FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made and entered into as of April 30, 2013, by and among ALPS VARIABLE
INVESTMENT TRUST an open-end management investment company organized as a Delaware statutory trust
(the “Fund”), ALPS PORTFOLIO SOLUTIONS DISTRIBUTOR, INC., a broker-dealer registered as such under
the Securities Exchange Act of 1934, as amended (“APSD” or “Underwriter”), and RIVERSOURCE LIFE
INSURANCE COMPANY, a life insurance company organized under the laws of the State of Minnesota (the
“Company”), on its own behalf and on behalf of each separate account of the Company currently in
existence or hereinafter created, as set forth on Schedule A hereto, as may be amended from time to
time (each account hereinafter referred to individually as an “Account” and collectively as the
“Accounts”).
WITNESSETH:
WHEREAS, the Fund has filed a registration statement with the Securities and Exchange
Commission (“SEC”) to register itself as an open-end management investment company under the
Investment Company Act of 1940, as amended (the “1940 Act”), and to register the offer and sale of
its shares under the Securities Act of 1933, as amended (the “1933 Act”); and
WHEREAS, the Fund desires to act as an investment vehicle for separate accounts established
for variable life insurance policies and variable annuity contracts to be offered by insurance
companies that have entered into participation agreements with the Fund and the Underwriter (the
“Participating Insurance Companies”); and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC under the Securities
Exchange Act of 1934, as amended (the “1934 Act”), is a member in good standing of the Financial
Industry Regulatory Authority (“FINRA”) and acts as principal underwriter of the shares of the
Fund; and
WHEREAS, the Underwriter serves as principal underwriter or distributor of each of the series
of shares, (“Shares”) of the portfolios of the Fund (each such portfolio now existing or hereafter
existing, a “Portfolio” and collectively, the “Portfolios”); and
WHEREAS, the Shares of the Portfolios offered by the Fund to the Company and the Accounts are
set forth on Schedule B attached hereto; and
WHEREAS, the Fund has received an order from the SEC granting Participating Insurance
Companies and their separate accounts exemptions 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 Portfolios to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated life insurance
companies (the “Mixed and Shared Funding Exemptive Order”); and
WHEREAS, ALPS Advisors, Inc. (the “Adviser”) is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended, and is the Fund’s investment adviser; and
WHEREAS, the Company has registered or will register under the 1933 Act certain variable life
insurance policies and/or variable annuity contracts funded or to be funded through one or more of
the Accounts (the “Contracts”); and
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WHEREAS, the Company has registered or will register each Account as a unit investment
trust under the 1940 Act; and
WHEREAS, the Accounts are duly organized, validly existing segregated asset accounts,
established by resolutions of the Board of Directors of the Company under the insurance laws of the
State of Minnesota, to set aside and invest assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations, the Company
intends to purchase Shares in one or more of the Portfolios on behalf of the Accounts to fund the
Contracts, and the Fund intends to sell such Shares to the relevant Accounts at such Shares’ net
asset value.
NOW, THEREFORE, in consideration of their mutual promises, the parties agree as follows:
ARTICLE 1
Sale of the Fund Shares
Sale of the Fund Shares
1.1 | (a) Subject to Article 7 hereof, the Fund shall make available to the Company, for purchase on behalf of the Accounts, Shares of the Portfolios in accordance with this Agreement and the provisions of the then-effective prospectus and Statement of Additional Information (“SAI”) of the Fund (collectively, “Prospectus”). The Fund hereby appoints the Company as an agent of the Fund for the limited purpose of receiving and accepting purchase, exchange and redemption requests on behalf of the Accounts (but not with respect to any Shares that may be held in the general account of the Company) for Shares of those Portfolios made available hereunder, based on allocations of amounts to the Accounts or subaccounts thereof under the Contracts and other transactions relating to the Contracts or the Accounts. Receipt of such orders by the Company shall constitute receipt by the Fund, provided that the Fund receives notice of such order by 9:15 a.m. Eastern Time on the next following business day, or such other time as may be agreed to by the parties from time to time. “Business Day” will mean any day on which the New York Stock Exchange (“NYSE”) is open for trading and on which the Fund calculates its net asset value pursuant to the rules of the Securities and Exchange Commission (the “Commission” or the “SEC”). The Fund may net the notice of redemptions it receives from the Company under this Agreement against the notice of purchases it receives from the Company under this Agreement. |
(b) Shares of a particular Portfolio of the Fund shall 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 Trustees of the Fund (the “Trustees”) may refuse to sell Shares of any Portfolio to any
person (including the Company and the Accounts), 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 in their sole discretion when acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, if they deem such actions
necessary in the best interests of the shareholders of such Portfolio (it being understood that
for this purpose shareholders means Contract owners).
(c) The Fund or its designee will compute the closing net asset value and any dividend, income
accrual, and capital gains information for the Portfolios as of the close of regular trading on
the NYSE (normally 4:00 p.m. Eastern Time, the “Close of Trading”) on each Business Day as
described in the applicable Portfolio’s Prospectus. The Fund or its designee will use its best
efforts to communicate to the Company such information by 7:00 p.m. Eastern Time on each
Business Day. In the event an adjustment is made to the computation of the net asset value of
Shares of the Portfolios as reported to the Company, the Fund or its designee shall notify the
Company promptly after the need for any such adjustment in the following manner:
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(1) | Fund/SERV Transactions. If the parties choose to use the National Securities Clearing Corporation’s Mutual Fund Settlement, Entry and Registration Verification (“Fund/SERV”) system, any corrections to a Portfolio’s prices for the prior trade date will be submitted through the Mutual Fund Profile with the correct prices and applicable date. If the corrections are dated later than trade date plus one, an electronic transmission should be sent in addition to the Mutual Fund Profile submission; or | ||
(2) | Manual Transactions. If the parties choose not to use Fund/SERV, if there are technical problems with Fund/SERV, or if the parties are not able to transmit or receive information through Fund/SERV, any corrections to a Portfolio’s prices should be communicated by facsimile or by electronic transmission, and will include for each day on which an adjustment has occurred the incorrect Portfolio price, the correct price, and, to the extent communicated to Portfolio shareholders, the reason for the adjustment. The Company may send this notification or a derivation thereof to Contract owners whose Contracts are affected by the adjustment. | ||
(3) | Pricing Error Corrections. If an adjustment is to be made to correct a material error (as determined under SEC guidelines) which has caused an Account to receive an amount different from that to which it is entitled, the Portfolio shall make all necessary adjustments to Shares owned in the Account. In the event that any such material error is the result of negligence of the Fund, the Underwriter shall be liable for the Company’s out-of-pocket expenses and other direct costs or losses related to adjustments made as a result of a pricing error in an amount not to exceed $1,000 per day and not to exceed $5,000 per occurrence. |
(d) If the parties choose to use Fund/SERV, the following provisions shall apply:
The Company and the Fund or its designee will be bound by the rules of the National Securities
Clearing Corporation (“NSCC”). Without limiting the generality of the following provisions of this
section, the Company and the Fund or its designee each will perform any and all duties, functions,
procedures and responsibilities assigned to it and as otherwise established by the NSCC applicable
to Fund/SERV and the Networking Matrix Level utilized.
