Exhibit 99.8.4
AMENDED AND RESTATED PARTICIPATION AGREEMENT
Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
OPPENHEIMERFUNDS, INC.
and
RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK
THIS AGREEMENT (the "Agreement") is made and entered into as of this 30th
day of March, 2007 by and among the following parties:
- RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK (hereinafter, the
"Company"), a New York corporation, on its own behalf and on behalf of
the separate accounts set forth on Schedule 1 hereto as may be amended
from time to time by mutual consent (each such account referred to as
an "Account");
- XXXXXXXXXXX VARIABLE ACCOUNT FUNDS (hereinafter, the "Fund"); and,
- OPPENHEIMERFUNDS, INC. (hereinafter the "Adviser").
WHEREAS, the Fund is an open-end management investment company and is
available to act as the investment vehicle for separate accounts now in
existence or to be established at any date hereafter for variable life insurance
policies, variable annuity contracts and other tax-deferred products
(collectively, the "Variable Insurance Products") offered by life insurance
companies (hereinafter "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio", and each representing the
interests in a particular managed pool of securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC"), dated July 16, 1986 (File No. 812-6324)
granting Participating
Insurance Companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940, as amended, (hereinafter the "1940
Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent
necessary to permit shares of the Fund to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies (hereinafter the "Mixed and Shared Funding
Exemptive Order");
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and each class of shares of the Portfolios of the
Fund is registered under the Securities Act of 1933, as amended (hereinafter the
"1933 Act");
WHEREAS, the Adviser is duly registered as an investment adviser under
the federal Investment Advisers Act of 1940, as amended;
WHEREAS, the Company has registered or will register certain variable
annuity and/or life insurance contracts under the 1933 Act (hereinafter
"Contracts") (unless an exemption from registration is available);
WHEREAS, the Accounts are or will be duly organized, validly existing
segregated asset accounts under applicable insurance law, established by
resolution of the Board of Directors of the Company, to set aside and invest
assets attributable to the aforesaid variable contracts (the Account(s) covered
by the Agreement are specified in Schedule 1 attached hereto, as may be modified
by mutual consent from time to time);
WHEREAS, the Company has registered or will register the Accounts as
unit investment trusts under the 1940 Act (unless an exclusion from registration
is available);
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WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios (the
Portfolios covered by this Agreement are specified in Schedule 1 attached hereto
as may be modified by mutual consent from time to time), on behalf of the
Accounts to fund the Contracts, and the Fund is authorized to sell such shares
to unit investment trusts such as the Accounts at net asset value; and
NOW, THEREFORE, in consideration of their mutual promises, the Fund,
the Adviser and the Company agree as follows:
ARTICLE A. Amendment and Restatement; Form of Agreement
A.1. The Fund and the Adviser acknowledge the merger of American
Centurion Life Assurance Company ("American Centurion Life") with and into IDS
Life Insurance Company of New York (IDS Life of New York) (the "Merger") and the
"intact transfer" ("Transfer") of the separate accounts of American Centurion
Life to IDS Life of New York by operation of law and incident to the Merger on
December 31, 2006 and the re-naming of IDS Life of New York to RiverSource Life
Insurance Co. of New York simultaneously with the Merger.
A.2. This Agreement shall amend and supersede the Participation
Agreement dated September 4, 1998 by and among American Centurion Life, the Fund
and the Adviser (as amended by Amendment 1 to the Participation Agreement dated
July 15, 2002; Amendment 2 to the Participation Agreement dated February 1,
2003; Amendment 3 to the Participation Agreement dated December 23, 2003 and
Amendment 4 to the Participation Agreement dated September 14, 2004) as of the
date stated above among the parties to this Agreement with respect to all
investments by each Company and its Accounts prior to the date of this
Agreement.
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ARTICLE I. Purchase and Redemption of Fund Shares
1.1. The Fund agrees to make available to the Company for purchase on
behalf of the Accounts those shares of a Portfolio of the Fund which the Company
orders on behalf of the Accounts, executing such orders on a daily basis at the
net asset value next computed after receipt by the Fund or its designee of the
order for such shares, as established in accordance with the provisions of the
then current prospectus of the Fund.
1.2. The Fund will not sell shares of any Portfolio to any other
Participating Insurance Company separate account unless an agreement containing
provisions similar in substance to Sections 2.1 and 2.2 of Article II, Sections
3.7 and 3.8 (other than the provision requiring the Fund to provide voting
standards) of Article III and Article V of this Agreement is in effect to govern
such sales, it being agreed and understood by Company and the Fund that this
provision is not intended to prevent the Fund from selling its shares to any
potential investor whose purchase of shares does not render the shares of the
Fund or any Portfolio ineligible for continued or additional investment by the
Company and its Account(s), and it being further understood and agreed by the
Company and the Fund that this provision shall apply prospectively to
participation agreements that the Fund enters into on or after the date hereof.
1.3. The Company shall be the designee of the Fund for receipt of
purchase orders and requests for redemptions or exchanges of shares of a
Portfolio ("Instructions"). The Business Day on which such Instructions are
received in proper form by the Company and time stamped by the Company by the
close of trading will be the date and time as of which Portfolio shares shall be
deemed purchased, exchanged or redeemed as a result of such Instructions;
provided that the Fund receives such Instructions by 10:00 a.m. Eastern Time on
the next following business day. Instructions received in proper form by the
Company and time stamped after the close of trading on any given Business Day or
received by the Fund after 10:00 a.m.
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Eastern Time on the next following business day shall be treated as if received
on the next following Business Day. The Company warrants that all orders
transmitted to the Fund by 10:00 a.m. Eastern Time on a Business Day were
received by the Company in proper form and time stamped prior to the close of
trading on the prior Business Day. "Business Day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Fund calculates
its net asset value pursuant to the rules of the SEC and its current prospectus.
