AMENDED AND RESTATED
PARTICIPATION AGREEMENT
BY AND AMONG
XXXXXXX VARIABLE SERIES, INC.
AND
XXXXXXX ASSET MANAGEMENT COMPANY, INC.
AND
XXXXXXX DISTRIBUTORS, INC.
AND
IDS LIFE INSURANCE COMPANY OF NEW YORK
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT, made and entered into
as of this 19th day of June, 2006, by and among XXXXXXX VARIABLE SERIES, INC.,
an open-end management investment company organized under the laws of Maryland
(the "Fund"), XXXXXXX ASSET MANAGEMENT COMPANY, INC., a corporation organized
under the laws of Delaware (the "Adviser"), XXXXXXX DISTRIBUTORS, INC., a
corporation organized under the laws of Delaware (the "Distributor") (the
Adviser and the Distributor collectively referred to as "Xxxxxxx") and IDS
LIFE INSURANCE COMPANY OF NEW YORK, a New York 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 and
Xxxxxxx (the "Participating Insurance Companies"), 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 & 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 1933 (the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a
member in good standing with the National Association of Securities Dealers,
Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the portfolios named in Schedule 2
to this Agreement, as may be amended from time to time, (the "Portfolios") on
behalf of the Account to fund the Contracts; and
WHEREAS, under the terms and conditions set forth in this Agreement, Xxxxxxx
desires to make shares of the Fund available as investment options under the
Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree
as follows:
ARTICLE A. AMENDMENT AND RESTATEMENT; FORM OF AGREEMENT
--------------------------------------------
A.1 The Fund and Xxxxxxx acknowledge the planned re-naming of the Company to
RiverSource Life Insurance Co. of New York effective on December 31,
2006 at 10:59:59 p.m. Central Time (the "Effective Time"). On and after
the Effective Time, all references in this Agreement and its Schedules
to the Company shall mean and refer to RiverSource Life Insurance Co. of
New York.
A.2 This Agreement shall amend and supersede, as of the date stated above,
the Participation Agreement, made and entered into as of the 14th day of
April, 2000, by and among the Fund, Xxxxxxx and the Company.
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
Directors 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.
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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 Fund receives
notice of such orders by 10:00 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.
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
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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, Xxxxxxx nor any of their 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 or Xxxxxxx.
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.
1.11 (a) The Company acknowledges the Fund has adopted policies and
procedures reasonably designed to prevent frequent or excessive
purchases, exchanges and redemptions of the shares of Portfolios
in quantities great enough to disrupt orderly management of the
corresponding Portfolio's investment portfolio. These policies are
disclosed in Fund's prospectus.
(b) The Fund and Xxxxxxx acknowledge 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
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) The Fund may consider the Company's policies and procedures
pertaining to frequent transfers of Contract value among the
subaccounts of the Account(s)
4
including those investing in Portfolios when the Fund periodically
reviews or amends the Fund's disruptive trading policies and
procedures from time to time. The Fund and Xxxxxxx may invite
comment from and confer with Company regarding any proposed policy
and procedure of the Fund and Xxxxxxx 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 Portfolios 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.
(d) The Company will cooperate with the Fund's and Xxxxxxx'x
reasonable requests in taking steps to deter and detect such
transfers by any Contract owner. Subject to applicable law and the
terms of each Contract, the Company will provide promptly upon
request by the Fund, directly or through its designee:
o the Taxpayer Identification Number of all Contract owners that
purchased, redeemed, transferred, or exchanged shares of a Fund
held under a Contract; and,
o the amount and dates of such Contract owners purchases,
redemptions, transfers and exchanges in subaccounts available
under the Contract which invest in shares of any Fund.
The Company will execute any instructions from the Fund, directly or
through its designee, to restrict or prohibit further purchases,
redemptions, transfers or exchanges in subaccounts available under the
Contract which invest in shares of any Fund by any Contract owner who
has been identified by the Fund, or its designee, as having engaged in
transactions that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding securities issued by the Fund.
The parties shall negotiate in good faith such additional terms and
conditions regarding implementation of the foregoing obligations of the
parties under Rule 22c-2 as any party may wish to address, including
without limitation, reimbursement of expenses the Company incurs in
order to provide such information to the Fund and to execute any
instructions from the Fund or its designee to restrict or prohibit
purchases, redemptions, transfers or exchanges by any Contract owner in
subaccounts available under a Contract which invest in shares of any
Fund.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
------------------------------
2.1 The Company represents and warrants that:
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(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 the1940 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 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 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.
