Item 26(h)(ix)(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 this 16th day of April, 2007 by and between ROYCE FUND
SERVICES, INC., distributor of Royce Capital Fund ("RCF") and WESTERN RESERVE
LIFE ASSURANCE CO. OF OHIO and the intermediary (the "Intermediary").
Prior to the effective date of this Agreement, RFS and the Intermediary agree
that any request made to the Intermediary by RFS or its designee for Variable
Insurance Product owner transaction information, and the Intermediary's response
to such request, shall be governed by whatever practices the RCF, RFS 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
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(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, RCF, Royce & Associates, LLC ("R&A") and Intermediary have entered into
a Participant Agreement dated as of February 8, 2002, as amended (the
"Participation Agreement"), pursuant to which the RCF and R&A have 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:
1. Variable Insurance Product owner Information
1.1. Agreement to Provide Information. Intermediary agrees to provide RFS
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 RFS or its designee, 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.
1.1.1 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
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* 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.
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sought. RFS or its designee 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.
1.1.1a Timing of Requests. RFS's or its designees requests for Variable
Insurance Product owner information shall be made no more frequently than
quarterly except as RFS or its designee 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.
1.1.2 Form and Timing of Response. (a) Intermediary agrees to provide,
promptly upon request of RFS or its designee, the requested information
specified in 1.1. If requested by RFS 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 1.1 is
itself a financial intermediary ("indirect intermediary") and, upon further
request of RFS or its designee, promptly either (i) provide (or arrange to have
provided) the information set forth in 1.1 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 RFS 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 RFS or its designee and the Intermediary; and
(c) To the extent practicable, the format for any transaction information
provided to RFS or its designee should be consistent with the NSCC Standardized
Data Reporting Format.
1.1.3 Limitations on Use of Information. RFS 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.
1.2 Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from RFS or its designee to restrict or prohibit further purchases
or exchanges of Fund shares by a Variable Insurance Product owner that has been
identified by RFS 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 Fund shares issued by the
Fund. Unless otherwise directed by RFS or its designee, 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 RFS or its designee
in writing from time to time, including, if applicable, an e-mail and/or
facsimile telephone number:
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FMG SEPARATE ACCOUNTS GROUP
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MAIL DROP ▇▇▇▇
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FAX: (▇▇▇) ▇▇▇-▇▇▇▇
PRIMARY EMAIL: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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PHONE: (▇▇▇) ▇▇▇-▇▇▇▇ PHONE: (▇▇▇) ▇▇▇-▇▇▇▇
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1.2.1 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, RFS 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.
1.2.2 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.
1.2.3 Confirmation by Intermediary. Intermediary must provide written
confirmation to RFS or its designee 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.
1.3 Construction of the Agreement; Participation Agreement. RCF, R&A and
Intermediary 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.
1.4 Termination. This Agreement will terminate upon the termination of the
Participation Agreement.
1.5 Indemnification. RFS agrees to indemnify and hold harmless Intermediary
from any and all liability, claim, loss, demand, damages, costs and expenses
(including reasonable
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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 RFS in
response to a request for information pursuant to the terms of this Agreement.
1.6 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.
1.7 Dispute Resolution. This Agreement shall be construed and the
provisions hereof interpreted under and in accordance with the laws of the State
of Ohio.
1.7.1 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.
ROYCE FUND SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
WESTERN RESERVE LIFE ASSURANCE
CO. OF OHIO
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT, ACTUARY
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