Exhibit (h)(6)
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
By and Among
STI CLASSIC VARIABLE TRUST
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of this 27th day of November, 2006
by and among STI Classic Variable Trust, an open-end management investment
company organized under the laws of Massachusetts (the "Fund"), and AMERICAN
ENTERPRISE LIFE INSURANCE COMPANY, an Indiana life insurance company (the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Schedule 1 to this Agreement, as may be amended from time to
time (each account referred to as the "Account").
WHEREAS, the Fund was established for the purpose of serving as the investment
vehicle for insurance company separate accounts supporting variable annuity
contracts and variable life insurance policies to be offered by insurance
companies that have entered into participation agreements with the Fund (the
"Participating Insurance Companies"); and
WHEREAS, the Fund, the Company and Trusco Capital Management, Inc., the Fund's
adviser, initially entered into a participation agreement dated January 1, 2003,
which agreement is being amended, restated, and replaced by this Agreement; and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets; and
WHEREAS, the Fund has received an order from the Securities and Exchange
Commission (the "SEC") granting Participating Insurance Companies and their
separate accounts relief from the provisions of Sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940, as amended (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
Participating Insurance Companies and certain qualified pension and retirement
plans outside of the separate account context (the "Exemptive Order"); and
WHEREAS, the Company has registered or will register certain variable annuity
contracts and/or variable life insurance polices (the "Contracts") under the
Securities Act of 1931, as amended (the "1933 Act"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the series of the Fund named in
Schedule 2 to this Agreement, as may be amended from time to time (the
"Portfolios"), on behalf of each Account to fund the Contracts; and
1
WHEREAS, under the terms and conditions set forth in this Agreement, the Fund
desires to make its Portfolios available as investment options under the
Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree as
follows:
ARTICLE I. SALE AND REDEMPTION OF FUND SHARES
1.1. The Fund will sell to the Company those shares of the Portfolios that each
Account orders, executing such orders on a daily basis at the net asset
value next computed after receipt and acceptance by the Fund (or its
agent). Shares of a particular Portfolio of the Fund will be ordered in
such quantities and at such times as determined by the Company to be
necessary to meet the requirements of the Contracts. The Board of Trustees
of the Fund (the "Fund Board") may 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 Fund Board, acting
in good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.2. The Fund will redeem any full or fractional shares of any Portfolio when
requested by the Company on behalf of an Account at the net asset value
next computed after receipt by the Fund (or its agent) of the request for
redemption, as established in accordance with the provisions of the then
current prospectus of the Fund.
1.3. For purposes of Sections 1.1 and 1.2, the Fund hereby appoints the Company
as its agent for the limited purpose of receiving and accepting purchase
and redemption orders resulting from investment in and payments under the
Contracts. Receipt by the Company will constitute receipt by the Fund
provided that: (a) such orders are received by the Company in good order
prior to the time the net asset value of each Portfolio is priced in
accordance with its prospectus; and (b) the Company will make best efforts
to ensure the Fund receives notice of such orders by 8:15 am. Central Time
on the next following Business Day, but no later than 8:30 a.m. Central
Time on the next following Business Day. "Business Day" will 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.
1.4. The Company will pay for a purchase order on the same Business Day as the
Fund receives notice of the purchase order in accordance with Section 1.3.
The Fund will pay for a redemption order on the same Business Day as the
Fund receives notice of the redemption order in accordance with Section 1.3
and in the manner established from time to time by the Fund, except that
the Fund reserves the right to suspend payment consistent with Section
22(e) of the 1940 Act and any rules thereunder. In any event, absent
extraordinary circumstances specified in Section 22(e) of the 1940 Act, the
Fund will make such payment within five (5) calendar days after the date
the redemption order is placed in order to enable the Company to pay
redemption proceeds within the time specified in Section 22(e) of the 1940
Act or such shorter period of time as may be required by law. All payments
will be made in federal funds transmitted by wire or other method agreed to
by the parties.
2
1.5. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate subaccount of each
Account.
1.6. The Fund will furnish same day notice (by wire or telephone, followed by
written confirmation) to the Company of the declaration of any income,
dividends or capital gain distributions payable on each Portfolio's shares.
The Company hereby elects to receive all such dividends and distributions
as are payable on the Portfolio shares in the form of additional shares of
that Portfolio. The Company reserves the right to revoke this election and
to receive all such dividends and distributions in cash. The Fund will
notify the Company of the number of shares so issued as payment of such
dividends and distributions.
1.7. The Fund will make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical
after the net asset value per share is calculated and will use its best
efforts to make such net asset value per share available by 5:30 p.m.
Central Time, but in no event later than 6:00 p.m. Central Time each
Business Day. The Fund will notify the Company as soon as possible if it is
determined that the net asset value per share will be available after 6:00
p.m. Central Time on any Business Day, and the Fund and the Company will
mutually agree upon a final deadline for timely receipt of the net asset
value on such Business Day.
1.8. Any material errors in the calculation of net asset value, dividends or
capital gain information will be reported immediately upon discovery to the
Company. An error will be deemed "material" based on the Fund's
interpretation of the SEC's position and policy with regard to materiality,
as it may be modified from time to time. If the Company is provided with
materially incorrect net asset value information, the Company will be
entitled to an adjustment to the number of shares purchased or redeemed to
reflect the correct net asset value per share. Neither the Fund nor its
affiliates will be liable for any information provided to the Company
pursuant to this Agreement which information is based on incorrect
information supplied by or on behalf of the Company to the Fund.
1.9. The Fund agrees that its shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain qualified
pension and retirement plans to the extent permitted by the Exemptive
Order. No shares of any Portfolio will be sold directly to the general
public. The Company agrees that Fund shares will be used only for the
purposes of funding the Contracts and Accounts listed in Schedule 1, as
amended from time to time.
1.10. The Fund agrees that all Participating Insurance Companies will have the
obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 3.4 and
Article IV of this Agreement.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that:
3
(a) it is an insurance company duly organized and in good standing under
applicable law;
(b) it has legally and validly established or will legally and validly
establish each Account as a separate account under applicable state
law;
(c) it has registered or will register to the extent necessary each
Account as a unit investment trust in accordance with the provisions
of the 1940 Act to serve as a segregated investment account for the
Contracts;
(d) it has filed or will file to the extent necessary the Contracts'
registration statements under the 1933 Act and these registration
statements will be declared effective by the SEC prior to the sale of
any Contracts;
(e) the Contracts will be filed and qualified and/or approved for sale, as
applicable, under the insurance laws and regulations of the states in
which the Contracts will be offered prior to the sale of Contracts in
such states; and
(f) it will amend the registration statement under the 1933 Act for the
Contracts and the registration statement under the 1940 Act for the
Account 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, but in any event it will maintain a current
effective Contracts' and Account's registration statement for so long
as the Contracts are outstanding unless the Company has supplied the
Fund with an SEC no-action letter, opinion of counsel or other
evidence satisfactory to the Fund's counsel to the effect that
maintaining such registration statement on a current basis is no
longer required.
2.2. The Company represents and warrants that the Contracts are intended to be
treated as annuity or life insurance contracts under applicable provisions
of the Internal Revenue Code of 1986, as amended (the "Internal Revenue
Code"), and that it will make every effort to maintain such treatment and
that it will promptly notify the Fund 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.
2.3. The Fund represents and warrants that:
(a) it is duly organized and validly existing under applicable state law;
(b) it has registered with the SEC as an open-end management investment
company under the 1940 Act;
(c) Fund shares of the Portfolios offered and sold pursuant to this
Agreement will be registered under the 1933 Act and duly authorized
for issuance in accordance with applicable law;
4
(d) it is and will remain registered under the 1940 Act for as long as
such shares of the Portfolios are sold;
(e) it will 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;
(f) it is currently qualified as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code, it will make every effort
to maintain such qualification (under Subchapter M or any successor or
similar provision) and 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; and
(g) its investment objectives, policies and restrictions comply with
applicable state securities laws as they may apply to the Fund and it
will register and qualify the shares of the Portfolios for sale in
accordance with the laws of the various states to the extent deemed
advisable by the Fund. The Fund makes no representation as to whether
any aspect of its operations (including, but not limited to, fees and
expenses and investment policies, objectives and restrictions)
complies with the insurance laws and regulations of any state. The
Fund agrees that it will furnish the information required by state
insurance laws so that the Company can obtain the authority needed to
issue the Contracts in the various states.
2.4. The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule l2b-1 under the 1940 Act or
otherwise, although it reserves the right to make such payments in the
future. To the extent that the Fund decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund undertakes to have its Fund
Board, a majority of whom are not "interested" persons of the Fund,
formulate and approve any plan under Rule l2b-1 to finance distribution
expenses.
2.5. The Fund represents and warrants that it will invest money from the
Contracts in such a manner as to ensure that the Contracts will be treated
as variable annuity contracts and variable life insurance policies under
the Internal Revenue Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund further represents and
warrants that it will comply with Section 817(h) of the Internal Revenue
Code and Treasury Regulation 1.817-5, as amended from time to time,
relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts and any amendments or other
modifications to such Section or Regulation. In the event of a breach of
this representation and warranty by the Fund it will take all reasonable
steps:
(a) to notify the Company of such breach; and
(b) to adequately diversify the Fund so as to achieve compliance within
the grace period afforded by Treasury Regulation 1.817-5.
5
2.6. Each party represents and warrants that, as applicable, all of its
directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the
Fund are and will continue to be at all times covered by a blanket fidelity
bond or similar coverage in an amount not less than the minimal coverage as
required currently by Rule 17g-(l) of the 1940 Act or related provisions as
may be promulgated from time to time. The aforesaid bond includes coverage
for larceny and embezzlement and is issued by a reputable bonding company.