The Fund shall calculate the net asset value per share of each Portfolio on
each Business Day, and shall communicate these net asset values to the Company
or its designee on a daily basis as soon as reasonably practicable after the
calculation is completed (normally by 6:30 p.m. Eastern time). If the Fund is
unable to meet the 6:30 p.m. time stated herein, the Fund shall provide
additional time equal to the additional time it takes the Fund to make the net
asset value available to the Company for the Company to place orders for the
purchase and redemption of shares and make any applicable purchase payments.
The Company shall submit payment for the purchase of shares of a Portfolio
in federal funds transmitted by wire to the Fund or to its designated custodian,
which must receive such wires no later than the close of the Federal Reserve
Bank of New York, which is 6:00 p.m. Eastern time, on the Business Day following
the Business Day for which such purchase orders have been placed.
Issuance and transfer of the Portfolio shares will be by book entry only.
Stock certificates will not be issued to the Company or the Accounts. Portfolio
shares purchased from the Fund will be recorded in the name of the appropriate
Account or the appropriate subaccount of each Account.
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The Fund shall furnish, on or before the ex-dividend date, notice to the
Company of any income dividends or capital gain distributions payable on the
shares of any Portfolio. The Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on shares of a Portfolio
in additional shares of that Portfolio, and the Company reserves the right to
change this election in the future. The Fund will notify the Company of the
number of shares so issued as payment of such dividends and distributions.
1.4. Each party to this Agreement agrees that, in the event of a
material error resulting from incorrect information or confirmations, the
parties will seek to comply in all material respects with the provisions of
applicable federal securities laws. If Company is provided with materially
incorrect net asset value information, Company will be entitled to an adjustment
to the number of Shares purchased or redeemed to reflect the correct net asset
value per share. The Fund agrees to make Portfolio shares available for purchase
by the Company for their separate Accounts listed in Schedule 1 on those days on
which a Portfolio calculates its net asset value pursuant to rules of the SEC;
provided, however, that the Board of Trustees of the Fund (hereinafter the
"Trustees") may , to the extent permitted under the terms of the Fund's
then-current prospectus, refuse to sell shares of any Portfolio to any person,
or suspend or terminate the offering of shares of any Portfolio if such action
is required by law or by regulatory authorities having jurisdiction or is, in
the sole discretion of the Trustees, acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, in the best
interests of the shareholders of any Portfolio (including without limitation
purchase orders that individually or together with other contemporaneous orders
represent large transactions in shares of any Portfolio held for a relatively
brief period of time). Such shares shall be purchased at the applicable net
asset value per share, increased by any initial sales charge, if the Fund's
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prospectus then in effect imposes such a charge on such purchases. Without
limiting the foregoing and to the extent described in the Fund's then-current
prospectus, the Fund and the Fund's transfer agent may take such other action
(including, without limitation, rejecting specific purchase orders) as they deem
necessary to reduce, discourage or eliminate market timing activity. The Company
acknowledges that the Fund has adopted policies and procedures reasonably
designed to prevent frequent or excessive purchases, exchanges and redemptions
of the Shares of the Fund in quantities great enough to disrupt orderly
management of the corresponding Portfolio. These policies are disclosed in the
Fund's current prospectus, as amended or supplemented from time to time.
The Fund acknowledges that the Company, on behalf of its Accounts, has
adopted policies and procedures reasonably designed to detect and deter frequent
transfers of Contract value among the subaccounts of the Accounts including
those investing in the Portfolios of the Fund which are available as investment
options under the Contracts. These policies and procedures are described in the
current prospectuses of the Accounts, as amended or supplemented from time to
time, through which the Contracts are offered.
The Fund and the Adviser may, but are not required to, consider the
Company's policies and procedures pertaining to frequent transfers of Contract
value among the subaccounts of its Accounts, including those investing in
Portfolios of the Fund when the Fund periodically reviews or amends its
disruptive trading policies and procedures. The Fund and the Adviser may invite
comment from and confer with the Company regarding any proposed policy and
procedure of the Fund pertaining to disruptive trading to determine, prior to
adopting such proposed policy or procedure, the Company's then-present ability
to apply such proposed policy or procedure to Contract owners who allocate
Contract value to subaccounts investing in the Portfolios of the
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Fund which are available under the Contracts, including without limitation
whether the Company can apply such proposed policy or procedure without the need
to modify its automated data processing systems or to develop and staff manual
systems to accommodate the implementation of the Fund's proposed policy or
procedure.
The Company acknowledges that shares of the Fund purchased pursuant to this
Agreement are subject to the Fund's market timing procedures as described in the
Fund's then-current prospectus. The Company will cooperate with the Fund's and
the Adviser's reasonable requests in taking steps to deter and detect such
transfers by Contract owners. Subject to applicable law and the terms of each
Contract, the Company will furnish other information the Fund, directly or
through its agent, reasonably requests regarding frequent transfers by Contract
owners among the subaccounts investing in Portfolios of the Fund which are
available under the Contracts.
1.5. The Fund agrees to redeem or exchange, upon the Company's
request, any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value next computed
after receipt by the Fund or its designee of the request for redemption, reduced
by any redemption fee or deferred sales charge, if the Fund's prospectus in
effect as of the date of such redemption imposes such a fee or charge on such
redemptions. For purposes of this Section 1.5, the Company shall be the designee
of the Fund for receipt of requests for redemption and receipt by such designee
shall constitute receipt by the Fund; provided that the Fund receives written
(or facsimile) notice of such request for redemption by 10:00 a.m. Eastern Time
on the next following Business Day; however the Company undertakes to use its
best efforts to provide such notice to the Fund by no later than 9:30 a.m.
Eastern time on the next following Business Day. Payment shall be made within
the time period specified in
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the Fund's prospectus or statement of additional information ("SAI"), provided,
however, that in no event shall payment be delayed for a greater period than is
permitted by the 1940 Act. In the event the Fund does not pay for the Fund
shares that are redeemed on the next Business Day after a request to redeem
shares is made, then the Fund shall apply any such delay in redemptions
uniformly to all records holders of shares of that Portfolio. Payment shall be
in federal funds transmitted by wire to the Company's bank accounts as
designated by the Company in writing from time to time.