Any information transmitted through NSCC’s Networking system (“Networking”) by any party to
the other and pursuant to this Agreement will be accurate, complete, and in the format prescribed
by the NSCC. Each party will adopt, implement and maintain procedures reasonably designed to
ensure the accuracy of all transmissions through Networking and to limit the access to, and the
inputting of data into, Networking to persons specifically authorized by such party.
On each Business Day, the Company shall aggregate and calculate the net purchase and
redemption orders for each Account received by the Company prior to the Close of Trading on each
Business Day. The Company shall communicate to the Fund or its designee for that Business Day, by
Fund/SERV, the net aggregate purchase or redemption orders (if any) for each Account received by
the Close of Trading on such Business Day (the “Trade Date”) no later than 9:00 a.m. Eastern Time
on the first Business Day following the Trade Date. The Fund or its designee shall treat all
trades communicated to the Fund or its designee in accordance with this provision as if received
prior to the Close of Trading on the Trade Date.
All orders are subject to acceptance by the Fund or its designee and become effective only
upon confirmation by the Fund or its designee. Upon confirmation, the Fund or its designee will
verify total purchases and redemptions and the closing share position for each Account. In the
case of delayed settlement, the Fund or its designee shall make arrangements for the settlement of
redemptions by wire no later than the time permitted for settlement of redemption orders by the
1940 Act.
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Unless otherwise informed in writing, such redemption wires should be sent to:
Bank: | Xxxxx Fargo | |||
ABA#: | 000000000 | |||
Account Title: | RiverSource Life Insurance Company | |||
Account No.: | 0000029874 |
(e) If the parties choose not to use Fund/SERV, if there are technical problems with Fund/SERV, or
if the parties are not able to transmit or receive information through Fund/SERV, the following
provisions shall apply:
(1) Next Day Transmission of Orders. On each Business Day, the Company shall
aggregate and calculate the net purchase and redemption orders for each Account received by the
Company prior to the Close of Trading on such Business Day. Prior to 9:15 a.m. Eastern Time (or
such other time as may be agreed by the parties from time to time) on the next following Business
Day, the Company shall communicate to the Fund or its designee by facsimile or, if agreed upon by
the parties, by telephone or any other method, the net aggregate purchase or redemption orders (if
any) for each Account received by the Close of Trading on the prior Business Day (the “Trade
Date”). All orders communicated to the Fund or its designee by the 9:15 a.m. deadline (or such
other time as may be agreed upon by the parties in writing from time to time) shall be treated by
the Fund or its designee as if received prior to the Close of Trading on the Trade Date.
(2) Purchases. With respect to purchase orders placed by the Company by 9:15 a.m.
Eastern Time on the first Business Day following the Trade Date, the Company will use its best
efforts to transmit each purchase order to the Fund or its designee in accordance with written
instructions previously provided by the Fund or its designee to the Company. The Company will
initiate by wire transfer to the Fund or its designee purchase amounts by 4:00 p.m. Eastern Time on
the next Business Day following the Trade Date.
(3) Redemptions. With respect to redemption orders placed by the Company by 9:15 a.m.
Eastern Time on the first Business Day following the Trade Date, the Fund or its designee will use
its best efforts to initiate by wire transfer to the Company proceeds of such redemptions by 4:00
p.m. Eastern Time on the next Business Day following the Trade Date.
Unless otherwise informed in writing, such redemption wires should be sent to:
Bank: | Xxxxx Fargo | |||
ABA#: | 000000000 | |||
Account Title: | RiverSource Life Insurance Company | |||
Account No.: | 0000029874 |
1.2 Subject to Section 1.3, the Fund will redeem any full or fractional Shares of any
Portfolio when requested by the Company on behalf of an Account at the most recent net asset value
provided to the Company prior to receipt by the Fund (or the Fund’s transfer agent) of the request
for redemption, as established in accordance with the operational procedures mutually agreed to by
the Fund and the Company from time to time and the provisions of the then current prospectus of the
Portfolios. The Fund shall make payment for such Shares in accordance with Section 1.4, but in no
event shall payment be delayed for a greater period than is permitted by the 1940 Act (including
any Rule or order of the SEC thereunder).
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1.3 The Company will not aggregate orders received from its Contract owners after the Close of
Trading (typically 4:00 p.m. Eastern Time) with orders received before the Close of Trading, and
warrants that its internal control structure concerning the processing and transmission of orders
is suitably designed to prevent or detect on a timely basis orders received after the Close of
Trading from being aggregated with orders received before the Close of Trading and to minimize
errors that could result in late transmission of orders. Orders received by the Company before the
Close of Trading will receive that day’s net asset value and Orders received by the Company after
the Close of Trading will receive the next day’s net asset value.
1.4 With respect to purchase orders that are transmitted to the Fund or its designee in
accordance with Section 1.1, the Company shall pay for Portfolio Shares on the next Business Day
following the Trade Date. Payments shall be made in federal funds transmitted by wire. In the
event that the Company shall fail to pay in a timely manner for any purchase order validly received
by the Fund or its designee pursuant to Section 1.3, the Company shall hold the Fund or its
designee harmless from any losses reasonably sustained by the Fund or its designee as the result of
acting in reliance on such purchase order. Redemption orders that are transmitted to the Fund or
its designee in accordance with Section 1.1 shall be paid for no later than the end of the Business
Day after the Fund receives notice of the order. Payments shall be made in federal funds
transmitted by wire. In the event that the Fund or its designee shall fail to pay in a timely
manner for any redemption order pursuant to Section 1.1, the Fund or its designee shall hold the
Company harmless from any losses reasonably sustained by the Company as the result of acting in
reliance on such redemption order.
1.5 Issuance and transfer of Shares of the Portfolios will be by book entry only. Share
certificates will not be issued to the Company or the Account. Shares ordered from the Fund will
be recorded in the appropriate title for each Account or the appropriate sub-account of each
Account.
1.6 The Fund or its designee shall furnish prompt written notice to the Company of any income,
dividends or capital gain distribution payable on Shares. The Company hereby elects to receive all
such income, dividends and capital gain distributions as are payable on a Portfolio’s Shares in
additional Shares of that Portfolio. The Fund shall notify the Company in writing of the number of
Shares so issued as payment of such dividends and distributions.
1.7 The Fund agrees that its Shares will be sold only to Participating Insurance Companies and
their separate accounts, and to qualified pension and retirement plans or such other
persons as are permitted under Section 817(h)(4) of the Internal Revenue Code of 1986, as amended,
(the “Code”), and regulations promulgated thereunder, the sale to which will not impair the tax
treatment currently afforded the Contracts. No Shares of any Portfolio will be sold directly to
the general public. The Company agrees that Shares will be used only for the purposes of funding
the Contracts under the Accounts listed in Schedule A, as amended from time to time.