2.7. The parties represent and warrant that:
(a) The Company acknowledges that the Fund has adopted policies designed
to prevent frequent purchases and redemptions of shares of the
Portfolios in quantities great enough to: (i) disrupt orderly
management of the corresponding investment portfolio, or (ii) dilute
the value of the outstanding shares of that Portfolio ("Disruptive
Trading Policies"). These policies are disclosed in the Fund's
prospectus. From time to time, the Fund implements procedures
reasonably designed to enforce the Fund's Disruptive Trading Policies
and shall provide a written description of such procedures (and
revisions thereto) to the Company. As a procedure in furtherance of
its Disruptive Trading Policies, the Fund may assess fees upon
redemption of shares of one or more Portfolios within certain stated
time periods after such shares have been purchased.
(b) The Fund acknowledges that 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 Portfolios available as
investment options under the Contracts. These policies and procedures
are described in the current prospectuses of the Accounts through
which the Contracts are offered.
(c) In furtherance of Section 2.7(a), the Fund may, from time to time,
investigate purchases and redemptions of shares of any Portfolios by
the Company on behalf of the Accounts that appear to violate, or have
the potential to violate, the Fund's Disruptive Trading Policies. In
particular, in the event that the Fund has identified a particular
Contract owner as having engaged in transactions in Account units that
violate the Fund's Disruptive Trading Policies, the Company agrees,
subject to applicable law and the terms of each Contract, at the
written request of the Fund or its designee, to restrict or prohibit
further purchases or exchanges in Account units by that Contract owner
which could result in additional purchases and redemptions of shares
of specified Portfolios in violation of the Fund's Disruptive Trading
Policies.
In addition, subject to applicable law, when requested by the Fund or
its designee in writing, the Company agrees to provide the following
information with respect to transactions in shares of a specific
Portfolio over a designated period:
6
- the taxpayer identification number or other government-issued
identifier of the Contract owner or Contract owners whose
transactions in Account units underlie the Fund share purchases
and redemptions being investigated; and
- the amount, date, and transaction type of every transaction in
Account units during the designated period representing an
indirect investment in the Portfolios being investigated.
The Company agrees to provide the foregoing information that is on its
books and records promptly. If the requested information is not on its
books and records, it agrees to use best efforts to:
- promptly obtain the requested information, or
- at the request of the Fund restrict or prohibit further purchases
or exchanges in Account units by that Contract owner which could
result in additional purchases and redemptions of a specified
Portfolio.
In implementing the foregoing obligations of the parties under Rule
22c-2, the Company agrees to execute any instructions from the Fund or
its designee to restrict or prohibit purchases or exchanges by any
Contract owner in subaccounts available under a Contract which invest
in shares of the Fund.
2.8. 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.
ARTICLE III. OBLIGATIONS OF THE PARTIES
3.1. The Fund will prepare and be responsible for filing with the SEC and any
state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction
solicitation materials), prospectuses and statements of additional
information of the Fund. The Fund will bear the costs of registration and
qualification of its shares, preparation and filing of documents listed in
this Section 3.1 and all taxes to which an issuer is subject on the
issuance and transfer of its shares.
3.2. At the option of the Company, the Fund will either: (a) provide the Company
with as many copies of the Fund's current prospectus, statement of
additional information, annual report, semi-annual report and other
shareholder communications, including any amendments or supplements to any
of the foregoing, as the Company will reasonably request; or (b) provide
the Company with a camera-ready copy, computer disk or other medium agreed
to by the parties of such documents in a form suitable for printing. The
7
Fund will bear the cost of typesetting and printing such documents. The
Fund will bear the cost of distributing such documents to existing Contract
owners. The Company will bear the cost of distributing such documents to
prospective Contract owners and applicants as required. The Fund will
provide written instruction to all Participating Insurance Companies
including the Company each time the Fund amends or supplements the Fund's
current prospectus or statement of additional information directing the
Participating Insurance Companies as to whether the amendment or supplement
is to be provided (a) immediately to 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 the instruction it gives the Company
in each instance will be identical to the instruction it provides other
Participating Insurance Companies.
3.3 Where the Fund requests additional enforcement and/or reporting
capabilities for its own business use that require the Company to modify
its automated data processing systems or to develop and staff manual
systems to accommodate the implementation of the Fund's policy or
procedure, the Fund agrees to negotiate in good faith such additional terms
and conditions, including without limitation, reimbursement of the expense
the Company incurs in order to provide such information. The Company agrees
not to undertake such development without the express, signed written
consent of the Fund.
3.4. The Fund, at its expense, either will:
(a) distribute its proxy materials directly to the appropriate Contract
owners; or
(b) provide the Company or its mailing agent with copies of its proxy
materials in such quantity as the Company will reasonably require and
the Company will distribute the materials to existing Contract owners
and will xxxx the Fund for the reasonable cost of such distribution.
The Fund will bear the cost of tabulation of proxy votes.
3.5. If and to the extent required by law the Company will:
(a) provide for the solicitation of voting instructions from Contract
owners;
(b) vote the shares of the Portfolios held in the Account in accordance
with instructions received from Contract owners; and
(c) vote shares of the Portfolios held in the Account for which no timely
instructions have been received in the same proportion as shares of
such Portfolio for which instructions have been received from the
Company's Contract owners;
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.
The Company reserves the right to vote Fund shares held in any segregated
asset account in its own right, to the extent permitted by law.
8
3.6. The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Fund either will provide for annual
meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, to
comply with Section 16(c) of the 1940 Act (although the Fund is not one of
the trusts described in Section 16(c) of that Act) as well as with Sections
16(a) and, if and when applicable, 16(b). Further, the Fund will act in
accordance with the SEC's interpretation of the requirements of Section
16(a) with respect to periodic elections of directors and with whatever
rules the SEC may promulgate with respect thereto.
3.7. The Company will prepare and be responsible for filing with the SEC and any
state regulators requiring such filing all shareholder reports, notices,
prospectuses and statements of additional information of the Contracts. The
Company will bear the cost of registration and qualification of the
Contracts and preparation and filing of documents listed in this Section
3.7. The Company also will bear the cost of typesetting, printing and
distributing the documents listed in this Section 3.7 to existing and
prospective Contract owners.
3.8. The Company will furnish, or will cause to be furnished, to the Fund each
piece of sales literature or other promotional material in which the Fund
is named, at least ten (10) Business Days prior to its use. No such
material will be used if the Fund reasonably objects to such use within
five (5) Business Days after receipt of such material.
3.9. The Company will 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, prospectus or statement of
additional information for Fund shares, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in reports or proxy statements for the
Fund, or in published reports for the Fund which are in the public domain
or approved by the Fund for distribution, or in sales literature or other
material provided by the Fund, except with permission of the Fund. The Fund
agrees to respond to any request for approval on a prompt and timely basis.
Nothing in this Section 3.9 will be construed as preventing the Company or
its employees or agents from giving advice on investment in the Fund.
3.10. The Fund will furnish, or will cause to be furnished, to the Company or
its designee, each piece of sales literature or other promotional material
in which the Company or its separate account is named, at least ten (10)
Business Days prior to its use. No such material will be used if the
Company reasonably objects to such use within five (5) Business Days after
receipt of such material.
3.11. The Fund will not give any information or make any representations or
statements on behalf of the Company or concerning the Company, each
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus or statement of
additional information for the Contracts, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in published reports for each Account or
the Contracts which are in
9
the public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other material provided by the Company,
except with permission of the Company. The Company agrees to respond to any
request for approval on a prompt and timely basis.
3.12. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, and all amendments to any of the
above, that relate to the Fund or its shares, contemporaneously with the
filing of such document with the SEC.
3.13. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, and all
amendments to any of the above, that relate to the Contracts or each
Account, contemporaneously with the filing of such document with the SEC.
3.14. For purposes of this Article III the phrase "sales literature or other
promotional material" includes, but is not limited to, 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 billboards, motion pictures, or other public
media, (e.g., on-line networks such as the Internet or other electronic
messages), sales literature (i.e., any written communication distributed or
made generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts,
reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other
communications distributed or made generally available to some or all
agents or employees, registration statements, prospectuses, statements of
additional information, shareholder reports, and proxy materials and any
other material constituting sales literature or advertising under the rules
of the National Association of Securities Dealers, Inc. (the "NASD"), the
1933 Act or the 0000 Xxx.
3.15. The Fund hereby consents to the Company's use of the name STI Classic
Variable Trust in connection with marketing the Contracts, subject to the
terms of Sections 3.8 and 3.9 of this Agreement, Such consent will
terminate with the termination of this Agreement.
3.16. The Fund is responsible for calculating the Fund's performance
information. The Company will be responsible for calculating the
performance information for the Contracts. The Fund will be liable to the
Company for any material mistakes it makes in calculating the performance
information which cause losses to the Company. The Company will be liable
to the Fund for any material mistakes it makes in calculating the
performance information for the Contracts which cause losses to the Fund.
Each party will be liable for any material mistakes it makes in reproducing
the performance information for Contracts or the Fund, as appropriate. The
Fund agrees to provide the Company with performance information for the
Fund on a timely basis to enable the Company to calculate performance
information for the Contracts in accordance with applicable state and
federal law.
ARTICLE IV. POTENTIAL CONFLICTS
10
4.1. The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among 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 and variable life
insurance contract owners; or (f) a decision by an insurer to disregard the
voting instructions of contract owners. The Fund Board will promptly inform
the Company if it determines that an irreconcilable material conflict
exists and the implications thereof. A majority of the Fund Board will
consist of persons who arc not "interested" persons of the Fund.
4.2. The Company will report any potential or existing conflicts of which it is
aware to the Fund Board. The Company agrees to assist the Fund Board in
carrying out its responsibilities, as delineated in the Exemptive Order, by
providing the Fund Board with all information reasonably necessary for the
Fund Board to consider any issues raised. This includes, but is not limited
to, an obligation by the Company to inform the Fund Board whenever Contract
owner voting instructions are to be disregarded. The Fund Board will record
in its minutes, or other appropriate records, all reports received by it
and all action with regard to a conflict.