1.6. The Company agrees to purchase and redeem the shares of the
Portfolios named in Schedule 2 offered by the then current prospectus and SAI of
the Fund in accordance with the provisions of such prospectus and SAI.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the securities deemed to
be issued by the Accounts under the Contracts are or, prior to any issuance or
sale will be, registered under the 1933 Act (unless an exemption from
registration is available) and, that the Contracts will be issued, offered and
sold in compliance in all material respects with all applicable federal and
state laws and regulations, and the rules of the National Association of
Securities Dealers, Inc. ("NASD"). The Company further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable state law and that it has legally and validly established the
Accounts prior to the issuance or sale of units thereof as a segregated asset
account under applicable insurance law and has registered the Accounts as unit
investment trusts in accordance with the provisions of the 1940 Act (unless an
exclusion from registration is available) to serve as segregated investment
accounts for the Contracts, and that it will maintain such registration for so
long as any Contracts are outstanding or until registration is
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no longer required under federal and state securities laws. The Company shall
amend the registration statement under the 1933 Act for the Contracts and the
registration statement under the 1940 Act for the Accounts from time to time as
required in order to effect the continuous offering of the Contracts or as may
otherwise be required by applicable law. The Company shall register and qualify
the Contracts for sale in accordance with the securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2. The Company represents and warrants that the Contracts are
currently and at the time of issuance will be treated as life insurance or
annuity contracts under applicable provisions of the Internal Revenue Code of
1986, as amended (the "Code") and the regulations issued thereunder, and that it
will make every reasonable effort to maintain such treatment and that it will
notify the Fund and the Adviser immediately upon having a reasonable basis for
believing that the Contracts have ceased to be so treated or that they might not
be so treated in the future. In addition, the Company represents and warrants
that the Accounts are a "segregated asset accounts" and that interests in the
Accounts are offered exclusively through the purchase of or transfer into a
"variable contract" within the meaning of such terms under Section 817 of the
Code and the regulations issued thereunder and any amendments or other
modifications to such section or such regulations (and any revenue rulings,
revenue procedures, notices and other published announcements of the Internal
Revenue Service interpreting these provisions). The Company shall continue to
meet such definitional requirements, and it will notify the Fund and the Adviser
immediately upon having a reasonable basis for believing that such requirements
have ceased to be met or that they might not be met in the future. The Company
represents and warrants that it will not purchase Fund shares with assets
derived from tax-qualified retirement plans except indirectly, through Contracts
purchased in connection with such plans.
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2.3. The Fund represents and warrants that Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act and duly authorized for
issuance and sold in accordance with applicable state and federal law and that
the Fund is and shall remain registered under the 1940 Act for as long as the
Fund shares are sold. The Fund shall amend the registration statement for its
shares under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of its shares. The Fund shall register
and qualify the shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Fund.
2.4. The Fund will at all times invest money from the Contracts in
such a manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without limiting
the scope of the foregoing, the Fund represents and warrants that each Portfolio
of the Fund will comply with Section 817(h) of the Code and Treasury Regulation
1.817-5, relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts and any amendments or other modifications
to such Section or Regulations (and any revenue rulings, revenue procedures,
notices, and other published announcements of the Internal Revenue Service
interpreting these provisions). In the event the Fund should fail to so qualify,
it will take all reasonable steps (a) to notify the Company of such breach and
(b) to resume compliance with such diversification requirement within the grace
period afforded by Treasury Regulation 1.817.5. The Fund and Adviser represent
that each Portfolio is qualified as a Regulated Investment Company under
Subchapter M of the Code and that it will maintain such qualification (under
Subchapter M or any successor provision), and that it will notify the Company
immediately upon having a reasonable basis for believing that it has ceased to
so qualify or that it might not so qualify in the future.
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2.5. If the Contracts purchase shares of a series and class of the
Fund that have adopted a plan under Rule 12b-1 under the 1940 Act to finance
distribution expenses (a "12b-1 Plan"), the Company agrees to provide the
Trustees any information as may be reasonably necessary for the Trustees to
review the Fund's 12b-1 Plan or Plans.
2.6. The Fund represents that it is lawfully organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it does
and will comply with applicable provisions of the 0000 Xxx.
2.7. The Adviser represents and warrants that it is and will remain
duly registered under all applicable federal and state securities laws and that
it shall perform its obligations for the Fund in compliance with any applicable
state and federal securities laws.
2.8. The Fund and Adviser each represent and warrant that all of its
respective directors, trustees, officers, employees, investment advisers, and
transfer agent of the Fund are and shall continue to be at all times covered by
a blanket fidelity bond (which may, at the Fund's election, be in the form of a
joint insured bond) or similar coverage for the benefit of the Fund in an amount
not less than the minimal coverage as required currently by Section 17(g) and
Rule 17g-1 under the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable insurance company. The Fund
agrees that any amount received under such bond in connection with claims that
derive from arrangements described in this Agreement will be paid by the Fund
for the benefit of the Company. The Adviser agrees to make all reasonable
efforts to see that this bond or another bond containing these provisions is
always in effect, and agrees to notify the Company in the event that such
coverage no longer applies.
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2.9. The Company represents and warrants that all of its directors,
officers, employees, agents, investment advisers, and other individuals and
entities dealing with the money and/or securities of the Fund are covered by a
blanket fidelity bond or similar coverage in an amount not less than the amount
stated in Section 2.8. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable insurance company. The Company
agrees that any amount received under such bond in connection with claims that
derive from arrangements described in this Agreement will be paid by the Company
for the benefit of the Fund. The Company agrees to make all reasonable efforts
to see that this bond or another bond containing these provisions is always in
effect, and agrees to notify the Fund and the Adviser in the event that such
coverage no longer applies.
2.10. The Fund and the Adviser represent that they will make a good
faith effort to furnish information to the Company about the Fund not otherwise
available to the Company which is required by state insurance law to enable the
Company to obtain the authority needed to issue the Contracts in any applicable
state.