1.8 The Fund agrees that all Participating Insurance Companies shall have the obligations and
responsibilities regarding conflicts of interest substantially corresponding to those contained in
Article 4 of this Agreement.
1.9 The Fund reserves the right to reject any purchase orders, including exchanges for any
reason, including if the Fund, in its sole opinion, believes the Company’s Contract owner(s) is/are
engaging in short-term or excessive trading into and out of a Portfolio or otherwise engaging in
trading that may be disruptive to a Portfolio (“Market Timing”). The Company agrees to cooperate
with the Underwriter and the Fund to monitor for Market Timing by its Contract owners, to provide
such relevant information about market timers to the Fund as it may reasonably request, including
but not limited to such Contract owner’s
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identity, and to prevent Market Timing from occurring by
or because of Contract owners. Failure of the Fund to reject any purchase orders that might be
deemed to be Market Timing shall not constitute a waiver of the Fund’s rights under this section.
Pursuant to Rule 22c-2 of the 1940 Act, on behalf of the Fund, the Underwriter and the Company
agree to comply with the terms included in the attached Schedule C as of the effective date of this
Agreement. The Company represents and warrants that it will adhere to its own policy intended to
discourage shareholders from trading that could be detrimental to long-term shareholders of the
Fund (the “Policy”) and that the Policy complies with Rule 22c-2 under the 1940 Act. The aforesaid
includes among other things, the monitoring of shareholder/participant trading activity and the
restriction of shareholder/participant trading privileges at the subaccount level if warranted by
the Fund.
ARTICLE 2
Obligations of the Parties
Obligations of the Parties
2.1 Costs Borne by the Fund Resulting from Fund Disclosure Requirements
(a) Periodic Fund Disclosure. The Fund will bear, or arrange for others to bear, the
usual, customary and reasonable costs of preparing and filing with the SEC the Fund Prospectus,
periodic reports to shareholders and other shareholder communications required to be produced and
distributed to Participants as reasonably determined by the Company as a result of periodic
disclosure requirements to which the Fund is subject (collectively, “Periodic Fund Disclosure
Materials”). Fund will bear, or arrange for others to bear, the usual, customary and reasonable
costs of providing any Periodic Fund Disclosure Materials to the Company; printing Periodic Fund
Disclosure Materials; distributing any printed Periodic Fund Disclosure Materials, in each case to
existing Contract owners, annuitants or participants (as appropriate) under the Contracts
(collectively, “Participants”) including postage costs of mailing printed Periodic Fund Disclosure
Materials and making Periodic Fund Disclosure Materials available electronically, and expenses
associated with the operational (i.e., systems and technology) costs to facilitate the Fund
changes. At the option of the Company, the Fund will either:
(1) | set for printing, print and provide to the Company as many copies of the Periodic Fund Disclosure Materials as the Company may reasonably request for distribution to Participants, or | ||
(2) | provide the Company with camera-ready copy, computer disk, or other medium agreed to by the Parties, of Periodic Fund Disclosure Materials in a form suitable for printing. |
The Fund will provide to the Company in a timely fashion the complete information needed to
distribute printed Periodic Fund Disclosure Materials to Participants or to make Periodic Fund
Disclosure Materials available electronically. The Fund will reimburse the Company for any usual,
customary and reasonable costs the Company incurs under this Section 2.1(a), but solely with
respect to printing or distributing Periodic Fund Disclosure Materials to existing Participants.
The Company agrees to use its best efforts to minimize any such costs and will provide Fund with
acceptable documentation of any such costs incurred.
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(b) Non-periodic Fund Disclosure Resulting from Fund-Driven Events. The Fund will bear,
or arrange for others to bear, the usual, customary and reasonable costs of preparing and filing
with the SEC the Fund Prospectus and any amendments or supplements thereto, fund proxy and similar
materials such as voting solicitation instructions, and other shareholder communications required
to be produced and distributed to Participants as reasonably determined by the Company as a result
of Fund changes driven by the Fund including, but not limited to, a liquidation of the assets and
termination of its existence or other reorganization, or merger of the Fund; a change in the name,
fund fees, investment strategy or objective or an investment adviser of the Fund; and any other
Fund change not caused by Company not otherwise itemized herein (collectively “Non-Periodic
Fund-Driven Event Fund Disclosure Materials”). The Fund will bear, or arrange for others to bear,
the usual, customary and reasonable costs of providing any Non-periodic Fund-Driven Event Fund
Disclosure Materials to the Company; printing any Non-periodic Fund-Driven Event Fund Disclosure
Materials; distributing any printed Non-periodic Fund-Driven Event Fund Disclosure Materials to
Participants including postage costs of mailing printed Non-periodic Fund-Driven Event Fund
Disclosure Materials and making Non-periodic Fund-Driven Event Fund Disclosure Materials available
electronically, and expenses associated with the operational (i.e., systems and technology) costs
to facilitate the Fund changes. At the option of the Company, the Fund will either:
(1) | set for printing, print and provide to the Company as many copies of the Non-periodic Fund-Driven Event Fund Disclosure Materials as the Company may reasonably request for distribution to Participants; or | ||
(2) | provide the Company with camera-ready copy, computer disk, or other medium agreed to by the parties, of the Non-periodic Fund-Driven Event Fund Disclosure Materials in a form suitable for printing. |
The Fund will provide to the Company in a timely fashion the complete information needed to
distribute printed Non-periodic Fund-Driven Event Fund Disclosure Materials or make such
Non-periodic Fund-Driven Event Fund Disclosure Materials available electronically.
The Fund will bear, or arrange for others to bear, the usual, customary and reasonable costs
of proxy voting including, but not limited to, vote assembly, postage, processing, tabulation and
project management.
The Fund will reimburse the Company for any usual, customary and reasonable costs the Company
incurs under this Section 2.1(b). The Company agrees to use its best efforts to minimize any such
costs and will provide the Fund with acceptable documentation of any such costs incurred.
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(c) Non-Periodic Account Disclosure Resulting From Fund-Driven Events. The Fund will bear, or
arrange for others to bear, the usual, customary and reasonable costs of preparing and filing with
the SEC the Account’s prospectus and statement of additional information and any amendments or
supplements thereto (collectively, the “Account Prospectus”), account proxy and similar materials
such as voting solicitation instructions, and other communications required to be produced and
distributed as reasonably determined by the Company as a result of Fund changes driven by the Fund
including, but not limited to, a liquidation of the assets and termination of its existence or
other reorganization, or merger of the Fund; a change in the name, fund fees, investment strategy
or objective or an investment adviser of Fund; and any other Fund change not caused by the Company
and not otherwise itemized herein (collectively, “Fund-Driven Event Account Disclosure Materials”).
