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Dear Valley Forge Life Insurance Company (successor by merger to Southwestern
Life Insurance Company ("you" or "Intermediary"),
As principal underwriter of the DWS Funds, DWS Xxxxxxx Distributors, Inc.
("DWS-SDI") (or a predecessor firm) or our affiliate have entered into a
participation agreement or agreements (the "Participation Agreement") with you
to permit you, as applicable, to sell, service, or facilitate trading in shares
of the DWS Funds (collectively, the "Shares", as further defined in paragraph
1.2 below).
This amendment (the "Amendment") to the Participation Agreement is entered into
as of April 16, 2007 by and between DWS-SDI and you with an effective date of
October 16, 2007.
WHEREAS, Prior to the effective date of this Amendment, the Fund and the
Intermediary agree that any request made to the Intermediary by the Fund for
Shareholder 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
request;
WHEREAS, the Intermediary issues certain variable annuity contracts (the
"Contracts") that are supported currently by Variable Annuity Fund I of
Southwestern Life (the "Separate Accounts");
WHEREAS, the Separate Accounts have been established by the Intermediary to
invest assets attributable to the Contracts in the Funds;
WHEREAS, the Intermediary purchases and redeems Shares of the Funds on behalf of
the Separate Accounts to fund the Contracts in accordance with Shareholder
directions and the terms of the Contracts;
WHEREAS, Rule 22c-2 under the Investment Company Act of 1940 ("Rule 22c-2")
requires DWS-SDI or the DWS Funds to enter into a shareholder information
agreement with each financial intermediary, as defined by Rule 22c-2;
WHEREAS, DWS Funds has identified Intermediary as a financial intermediary of
the DWS Funds; and
WHEREAS, this Amendment sets forth the terms and conditions for information
sharing for the DWS Funds in accordance with Rule 22c-2.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which
consideration is full and complete, DWS-SDI and Intermediary hereby agree as
follows:
1. Definitions. For purposes of this Amendment:
1.1 The term "Fund" includes DWS-SDI and/or DWS Funds. The
term does not include any "excepted funds" as defined in SEC
Rule 22c-2(b).*
1.2 The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by
the Fund under the Investment Company Act of 1940 that are
held by the Intermediary.
1.3 The term "Shareholder" means the holder of an interest in
a Contract issued by the Intermediary, or a participant in an
employee benefit plan with a beneficial interest in a
Contract.
1.4 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 the
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
the Fund as a result of "dollar cost averaging" programs,
Intermediary-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) step-ups in Contract value
pursuant to a Contract living benefit; (v) allocation of
assets to the 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 (vi) pre-arranged transfers at
the conclusion of a required free look period.
1.5 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
the 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 the Fund 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
Contract; (iii) within a Contract out of the 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.
1.6 The term "written" includes electronic writings and
facsimile transmissions.
1.7 The term "promptly" as used in paragraph 5(a) shall mean
as soon as practicable but in no event later than ten business
days from the Intermediary's receipt of the request for
information from the Fund or its designee.
2. Agreement to Provide Information. Intermediary agrees to provide the
Fund or its designee, upon written request, the taxpayer identification
number ("stocktickerTIN"), 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 each account maintained by
the Intermediary during the period covered by the request. Unless
otherwise specifically requested by the Fund or its designee, the
Intermediary shall only be required to provide information relating to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated
Transfer Redemptions.
3. Period Covered by Request. Requests must set forth a specific period
for which transaction information is sought, which will generally not
exceed ninety (90) calendar days of transaction information. The Fund
or its designee will not request transaction information older than
twelve (12) months from the date of the request unless the Fund deems
it 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.
4. Timing of Requests. Fund requests for Shareholder 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.
5. Form and Timing of Response.
(a) Intermediary agrees to provide, promptly upon request of
the Fund or its designee, the requested information specified
in paragraph 2 above. 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 paragraph 2 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 to the Fund or its
designee) the information set forth in paragraph 2 above 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
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 and the Intermediary.
(c) To the extent practicable, the format for any transaction
information provided to the Fund or its designee should be
consistent with the NSCC Standardized Data Reporting
Format.
6. Limitations on Use of Information. The Fund agrees that the Fund and
its designee will not use the information received pursuant to this
Amendment 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.
7. 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
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, 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 must be received by Intermediary at the
following address, or such other address that Intermediary may
communicate to Fund or its designee, in writing from time to time,
including, if applicable, an e-mail and/or facsimile telephone number:
See Appendix A attached
=====================
8. Form of Instructions. Instructions to restrict or prohibit trading
must include the stocktickerTIN, 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 stocktickerTIN, 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. Upon request of the Intermediary, Fund agrees to provide
(through the Fund or its designee) to the Intermediary, along with any
written instructions to prohibit further purchases or exchanges of
Shares by Shareholder, 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 Shares.
