AMENDED AND RESTATED
PARTICIPATION AGREEMENT
BY AND AMONG
ROYCE CAPITAL FUND
AND
ROYCE & ASSOCIATES LLC
AND
RIVERSOURCE LIFE INSURANCE COMPANY
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT ("Agreement"), made and
entered into as of this 1st day of January, 2007 by and among the following
parties:
o RIVERSOURCE LIFE INSURANCE COMPANY ("RiverSource Life", or
"Company", formerly IDS Life Insurance Company and American
Enterprise Life Insurance Company), a Minnesota life insurance
company, on its own behalf and on behalf of the separate accounts
set forth on Schedule 1 hereto as may be amended from time to time
by mutual consent (each such account referred to as an "Account");
o ROYCE CAPITAL FUND, an open-end management investment company
organized as a Delaware business trust (the "Fund"); and,
o ROYCE & ASSOCIATES LLC, a limited liability company organized under
the laws of Delaware (the "Adviser").
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
the Adviser (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 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
1933 Act; 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, the
Adviser 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 the Adviser acknowledge the merger of American Enterprise
Life Insurance Company ("American Enterprise Life") with and into IDS
Life Insurance Company ("IDS Life") (the "Merger") and the "intact
transfer" ("Transfer") of the Accounts of American Enterprise Life to IDS
Life by operation of law and incident to the Merger, on December 31, 2006
at 10:59:59 p.m. Central Time ("Effective Time")and the re-naming of IDS
Life to RiverSource Life Insurance Company simultaneously with the
Merger.
A.2. This Agreement shall amend and supersede the following agreements as of
January 1, 2007 above among the parties to this Agreement with respect to
all investments by each Company and its Accounts prior to the date of
this Agreement, as though identical separate agreements had been executed
by the parties hereto on the dates as indicated below:
(a) Participation Agreement dated September 1, 1999 by and among
American Enterprise Life, the Fund and the Adviser, as amended by
the following document: Amendment to Participation Agreement dated
July 1, 2002; and,
(b) Participation Agreement dated September 1, 1999 by and among IDS
Life, the Fund and the Adviser as amended by the following document:
Amendment to Participation Agreement dated July 1, 2002.
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
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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 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. Notwithstanding the above, if the Fund receives notice of the
purchase order on a federal bank holiday, the Company will pay for the
purchase order on the next Business Day. 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 (or on the next
Business Day if such redemption order notice is received on a federal
bank holiday) 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 Investment Company Act of 1940, as
amended (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.
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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 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, on behalf of the Account, 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, the Adviser 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 the
Adviser.
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:
(a) it is an insurance company duly organized and in good standing under
applicable law;
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(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 Securities Act of 1933 (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 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;
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(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 only if and 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, upon the Company's request, 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 may make payments to finance distribution expenses pursuant to
Rule 12b-1 under the 1940 Act. The Fund's Board, a majority of whom are
not "interested persons of the Fund, will formulate and approve any plan
under Rule 12b-1 to finance distribution expenses.
2.5. The Fund and the Adviser represent and warrant that they will use their
best efforts to comply at all times 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
(b) to adequately diversify the Fund so as to achieve compliance within
the grace period afforded by Treasury Regulation 1.817-5.
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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, an 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.
2.9. The Company, Fund and Adviser agree that all non-public records,
information, and data relating to the business of the other (including
customer names and information and portfolio holdings information) that
are exchanged or negotiated pursuant to this Agreement or in carrying out
this Agreement shall remain confidential, and shall not be voluntarily
disclosed by either party without the prior written consent of the other
party, except as may be required by law or by such party to carry out
this Agreement or an order of an court, governmental agency or regulatory
body.
2.10. 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 investment portfolio.
These policies are disclosed in the Fund's prospectus.
The Fund acknowledges that the Company, on behalf of its Accounts, has
adopted policies and procedures reasonably designed to detect and deter
frequent transfers of Contract value among the subaccounts of the
Accounts including those investing in 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.
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The Fund may (but is not obligated to) consider the Company's policies
and procedures pertaining to frequent transfers of Contract value among
the subaccounts of the Account(s) 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 may invite
comment from and confer with Company regarding any proposed policy and
procedure of the Fund pertaining to disruptive trading to determine prior
to adopting such proposed policy or procedure the Company's then-present
ability to apply such proposed policy or procedure to Contract owners who
allocate Contract value to subaccounts investing in 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.
The Company will cooperate with the Fund's reasonable requests in taking
steps to deter and detect such transfers by any Contract owner.
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 that the Fund initiates
(i) a reorganization as defined by Section 2 of the 1940 Act of the Fund
or a Portfolio, or (ii) a change in the name of the Fund or a Portfolio,
the Fund or its designee shall reimburse the Company for its reasonable
internal and out-of-pocket costs associated with the aforementioned
actions. The Company agrees to use its best efforts to minimize any costs
incurred under this Section and shall provide the Fund or its designee
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 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 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.
3.3. The Fund, at its expense, either will:
(a) distribute its proxy materials directly to the appropriate Contract
owners; or
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(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 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 the
Adviser reasonably objects to such use within five (5) Business Days
after receipt of such material.
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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. The Fund or the Adviser 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.
3.10. The Fund and the Adviser 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.
3.11. 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, 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 or the NASD.
3.12. 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.
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3.13. 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.
3.14. The Fund and the Adviser hereby consent to the Company's use of the name
Royce Capital Fund in connection with marketing 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.
3.15. 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
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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 trustees, 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 trustees), 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 be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
disinterested trustees 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
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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 trustees 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 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, the
Adviser, and each person, if any, who controls or is associated with
the Fund or the Adviser within the meaning of such terms under the
federal securities laws (but not any Participating Insurance
Companies) and any director, trustee, officer, partner,
13
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 Adviser 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 Adviser 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
14
(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 ADVISER
(a) The Adviser 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 Adviser) 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
the Adviser or 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
15
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 Adviser 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 Adviser
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, the Adviser 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 the
Adviser, 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 Adviser or the Fund
in this Agreement, or arise out of or result from any other
material breach of this Agreement by the Adviser 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
16
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 Adviser 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.
(d) It is understood that these indemnities shall have no effect on any
other agreements or arrangements between the Fund and/or its series
and the Adviser.
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
win be entitled to participate, at its own expense, in the defense
thereof. The Indemnifying Party also will be entitled to assume the
defense thereto 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
17
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 and/or the Adviser 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
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.
18
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
(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 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 other parties, upon institution of formal proceedings
against the Fund or the Adviser by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body,
regarding the Fund's or the Adviser'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 or the Adviser'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 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
19
(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 the Adviser has
suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the
Company, 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 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. W 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.
20
7.2. Notwithstanding any termination of this Agreement, the Fund and the
Adviser 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.
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:
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Vice President
With a Copy to:
RiverSource Distributors, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Chief Counsel
If to the Fund:
Xxxx X. Xxxxxxxxx
Vice President
Royce Capital Fund
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
If to the Adviser:
Xxxx X. Xxxxxxx
Deputy General Counsel
Royce & Associates LLC
21
1414 Avenue of the Americas
Xxx Xxxx, XX 00000
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 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) The Adviser and the Fund 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 Adviser and/or
the Fund as set forth in the Agreement; and the Adviser and the Fund
agree to cause all their employees, agents and representatives, or
any other party to whom the Adviser and/or the Fund 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 Adviser and the Fund have taken appropriate measures designed to
ensure the security and confidentiality of Confidential Information;
the Adviser and the Fund further agree to use reasonable efforts to
cause all their agents, representatives or subcontractors of, or any
other party to whom the Adviser and/or the Fund may provide access
to or disclose Confidential Information to agree to implement
appropriate measures designed to meet the objectives set forth in
this Section 9.2.
(e) The Adviser and the Fund acknowledge that any breach of the
agreements in this Section 9.2 could 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
22
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 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.
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.
23
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.
ROYCE CAPITAL FUND ROYCE & ASSOCIATES LLC
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------- ----------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Vice President Title: Chief Operating Officer
RIVERSOURCE LIFE INSURANCE COMPANY ATTEST:
By: /s/ Xxxxxxx X. Xxxxx III By: /s/ Xxxxx Xxxxxx
----------------------------------- ----------------------------------
Name: Xxxxxxx X. Xxxxx III Name: Xxxxx Xxxxxx
Title: Vice President Title: Assistant Secretary
24
Schedule 1
PARTICIPATION AGREEMENT
By and Among
ROYCE CAPITAL FUND
And
ROYCE & ASSOCIATES LLC
And
RIVERSOURCE LIFE INSURANCE COMPANY
The following Accounts of RiverSource Life Insurance Company are permitted in
accordance with the provisions of this Agreement to invest in Portfolios of the
Fund shown in Schedule 2:
RiverSource Variable Annuity Account (prior to January 1, 2007: American
Enterprise Variable Annuity Account)
RiverSource Variable Life Account (prior to January 1, 2007: American
Enterprise Variable Life Account)
RiverSource Variable Account 10 (prior to January 1, 2007: IDS Life
Variable Account 10)
Schedule 2
PARTICIPATION AGREEMENT
By and Among
ROYCE CAPITAL FUND
And
ROYCE & ASSOCIATES LLC
And
RIVERSOURCE LIFE INSURANCE COMPANY
The RiverSource Variable Annuity Account and the RiverSource Variable Life
Account shown on Schedule 1 may invest in the following Portfolios:
Royce Micro-Cap Portfolio
Royce Small-Cap Portfolio
The RiverSource Variable Account 10 may invest in the following Portfolio:
Royce Micro-Cap Portfolio