The Fund will bear, or arrange for others to bear, the usual, customary and reasonable costs of
printing any Fund-Driven Event Account Disclosure Materials; distributing any printed Fund-Driven
Event Account Disclosure Materials to Participants and prospective Contract owners, annuitants or
participants (as appropriate) under the Contracts (collectively, “Prospects”) including postage
costs of mailing printed Fund-Driven Event Account Disclosure Materials and making Fund-Driven
Event Account Disclosure Materials available electronically, and expenses associated with the
operational (i.e., systems and technology) costs to facilitate the Fund changes. At its option,
the Company will, as appropriate:
(1) | set for printing and print as many copies of the Fund-Driven Event Account Disclosure Materials as the Company may reasonably need for distribution to Participants and Prospects, and mail such materials; and | ||
(2) | prepare the Fund-Driven Event Account Disclosure Materials in electronic format, and make such materials available electronically. |
The Fund will provide to the Company in a timely fashion the complete information needed to
distribute printed Fund-Driven Event Account Disclosure Materials or make Fund-Driven Event Account
Disclosure Materials available electronically.
The Fund will reimburse the Company for the Company’s usual, customary and reasonable costs
incurred under this Section 2.1(c). The Company agrees to use its best efforts to minimize any such
costs and will provide Fund with acceptable documentation of any such costs incurred.
2.2 Costs Borne by the Company Resulting from Account Disclosure Requirements – Periodic
Account Disclosure.
The Company will bear, or arrange for others to bear, the usual, customary and reasonable
costs of preparing and filing with the SEC the Account Prospectus, periodic reports to shareholders
and other shareholder communications required to be produced and distributed as determined by the
Company as a result of periodic disclosure requirements to which the Account is subject
(collectively “Periodic Account Disclosure Materials”).
The Company will bear, or arrange for others to bear, the usual, customary and reasonable
costs of printing any Periodic Account Disclosure Materials; distributing any printed Periodic
Account Disclosure Materials to Participants and prospective Contract owners, annuitants or
participants (as appropriate) under the Contracts (collectively, “Prospects”) including postage
costs of mailing printed Periodic Account Disclosure Materials and making Periodic Account
Disclosure Materials available electronically. At its option, the Company will, as appropriate:
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(a) set for printing and print as many copies of the Periodic Account Disclosure Materials as
the Company may reasonably need for distribution to Participants or Prospects, and mail such
materials; and
(b) prepare the Periodic Account Disclosure Materials in electronic format, and make such
materials available electronically.
2.3 The Fund will be responsible for all Fund operations and related expenses, including the
cost of registration and qualification of the Shares of the Portfolios, taxes on the issuance or
transfer of shares, cost of management of the business affairs of the Fund and expenses paid or
assumed by the Fund pursuant to any Rule 12b-1 Plan.
2.4 The Company will be responsible for all Account operations and related expenses,
including the federal registration of units of the separate accounts and related expenses,
including the payment of 24f-2 fees.
2.5 The Company shall furnish, or cause to be furnished, to the Fund or its designee, a copy
of language that would be used in any prospectus for the Contracts or SAI for the Contracts in
which the Fund, the Underwriter or the Adviser (“Fund Parties”) is named prior to the filing of
such document with the SEC.
2.6 The Company shall furnish, or shall cause to be furnished, to the Fund or its designee,
each piece of sales literature or other promotional material in which the Fund, the Underwriter or
the Adviser is named, at least ten Business Days prior to its use. No such sales literature or
material shall be used if any of the Fund Parties reasonably objects to such use within ten
Business Days after receipt of such material.
2.7 At the reasonable request of the Fund or its designee, the Company shall furnish, or shall
cause to be furnished, as soon as practical, to the Fund or its designee copies of the following
reports:
(a) | the Company’s annual financial report (prepared under generally accepted accounting principles (“GAAP”, if any); | ||
(b) | the Company’s quarterly statements, if any; | ||
(c) | any financial statement, proxy statement, notice or report of the Company sent to policyholders; and | ||
(d) | any registration statement (without exhibits) and financial reports of the Company filed with any state insurance regulator. |
2.8 The Company shall not give any information or make any representations or statements on
behalf of the Fund, the Underwriter or the Adviser, or concerning the Fund, the Underwriter or the
Adviser in connection with the sale of the Contracts other than information or representations
contained in the registration statement or prospectus for the Shares (as such registration
statement and prospectus may be amended or supplemented from time to time), reports of the Fund,
Fund-sponsored proxy statements, or in sales literature or other promotional material approved by
the Fund or Underwriter or the designee of either, except with the written permission of the Fund
or Underwriter.
2.9 The Fund, the Underwriter or its designee shall furnish, or shall cause to be furnished,
to the Company, each piece of sales literature or other promotional material in which the Company
and/or the Account(s) is named (“Fund Materials”) at least ten Business Days prior to its use. No
such sales literature or material shall be used if the Company or its designee reasonably objects
to such use within ten Business Days after receipt of such material.
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2.10 Neither the Fund nor the Underwriter shall give any information or make any
representations or statements on behalf of the Company or concerning the Company, the Accounts or
the Contracts other than information or representations contained in the registration statements or
Contract prospectuses (as such registration statements or Contract prospectuses may by amended or
supplemented from time to time), except with the written permission of the Company.
2.11 The Fund or its designee will provide the Company with at least one complete copy
(electronically or otherwise) of all prospectuses, SAIs, annual reports, semi-annual reports, proxy
statements, and all amendments to any of the above, that relate to the Fund or its Shares, promptly
after the filing of such document(s) with the SEC or other regulatory authorities.
2.12 Upon request, the Company will provide the Fund with at least one complete copy of all
prospectuses, SAIs, annual reports, semi-annual reports, proxy statements, and all amendments to
any of the above, that relate to the Contracts or each Account, after the filing of such
document(s) with the SEC or other regulatory authorities or, if a Contract and its associated
Account are exempt from registration, upon request after such documents are first published.
2.13 For purposes of this Article 2, the phrase “sales literature or other promotional
material” includes, but is not limited to, any of the following: 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), sales literature (i.e., any written communication distributed or made generally
available to 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), or other communications distributed or made generally available to the public,
and registration statements, SAIs, shareholder reports, and proxy materials.
2.14 If the Fund, Underwriter and Company agree to distribute Fund summary prospectuses to
Contract owners pursuant to Rule 498 of the 1933 Act, as set forth in Schedule D of this Agreement,
then each party to the Agreement represents and warrants that it complies with the requirements of
Rule 498 and applicable SEC guidance regarding the Rule in connection therewith, and that it
maintains procedures reasonably designed to ensure that it can meet its obligations in connection
with Fund summary prospectuses. The parties agree to comply with the terms included in the
attached Schedule D as of the effective date of this Agreement.
2.15 Solely with respect to Contracts and Accounts that are subject to the 1940
Act, so long as, and to the extent that the SEC interprets the 1940 Act to require pass-through
voting privileges for variable Contract owners: (a) the Company will provide pass-through voting
privileges to owners of Contracts whose cash values are invested, through the Accounts, in Shares
of the Fund; (b) the Fund shall require all Participating Insurance Companies to calculate voting
privileges in the same manner and the Company shall be responsible for assuring that the Accounts
calculate voting privileges in the manner established by the Fund; and (c) with respect to each
Account, the Company will vote Shares of the Fund held by the Account and for which no timely
voting instructions from Contract owners are received, as well as Shares held by the Account that
are owned by the Company for their general accounts, in the same proportion as the Company votes
Shares held by the Account for which timely voting instructions are received from Contract owners.
