Exhibit 23(h)(1)
SHAREHOLDER INFORMATION AGREEMENT
This Shareholder Information Agreement (hereinafter "Agreement") is entered into
as of March 15, 2007 by and between Advantus Series Fund, Inc. (hereinafter the
"Fund") and Minnesota Life Insurance Company (hereinafter the "Intermediary" or
"Minnesota Life") with an Agreement effective date of April 16, 2007 and such
other effective dates as are recited herein.
WHEREAS, 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
shareholder transaction information, and the Intermediary's response to such
request, shall be governed by whatever informal practices the Fund and the
Intermediary have utilized in the absence of a formal agreement, if any, to
govern such requests.
WHEREAS, Rule 22c-2 under the Investment Company Act of 1940, as amended (the
"1940 Act") requires mutual funds to enter into "shareholder information
agreements" with "financial intermediaries" that hold fund shares on behalf of
other investors in omnibus accounts and submit orders to purchase or redeem fund
shares on behalf of such investors directly to the fund ("Rule 22c-2"); and
WHEREAS, Minnesota Life has established one or more separate accounts ("Account"
or "Accounts"), which may also be composed of several Sub-Accounts, through
which Minnesota Life offers certain group and individual variable life or
annuity contracts ("Contract" or "Contracts") that make available as investment
options one or more of such Sub-Accounts which, in turn, invest in shares of one
or more of the Fund's portfolios ("Portfolios"); and
WHEREAS, in accordance with the terms of a Contract, the owner of the Contract
may allocate and reallocate Contract values among Sub-Accounts and Portfolios
from time to time; and
WHEREAS, Minnesota Life has been identified by the Fund as a "financial
intermediary" as defined in Rule 22c-2.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises set
forth below, Intermediary and the Fund agree as follows:
Section 1
Terms
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the context:
1.1. The term "Intermediary" shall include an Account.
1.2. The term "Fund" shall also include either (i) an investment adviser to or
administrator for the Fund; or (ii) the principal underwriter or distributor for
the Fund. The term does not include any "excepted funds" as defined in Rule
22c-2(b).(1)
1.3. The term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the 1940 Act that are
held by the Intermediary.
1.4. The term "Shareholder" means the holder of interests in a Contract issued
by the Intermediary, or a participant in an employee benefit plan with a
beneficial interest in a Contract.
1.5. 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 Contract 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 Contract to a Portfolio 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; or (iv) allocation of assets to a Portfolio 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.
1.6. 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 Contract 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 Contract out of a
Portfolio as a result of annuity payouts, loans, systematic withdrawal programs,
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 Portfolio 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.
1.7. The term "written" includes electronic writings and facsimile
transmissions.
Section 2
Shareholder Information
The provisions of this Agreement, with respect to the ability of Fund to request
and promptly receive shareholder identity and transaction information pursuant
to this Agreement and this Section 2, shall be effective October 16, 2007.
2.1. Agreement to Provide Information. Intermediary agrees to provide the Fund,
upon written request, the taxpayer identification number ("TIN"), the
Individual/International Taxpayer Identification Number ("ITIN"), or other
government-issued identifier ("GII") and the
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(1) As defined in 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.
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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 an
account maintained by the Intermediary during the period covered by the request.
This section shall be read to require Intermediary to provide only that
information relating to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions.
If the Fund wishes to request Intermediary to provide information in
addition to that recited in this Section 2.1, it shall provide Intermediary with
the details of that additionally requested information together with a suggested
format for Intermediary's response.
Requests from the Fund to Intermediary should include the Fund name and
identification number, Intermediary's Fund Account number and method of
response, and the address to which Intermediary must respond with the requested
information.
2.2. 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 Fund may request transaction information older than
180 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.
2.3. 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.
2.4. Form and Timing of Response. (a) Intermediary agrees to provide, promptly
upon request of the Fund or its designee, the requested information specified in
2.1. 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 2.1 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 2.1 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 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 provided, however, that the Fund shall not require the
Intermediary to report to the Fund using the NSCC Standardized Data Reporting
Service.
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2.5. 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.
Section 3
Procedures
3.1. 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 taxpayer identification number
provided to the Fund in response to a request for information pursuant to the
terms of this Agreement.
3.2. 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 Shareholder 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 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 in writing from time to time, including, if
applicable, an e-mail and/or facsimile telephone number:
Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxx
Phone: 000-000-0000
E-mail: xxxxxxxxx.xxxxx@xxxxxxxx.xxx
3.3. 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 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 TIN, 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 to the Intermediary,
along with any written instructions to prohibit further purchases or exchanges
of Shares by Shareholder, a copy of the Fund's publicly disclosed policies
relating to eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund.
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3.4. 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 the Intermediary.
3.5. 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 (10) business days after the instructions have been executed.
3.6. 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, acts of war or
terrorism, actions or decrees of governmental bodies, pandemic or epidemic
disease, but excluding failure caused by a party's financial condition or
negligence and similar occurrences. 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.
Section 4
Construction and Cooperation
4.1. 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 Fund 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. This Agreement shall be governed by and construed with the laws
of the State of Minnesota.
4.2. Mutual Cooperation. The Fund and Intermediary agree to cooperate with one
another in the development of abusive trading policies that take into
consideration the legality of enforcing these limits with respect to certain
Shareholders whose existing Contracts impose no or inconsistent trading limits.
Fund and Intermediary also agree to cooperate with one another in the
development of Intermediary's own market timing policies with respect to its
contracts.
4.3. Dispute Resolution. The parties 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 the
parties, said determination by the arbitrator shall become final and binding
three (3) days after the arbitrator's ruling. Arbitration costs and expenses
shall be borne
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equally by the parties. 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.
Section 5
Termination
5.1. Termination. This Agreement will terminate upon the termination of the Fund
Participation Agreements.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
FUND
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By: Xxxxxx X. Xxxxxxx
Title: President
Advantus Series Fund, Inc.
INTERMEDIARY
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By: Xxxxx X. Xxxx
Title: Senior Vice President
Minnesota Life Insurance Company
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