Exhibit (8)(hh)
RULE 22C-2 CUSTOMER INFORMATION AGREEMENT
ML Life Insurance Company of New York (hereinafter referred to as
"Intermediary") and AllianceBernstein Investor Services, Inc. ("Fund Agent")
have previously entered into Participation Agreements to offer the
AllianceBernstein Funds (each, a "Fund" and, collectively, "Funds") 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 Agent or other entity designated in writing by Fund Agent (collectively
Fund Agent'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 Funds subject
to the Participation Agreement.
Prior to the effective date of this Customer Information Agreement, the
Fund Agent and the Intermediary agree that any request made to the Intermediary
by the Fund Agent for Customer transaction information, and the Intermediary's
response to such request, shall be governed by the practices the Fund Agent 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-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 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 Funds 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
1
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) prearranged 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 Agent 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, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Advisor
identification number associated with the Customer or account, if known, 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.
Unless otherwise specifically requested by the Fund Agent or Fund Agent'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 Agent or its Designee may request in writing transaction information as it
deems necessary to investigate compliance with policies established by the Funds
for the purpose of eliminating or reducing any dilution of the value of the
outstanding shares issued by the Funds (the "Market Timing Policies").
(C) TIMING OF REQUESTS. Fund Agent requests for Customer information shall
be made no more frequently than quarterly except as the Fund Agent deems
necessary to investigate compliance with the Funds' Market Timing Policies. Any
requests made
2
more frequently than quarterly shall be made in writing and the parties hereto
shall agree upon the timing and the scope of the request.
(D) FORM AND TIMING OF RESPONSE.
(1) Intermediary agrees to provide, promptly upon written request of
the Fund Agent or its Designee, the requested information specified in 1(a). If
such request covers a period ninety (90) to one hundred eighty (180) days prior
to the date of the request, Intermediary agrees to use its best efforts to
provide the information specified in 1(a) within five (5) to ten (10) business
days. If Intermediary determines during the course of investigation that due to
the scope of the request, Intermediary will need additional time to provide the
requested information, Intermediary shall promptly notify Fund Agent. If
requested by the Fund Agent 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 Agent 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 Funds. Intermediary additionally agrees
to inform the Fund Agent 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 Agent or Fund Agent's
Designee and the Intermediary; and
(3) To the extent practicable, the format for any transaction
information provided to the Fund Agent should be consistent with the NSCC
Standardized Data Reporting Format.
2. LIMITATIONS ON USE OF INFORMATION. The Fund Agent 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 Agent acknowledges that (i) the purpose for providing
Intermediary's confidential Customer Information (as defined in l(a)) to Fund
Agent or Fund Agent's Designee is to better enable Fund Agent and/or Fund
Agent's Designee to monitor for violations of the Funds' Market Timing Policies
by Intermediary's customers, and (ii) Fund Agent or Fund Agent's Designee is
responsible for determining when Fund Agent or the Fund Agent's Designee need
Intermediary's assistance in monitoring and enforcing the Funds' Market Timing
Policies through a request for Customer Information 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
Agent or Fund Agent's Designee receives Customer Information or any other
Confidential Data
3
(as defined below, and together with the Customer Information hereinafter
referred to as the "Data"), Fund Agent covenants, represents and warrants for
Fund Agent, Fund Agent's Designee and any parent, subsidiary or affiliate of
either that: (i) Fund Agent 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 the Funds) or; (ii) Fund Agent 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 Agent 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 Agent 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 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 Agent or Fund
Agent's Designee under the terms of this Agreement or any other agreement
between Intermediary and Fund Agent associated with the distribution of, or
services with respect to, the Funds, 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 Agent 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 Agent 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 Agent or
Fund Agent'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 Agent or Fund Agent's
Designee, or learned by Fund Agent or Fund Agent'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 Agent associated with the distribution of or services with respect to
the Funds.
(e) Except as expressly provided for herein, Fund Agent will not, without
first obtaining Intermediary's prior written consent, disclose to any person,
firm or enterprise, or use for Fund Agent's benefit, any Confidential Data. Fund
Agent and Fund Agent's Designee, if any, shall limit Fund Agent's disclosure of
the Confidential Data to as few persons as possible and only to those persons
with a need to know that are Fund Agent's
4
or Fund Agent's Designee's employees or independent contractors engaged by Fund
Agent or Fund Agent's Designee and subject to an agreement to maintain the
confidentiality of information provided to such independent contractors. Fund
Agent and Fund Agent's Designee, if any, shall take all steps necessary to
prevent disclosure of any Confidential Data in a manner consistent with Fund
Agent's obligations under this Agreement. Fund Agent and Fund Agent'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 Agent or Fund Agent'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 Agent or Fund Agent'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 Agent or
Fund Agent'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).
(f) Upon Intermediary's request, Fund Agent and Fund Agent's Designee, if
any, shall promptly return the Confidential Data (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 Agent and Fund Agent'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 Agent as well as from Fund Agent's
Designee for any breach of this Agreement by Fund Agent's Designee.
4. ADOPTION OF INTERMEDIARY'S MARKET TIMING POLICIES. If the Funds consider, at
any time, the adoption of Intermediary's or Intermediary's affiliate(s) Market
Timing Policies in lieu of the Funds' Market Timing Policies for Customers
investing through Intermediary, Fund Agent 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 Agent to restrict or prohibit further purchases or
exchanges of Shares by a Customer that has been identified by the Fund Agent as
having engaged in
5
transactions of the Fund's Shares (directly or indirectly through the
Intermediary's account) that violate policies established by the Fund Agent for
the purpose of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Funds. Unless otherwise directed by the Fund
Agent or Fund Agent's Designee, 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 or an email at ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇.▇▇▇ o
facsimile at ▇▇▇-▇▇▇-▇▇▇▇ 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 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, a summary of the policies established by the Fund to
eliminate or reduce 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
6
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
, and sent to Fund Agent at the address Fund Agent 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.
12. NAMING OF A DESIGNEE. If Fund Agent desires to name an entity as a
"Designee" for the purposes of this Agreement. Fund Agent shall do so in writing
in advance of the provision of any Data to that entity. Fund Agent shall be
fully responsible for Fund Agent'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).
7
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.
8
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Senior
Counsel
ML Life Insurance Company of New York
Firm Name: AllianceBernstein Investor Services, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Date: 3/6/07
9