The Company reserves the right to vote Shares of the Fund held in any segregated asset account in
its own right, to the extent permitted by law.
Name of Fund Company | RVSL Participation Agreement | Page 10 of 30 |
2.16 The Adviser may choose to make payments out of its own resources to the Company or any
distributor of the Contracts in connection with one or more Portfolios pursuant to a separate
agreement.
ARTICLE 3
Representations and Warranties
Representations and Warranties
3.1 The Company represents and warrants that it is an insurance company duly organized and in
good standing under the laws of the State of Minnesota, with full power, authority and legal right
to execute, deliver and perform its duties and comply with its obligations under this Agreement and
has established each Account as a separate account under such law and the Accounts comply in all
material respects with all applicable federal and state laws and regulations.
3.2 The Company represents and warrants that it has registered or, prior to any issuance or
sale of the Contracts, will register each Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a separate account for the Contracts. The Company further
represents and warrants that the Contracts will be registered under the 1933 Act prior to any
issuance or sale of the Contracts and will maintain such registration as long as one or more
Accounts hold Shares; the Contracts will be issued and the Accounts will be operated in compliance
in all material respects with all applicable federal and state laws. The Company will register and
qualify the Contracts for sale in accordance with the securities laws of the various states only if
and to the extent deemed necessary by the Company. Subject to the Fund’s compliance with Section
817(h) of the Code, the Company represents that the Contracts are currently and at the time of
issuance will be treated as annuity contracts and/or life insurance policies (as applicable) under
applicable provisions of the Code, and further represents that it will make every effort to
maintain such treatment and that it will notify the Fund 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. The Company represents and warrants that it will not purchase shares of the
Portfolios with assets derived from tax-qualified retirement plans except, indirectly, through
Contracts purchased in connection with such plans.
3.3 The Fund represents and warrants that it is duly organized and validly existing under the
laws of the State of Delaware and that it does and will comply in all material respects with the
applicable provisions of the 0000 Xxx.
3.4 The Fund represents and warrants that the Fund Shares offered and sold pursuant to this
Agreement will be registered under the 1933 Act, shall be duly authorized for issuance in
compliance in all materials respects with all applicable federal and state laws, and that the Fund
is registered under the 0000 Xxx. The Fund shall amend its registration statement under the 1933
Act and the 1940 Act from time to time as required in order to effect the continuous offering of
its Shares. If the Fund determines that notice filings are appropriate, the Fund shall use its
best efforts to make such notice filings in accordance with the laws of such jurisdictions
reasonably requested by the Company.
3.5 The Fund has adopted a Distribution Plan (the “Plan”) with regard to the Class II and
Class III Shares of each Portfolio, pursuant to Rule 12b-1 under the 1940 Act. The Fund represents
and warrants that it has a board of trustees, a majority of whom are not interested persons of the
Fund, which has formulated and approved the Plan to finance distribution expenses of the Fund and
that any changes to the Fund’s Plan will be approved by a similarly constituted board of trustees.
3.6 Subject to the limitations of Section 3.14 herein, the Fund represents that the Fund’s
investment policies, fees and expenses are and shall at all times remain in material compliance
with the laws of the State of Minnesota and the Fund and the Underwriter represent that their
respective operations are and shall at all times remain in material compliance with the laws of the
State of Minnesota to the extent required to perform this Agreement.
Name of Fund Company | RVSL Participation Agreement | Page 11 of 30 |
3.7 The Underwriter represents and warrants that it is a member in good standing of FINRA and
is registered as a broker-dealer with the SEC. The Underwriter further represents that it will
sell and distribute the Fund Shares in accordance with the laws of the State of Colorado and all
applicable state and federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
3.8 The Underwriter represents and warrants that the Adviser is and shall remain duly
registered in all material respects under all applicable federal and state securities laws and that
the Adviser shall perform its obligations for the Fund in compliance in all material respects with
the laws of the State of Colorado and any applicable state and federal securities laws.
3.9 The Fund will at all times invest money from the Contracts in such a manner as to ensure
that the Contracts will be treated as variable contracts under the Internal Revenue Code of 1986,
as amended (the “Code”) and Treasury Regulation 1.817-5, relating to the diversification
requirements for variable annuity, endowment and life insurance contracts and any amendments or
other modifications to such Section or Regulation. In the event of a breach of this Article 3 by
the Fund, it will take all reasonable steps to (a) notify Company of such breach and (b) adequately
diversify the Fund so as to achieve compliance with Regulation 1.817-5.
3.10 The Fund represents and warrants that each Portfolio is currently qualified as a
Regulated Investment Company (“RIC”) under Subchapter M of the Code, and represents that it will
use its best efforts to qualify and to maintain such qualification (under Subchapter M or any
successor or similar provision) of each Portfolio as a RIC. The Fund will notify the Company
immediately in writing upon having a reasonable basis for believing that a Portfolio has ceased to
so qualify or that it might not so qualify in the future.
3.11 The Company represents and warrants that all shares of the Portfolios purchased by the
Company will be purchased on behalf of one or more unmanaged separate accounts that offer interests
therein that are registered under the 1933 Act and upon which a registration fee has been or will
be paid or that are unregistered because the interests are exempt from registration under the 1933
Act, and the Company acknowledges that the Fund intends to rely upon this representation and
warranty for purposes of calculating SEC registration fees payable with respect to such Shares of
the Portfolios pursuant to Form 24F-2 or any similar form or SEC registration fee calculation
procedure that allows the Fund to exclude Shares so sold for purposes of calculating its SEC
registration fee. The Company will certify the amount of any Shares of the Portfolios purchased by
the Company on behalf of any separate account offering interests not subject to registration under
the 1933 Act. The Company agrees to cooperate with the Fund on no less than an annual basis to
certify as to its continuing compliance with this representation and warranty.
3.12 The Company agrees to comply with its obligations under applicable anti-money laundering
(“AML”) laws, rules and regulations, including but not limited to its obligations under the United
States Bank Secrecy Act of 1970, as amended (by the USA PATRIOT Act of 2001 and other laws), and
the rules, regulations and official guidance issued thereunder (collectively, the “BSA”).
(a) | The Company agrees to undertake inquiry and due diligence regarding the customers to whom the Company offers and/or sells Portfolio Shares or on whose behalf the Company purchases Portfolio Shares and that the inquiry and due diligence is reasonably designed to determine that the Company is not prohibited from dealing with any such customer by (i) any sanction administered by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury (collectively, the “Sanctions”); or (ii) any of the Special Measures. |
Name of Fund Company | RVSL Participation Agreement | Page 12 of 30 |
(b) | The Company hereby represents, covenants and warrants to the Fund and the Underwriter that: |
(1) None of the Company’s employees who are authorized in connection with
their employment to transact business with the Fund or Underwriter in
accounts in the Company’s name, in any nominee name maintained for the
Company, or for which the Company serves as financial institution of record,
are designated or targeted under any of the Sanctions or Special Measures
and that no transactions placed in any such accounts by any of the Company’s
authorized employees will contravene any of the Sanctions or Special
Measures;
(2) As the Sanctions or Special Measures are updated, the Company shall
periodically review them to confirm that none of the Company’s employees
that are authorized to transact business with the Fund or Underwriter are
designated or targeted under any of the Sanctions or Special Measures; and
(3) The Company, including any of the Company’s affiliates, does not
maintain offices in any country or territory to which any of the Sanctions
or Special Measures prohibit the export of services or other dealings.
