Exhibit 8(c)(viii)
RULE 22c-2 AGREEMENT
This Rule 22c-2 Agreement ("Agreement") is entered into by and among Xxxxxxx &
Xxxx, Inc. ("W&R"), as principal underwriter for the Ivy Funds Variable
Insurance Portfolios (the "Portfolios"), and the intermediary firm which is a
signatory to this Agreement below (the "Intermediary"), effective as of May 1,
2014.
WHEREAS, the Intermediary issues certain variable life insurance and/or variable
annuity contracts "collectively, "Variable Products") that are supported by one
or more separate accounts of the Intermediary (each, an "Account");
WHEREAS, the Intermediary and the Distributor are parties to an agreement
("Participation Agreement") under which the Intermediary may submit orders for
the purchase and redemption of shares on behalf of the Accounts to fund the
Variable Products in accordance with Variable Product owner instructions and the
terms of the Variable Product contracts;
WHEREAS, the Distributor and the Intermediary desire to enter into this
Agreement pursuant to Rule 22c-2 under the Investment Company Act of 1940, as
amended ("Investment Company Act"), which requires the Intermediary, as a
financial intermediary (as that term is defined by the Rule), to provide a
Portfolio, upon request, with certain shareholder and Account information in
order that the Portfolio can implement its frequent trading policies, and, if
requested by the Portfolio, impose certain of the Portfolio's restrictions, as
applicable.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which
consideration is full and complete, the Distributor and the Intermediary hereby
agree as follows:
1. SHAREHOLDER INFORMATION
1.1 AGREEMENT TO PROVIDE INFORMATION. The Intermediary agrees to provide
the Portfolio, upon written request, the taxpayer identification
number ("TIN"), if known, of any or all Shareholder(s) of the Account,
the amount and date of the Shareholder transaction, the name or other
identifier of any investment professional(s) associated with the
Shareholder(s) or Account (if known), 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 during the period covered by the request.
1.1.1 PERIOD COVERED BY REQUEST. Requests must set forth a specific
period, not to exceed 180 days from the date of the request, for
which transaction information is sought. The Portfolio may
request transaction information older than 180 days from the date
of the request as they deem necessary to investigate compliance
with policies established by the Portfolio for the purpose of
eliminating or reducing any dilution of the value of the
outstanding shares issued by the Portfolio. If requested by the
Portfolio, the Intermediary agrees to provide the information
specified in 1.1 for each trading day. Unless otherwise
specifically requested by the
Portfolio, Intermediary shall only be required to provide
information relating to Shareholder-Initiated Purchases or
Shareholder-Initiated Transfer Redemptions.
1.1.2 FORM AND TIMING OF RESPONSE. The Intermediary 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 five (5) business days, after receipt of a request. If the
requested information is not on the Intermediary's books and
records, the Intermediary agrees to: (i) provide or arrange to
provide to the Portfolio the requested information from
Shareholders who hold an account with an indirect intermediary;
or (ii) if directed by the Portfolio, block further purchases of
Portfolio Shares from such indirect intermediary. In such
instance, the Intermediary agrees to inform the Portfolio 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 the
Portfolio should be consistent with the NSCC Standardized Data
Reporting Format. For purposes of this provision, an "indirect
intermediary" has the same meaning as in the amendment to Rule
22c-2 under the Investment Company Act proposed February 28, 2006
or as subsequently defined in any adopted amendment to Rule
22c-2.
1.1.3 LIMITATIONS ON USE OF INFORMATION. The Portfolio and the
Distributor agree not to use the information received for
marketing or any other similar purpose without the prior written
consent of the Intermediary.
2. AGREEMENT TO RESTRICT TRADING. The Intermediary agrees to execute written
instructions from the Portfolio to restrict or prohibit further purchases
or exchanges of Shares by a Shareholder that has been identified by the
Portfolio as having engaged in transactions of the Portfolio's Shares
(directly or indirectly through the Intermediary's (or indirect
intermediary's) Account) that violate policies established by the Portfolio
for the purpose of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Portfolio.
2.1 FORM OF INSTRUCTIONS. Instructions must include the TIN, if known, and
the specific restriction(s) to be executed, including the length of
time such restriction(s) shall remain in place. If the TIN is not
known, the instructions must include an equivalent identifying number
of the Shareholder(s) or Account(s) or other information to which the
instruction relates agreed upon by the Intermediary and the Portfolio.
Unless otherwise directed by the Portfolio, 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.