4.3. If it is determined by a majority of the Fund Board, or a majority of its
disinterested directors, that an irreconcilable material conflict exists,
the Company and other Participating Insurance Companies will, at their
expense and to the extent reasonably practicable (as determined by a
majority of the disinterested directors), take whatever steps are necessary
to remedy or eliminate the irreconcilable material conflict, up to and
including: (a) withdrawing the assets allocable to some or all of the
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., variable
annuity contract owners or variable life insurance 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 (b) establishing a new registered management
investment company or managed separate account.
4.4. If a material irreconcilable conflict arises because of a decision by the
Company to disregard Contract owner voting instructions, and such disregard
of voting instructions could conflict with the majority of contract owner
voting instructions, and the Company's judgment represents a minority
position or would preclude a majority vote, the Company may be required, at
the Fund's election, to withdraw the affected subaccount of the Account's
investment in the Fund and terminate this Agreement with respect to such
subaccount; provided, however, that such withdrawal and termination will
11
be limited to the extent required by the foregoing irreconcilable material
conflict as determined by a majority of the disinterested directors of the
Fund Board. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place within six
(6) months after the Fund gives written notice to the Company that this
provision is being implemented. Until the end of such six-month period the
Fund will, to the extent permitted by law and any exemptive relief
previously granted to the Fund, continue to accept and implement orders by
the Company for the purchase (and redemption) of shares of the Fund.
4.5. 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 insurance regulators, then the Company will
withdraw the affected subaccount of the Account's investment in the Fund
and terminate this Agreement with respect to such subaccount; provided,
however, that such withdrawal and termination will be limited to the extent
required by the foregoing irreconcilable material conflict as determined by
a majority of the disinterested directors of the Fund Board. No charge or
penalty will be imposed as a result of such withdrawal. Any such withdrawal
and termination must take place within six (6) months after the Fund gives
written notice to the Company that this provision is being implemented.
Until the end of such six-month period the Fund will, to the extent
permitted by law and any exemptive relief previously granted to the Fund,
continue to accept and implement orders by the Company for the purchase
(and redemption) of shares of the Fund.
4.6. For purposes of Sections 4.3 through 4.6 of this Agreement, a majority of
the disinterested members of the Fund Board will 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 will not be required by this Article IV to
establish a new funding medium for the Contracts if an offer to do so has
been declined by vote of a majority of Contract owners affected by the
irreconcilable material conflict.
4.7. The Company will at least annually submit to the Fund Board such reports,
materials or data as the Fund Board may reasonably request so that the Fund
Board may fully carry out the duties imposed upon it as delineated in the
Exemptive Order, and said reports, materials and data will be submitted
more frequently if deemed appropriate by the Fund Board.
4.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940
Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Exemptive Order) on terms and conditions
materially different from those contained in the Exemptive Order, then: (a)
the Fund and/or the Participating Insurance Companies, as appropriate, will
take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) Sections 3.5, 3.6, 4.1, 4.2, 4.3, 4.4, and 4.5 of this
Agreement will continue in
12
effect only to the extent that terms and conditions substantially identical
to such Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE V. INDEMNIFICATION
5.1. Indemnification By The Company.
(a) The Company agrees to indemnify and hold harmless the Fund, and each
person, if any, who controls or is associated with the Fund within the
meaning of such terms under the federal securities laws (but not any
Participating Insurance Companies) and any director, trustee, officer,
partner, employee or agent of the foregoing (collectively, the
"Indemnified Parties" for purposes of this Section 5.1) against any
and all losses, claims, expenses, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or
litigation (including reasonable legal and other expenses), 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:
(1) arise out of or are based on any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of additional
information for the Contracts or contained in the Contracts or
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
or necessary to make such statements not misleading in light of
the circumstances in which they were made; provided that this
agreement to indemnify will 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
for use in the registration statement, prospectus or statement of
additional information for the Contracts or in 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
(2) arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, prospectus, statement of additional
information or sales literature or other promotional material of
the Fund (or any amendment or supplement to any of the
foregoing), or the 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 and in conformity with information furnished to the
Fund in writing by or on behalf of the Company or persons under
its control; or
13
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal or state law by, the Company or
persons under its control or subject to its authorization, with
respect to the purchase of Fund shares or the sale, marketing or
distribution of the Contracts; or
(4) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
(5) arise out of any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or
result from any other material breach of this Agreement by the
Company or persons under its control or subject to its
authorization;
except to the extent provided in Sections 5.1(b) and 5.3 hereof. This
indemnification will be in addition to any liability that the Company
otherwise may have.
(b) No party will be entitled to indemnification under Section 5.1(a) if
such loss, claim, damage, liability or litigation is due to the
willful misfeasance, bad faith, or gross negligence in the performance
of such party's duties under this Agreement, or by reason of such
party's reckless disregard of its obligations or duties under this
Agreement by the party seeking indemnification.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with the issuance or
sale of the Fund shares or the Contracts or the operation of the Fund.