The Company agrees to notify the Fund and the Underwriter or the Portfolios’ transfer agent
promptly when and if it learns that the establishment or maintenance of any account holding, or
transaction in or relationship with a holder of, Portfolio Shares pursuant to this Agreement
violates or appears to violate any applicable AML laws, rules, or regulations, or any of the
Sanctions or Special Measures.
3.13 The Company acknowledges and agrees that it is the responsibility of the Company to
determine investment restrictions under state insurance law applicable to any Portfolio, and that
the Fund shall bear no responsibility to the Company for any such determination or the correctness
of such determination. The Company has determined that the investment restrictions set forth in the
current Fund Prospectus are sufficient to comply with all investment restrictions under state
insurance laws that are currently applicable to the Portfolios as a result of the Accounts’
investment therein. The Company shall inform the Fund of any additional investment restrictions
imposed by state insurance law after the date of this Agreement that may become applicable to the
Fund or any Portfolio from time to time as a result of the Accounts’ investment therein. Upon
receipt of any such information from the Company, the Fund shall determine whether it is in the
best interests of shareholders to comply with any such restrictions. If the Fund determines that it
is not in the best interests of shareholders to comply with a restriction determined to be
applicable by the Company, the Fund shall so inform the Company, and the Fund and the Company shall
discuss alternative accommodations in the circumstances.
3.14 The Fund and Underwriter represent and warrant that all of their directors, officers,
employees, investment advisers, and other individuals/entities dealing with the money and/or
securities of the Fund are and shall continue to be at all times covered by a blanket fidelity bond
or similar coverage for the benefit of the Fund 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 shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
Name of Fund Company | RVSL Participation Agreement | Page 13 of 30 |
3.15 The Company represents and warrants that all of its directors, officers, employees,
investment advisers, and other individuals/entities dealing with the money and/or securities of the
Fund are covered by a blanket fidelity bond or similar coverage for the benefit of the Fund, and
that said bond is issued by a reputable bonding company, includes coverage for larceny and
embezzlement, and is in an amount not less than $5 million. The Company agrees to make all
reasonable efforts to see that this bond or another bond containing these provisions is always in
effect, and agrees to notify the Fund and the Underwriter in the event that such coverage no longer
applies.
ARTICLE 4
Potential Conflicts
Potential Conflicts
4.1 The parties acknowledge that the Fund’s Shares may be made available for investment to
other Participating Insurance Companies. In such event, the Trustees of the Fund will monitor the
Fund for the existence of any material irreconcilable conflict between the interests of the
contract owners of all Participating Insurance Companies. A material irreconcilable 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 variable annuity
contract and variable life insurance contract owners; or (f) a decision by an insurer to disregard
the voting instructions of contract owners. The Trustees shall promptly inform the Company in
writing if they determine that a material irreconcilable conflict exists and the implications
thereof. The parties to this Agreement agree that the conditions or undertakings specified in the
Mixed and Shared Funding Exemptive Order that may be imposed on the Company, the Fund and/or the
Underwriter will be incorporated herein by reference, and such parties agree to comply with such
conditions and undertakings to the extent applicable to each such party.
4.2 The Company agrees to promptly report any potential or existing conflicts of which it is
aware to the Trustees. The Company will assist the Trustees in carrying out their responsibilities
under the Mixed and Shared Funding Exemptive Order by providing the Trusteess with all information
reasonably necessary for them to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of the Fund’s Trustees
who are not affiliated with the Adviser or the Underwriter (the “Disinterested Trustees”), that a
material irreconcilable conflict exists that affects the interests of Contract owners, the Company
shall, in cooperation with other Participating Insurance Companies whose contract owners are also
affected, at its expense and to the extent reasonably practicable (as determined by the Trustees)
take whatever steps are necessary to remedy or eliminate the material irreconcilable conflict,
which steps could include: (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 of whether
or not such segregation should be implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life
insurance contract owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected Contract owners the
option of making such a change; and (b) establishing a new registered management investment company
or managed separate account.
Name of Fund Company | RVSL Participation Agreement | Page 14 of 30 |
4.4 If a material irreconcilable conflict arises because of a decision by the Company to
disregard Contract owner voting instructions and that decision represents a minority position or
would preclude a majority vote, the Company may be required, at the Fund’s election, to withdraw
the affected Account’s investment in the Fund and terminate this Agreement with respect to such
Account; provided, however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a majority of the
Disinterested Trustees. Any such withdrawal and termination must take place within 30 days after
the Fund gives written notice that this provision is being implemented, subject to applicable law
but in any event consistent with the terms of the Mixed and Shared Funding Exemptive Order. Until
the end of such 30 day period, the Fund shall continue to accept and implement orders by the
Company for the purchase and redemption of Shares.
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
regulators, then the Company will withdraw the affected Account’s investment in the Fund and
terminate this Agreement with respect to such Account within 30 days after the Fund informs the
Company in writing that it has determined that such decision has created an material irreconcilable
conflict; provided, however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a majority of the
Disinterested Trustees. Until the end of such 30 day period, the Fund shall continue to accept and
implement orders by the Company for the purchase and redemption of Shares of the Fund.
4.6 For purposes of section 4.3 through 4.6 of this Agreement, a majority of the Disinterested
Trustees shall determine whether any proposed action adequately remedies any material
irreconcilable conflict, but in no event will the Company be required 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 materially adversely affected by the material irreconcilable conflict. In the event that
the Trustees determine that any proposed action does not adequately remedy any material
irreconcilable conflict, then the Company will withdraw the Account’s investment in the Fund and
terminate this Agreement within 30 days after the Trustees inform the Company in writing of the
foregoing determination; provided, however, that such withdrawal and termination shall be limited
to the extent required by any such material irreconcilable conflict as determined by a majority of
the Disinterested Trustees.
4.7 Upon request, the Company shall submit to the Trustees such reports, materials or data as
the Trustees may reasonably request so that the Trustees may fully carry out the duties imposed
upon them by the Mixed and Shared Funding Exemptive Order, and said reports, materials and data
shall be submitted more frequently if deemed appropriate by the Trustees.
4.8 If and to the extent that (a) 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 application for the Mixed and
Shared Funding Exemptive Order) on terms and conditions materially different from those contained
in the application for the Mixed and Shared Funding Exemptive Order, or (b) the Mixed and Shared
Funding Exemptive Order is granted on terms and conditions that differ from those set forth in this
Article 4, then the Fund and/or the Participating Insurance Companies, as appropriate, shall take
such steps as may be necessary (a) 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, or (b) to conform this Article 4 to the
terms and conditions contained in the Mixed and Shared Funding Exemptive Order, as the case may be.