2.11. The parties to this Agreement represent and warrant that they
shall comply with all the applicable laws and regulations designed to prevent
money laundering including without limitation the International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001 (Title III of the USA PATRIOT
ACT), and if required by such laws or regulations will share information with
each other about individuals, entities, organizations and countries suspected of
possible terrorist or money laundering activities in accordance with Section
314(b) of the USA PATRIOT ACT.
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2.12. The Company, the Fund and the Adviser each agree to notify the
others immediately upon having a reasonable basis for believing that any of
these representations and warranties are no longer true or accurate to a
material extent.
2.13. The Company shall maintain and enforce policies and procedures
reasonably designed to ensure that Portfolio share orders transmitted to the
Fund are segregated by time of receipt in order to prevent Share orders from
being executed at a price based on a previously determined net asset value.
2.14. The Company agrees to provide the Fund or its designee with
reasonable assurance that it has implemented effective compliance policies and
procedures administered by qualified personnel as required by and in accordance
with any and all applicable laws, rules and regulations. Such assurances by the
Company shall include, but are not limited to:
- adopting and implementing written compliance policies and
procedures reasonably designed to prevent the Company from
violating the Federal Securities Laws (as defined in Rule 38a-1)
in its provision of services to the Fund pursuant to this
Agreement, and;
- providing access to the Chief Compliance Officer of the Accounts
who will confer as needed with the Chief Compliance Officer of
the Fund regarding the written compliance policies and procedures
of the Accounts.
ARTICLE III. Sales Material, Prospectuses and Other Reports
3.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, each piece of sales literature or other promotional
material in which the Fund or the Adviser is named, at least ten Business Days
prior to its use. No such material shall be used if
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the Fund or its designee reasonably object to such use within ten Business Days
after receipt of such material.
3.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee, except with the permission of the Fund.
3.3. For purposes of this Article III, the phrase "sales literature or
other promotional material" includes, but is not limited to, portions of the
following that use any logo or other trademark related to the Fund or its
affiliates, and any of the following that refer to the Fund or an affiliate of
the Fund: advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboard or electronic media), and sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, market
letters and form letters, seminar texts, reprints or excerpts from any
advertisement, sales literature or published article), educational training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
SAIs, shareholder reports, and any other communications distributed or made
generally available with regard to the Fund.
3.4. The Fund shall provide to the Company a copy of its current
prospectus within a reasonable period of its filing date, and provide other
assistance as is reasonably
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necessary in order for the Company once each year (or more frequently if the
prospectus for the Fund is supplemented or amended) to have the prospectus for
the Contracts and the Fund's prospectus printed together in one document. The
Adviser shall be permitted to review and approve the typeset form of the Fund's
Prospectus prior to such printing.
3.5. Upon Company's request, the Fund will provide written
instructions to the Company when the Fund amends or supplements a Portfolio's
current prospectus or statement of additional information directing the Company
as to whether the amendment or supplement is to be provided (a) immediately to
existing Contract owners who have Contract value allocated to a Portfolio or (b)
is to be held and combined with another Fund or Contract related mailing as
permitted by applicable federal securities laws. The Fund agrees that any
instruction it gives the Company in each instance will be identical to any
instruction it provides other Participating Insurance Companies.
3.6. The Fund or the Adviser shall provide the Company with either:
(i) a copy of the Fund's proxy material, reports to shareholders, other
information relating to the Fund necessary to prepare financial reports, and
other communications to shareholders for printing and distribution to existing
Contract owners, or (ii) camera ready, electronic file and/or printed copies, if
appropriate, of such material for distribution to existing Contract owners at
the Fund's or the Adviser's expense, within a reasonable period of the filing
date for definitive copies of such material. The Adviser shall be permitted to
review and approve the typeset form of such proxy material, shareholder reports
and communications prior to such printing.
3.7. The Company assumes sole responsibility for ensuring that the
Fund's prospectus, shareholder reports and communications, and proxy materials
are delivered to Contract owners in accordance with applicable federal and state
securities laws.
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3.8. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote Fund shares in accordance with instructions received
from Contract owners; and
(iii) vote Fund shares for which no instructions have been
received in the same proportion as Fund shares of such
Portfolio(s) for which instructions have been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners or to the
extent otherwise required by law. The Company will vote Fund shares held in any
segregated asset account, as well as shares owned by the Company, in the same
proportion as Fund shares of such Portfolio for which voting instructions have
been received from Contract owners, to the extent permitted by law.
3.9 Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in a Portfolio
calculates voting privileges as required by the Mixed and Shared Funding
Exemptive Order and consistent with any reasonable standards that the Fund may
adopt and provide in writing.
ARTICLE IV. Fees and Expenses
4.1. The Fund and Adviser shall pay no fee or other compensation to
the Company under this agreement, and the Company shall pay no fee or other
compensation to the Fund or Adviser, except as provided herein.
4.2. All expenses incident to performance by each party of its
respective duties under this Agreement shall be paid by that party. The Fund
shall see to it that all its shares are registered and authorized for issuance
in accordance with applicable federal law and, if and to the extent advisable by
the Fund, in accordance with applicable state laws prior to their sale. The
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Fund shall bear the expenses for the cost of registration and qualification of
the Fund's shares, preparation and filing of the Fund's prospectus and
registration statement, proxy materials and reports, and the preparation of all
statements and notices required by any federal or state law.
4.3. The Company shall bear the expenses of (i) printing and
distributing to prospective Contract owners the Fund's prospectus and reports
and, (ii) distributing the Fund's statement of additional information to
prospective Contract owners. The Fund shall bear the expenses of (i) printing
and distributing to existing Contract owners the Fund's prospectus, statement of
additional information and reports to owners of Contracts issued by the Company
and, (ii) distributing proxy materials to existing Contract owners and
tabulation of proxy votes.
4.4. In the event the Fund adds one or more additional Portfolios and
the parties desire to make such Portfolios available to the respective Contract
owners as an underlying investment medium, a new Schedule 2 or an amendment to
this Agreement shall be executed by the parties authorizing the issuance of
shares of the new Portfolios to the particular Accounts. The amendment may also
provide for the sharing of expenses for the establishment of new Portfolios
among Participating Insurance Companies desiring to invest in such Portfolios
and the provision of funds as the initial investment in the new Portfolios.
4.5. In the event the Fund initiates (i) a reorganization of the Fund
as defined by Section 2 of the 1940 Act, or (ii) a change in the name of the
Fund or a Portfolio other than a reorganization or name change in connection
with the annual amendment to the Fund's registration statement to update its
Prospectus, the Fund or Adviser as they shall determine among themselves shall
reimburse the Company for the Company's internal and out-of-pocket costs
associated with the aforementioned actions. The Company agrees to use its best
efforts to
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minimize any costs incurred under this Section and shall provide Adviser with
acceptable documentation of any such costs incurred.
ARTICLE V. Potential Conflicts
5.1. The Trustees will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the Contract owners of
all separate accounts investing in the Fund. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by participating insurance companies or by variable annuity
contract and variable life insurance contract owners; or (f) a decision by an
insurer to disregard the voting instructions of Contract owners. The Trustees
shall promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
5.2. The Company has reviewed a copy of the Mixed and Shared Funding
Exemptive Order, and in particular, has reviewed the conditions to the requested
relief set forth therein. The Company agrees to be bound by the responsibilities
of a participating insurance company as set forth in the Mixed and Shared
Funding Exemptive Order, including without limitation the requirement that the
Company report any potential or existing conflicts of which it is aware to the
Trustees. The Company will assist the Trustees in carrying out their
responsibilities in monitoring such conflicts under the Mixed and Shared Funding
Exemptive Order, by providing the Trustees in a timely manner with all
information reasonably necessary for the Trustees to consider any issues raised.
This includes, but is not limited to, an obligation
19
by the Company to inform the Trustees whenever Contract owner voting
instructions are disregarded and by confirming in writing, at the Fund's
request, that the Company are unaware of any such potential or existing material
irreconcilable conflicts.
5.3. If it is determined by a majority of the Trustees, or a majority
of its disinterested Trustees, that a material irreconcilable conflict exists,
the Company shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, up to and
including: (1) withdrawing the assets allocable to some or all of the separate
accounts from the Fund or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio of
the Fund, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a change; and
(2) establishing a new registered management investment company or managed
separate accounts.
5.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting instructions and that
decision could conflict with the majority of Contract owner instructions, the
Company may be required, at the Fund's election, to withdraw the Accounts'
investment in the Fund and terminate this Agreement; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested Trustees. No charge or penalty will be imposed as a result of such
withdrawal. Any such
20
withdrawal and termination must take place within six (6) months after the Fund
gives written notice that this provision is being implemented, and until the end
of the six month period the Fund shall continue to accept and implement orders
by the Company for the purchase and redemption of shares of the Fund.
5.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
subaccount of the Accounts' investment in the Fund and terminate this Agreement
within six months after the Trustees inform the Company in writing that it has
determined that such decision has created an irreconcilable material conflict;
provided, however, that such withdrawal and termination shall be limited to the
extent required by the foregoing material irreconcilable conflict as determined
by a majority of the disinterested Trustees. Until the end of the foregoing six
month period, the Fund shall continue to accept and implement orders by the
Company for the purchase and redemption of shares of the Fund, subject to
applicable regulatory limitation.
5.6. For purposes of Sections 5.3 through 5.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Fund be required to establish a new funding medium for the Contracts.
The Company shall not be required by Section 5.3 to establish a new funding
medium for Contracts if an offer to do so has been declined by vote of a
majority of Contract owners materially adversely affected by the irreconcilable
material conflict. In the event that the Trustees determine that any proposed
action does not adequately remedy any irreconcilable material conflict, then the
Company will withdraw the particular subaccounts of the Accounts' investment in
the Fund and terminate this Agreement within six (6) months
21
after the Trustees inform the Company in writing of the foregoing determination,
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the disinterested Trustees. No charge or penalty will be imposed as
a result of such withdrawal.
ARTICLE VI. Applicable Law
6.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
6.2. This Agreement shall be subject to the provisions of the 1933
Act, the Securities Exchange Act of 1934 and the 1940 Act, and the rules and
regulations and rulings thereunder, including such exemption from those
statutes, rules and regulations as the Securities and Exchange Commission may
grant (including, but not limited to, the Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith, provided however that the term "Registration Statement or Prospectus
for the Variable Contracts" and terms of similar import shall include (i) any
offering circular or similar document and sales literature or other promotional
materials used to offer and/or sell the variable Contracts in compliance with
the private offering exemption in the 1933 Act and applicable federal and state
laws and regulations, and (ii) the term "Registration Statement" and
"Prospectus" as defined in the 1933 Act.
