and construed in accordance
therewith.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date first above written.
THIRD AVENUE VARIABLE SERIES WESTERN RESERVE LIFE ASSURANCE
TRUST CO. OF OHIO
By: /s/ Xxxxxxx X. Deryew By: /s/ Xxx Xxxxxxxxx
----------------------------- ---------------------------------
Name: Xxxxxxx X. Deryew Name: Xxx Xxxxxxxxx
Title: CFO Title: VP. Actuary
THIRD AVENUE MANAGEMENT LLC
By: /s/ Xxxxxxx X. Deryew
-----------------------------
Name: Xxxxxxx X. Deryew
Title: CFO
5