9. Timing of Response. Intermediary agrees to execute instructions from
the Fund or its designee to restrict or prohibit trading as soon as
reasonably practicable, but not later than five business days after
receipt of the instructions by the Intermediary.
10. Confirmation by Intermediary. Intermediary must provide written
confirmation to the Fund or its designee that instructions from the
Fund or its designee 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.
11. Construction of the Amendment; Participation Agreement. The Fund
and Intermediary have entered into the Participation Agreement between
or among them for the purchase and redemption of Shares of the Fund by
the Intermediary in connection with the Contracts. This Amendment
amends the Participation Agreement. To the extent the terms of this
Amendment conflict with the terms of the Participation Agreement, the
terms of this Amendment shall control.
12. Termination. This Amendment will terminate upon the termination of
the Participation Agreement.
13. 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
Shareholder's TIN, ITIN, or GII or the specific individual Contract
owner number or participant account number associated with the
Shareholder provided to the Fund or its designee in response to a
request for Shareholder information pursuant to the terms of this
Amendment.
14. Force Majeure. Fund, Fund's designee, and Intermediary 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 Fund, Fund's designee,
and Intermediary 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 Amendment shall be immediately suspended for the
duration of such Force Majeure Event.
15. Dispute Resolution. Fund and Intermediary hereby mutually agree to
use their best
efforts to seek an amicable solution to any controversy or dispute
regarding the subject matter hereof. Any unresolved controversy, claim
or dispute shall be submitted to binding arbitration in accordance with
the Commercial Rules of the American Arbitration Association and
judgment upon any such award may be entered in any court having
jurisdiction thereof. Arbitration shall be conducted by a single
arbitrator who shall have the authority to grant any and all
appropriate relief, including, but not limited to, granting injunctive
relief or demanding specific performance. The arbitrator may make an
initial determination of the location of the arbitration or whether
proceedings may ensue based entirely upon documentary evidence. Unless
otherwise mutually agreed in writing by Fund and Intermediary, said
determination by the arbitrator shall become final and binding 3 days
after the arbitrator's ruling. Arbitration costs and expenses shall be
borne equally by Fund and Intermediary. Each party hereby agrees to
waive and suspend enforcement of any and all rights pursuant to this
and all related agreements during the pendency of such arbitration
proceedings.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as
of the date first above written.
DWS XXXXXXX DISTRIBUTORS, INC.
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
Date: _________________________
VALLEY FORGE LIFE INSURANCE COMPANY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
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* 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.
** According to the stocktickerIRS' 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
stocktickerIRS issues ITINs to individuals who are required to have a
placecountry-regionU.S. taxpayer identification number but who do not have, and
are not eligible to obtain a Social Security Number from the Social Security
Administration . SEC Rule 22c-2 inadvertently refers to the ITIN as the
International Taxpayer Identification Number.
APPENDIX A
INTERMEDIARY CONTACT INFORMATION
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Please provide the requested contact information for the following principal
contact persons in the indicated functional areas at your firm in connection
with Rule 22c-2 and the transmission of Shareholder level information in
connection therewith:
--------------------------------------------------------------------------------
COMPLIANCE
Name: Xxxx Xxxxx
Mailing Address: 0000 Xxxxxxxx Xxx, Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Email: xxxx_xxxxx@xxxxxxx.xxx
LEGAL
Name: Xxxxxxxx Xxxxxxxxx
Mailing Address: 0000 Xxxxxxxx Xxx, Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Email: Xxxxxxxx_xxxxxxxxx@xxxxxxx.xxx
OPERATIONS
Name: Xxxxxx Xxxxx
Mailing Address: 00000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000
Telephone: 000-000-0000
Email: Xxxxxx_xxxxx@xxxxxxx.xxx
SERVICE PROVIDER: To the extent you are using a third party service provider to
assist with the data transmission process of Shareholder information, please
provide the following information:
Firm Name:
Principal Contact Name:
Mailing Address:
Telephone:
Email:
FUND CONTACT INFORMATION
--------------------------------------------------------------------------------
Please provide the requested contact information for the following principal
contact persons in the indicated functional areas at your firm in connection
with Rule 22c-2 and the receipt of Shareholder level information in connection
therewith:
--------------------------------------------------------------------------------
COMPLIANCE
Name: Xxxx Xxxxxxxx
Mailing Address: 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Email: xxxx.xxxxxxxx@xx.xxx
LEGAL
Name: Xxxx Xxxxxx
Xxxxxxx Address: 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Email: xxxx.xxxxxx@xx.xxx
OPERATIONS
Name: Xxxx Xxxxx
Mailing Address: 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, XX
Telephone: (000) 000-0000
Email: xxxx.x.xxxxx@xx.xxx
SERVICE PROVIDER: To the extent you are using a third party service provider to
receive the data transmission process of Shareholder information, please provide
the following information:
Firm Name:
Principal Contact Name:
Mailing Address:
Telephone:
Email:
