Exhibit (8)(kk)
RULE 22C-2 CUSTOMER INFORMATION AGREEMENT
ML Life Insurance Company of New York (MLNY) (hereinafter referred to as
"Intermediary") and ▇▇▇▇▇ Variable Account Fund, Inc. / ▇▇▇▇▇ Distributors, LLC
("Fund") have previously entered into a Participation Agreement to offer Fund as
an investment option under Intermediary's variable annuity and/or life insurance
contracts. This Rule 22c-2 Customer Information Agreement ("Customer Information
Agreement") describes, among other things, the rights and obligations of the
parties hereto with respect to certain customer information to be provided to
Fund, or a Fund's transfer agent or other entity designated in writing by Fund
(collectively Fund's "Designee"), by or on behalf of Intermediary in connection
with the processing of Intermediary's customers' purchase, redemption, transfer
and exchange transactions in accounts maintained with respect to the Fund
subject to the Participation Agreement.
Prior to the effective date of this Customer Information Agreement, the
Fund and the Intermediary agree that any request made to the Intermediary by the
Fund for Customer transaction information, and the Intermediary's response to
such request, shall be governed by the practices the Fund and the Intermediary
had utilized in the absence of a formal agreement, if any, to govern such
requests.
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the contexts:
The term "Intermediary" shall mean an insurance company separate account.
The term "Fund" shall mean an open-end 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 not does include any "excepted funds" as
defined in SEC Rule 22c-2(b) under the Investment Company Act of 1940.
The term "Shares" means the interests of Customers corresponding to the
redeemable securities of record issued by the Fund under the Investment Company
Act of 1940 that are held by the Intermediary.
The term "Customer" means the holder of interests in a variable annuity or
variable life insurance contract issued by the Intermediary ("Contract"), or a
participant in an employee benefit plan with a beneficial interest in a
contract.
The term "Customer-Initiated Transfer Purchase" means a transaction that is
initiated or directed by a Customer 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
1
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 "Customer-Initiated Transfer Redemption" means a transaction that
is initiated or directed by a Customer that results in a 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 annuity payments, 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.
Accordingly, in consideration of the mutual covenants herein contained, the
parties hereto intending to be legally bound agree as follows:
1. CUSTOMER INFORMATION
(A) 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 or
participant account number associated with the Customer, if known, of any or all
Customer(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. As specifically requested by the Fund or
Fund's Designee in writing, the Intermediary shall only be required to provide
underlying Contract activity information relating to Customer-Initiated Transfer
Purchases or Customer-Initiated Transfer Redemptions.
(B) PERIOD COVERED BY REQUEST. As mutually agreed upon by the parties, the
Fund or Fund's Designee may request in writing transaction information 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 (the "Market Timing Policies").
(C) TIMING OF REQUESTS. Fund requests for Customer information shall be
made no more frequently than quarterly except as the Fund deems necessary to
investigate compliance with the Fund's Market Timing Policies. Any requests made
more frequently than quarterly shall be made in writing and mutually agreed
upon.
2
(D) FORM AND TIMING OF RESPONSE.
(1) Intermediary agrees to provide, promptly upon written request of
the Fund or its designee, the requested information specified in 1(a). 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(a) is itself a
financial intermediary ("indirect intermediary") and, upon further written
request of the Fund or its designee, promptly either: (i) provide (or arrange to
have provided) the information set forth in 1(a) for those Customers 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).
(2) Responses required by this paragraph must be communicated in
writing and in a format mutually agreed upon by the Fund or Fund's Designee and
the Intermediary; and
(3) To the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the NSCC Standardized
Data Reporting Format.
2. 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
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (Public Law 106-102) and comparable state laws.
(a) Fund acknowledges that (i) the purpose for providing Intermediary's
confidential Customer Data (as defined in 1(a)) to Fund or Fund's Designee is
to better enable Fund and/or Fund's Designee to monitor for violations of the
Fund's Market Timing Policies by Intermediary's customers, and (ii) Fund or
Fund's Designee is responsible for determining when Fund or the Fund's Designee
need Intermediary's assistance in monitoring and enforcing the Fund's Market
Timing Policies through a request for Trade Data pursuant to paragraph 1 or an
instruction to prohibit further purchases or exchanges pursuant to paragraphs 5
and 6 hereunder.
(b) Notwithstanding anything herein to the contrary, to the extent Fund or
Fund's Designee receives Customer Data or any other Confidential Data (as
defined below, and together with the Customer Data hereinafter referred to as
the "Data"), Fund covenants, represents and warrants for Fund, Fund's Designee
and any parent, subsidiary or affiliate of either that: (i) Fund shall not use
any Data except to the extent necessary to carry out the purpose of this
Agreement and for no other purpose (including, without limitation, any
marketing, sales or other promotional efforts by any of Fund or; (ii) Fund shall
not disclose any Data to any third party, including, without limitation,
either's third party service providers without Intermediary's prior written
consent and an agreement in writing from the third party to use or disclose such
Data only to the extent necessary to carry out the purpose of this Agreement and
for no other purposes; (iii) Fund shall maintain, and shall require all third
parties approved under clause (ii) to maintain, effective information security
measures to protect the Data from unauthorized disclosure or use; and (iv) Fund
shall provide Intermediary with information regarding such security measures
upon Intermediary's reasonable request and promptly provide Intermediary with
information regarding any failure of such security
3
measures or any security breach related to the Data. For the purposes of this
Agreement, "Confidential Data" means the nonpublic personal information (as
defined in 15 U.S.C. Section 6809(4)) of Intermediary (and/or Intermediary's
parent, affiliated or subsidiary companies) of customers or prospective
customers received by Fund or Fund's Designee under the terms of this Agreement
or any other agreement between Intermediary and Fund associated with the
distribution of, or services with respect to, the Fund, including, but not
limited to: (a) an individual's name, address, e-mail address, IP address,
social security number, and/or telephone number; (b) the fact that an individual
has a relationship with Intermediary and/or Intermediary's parent, affiliated or
subsidiary companies; or (c) an individual's other account information.
(c) Fund explicitly acknowledges that all of the Data is Intermediary's
exclusive property and shall remain so notwithstanding any release thereof in
accordance with the terms of this Agreement.
(d) Fund shall safeguard and preserve as confidential and not use, except
as expressly provided herein, any or all information other than the Data
provided pursuant to, or in connection with, this Agreement to Fund or Fund's
Designee, including, but not limited to, Intermediary's affiliate's branch
office names and identification numbers, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Advisor names,
as well as Intermediary's affiliate's, parent's or subsidiary's systems,
business, plans and operations, which information collectively shall include any
such information that is orally disclosed to Fund or Fund's Designee, or learned
by Fund or Fund's Designee while on Intermediary's premises or derived as a
result of, or in connection with, this Agreement and its subject matter or any
other agreement between Intermediary and Fund associated with the distribution
of or services with respect to the Funds.
(e) Except as expressly provided for herein, Fund will not, without first
obtaining Intermediary's prior written consent, disclose to any person, firm or
enterprise, or use for Fund's benefit, any Confidential Information. Fund and
Fund's Designee, if any, shall limit Fund's disclosure of the Confidential
Information to as few persons as possible and only to those persons with a need
to know that are Fund's or Fund's Designee's employees or independent
contractors engaged by Fund or Fund's Designee and subject to an agreement to
maintain the confidentiality of information provided to such independent
contractors. Fund and Fund's Designee, if any, shall take all steps necessary to
prevent disclosure of any Confidential Information in a manner consistent with
Fund's obligations under this Agreement. Fund and Fund's Designee, if any, shall
have no obligation with respect to particular information to the extent, but
only to the extent, that such information: (i) is already rightfully known to
Fund or Fund's Designee at the time it is obtained from Intermediary, free from
any obligation to keep such information confidential, as demonstrated by
competent evidence; (ii) is or becomes publicly known through no wrongful act of
Fund or Fund's Designee's or without breach of any terms and conditions of this
Agreement; (iii) is rightfully received from a third party without restriction
and without breach of any terms and conditions of this Agreement, as
demonstrated by competent evidence; or (iv) is required to be disclosed by law,
regulation, or customer order (provided that Fund or Fund's Designee shall
promptly notify Intermediary of any such use or requirement prior to disclosure
in order to afford such Intermediary an opportunity to seek a protective order
to prevent or limit public disclosure of the information).
4
(f) Upon Intermediary's request, Fund and Fund's Designee, if any, shall
promptly return the Confidential Information (and any copies, extracts, and
summaries thereof) to Intermediary, or, with Intermediary's written consent,
shall promptly destroy, in a manner satisfactory to Intermediary, such materials
(and any copies, extracts, and summaries thereof) and shall further provide
Intermediary with written confirmation of same.