2.2 TIMING OF RESPONSE. The Intermediary agrees to execute instructions as
soon as reasonably practicable, but not later than five (5) business
days after receipt of the instructions by the Intermediary.
2.3 CONFIRMATION BY INTERMEDIARY. The Intermediary must provide written
confirmation to the Portfolio that instructions have been executed.
The 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. DEFINITIONS. For purposes of this Agreement:
3.1 The term "Portfolio" does not include any "excepted funds" as defined
in Rule 22c-2(b) under the Investment Company Act.(i)
3.2 The term "Shares" means the interests of Shareholders corresponding to
the redeemable securities of record issued by the Portfolio under the
Investment Company Act that are held by the Intermediary.
3.3 The term "Shareholder" means, as applicable, (i) the beneficial owner
of Shares, whether the Shares are held directly or by the Intermediary
in nominee name ; (ii) the Plan participant notwithstanding that the
Plan may be deemed to be the beneficial owner of Shares; or (iii) the
holder of interests in a variable annuity or variable life insurance
contract issued by the Intermediary.
3.4 The term "written" includes electronic writings and facsimile
transmissions and such other means as the parties may agree to from
time-to-time.
3.5 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 Product to a Portfolio, 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 Variable Product to a Portfolio as a result of
"dollar cost averaging" programs, Intermediary-approved asset
allocation programs, or automatic rebalancing programs; (ii) pursuant
to a Variable Product death benefit; (iii) one-time step-up in
Variable Product contract value pursuant to a death benefit; (iv)
step-ups in contract value pursuant to a Variable Product living
benefit; (v) allocation of assets to a Portfolio through a Variable
Product as a result of payments such as loan repayments, scheduled
contributions, retirement plan salary reduction contributions, or
planned premium payments to the Variable Product; or (vi) pre-arranged
transfers at the conclusion of a required free look period.
3.6 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 Product out of a
Portfolio, 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 Variable Product out
of a Portfolio as a result of annuity payouts, loans, systematic
withdrawal programs, Intermediary-approved asset allocation programs
and automatic rebalancing programs; (ii) as a result of any deduction
of charges or fees under a Variable Product; (iii) within a Variable
Product out of a Portfolio as a result of scheduled withdrawals or
surrenders from the Variable Product; or (iv) as a result of payment
of a death benefit from a
Variable Product.
4. AMENDMENTS. The Distributor may unilaterally modify this Agreement at any
time by written notice to the Intermediary to comply 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 in Shares placed by
the Intermediary subsequent to the receipt of such notice shall be deemed
acceptance by the Intermediary of the modification to this Agreement described
in such notice.
5. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state indicated in the Participation Agreement's
choice of law provision, without giving effect to principles of conflicts of
laws.
6. ASSIGNMENT. Neither party may assign this Agreement, or any of the rights,
obligations, or liabilities under this Agreement, without the written consent of
the other party.
7. PARTICIPATION AGREEMENT. To the extent that the provisions of this Agreement
and the provisions of the Participation 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 Participation Agreement.
8. THIRD-PARTY BENEFICIARIES. Each Portfolio 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. A request by the
Distributor or the Portfolio's transfer agent shall be deemed a request by the
Portfolio, and information or communications from the Intermediary to the
Distributor shall be deemed provided to the Portfolio.
9. RIGHT TO SUSPEND TRADING BY INTERMEDIARY. Each Portfolio may, in its
discretion, suspend or cease offering Shares for purchase through the
Intermediary if the Intermediary fails to satisfy its obligations under this
Agreement.
10. INDEMNIFICATION. The Intermediary shall indemnify and hold harmless the
Distributor and each Portfolio and their respective directors, officers,
employees, affiliates and agents ("Indemnified Parties") from and against any
and all losses, claims, liabilities and expenses (including reasonable
attorney's fees and expenses) ("Losses") incurred by any of them arising out of
(i) any breach by the Intermediary of any representation, warranty or agreement
contained in this Agreement, (ii) any willful misconduct or negligence by the
Intermediary in the performance of, or failure to perform, its obligations under
this Agreement, including but not limited to, the Intermediary's failure to
timely provide information that is accurate and in proper form, as required
under Section 1 of this Agreement, or to timely restrict trading in accordance
with Section 2 of this Agreement. This Section shall survive termination of this
Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
IVY FUNDS DISTRIBUTOR, INC.
XXXXXXX & XXXX, INC.
------------------------------------------
By: Xxxxxx Xxxxx
Title: President
Date:
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
------------------------------------------
By:
Title:
Date:
----------
(i) 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.