5.2. Indemnification By The Fund.
(a) The Fund agrees to indemnify and hold harmless the Company and each
person, if any, who controls or is associated with the Company within
the meaning of such terms under the federal securities laws and any
director, trustee, officer, partner, employee or agent of the
foregoing (collectively, the "Indemnified Parties" for purposes of
this Section 5.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the
written consent of the Fund) or litigation (including reasonable legal
and other expenses), 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:
(1) arise out of or are based on any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of additional
information for the Fund or sales literature or other promotional
material of the Fund that was prepared or approved by the Fund or
its designated agent (or any amendment or supplement to any of
the foregoing), or arise out of or are based on the
14
omission or alleged omission to state therein a material fact
required to be stated or necessary to make such statements not
misleading in light of the circumstances in which they were made;
provided that this agreement to indemnify will 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 Fund or its
designated agent by or on behalf of an Indemnified Party for use
in the registration statement, prospectus or statement of
additional information for the Fund or in sales literature of the
Fund (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(2) arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the Contract
registration statement, prospectus or statement of additional
information or sales literature or other promotional material for
the Contracts (or any amendment or supplement to any of the
foregoing), 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 and in conformity with
information furnished to the Company in writing by or on behalf
of the Fund or persons under its control; or
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal and state law by, the Fund or
persons under its control or subject to its authorization with
respect to the sale of Fund shares; or
(4) arise as a result of any failure by the Fund or persons under its
respective control or subject to its authorization to provide the
services and furnish the materials under the terms of this
Agreement including, but not limited to, a failure, whether
unintentional or in good faith or otherwise, to comply with the
diversification requirements and procedures related thereto
specified in Section 2.5 of this Agreement or any material errors
in or untimely calculation or reporting of the daily net asset
value per share or dividend or capital gain distribution rate
(referred to in this Section 5.3(a)(4) as an "error"); provided,
that the foregoing will not apply where such error is the result
of incorrect information supplied by or on behalf of the Company
to the Fund or its agent, and will be limited to (i) reasonable
administrative costs necessary to correct such error, and (ii)
amounts which the Company has paid out of its own resources to
make Contract owners whole as a result of such error; or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this
Agreement, or arise out of or result
15
from any other material breach of this Agreement by the Fund or
persons under its control or subject to its authorization;
except to the extent provided in Sections 5.2(b) and 5.3 hereof.
(b) No party will be entitled to indemnification under Section 5.2(a) if
such loss, claim, damage, liability or litigation is due to the
willful misfeasance, bad faith, or gross negligence in the performance
of such party's duties under this Agreement, or by reason of such
party's reckless disregard of its obligations or duties under this
Agreement by the party seeking indemnification.
(c) The Indemnified Parties will promptly notify the Fund and the Fund of
the commencement of any litigation, proceedings, complaints or actions
by regulatory authorities against them in connection with the issuance
or sale of the Contracts or the operation of the Account.
5.3. Indemnification Procedure.
Any person obligated to provide indemnification under this Article V
("Indemnifying Party" for the purpose of this Section 5.3) will not be
liable under the indemnification provisions of this Article V with respect
to any claim made against a party entitled to indemnification under this
Article V ("Indemnified Party" for the purpose of this Section 5.3) unless
such Indemnified Party will 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 will have been served upon
such Indemnified Party (or after such party will have received notice of
such service on any designated agent), but failure to notify the
Indemnifying Party of any such claim will not relieve the Indemnifying
Party from any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of the
indemnification provision of this Article V, 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 will be entitled to assume the defense thereof, with counsel
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 will 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: (a) the Indemnifying Party and the
Indemnified Party will have mutually agreed to the retention of such
counsel; or (b) 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 will not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there is a final judgment
16
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
will be entitled to the benefits of the indemnification contained in this
Article V. The indemnification provisions contained in this Article V will
survive any termination of this Agreement.
5.4. Limitation of Liability.
Except as expressly stated herein, as between the parties, in no event will
any party to this Agreement be responsible to any other party for any
incidental, indirect, consequential, punitive or exemplary damages of any
kind arising from this Agreement, including without limitation, lost
revenues, loss of profits or loss of business.
5.5. Arbitration.
Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, will be settled by arbitration administered by the
American Arbitration Association in accordance with its Commercial
Arbitration Rules and Title 9 of the U.S. Code. Judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The number of arbitrators will be three, one of whom will be
appointed by the Company or an affiliate; one of whom will be appointed by
the Fund or an affiliate; and the third of whom will be selected by mutual
agreement, if possible, within 30 days of the selection of the second
arbitrator and thereafter by the administering authority. The place of
arbitration will be Minneapolis, Minnesota. The arbitrators will have no
authority to award punitive damages or any other damages not measured by
the prevailing party's actual damages, and may not, in any event, make any
ruling, finding or award that does not conform to the terms and conditions
of this Agreement. Any party may make an application to the arbitrators or
any court having jurisdiction hereof seeking injunctive relief to maintain
the status quo until such time as the arbitration award is rendered or the
controversy is otherwise resolved.