ARTICLE VII. Termination
7.1. This Agreement shall terminate:
(a) at the option of any party upon six months' advance written
notice to the other parties;
(b) at the option of the Company to the extent that shares of
Portfolios are not reasonably available to meet the requirements of its
Contracts or are not appropriate
22
funding vehicles for the Contracts, as determined by the Company reasonably and
in good faith. Prompt notice of the election to terminate for such cause and an
explanation of such cause shall be furnished by the Company;
(c) as provided in Article V;
(d) at the option of the Fund or the Adviser upon institution of
formal proceedings against the Company (or its parent) by the NASD, the SEC, the
insurance commission of any state or any other regulatory body having
jurisdiction over that party, which would have a material adverse effect on the
Company's ability to perform its obligations under this Agreement;
(e) at the option of the Company upon institution of formal
proceedings against the Fund or the Adviser (or its parent) by the NASD, the
SEC, or any state securities or insurance department or any other regulatory
body having jurisdiction over that party, which would have a material adverse
effect on the Adviser's or the Fund's ability to perform its obligations under
this Agreement;
(f) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals or the vote of the Contract owners having an
interest in the Account (or any subaccount) to substitute the shares of another
investment company for the corresponding Portfolio shares of the Fund in
accordance with the terms of the Contracts for which those Portfolio shares have
been selected to serve as the underlying investment media. The Company will give
45 days prior written notice to the Fund of the date of any proposed vote or
other action taken to replace the Fund's shares;
(g) at the option of the Company or the Fund upon a determination
by a majority of the Trustees, or a majority of the disinterested Trustees, that
an irreconcilable
23
material conflict exists among the interests of (i) all Contract owners of
variable insurance products of all separate accounts or (ii) the interests of
the Participating Insurance Companies investing in the Fund as delineated in
Article VII of this Agreement;
(h) at the option of the Company if the Fund ceases to qualify as
a Regulated Investment Company under Subchapter M of the Code, or under any
successor or similar provision, or if the Company reasonably believes that the
Fund may fail to so qualify;
(i) at the option of the Company if the Fund fails to meet the
diversification requirements specified in Section 2.6 hereof or if the Company
reasonably believes that the Fund will fail to meet such requirements;
(j) at the option of any party to this Agreement, upon another
party's failure to cure a material breach of any provision of this Agreement
within thirty days after written notice thereof;
(k) at the option of the Company, if the Company determines in
its sole judgment exercised in good faith, that either the Fund or the Adviser
has suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact upon the business
and operations of the Company;
(l) at the option of the Fund or the Adviser, if the Fund or
Adviser respectively, shall determine in its sole judgment exercised in good
faith, that the Company has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a material adverse
impact upon the business and operations of the Fund or the Adviser;
24
(m) subject to the Fund's compliance with Section 2.6 hereof, at
the option of the Fund in the event any of the Contracts are not issued or sold
in accordance with applicable requirements of federal and/or state law; or
(n) at the option of the Fund if (i) the Company breaches any of
the representations and warranties made in this Agreement; or (ii) the Company
notifies the Fund that any of such representations and warranties may no longer
be true or might not be true in the future; or (iii) any of the Company's
representations and warranties were not true on the effective date of this
Agreement, are at any time no longer true, or have not been true during any time
since the effective date of this Agreement.
7.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 7.1(a) may be exercised for cause
or for no cause.
7.3. Notwithstanding any termination of this Agreement, the Fund
shall, at the option of the Company, continue to make available additional
shares of the Fund (or any Portfolio) pursuant to the terms and conditions of
this Agreement for all Contracts in effect on the effective date of the
termination of this Agreement for which shares of the Fund (or any Portfolio)
serve as the underlying medium unless such further sale of additional shares of
the Fund is prohibited by law or by regulatory authorities, or as determined by
the Fund's Board to be necessary to remedy or eliminate an irreconcilable
conflict pursuant to Article V hereof.
7.4. The provisions of this Article VII shall survive the termination
of this Agreement, and as long as shares of the Fund are held on behalf of
Contract owners in accordance with Section 7.3, the provisions of this Agreement
shall survive the termination of this Agreement with respect to those Contract
owners.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
25
(a) The Company agrees to indemnify and hold harmless the Fund
and the Adviser, each member of their Board of Trustees or Board of Directors,
each of their officers, employees and agents, and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Company) or litigation expenses
(including the reasonable costs of investigating or defending any alleged loss,
claim, damage, liability or expense and reasonable legal counsel fees incurred
in connection therewith (collectively, "Losses")), to which the Indemnified
Parties may become subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale or
acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement, prospectus or SAI for
the Contracts or contained in sales literature or other
promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances which they were made; provided that this
agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon
and in conformity with information furnished to the
Company by or on behalf of the Fund or the Adviser for
use in the registration statement, prospectus or SAI
for the Contracts or sales literature (or any amendment
or supplement) or otherwise for use in connection with
the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations by or on behalf of the Company (other
than statements or representations contained in the
Fund registration
26
statement, Fund prospectus or sales literature or other
promotional material of the Fund not supplied by the
Company or persons under its control) or wrongful
conduct of the Company or persons under its control,
with respect to the sale or disposition of the
Contracts or Fund shares, provided any such statement
or representation or such wrongful conduct was not made
in reliance upon and in conformity with information
furnished in writing, via fax or via electronic means,
to the Company by or on behalf of the Adviser or the
Fund; or
(iii) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained
in the Fund registration statement, Fund prospectus,
SAI or sales literature or other promotional material
of the Fund or any amendment thereof or supplement
thereto or the omission or alleged omission to state
therein a material fact required to be stated therein
or necessary to make the statements therein not
misleading in light of the circumstances in which they
were made, if such statement or omission was made in
reliance upon information furnished in writing, via fax
or via electronic means, to the Fund or the Adviser by
or on behalf of the Company or persons under its
control; or
(iv) arise out of or result from any material breach of this
Agreement by the Company;
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
8.2. Indemnification by Adviser and Fund
(a)(1) The Adviser agrees to indemnify and hold harmless the
Company and each of its directors and officers, employees and agents, and each
person, if any, who
27
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Adviser) or litigation expenses
(including any Losses) to which the Indemnified Parties may become subject under
any statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or the
Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement, prospectus, SAI or sales
literature of the Fund (or any amendment or supplement
to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state
therein a material fact required to be stated therein
or necessary to make the statements therein not
misleading in light of the circumstances in which they
were made; provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reliance upon and in conformity
with information furnished in writing, via fax or via
electronic means, to the Adviser or the Fund by or on
behalf of the Company for use in the Fund registration
statement, prospectus or SAI, or sales literature or
other promotional material for the Contracts or of the
Fund; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts or in the
Contract registration statement, the Contract
prospectus, SAI, or sales literature or other
promotional material for the Contracts not supplied by
the Adviser or the Fund or persons under the control of
the Adviser or the Fund respectively) or wrongful
conduct of the Adviser or persons under its control,
with respect to the sale or distribution of the
Contracts, provided any such statement or
representation or such wrongful conduct was not made in
reliance upon and in conformity with information
furnished in writing, via fax or via electronic means,
to the Adviser or the Fund by or on behalf of the
Company; or
28
(iii) arise out of any untrue statement or allegedly untrue
statement of a material fact contained in a
registration statement, prospectus, SAI or sales
literature covering the Contracts (or any amendment
thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statement or statements therein not misleading in light
of the circumstances in which they were made, if such
statement or omission was made in reliance upon
information furnished in writing, via fax or via
electronic means, to the Company by or on behalf of the
Fund or persons under the control of the Adviser; or
(iv) arise out of or result from any material breach of this
Agreement by the Adviser.
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Adviser may
otherwise have.
(a)(2) The Fund agrees to indemnify and hold harmless the
Indemnified Parties against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund) or
litigation expenses (including Losses) to which the Indemnified Parties may
become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the operations of the Fund or the
sale or acquisition of the Fund's shares and:
(i) arise out of or are based upon (a) any untrue statement
or alleged untrue statement of any material fact or (b)
the omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements made therein, in light
of the circumstances in which they were made, not
misleading, if such fact, statement or omission is
contained in the registration statement for the Fund or
the Contracts, or in the prospectus or SAI for the
Contracts or the Fund, or in any amendment to any of
the foregoing, or in sales literature or other
promotional material for the Contracts or of the Fund,
provided, however, that this agreement to indemnify
shall not apply as to any Indemnified Party if such
statement,
29
fact or omission or such alleged statement, fact or
omission was made in reliance upon and in conformity
with information furnished in writing, via fax or via
electronic means, to the Adviser or the Fund by or on
behalf of the Indemnified Party; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts or in the
Contract registration statement, the Contract
prospectus, SAI, or sales literature or other
promotional material for the Contracts not supplied by
the Adviser or the Fund or persons under the control of
the Adviser or the Fund respectively) or wrongful
conduct of the Fund or persons under its control with
respect to the sale or distribution of Contracts,
provided any such statement or representation or such
wrongful conduct was not made in reliance upon and in
conformity with information furnished in writing, via
fax or via electronic means, to the Adviser or the Fund
by or on behalf of the Company; or
(iii) arise out of or result from any material breach of
this Agreement by the Fund .
except to the extent provided in Section 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Fund may
otherwise have.
(b) The Fund and Adviser shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement.
8.3. Indemnification Procedure
Any person obligated to provide indemnification under this Article
VIII ("indemnifying party" for the purpose of this Section 8.3) shall not be
liable under the indemnification provisions of this Article VIII with respect to
any claim made against a party
30
entitled to indemnification under this Article VIII ("indemnified party" for the
purpose of this Section 8.3) unless such indemnified party shall have notified
the indemnifying party in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim shall
have been served upon such indemnified party (or after such party shall have
received notice of such service on any designated agent), but failure to notify
the indemnifying party of any such claim shall not relieve the indemnifying
party from any liability which it may have to the indemnified party against whom
such action is brought under the indemnification provisions of this Article
VIII, except to the extent that the failure to notify results in the failure of
actual notice to the indemnifying party and such indemnifying party is damaged
solely as a result of failure to give such notice. In case any such action is
brought against the indemnified party, the indemnifying party will be entitled
to participate, at its own expense, in the defense thereof. The indemnifying
party also shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to the party named in the action. After notice from the
indemnifying party to the indemnified party of the indemnifying party's election
to assume the defense thereof, the indemnified party shall bear the fees and
expenses of any additional counsel retained by it, and the indemnifying party
will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation, unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
The indemnifying party shall not be liable for any
31
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
ARTICLE IX. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify to the
other party.
If to the Fund:
Xxxxxxxxxxx Variable Account Funds
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Adviser:
OppenheimerFunds, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
32
With a copy to:
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Company:
RiverSource Life Insurance Co. of New York
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Vice President
With a copy to:
RiverSource Distributors, Inc.
70100 Ameriprise Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: President
ARTICLE X. Miscellaneous
10.1. The Company represents and warrants that any Contracts eligible
to purchase shares of the Fund and offered and/or sold in private placements
will comply in all material respects with the exemptions from the registration
requirements of the 1933 Act and applicable federal and state laws and
regulations.
10.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
(i) this Agreement and (ii) by Title V, Subtitle A of the Xxxxx-Xxxxx-Xxxxxx Act
and by regulations adopted thereunder by regulators having jurisdiction over the
parties hereto, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until such time as it may come into the public domain.
33
10.3. Notwithstanding anything to the contrary contained in this
Agreement , in addition to and not in lieu of other provisions in this
Agreement:
(a) "Confidential Information" includes but is not limited to all
proprietary and confidential information of the Company and its subsidiaries,
affiliates licensees (collectively the "Protected Parties" for purposes of this
Section 10.3), including without limitation all information regarding the
customers of the Protected Parties; or the accounts, account numbers, names,
addresses, social security numbers or any other personal identifier of such
customers; or any information derived therefrom.
(b) The Fund shall not use or disclose Confidential Information
for any purpose other than to carry out the purpose for which Confidential
Information was provided to the Fund as set forth in the Agreement; and the Fund
agrees to cause all its employees, agents and representatives, or any other
party to whom such Fund may provide access to or disclose Confidential
Information to limit the use and disclosure of Confidential Information to that
purpose.
(c) The Fund and the Company acknowledge that all computer
programs and procedures or other information developed or used by the either
party to this Agreement or any of their employees or agents in connection with
the Fund's or the Company's performance of its duties under this Agreement are
the valuable property of the Protected Parties.
(d) The Fund agrees to implement appropriate measures designed to
ensure the security and confidentiality of Confidential Information, to protect
such information against any anticipated threats or hazard to the security or
integrity of such information, and to protect against unauthorized access to, or
use of, Confidential Information that could result in substantial harm or
inconvenience to any customer of the Protected Parties; the Fund further
34
agrees to cause all its agents, representatives or subcontractors of, or any
other party to whom the Fund may provide access to or disclose Confidential
Information to implement appropriate measures designed to meet the objectives
set forth in this Section 10.3.