3. REMEDIES. Fund and Fund's Designee acknowledge that in the event of a breach
or threatened breach of this Agreement, Intermediary may have no adequate remedy
at law, and, accordingly, shall be entitled to obtain an injunction against such
breach. However, no specification in this Agreement of a specific legal or
equitable remedy shall be construed as a waiver of or a prohibition against any
other legal or equitable remedies in the event of a breach of a provision of
this Agreement. Intermediary shall be entitled to legal damages and/or equitable
relief from Fund as well as from Fund's Designee for any breach of this
Agreement by Fund's Designee.
4. ADOPTION OF INTERMEDIARY'S MARKET TIMING POLICIES. If Fund considers, at any
time, the adoption of Intermediary's or Intermediary's affiliate(s) Market
Timing Policies in lieu of the Fund's Market Timing Policies for Customers
investing through Intermediary, Fund shall provide Intermediary written notice
of any such consideration at least 90 (ninety) days in advance of implementing
any such policy and secure Intermediary's prior written consent to such
arrangements.
5. 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 Customer 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 Customer-Initiated Transfer
Purchases or Customer-Initiated Transfer Redemptions that are effected directly
or indirectly through Intermediary. Instructions shall be in writing and sent to
Intermediary at:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Insurance Group Services, Inc.
Attention: Service Center Controller
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
Financial Data Services, Inc.
Attention: President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
6. 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 Customer, 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
5
number or participant account number associated with the Customer is not known,
the instructions must include an equivalent identifying number of the
Customer(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 Customer, 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.
7. 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.
8. NOTICE. All notices in connection with this Agreement shall be in writing and
sent to Intermediary at:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Insurance Group, Inc.
Attention: General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Financial Data Services, Inc.
Attention: President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
, and sent to Fund at the address Fund has provided at the end of this
Agreement.
Notice shall be deemed to have been given on the date it was delivered
personally to the other party or any officer or was either received by express
delivery or telecopy (with receipt) by the other party at its address specified
in this Agreement. Either party may change the address to which notices to it
shall be sent by giving notice thereof in accordance with this provision.
9. 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 Funds 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.
10. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreements except as specifically provided in paragraph 15.
11. GOVERNING LAW. The validity of this Agreement, the construction and
enforcement of its terms, and interpretation of the rights and duties of the
parties shall be governed by the laws of the State of New York without giving
effect to provisions relating to conflict of laws.
6
12. NAMING OF A DESIGNEE. If Fund desires to name an entity as a "Designee" for
the purposes of this Agreement, Fund shall do so in writing in advance of the
provision of any Trade Data to that entity. Fund shall be fully responsible for
Fund's Designee's compliance with the terms and conditions of this Agreement.
13. AMENDMENT. No modification, amendment, supplement to, or waiver of this
Agreement or any of its provisions or any schedule hereto shall be binding upon
the parties hereto unless made in writing and duly signed by the party against
whom enforcement thereof is sought. Intermediary's failure or delay to enforce
at any time any of the provisions of this Agreement, or to exercise any option
which is herein provided, or to require at any time performance of any of the
provisions hereof, shall in no way be construed to be a waiver of such
provisions of this Agreement.
14. SEVERABILITY. In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable,
the remaining provisions of this Agreement shall be unimpaired, and the invalid,
illegal, or unenforceable provision(s) shall be replaced by a mutually
acceptable provision(s), which being valid, legal, and enforceable, comes
closest to the intention of the parties underlying the invalid, illegal, or
unenforceable provision(s).
15. SURVIVAL OF TERMINATION. The following paragraphs shall survive the
termination of this Agreement: 2, 3, 8, 10, 11, and this paragraph 15.
16. EFFECTIVE DATE. This Agreement shall become effective as of the later of
dates set forth below when executed by each of the parties hereto.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date first above written.
ML LIFE INSURANCE COMPANY OF NEW YORK
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: VP & Sr. Counsel
▇▇▇▇▇ VARIABLE ACCOUNT FUND, INC. ▇▇▇▇▇ DISTRIBUTORS, LLC
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------- ----------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President Title: President
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇ Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Date: February 12, 2007 Date: February 12, 2007
7