ARTICLE 5
Indemnification
Indemnification
5.1 The Company agrees to indemnify and hold harmless the Fund Parties and each of their
respective Directors, officers, employees and agents and each person, if any, who controls a Fund
Party
Name of Fund Company | RVSL Participation Agreement | Page 15 of 30 |
within the meaning of Section 15 of the 1933 Act (collectively the “Indemnified Parties” for
purposes of this Article 5) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or expenses (including the
reasonable costs of investigating or defending any loss, claim, damage, liability or expense and
reasonable legal counsel fees incurred in connection therewith) (collectively, “Losses”), to which
the Indemnified Parties may become subject under any statute or regulation, or common law or
otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements of any material fact
contained in the registration statement or prospectuses for the Contracts or in
the Contracts themselves or in sales literature or other promotional material
generated or approved by the Company on behalf of the Contracts or Accounts (or
any amendment or supplement to any of the foregoing) (collectively, “Company
Documents” for the purposes of this Article 5), or arise out of or are based upon
the omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
indemnity shall not apply as to any Indemnified Party if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Fund or Underwriter for use in
Company Documents or otherwise for use in connection with the sale of the
Contracts or Shares; or
(b) arise out of or result from statements or representations (other than
statements or representations contained in Fund Documents as defined in Section
5.2(a)) or wrongful conduct of the Company or persons under its control, with
respect to the sale or acquisition of the Contracts or Shares; or
(c) arise out of or result from any untrue statement of a material fact
contained in Fund Documents as defined in Section 5.2(a) or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading if such statement or omission was made in
reliance upon and in conformity with written information furnished to the Fund or
Underwriter by or on behalf of the Company; or
(d) arise out of or result from any failure by the Company to provide the
services or furnish the materials required under the terms of this Agreement
(including, whether intentional or otherwise, a failure of the Contracts to be
treated as annuity contracts and/or life insurance policies (as applicable) as
specified in Section 3.2 of this Agreement); or
(e) arise out of or result from 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.
5.2 The Underwriter and the Fund agree severally to indemnify and hold harmless the Company
and each of its directors, officers, employees and agents and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the “Indemnified Parties”
for purposes of this Article 5) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Fund Parties) or expenses (including the
reasonable costs of investigating or defending any loss, claim, damage liability or expense and
reasonable legal counsel fees incurred in connection therewith) (collectively, “Losses”), to which
the Indemnified Parties may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
Name of Fund Company | RVSL Participation Agreement | Page 16 of 30 |
(a) arise out of or are based upon any untrue statements of any material fact
contained in the registration statement or prospectus or sales literature or other
promotional material for the Fund prepared by or on behalf of the Fund (or any
amendment or supplement thereto) (collectively, “Fund Documents” for the purposes
of this Article 5), or arise out of or are based upon the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this indemnity shall not apply as
to any Indemnified Party if such statement or omission was made in reliance upon
and in conformity with written information furnished to the Fund Parties by or on
behalf of the Company for use in Fund Documents or otherwise for use in connection
with the sale of the Contracts or Shares; or
(b) (i) with respect to the indemnification provided by the Underwriter
herein, arise out of or result from statements or representations (other than
statements or representations contained in Company Documents) or wrongful conduct
of the Underwriter or persons under its control, with respect to the sale or
acquisition of the Contracts or Shares, and (ii) with respect to the
indemnification provided by the Fund herein, arise out of or result from
statements or representations (other than statements or representations contained
in Company Documents) or wrongful conduct of the Fund or persons under its
control, with respect to the sale or acquisition of the Contracts or Shares; or
(c) arise out of or result from any untrue statement of a material fact
contained in Company Documents or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Fund, Underwriter or Adviser; or
(d) (i) with respect to the indemnification provided by the Underwriter
herein, arise out of or result from any failure by the Underwriter to provide the
services or furnish the materials required under the terms of this Agreement
(including a failure, whether unintentional or in good faith or otherwise, to
comply with the diversification requirements specified in Section 3.9 of this
Agreement), and (ii) with respect to the indemnification provided by the Fund
herein, arise out of or result from any failure by the Fund to provide the
services or furnish the materials required under the terms of this Agreement
(including a failure, whether unintentional or in good faith or otherwise, to
comply with the diversification requirements specified in Section 3.9 of this
Agreement); or
(e) (i) with respect to the indemnification provided by the Underwriter
herein, arise out of or result from any material breach of any representation
and/or warranty made by the Underwriter in this Agreement or arise out of or
result from any other material breach of this Agreement by the Underwriter, and
(ii) with respect to the indemnification provided by the Fund herein, arise out of
or result from any material breach of any representation and/or warranty made by
the Fund in this Agreement or arise out of or result from any other material
breach of this Agreement by the Fund.
5.3 Neither the Company, the Underwriter nor the Fund shall be liable under the
indemnification provisions of Section 5.1 or 5.2, as applicable, with respect to any Losses
incurred or assessed against any Indemnified Party to the extent such Losses arise out of or result
from such Indemnified Party’s willful misfeasance, bad faith or gross negligence in the performance
of such Indemnified Party’s duties or by reason of such Indemnified Party’s reckless disregard of
obligations or duties under this Agreement.
Name of Fund Company | RVSL Participation Agreement | Page 17 of 30 |
5.4 Neither the Company, the Underwriter nor the Fund shall be liable under the
indemnification provisions of Section 5.1 or 5.2, as applicable, with respect to any claim made
against an Indemnified Party unless such Indemnified Party shall have notified the other party in
writing within a reasonable time after the summons, or other first written notification, giving
information of the nature of the claim shall have been served upon or otherwise received by such
Indemnified Party (or after such Indemnified Party shall have received notice of service upon or
other notification to any designated agent), but failure to notify the party against whom
indemnification is sought of any such claim shall not relieve that party from any liability which
it may have to the Indemnified Party in the absence of Sections 5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties, the indemnifying party
shall be entitled to participate, at its own expense, in the defense of such action. The
indemnifying party also shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in such action. After notice from the indemnifying party to the
Indemnified Party of an election to assume such defense, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the indemnifying party will not be
liable to the Indemnified 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.
5.6 The Indemnified Parties will promptly notify the indemnifying party of the commencement of
any litigation or proceedings against them in connection with the issuance or sale of the Shares or
the Contracts or the operation of the Fund, to the extent material to the party’s duties or
representations under this Agreement, as applicable.
ARTICLE 6
Termination
Termination
6.1 This Agreement may be terminated by either party for any reason by sixty (60) days’
advance written notice delivered to the other party.
6.2 This Agreement may be terminated at the option of the Underwriter or the Fund upon
institution of formal proceedings against the Company by FINRA, 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 operation of the Accounts, the administration of the
Contracts or the purchase of the Shares which would, in the Fund’s or the Underwriter’s respective
reasonable judgment, materially impair the Company’s ability to meet and perform the Company’s
obligations and duties hereunder.