ARTICLE VI. APPLICABLE LAW
6.1. This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Minnesota.
6.2. This Agreement will 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 exemptions from those
statutes, rules and regulations as the SEC may grant (including, but not
limited to, the Exemptive Order) and the terms hereof will be interpreted
and construed in accordance therewith.
ARTICLE VII. TERMINATION
7.1. This Agreement will terminate:
17
(a) at the option of either party, with or without cause, with respect to
some or all of the Portfolios, upon sixty (60) days' advance written
notice to the other party or, if later, upon receipt of any required
exemptive relief or orders from the SEC, unless otherwise agreed in a
separate written agreement among the parties;
(b) at the option of the Company, upon receipt of the Company's written
notice by the Fund, with respect to any Portfolio if shares of the
Portfolio are not reasonably available to meet the requirements of the
Contracts as determined in good faith by the Company; or
(c) at the option of the Company, upon receipt of the Company's written
notice by the Fund, with respect to any Portfolio in the event any of
the Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment media of
the Contracts issued or to be issued by Company; or
(d) at the option of the Fund, upon receipt of the Fund's written notice
by the Company, upon institution of formal proceedings against the
Company by the NASD, the SEC, the insurance commission of any state or
any other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the administration
of the Contracts, the operation of the Account, or the purchase of the
Fund shares, provided that the Fund determines in its sole judgment,
exercised in good faith, that any such proceeding would have a
material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the Company's written
notice by the Fund, upon institution of formal proceedings against the
Fund by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body, regarding the Fund's duties
under this Agreement or related to the sale of Fund shares or the
administration of the Fund, provided that the Company determines in
its sole judgment, exercised in good faith, that any such proceeding
would have a material adverse effect on the Fund's ability to perform
its obligations under this Agreement; or
(f) at the option of the Company, upon receipt of the Company's written
notice by the Fund, if the Fund ceases to qualify as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, or
under any successor or similar provision, or if the Company reasonably
and in good faith believes that the Fund may fail to so qualify; or
(g) at the option of the Company, upon receipt of the Company's written
notice by the Fund, with respect to any Portfolio if the Fund fails to
meet the diversification requirements specified in Article II hereof
or if the Company reasonably and in good faith believes the Fund may
fail to meet such requirements; or
18
(h) at the option of either party to this Agreement, upon written notice
to the other party, upon another party's material breach of any
provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that the Fund 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, such
termination to be effective sixty (60) days' after receipt by the
other parties of written notice of the election to terminate; or at
the option of the Fund, if the Fund determines 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, such termination to be effective
sixty (60) days' after receipt by the other parties of written notice
of the election to terminate; or
(j) at the option of the Company or the Fund upon receipt of any necessary
regulatory approvals and/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 had been selected to serve as the underlying
investment media. The Company will give sixty (60) days' prior written
notice to the Fund of the date of any proposed vote or other action
taken to replace the Fund's shares; or
(k) at the option of the Company or the Fund upon a determination by a
majority of the Fund Board, or a majority of the disinterested Fund
Board members, that an irreconcilable 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 set forth
in Article IV of this Agreement; or
(l) at the option of the Fund in the event any of the Contracts are not
issued or sold in accordance with applicable federal and/or state law.
Termination will be effective immediately upon such occurrence without
notice.
7.2. Notwithstanding any termination of this Agreement, the Fund will, at the
option of the Company, continue to make available additional shares of the
Fund pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts") unless such further sale
of shares is proscribed by law, regulation or applicable regulatory body.
Specifically, without limitation, the owners of the Existing Contracts will
be permitted to reallocate investments in the Portfolios (as in effect on
such date), redeem investments in the Portfolios and/or invest in the
Portfolios upon the making of additional purchase payments under the
Existing Contracts. The parties agree that this Section 7.2 will not
19
apply to any terminations under Article IV and the effect of such Article
IV terminations will be governed by Article IV of this Agreement.
7.3. The provisions of Article V will survive the termination of this Agreement
and as long as shares of the Fund are held under Existing Contracts in
accordance with Section 7.2, the provisions of this Agreement will survive
the termination of this Agreement with respect to those Existing Contracts.
7.4. In the event that the Fund should initiate (i) a reorganization as defined
by Section 2 of the 1940 Act, or (ii) a change in the name of a Portfolio
or the Fund, the Fund agrees to reimburse Company the reasonable costs the
Company incurs that are associated with the reorganization or renaming of
the Fund or a Portfolio. The Company and the Fund shall each use its best
efforts to minimize such costs. The Company shall provide the Fund with
acceptable documentation for all actual costs related to such
reorganization or renaming.
ARTICLE VIII. NOTICES
Any notice will be deemed duly given when sent by registered or certified mail
(or other method agreed to by the parties) to each 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 in writing to the other parties.