(e) The Fund and the Company acknowledge that any breach of the
agreements in this Section 10.3 would result in immediate and irreparable harm
to the Protected Parties for which there would be no adequate remedy at law and
agree that in the event of such a breach, the affected party will be entitled to
equitable relief by way of temporary and permanent injunctions, as well as such
other relief as any court of competent jurisdiction deems appropriate.
(f) This Section 10.3 shall survive the termination of this
Agreement.
10.4. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
10.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.6. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
10.7. The parties to this Agreement acknowledge and agree that all
liabilities of the Fund arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Fund and that no Trustee, director, officer, agent or holder of shares of
beneficial interest of the Fund shall be personally liable for any such
liabilities.
10.8. The parties to this Agreement agree that the assets and
liabilities of each Portfolio of the Fund are separate and distinct from the
assets and liabilities of each other
35
Portfolio. No Portfolio shall be liable or shall be charged for any debt,
obligation or liability of any other Portfolio.
10.9. Each party hereto shall cooperate with, and promptly notify each
other party and all appropriate governmental authorities (including without
limitation the SEC, the NASD and state insurance regulators) and shall permit
such authorities reasonable access to its books and records in connection with
any investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
10.10. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
10.11. It is understood by the parties that this Agreement is not an
exclusive arrangement in any respect.
10.12. The Company and the Adviser each understand and agree that the
obligations of the Fund under this Agreement are not binding upon any Trustee or
shareholder of the Fund personally, but bind only the Fund with respect to the
Portfolio and the Portfolio's property; the Company and the Adviser each
represent that it has notice of the provisions of the Declaration of Trust of
the Fund disclaiming Trustee and shareholder liability for acts or obligations
of the Fund.
10.13. This Agreement shall not be assigned by any party hereto
without the prior written consent of all the parties. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, the Adviser
may transfer or assign its rights, duties and obligations hereunder or interest
herein to any entity owned, directly or indirectly, by Xxxxxxxxxxx Acquisition
Corp. (the Adviser's parent corporation) or to a successor in interest pursuant
to a
36
merger, reorganization, stock sale, asset sale or other transaction, without the
consent of the Company, as long as (i) that assignee agrees to assume all the
obligations imposed on the Adviser by this Agreement, and (ii) the Fund consents
to that assignment.
10.14. This Agreement sets forth the entire agreement between the
parties and supercedes all prior communications, agreements and understandings,
oral or written, between the parties regarding the subject matter hereof.
37
IN WITNESS WHEREOF, each of the parties hereto has caused its duly authorized
officers to execute this Agreement.
RIVERSOURCE LIFE INSURANCE CO. OF
NEW YORK
By: /s/ Xxxxxxx X. Xxxxx III
------------------------------------
Name: Xxxxxxx X. Xxxxx III
Title: Vice President
XXXXXXXXXXX VARIABLE ACCOUNT FUND
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
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Title: Treasurer
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OPPENHEIMERFUNDS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
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Title: Vice President
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SCHEDULE 1
RiverSource of New York Variable Annuity Account 2 (prior to January 1, 2007:
ACL Variable Annuity Account 2)
Contracts and Portfolios available under each Contract:
1. ACL Personal Portfolio Plus 2 Variable Annuity 333-00519
Xxxxxxxxxxx Capital Appreciation Fund/VA
Xxxxxxxxxxx High Income Fund/VA
2. RiverSource AccessChoice Select(SM) Variable Annuity 333-134154
Xxxxxxxxxxx Capital Appreciation Fund/VA, Service Shares
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
3. RiverSource Endeavor Select(SM) Variable Annuity 333-101051
Xxxxxxxxxxx Capital Appreciation Fund/VA, Service Shares
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
4. RiverSource FlexChoice Select(SM) Variable Annuity 333-134154
Xxxxxxxxxxx Capital Appreciation Fund/VA, Service Shares
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
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5. RiverSource Innovations(SM) Variable Annuity 333-101051
Xxxxxxxxxxx Capital Appreciation Fund/VA, Service Shares
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx High Income Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
6. RiverSource Innovations(SM) Select Variable Annuity 333-101051
Xxxxxxxxxxx Capital Appreciation Fund/VA, Service Shares
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
RiverSource of New York Variable Annuity Account (prior to January 1, 2007: IDS
Life of New York Variable Annuity Account)
Contracts and Portfolios available under each Contract:
1. RiverSource Retirement Advisor Advantage Plus(SM) Variable Annuity
333-91691
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
2. RiverSource Retirement Advisor Select Plus(SM) Variable Annuity 333-79311
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
3. RiverSource Retirement Advisor Advantage(SM) Variable Annuity and
RiverSource Retirement Advisor Advantage(SM) Variable Annuity - Band 3
333-91691
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
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Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
4. RiverSource Retirement Advisor Select(SM) Variable Annuity 333-91691
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
5. RiverSource Retirement Advisor Variable Annuity(R) and RiverSource
Retirement Advisor Variable Annuity(R) - Band 3 333-91691
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
6. RiverSource Retirement Advisor 4 Advantage(SM) Variable Annuity 333-91691
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
Xxxxxxxxxxx Value Fund/VA, Service Shares
7. RiverSource Retirement Advisor 4 Select(SM) Variable Annuity 333-91691
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
Xxxxxxxxxxx Value Fund/VA, Service Shares
8. RiverSource Retirement Advisor 4 Access(SM) Variable Annuity 333-91691
Xxxxxxxxxxx Global Securities Fund/VA, Service Shares
Xxxxxxxxxxx Main Street Small Cap Fund/VA, Service Shares
Xxxxxxxxxxx Strategic Bond Fund/VA, Service Shares
Xxxxxxxxxxx Value Fund/VA, Service Shares
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