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;
6
(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 and the Adviser agree that they 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 12b-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 12b-1 to finance distribution
expenses.
2.5 The Fund and Xxxxxxx represent and warrant that they 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 and
the Adviser further represent and warrant that they 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 and/or the Adviser, they will take all reasonable steps:
(a) to notify the Company of such breach; and
7
(b) to adequately diversify the Fund so as to achieve compliance
within the grace period afforded by Treasury Regulation 1.817-5.
2.6 The Adviser represents and warrants that:
(a) it is and will remain duly registered under all applicable federal
and state securities laws; and
(b) it will perform its obligations for the Fund in accordance with
applicable state and federal securities laws and that it will
notify the Company promptly if for any reason it is unable to
perform its obligations under this Agreement.
2.7 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-(1) 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.
2.8 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. In the event the Fund
initiates (i) a reorganization as defined by Section 2 of the 1940 Act,
or (ii) changes the Fund's name or the name of a Portfolio, the Fund
will bear, or arrange for others to bear, the Company's internal and
out-of-pocket costs associated with the aforementioned actions. Company
agrees to use its best efforts to minimize any costs incurred and shall
provide the Fund or its designated agent with acceptable documentation
of any such costs incurred.
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
8
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 Fund or
the Distributor will bear the cost of typesetting and printing such
documents and 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 a
Portfolio's current prospectus or statement of additional information
directing the Participating Insurance Companies including the Company 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 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.
3.4 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.
3.5 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
9
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.
3.6 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 3.6. The Company also will bear the cost of
typesetting, printing and distributing the documents listed in this
Section 3.6 to existing and prospective Contract owners.
3.7 The Company will furnish, or will cause to be furnished, to the Fund or
the Adviser, each piece of sales literature or other promotional
material in which the Fund or the Adviser is named, at least ten (10)
Business Days prior to its use. No such material will be used if the
Fund or Xxxxxxx reasonably objects to such use within five (5) Business
Days after receipt of such material.
3.8 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 or the
Adviser for distribution, or in sales literature or other material
provided by the Fund or by the Adviser, except with permission of the
Fund or the Adviser. The Fund and the Adviser agree to respond to any
request for approval on a prompt and timely basis. Nothing in this
Section 3.8 will be construed as preventing the Company or its employees
or agents from giving advice on investment in the Fund.
3.9 Xxxxxxx will provide within ten (10) Business Days following the end of
each calendar quarter, the Portfolio information, (including, but not
limited to, Portfolio composition), that is necessary for the Company to
update its sales literature or other promotional materials. Xxxxxxx will
provide such information via Excel spreadsheet diskette format or in
electronic transmission to the Company.
3.10 The Fund or Xxxxxxx 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.
10
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 and Xxxxxxx 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 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, sales literature and other
promotional materials, applications for exemptions, requests for
no-action letters that relate to the Fund or its shares at the request
of the Company. The Fund will provide to the Company all amendments to
any of the above contemporaneously with the filing of such document with
the SEC or the NASD.
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, sales
literature and other promotional materials, applications for exemptions,
requests for no action letters, 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 or the NASD.
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 NASD rules, the 1933 Act or the 0000 Xxx.
3.15 The Fund and the Adviser hereby consent to the Company's use of the name
[insert appropriate trademarked or service marked name or names] in
connection with marketing
11
the Contracts, subject to the terms of Sections 3.7 and 3.8 of this
Agreement. Such consent will terminate with the termination of this
Agreement.
3.16 The Adviser will be responsible for calculating the performance
information for the Fund. The Company will be responsible for
calculating the performance information for the Contracts. The Adviser
will be liable to the Company for any material mistakes it makes in
calculating the performance information for the Fund which cause losses
to the Company. The Company will be liable to the Adviser for any
material mistakes it makes in calculating the performance information
for the Contracts which cause losses to the Adviser. 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 and the
Adviser agree 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
-------------------
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 are
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
12
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 Funds 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 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 Adviser and 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 Adviser and 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
13
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 3.4, 3.5, 4.1, 4.2,
4.3, 4.4, and 4.5 of this Agreement will continue in 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,
Xxxxxxx, and each person, if any, who controls or is associated
with the Fund or Xxxxxxx 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
14
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 Xxxxxxx or 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 or Xxxxxxx in writing by
or on behalf of the Company or persons under its control; or
(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
15
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 Xxxxxxx
--------------------------
(a) Xxxxxxx 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 Xxxxxxx) 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 (or any amendment or
supplement to any of the foregoing), or arise out of or are
based on the 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 Xxxxxxx or the Fund by or on behalf of the
Company 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
Xxxxxxx or persons under its control; or
16
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal and state law by, Xxxxxxx or
the Fund or persons under their respective control or
subject to their authorization with respect to the sale of
Fund shares; or
(4) arise as a result of any failure by the Fund, Xxxxxxx or
persons under their respective control or subject to their
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 5.2(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 Xxxxxxx, 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 Xxxxxxx or the Fund
in this Agreement, or arise out of or result from any other
material breach of this Agreement by Xxxxxxx or the Fund or
persons under their respective control or subject to their
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 Xxxxxxx 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
17
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 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
18
appointed by the Company or an affiliate; one of whom will be appointed
by the Fund and/or Xxxxxxx 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 seeking injunctive relief to
maintain the status quo until such time as the arbitration award is
rendered or the controversy is otherwise resolved. Any party may apply
to any court having jurisdiction hereof and seek injunctive relief in
order 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
1934 Act 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:
(a) at the option of any party, with or without cause, with respect to
some or all of the Portfolios, upon sixty (60) days' advance
written notice to the other parties 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 other parties, 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 other parties, 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
19
(d) at the option of the Fund, upon receipt of the Fund's written
notice by the other parties, 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 determined 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 other parties, upon institution of formal
proceedings against the Fund or Xxxxxxx by the NASD, the SEC, or
any state securities or insurance department or any other
regulatory body, regarding the Fund's or Xxxxxxx'x 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 or
Xxxxxxx'x 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 other parties, 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 other parties, 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
(h) at the option of any party to this Agreement, upon written notice
to the other parties, 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 or Xxxxxxx
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
(j) 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
20
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
(k) 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
(l) 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
(m) 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 and Xxxxxxx
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"). 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 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.
21
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:
IDS Life Insurance Company of New York
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxx X. Xxxxx, Vice President
With a copy to:
IDS Life Insurance Company of New York
50607 Ameriprise Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President and Group Counsel
If to the Fund or Xxxxxxx:
Xxxxxxx Group Ltd.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx
ARTICLE IX. MISCELLANEOUS
-------------
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 Company and its
subsidiaries, affiliates and licenses (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.
22
(b) The Fund, the Adviser and the Distributor may 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, the Adviser and/or the Distributor as set forth in the
Agreement; and the Fund, the Adviser and the Distributor agree to
cause all their employees, agents and representatives, or any
other party to whom the Fund, the Adviser and/or the Distributor
may provide access to or disclose Confidential Information to
limit the use and disclosure of Confidential Information to that
purpose.
(c) The Adviser and the Fund 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 Fund, the Adviser and the Distributor 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; the Fund, the Adviser and the
Distributor further agree to cause all their agents,
representatives or subcontractors of, or any other party to whom
the Fund, the Adviser and/or the Distributor 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 Fund, the Adviser and the Distributor 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. The provisions of this Section 9.2 shall
survive termination of this Agreement.
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.
23
9.6 This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties.
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.
24
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.
XXXXXXX VARIABLE SERIES, INC. XXXXXXX ASSET MANAGEMENT COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------- ----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President Title: Senior Vice President
XXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
IDS LIFE INSURANCE COMPANY
OF NEW YORK ATTEST:
By: /s/ Xxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
---------------------------------- ----------------------------------
Name: Xxx X. Xxxxx Name: Xxxxx Xxxxxx
Title: Vice President Title: Assistant Secretary
SCHEDULE 1
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
BY AND AMONG
XXXXXXX VARIABLE SERIES, INC.
AND
XXXXXXX ASSET MANAGEMENT COMPANY, INC.
AND
XXXXXXX DISTRIBUTORS, INC.
AND
IDS LIFE INSURANCE COMPANY OF NEW YORK
The following Accounts of IDS Life Insurance Company of New York are permitted
in accordance with the provisions of this Agreement to invest in Portfolios of
the Fund shown in Schedule 2:
IDS Life of New York Variable Annuity Account
IDS Life of New York Account 8
SCHEDULE 2
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
BY AND AMONG
XXXXXXX VARIABLE SERIES, INC.
AND
XXXXXXX ASSET MANAGEMENT COMPANY, INC.
AND
XXXXXXX DISTRIBUTORS, INC.
AND
IDS LIFE INSURANCE COMPANY OF NEW YORK
The Accounts shown on Schedule 1 may invest in the following Portfolios:
Xxxxxxx Variable Series, Inc.: Social Balanced Portfolio