If to the Company:
American Enterprise Life Insurance Company
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Vice President
With a copy to:
American Enterprise Life Insurance Company
00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: General Counsel's Office
If to the Fund:
STI Classic Variable Trust
c/o BISYS Fund Service Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: President
ARTICLE IX. MISCELLANEOUS
20
9.1. All persons dealing with the Fund must look solely to the property of the
Fund for the enforcement of any claims against the Fund as neither the
directors, trustees, officers, partners, employees, agents or shareholders
assume any personal liability for obligations entered into on behalf of the
Fund.
9.2. 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 Fund and the Company
and its subsidiaries, affiliates and licensees (collectively the
"Protected Parties" for purposes of this Section 9.2), 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) No party to this Agreement may use or disclose Confidential
Information for any purpose other than to carry out the purpose for
which Confidential Information was provided as set forth in the
Agreement; and the parties agree to cause all their employees, agents
and representatives, or any other party to whom access to or
disclosure of the Confidential Information may be given to limit the
use and disclosure of Confidential Information to that purpose.
(c) The parties acknowledge that all computer programs and procedures or
other information developed or used by the Protected Parties or any of
their employees or agents in connection with the Company's performance
of its duties under this Agreement are the valuable property of the
Protected Parties.
(d) The parties agree to implement appropriate measures designed to ensure
the security and confidentiality of Confidential Information, to
protect such information against any anticipated threats or hazards 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; and further agree to cause all their agents,
representatives or subcontractors of, or any other party to whom the
parties may provide access to or disclose Confidential Information to
implement appropriate measures designed to meet the objectives set
forth in this Section 9.2.
(e) The parties acknowledge that any breach of the agreements in this
Section 9.2 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 Protected Parties
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 9.2 shall survive the termination of this Agreement.
21
9.3. 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.
9.4. This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together will constitute one and the same instrument.
9.5. If any provision of this Agreement will be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement will
not be affected thereby.
9.6. This Agreement will not be assigned by any party hereto without the prior
written consent of all the parties. The Fund acknowledges that Company will
merge with and into IDS Life Insurance Company on December 31, 2006 (the
"Merger"). IDS Life Insurance Company will change its name to RiverSource
Life Insurance Company simultaneously with the Merger. On and after the
effective time of the Merger, all references in this Agreement and its
Schedules to American Enterprise Life Insurance Company shall mean and
refer to RiverSource Life Insurance Company. The Fund hereby consents to
(i) the transfer of the rights and obligations of American Enterprise Life
Insurance Company under this Agreement to IDS Life Insurance Company at the
effective time of the Merger; and (ii) the assumption of all duties and
obligations of American Enterprise Life Insurance Company under this
Agreement by RiverSource Life Insurance Company at the effective time of
the Merger.
9.7. Each party to this Agreement will cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
the NASD and state insurance regulators) and will permit each other and
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.
9.8. Each party represents that the execution and delivery of this Agreement and
the consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate or board action, as applicable, by
such party and when so executed and delivered this Agreement will be the
valid and binding obligation of such party enforceable in accordance with
its terms.
9.9. The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts, the
Accounts or the Portfolios of the Fund or other applicable terms of this
Agreement.
9.10. A copy of the Fund's Declaration of Trust is on file with the Secretary of
State of the Commonwealth of Massachusetts and notice is hereby given that
this instrument is executed on behalf of the trustees and not individually,
and that the obligations of this instrument are not binding upon any of the
trustees, officers or shareholders of the Fund individually, but binding
only upon the assets and property of the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date specified above.
22
STI CLASSIC VARIABLE TRUST ATTEST:
By: /s/ R. Xxxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
--------------------------------- ------------------------------------
Name: R. Xxxxxxx Xxxxx Name: Xxxxxx Xxxxx
Title: President Title: Administrative Assistant
AMERICAN ENTERPRISE LIFE INSURANCE ATTEST:
COMPANY
By: /s/ Xxxxxxx X. Xxxxx III By: /s/ Xxxxx Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxx III Name: Xxxxx Xxxxxx
Title: Vice President Title: Assistant Secretary
23
SCHEDULE 1
PARTICIPATION AGREEMENT
By and Among
STI CLASSIC VARIABLE TRUST
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The following Accounts of American Enterprise Life Insurance Company are
permitted in accordance with the provisions of this Agreement to invest in
Portfolios of the Fund shown in Schedule 2:
American Enterprise Variable Annuity Account (effective January 1, 2007 the
name of this account will be: RiverSource Variable Annuity Account)
24
SCHEDULE 2
PARTICIPATION AGREEMENT
By and Among
STI CLASSIC VARIABLE TRUST
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The Accounts shown on Schedule 1 may invest in the following Portfolios:
STI Classic Variable Trust Capital Appreciation Fund
STI Classic Variable Trust International Equity Fund
STI Classic Variable Trust Investment Grade Bond Fund
STI Classic Variable Trust Large Cap Relative Value Fund
STI Classic Variable Trust Large Cap Value Equity Fund
STI Classic Variable Trust Mid-Cap Equity Fund
STI Classic Variable Trust Small Cap Value Equity Fund
25