6.3 This Agreement may be terminated at the option of the Company upon institution of formal
proceedings against the Fund, Underwriter or Adviser by FINRA, the SEC, the insurance commission of
any state or any other regulatory body regarding the duties of the Fund or Underwriter under this
Agreement or related to the sale of Shares, the operation of the Fund or the administration of the
Fund, which would, in the Company’s reasonable judgment, materially impair the Fund’s or
Underwriter’s ability to meet and perform their obligations and duties hereunder.
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6.4 This Agreement may be terminated at the option of the Fund or the Underwriter if the
Internal Revenue Service determines that the Contracts cease to qualify as annuity contracts or
life insurance policies, as applicable, under the Code, or if the Fund or Underwriter reasonably
believes that the Contracts may fail to so qualify or if interests in an Account under the
Contracts are not registered, where required, and, in all material respects, are not issued or sold
in accordance with any applicable federal or state law.
6.5 This Agreement may be terminated by the Fund or the Underwriter, at the option of either,
if the Fund or the Underwriter shall determine, in its sole judgment exercised in good faith, that
either (1) the Company shall have suffered a material adverse change in its business or financial
condition, (2) the Company shall have been the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations of either the Fund or the
Underwriter, or (3) the Company breaches any obligation under this Agreement in a material respect
and such breach shall continue unremedied for thirty (30) days after receipt by the Company of
notice in writing from the Fund or Underwriter of such breach.
6.6 This Agreement may be terminated by the Company, if the Company shall determine, in its
sole judgment exercised in good faith, that either (1) the Fund, the Underwriter or the Adviser
have suffered a material adverse change in its business or financial condition, (2) the Fund, the
Underwriter or the Adviser shall have been the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations of the Company or the
Account(s), or (3) the Fund or Underwriter breaches any obligation under this Agreement in a
material respect and such breach shall continue unremedied for thirty (30) days after receipt by
the Fund or Underwriter, as applicable, of notice in writing from the Company of such breach.
6.7 This Agreement may be terminated by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio based upon the Company’s determination that Shares of
such Portfolio are not reasonably available to meet the requirements of the Contracts.
6.8 This Agreement may be terminated by the Company by written notice to the Fund
and the Underwriter 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 the Company.
6.9 This Agreement may be terminated by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio in the event that such Portfolio ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under any successor or similar
provision, or if the Company reasonably believes that a Portfolio may fail to so qualify.
6.10 This Agreement may be terminated by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio in the event that such Portfolio fails to meet the
diversification requirements specified in Section 3.8 of this Agreement.
6.11 Notwithstanding any termination of this Agreement, the Fund and the Underwriter 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, if the Fund and Underwriter so agree to make additional Shares available, the
owners of the Existing Contracts will be permitted to reallocate investments in the Fund, redeem
investments in the Fund and/or invest in the Fund upon the making of additional purchase payments
under the Existing Contracts.
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6.12 The provisions of Articles 3 (Representations and Warranties), 5 (Indemnification), 7
(Applicable Law), 8 (Notices), 9 (Miscellaneous) and Section 14 of Schedule C shall survive
termination of this Agreement. In addition, all other applicable provisions of this Agreement
shall survive termination as long as Shares are held on behalf of Contract owners in accordance
with Section 6.11, except that the Fund and Underwriter shall have no further obligation to make
Shares available in Contracts issued after termination.
ARTICLE 7
Applicable Law
Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted under and in
accordance with the laws of the State of New York.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts,
applicable insurance law and regulations, and the rules, regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Mixed and Shared Funding Exemptive Order) and the terms hereof
shall be interpreted and construed in accordance therewith.
ARTICLE 8
Notices
Notices
Any notice shall be sufficiently given when sent by registered or certified mail to the other
party at the address of such party set forth below or at such other address as such party may from
time to time specify in writing to the other party.
To the Fund:
ALPS Variable Investment Trust
Attn: General Counsel
Address: 0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
ALPS Variable Investment Trust
Attn: General Counsel
Address: 0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
To the Underwriter:
ALPS Portfolio Solutions Distributor, Inc.
Attn: General Counsel
Address: 0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
ALPS Portfolio Solutions Distributor, Inc.
Attn: General Counsel
Address: 0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
To the Company: | With a copy to: | |||
RiverSource Life Insurance Company | RiverSource Life Insurance Company | |||
1765 Ameriprise Financial Center | 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx | |||
Xxxxxxxxxxx, XX 00000 | Xxxxxxxxxxx, XX 00000 | |||
Attn: Xxxx Xxxxxx Xxxxxx, | Attn: General Counsel | |||
Vice President – National Sales Manager | ||||
and Fund Management |
ARTICLE 9
Miscellaneous
Miscellaneous
9.1 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.
Name of Fund Company | RVSL Participation Agreement | Page 20 of 30 |
9.2 This Agreement may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
9.3 If any provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be affected thereby.
9.4 The parties to this Agreement acknowledge and agree that the Fund is a Delaware statutory
trust, and that all liabilities of the Fund arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets of the relevant
Portfolio(s) of the Fund and that no Trustee, officer, agent or holder of Shares of the Fund shall
be personally liable for any such liabilities.
9.5 Each party shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the SEC, FINRA and state insurance regulators) and shall
permit such authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions contemplated hereby.
9.6 The rights, remedies and obligations contained in this Agreement are cumulative and are in
addition to any and all rights, remedies and obligations, at law or in equity, to which the parties
hereto are entitled under state and federal laws.
9.7 The parties to this Agreement acknowledge and agree that this Agreement shall not be
exclusive in any respect.
9.8 Neither this Agreement nor any rights or obligations hereunder may be assigned by either
party without the prior written approval of the other parties.
9.9 No provisions of this Agreement may be amended or modified in any manner except by a
written agreement properly authorized and executed by all parties.
9.10 This Agreement constitutes the entire agreement among the parties with respect to the
subject matter contained herein, and supersedes all prior and contemporaneous understandings and
agreements, both written and oral, with respect to such subject matter.
(Signatures on next page.)
Name of Fund Company | RVSL Participation Agreement | Page 21 of 30 |
IN WITNESS WHEREOF, the parties have caused their duly authorized officers to execute this
Fund Participation Agreement as of the date and year first above written.
ALPS VARIABLE INVESTMENT TRUST
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
ALPS PORTFOLIO SOLUTIONS DISTRIBUTOR, INC.
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
RIVERSOURCE LIFE INSURANCE COMPANY
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
Name of Fund Company | RVSL Participation Agreement | Page 22 of 30 |
Schedule A
SEPARATE ACCOUNTS OF RIVERSOURCE LIFE INSURANCE COMPANY
RiverSource Variable Annuity Account
RiverSource Variable Annuity Account 1
RiverSource Variable Account 10
RiverSource Variable Life Account
RiverSource Variable Life Separate Account
RiverSource Variable Annuity Account 1
RiverSource Variable Account 10
RiverSource Variable Life Account
RiverSource Variable Life Separate Account
ALPS Variable Investment Trust | RVSL Participation Agreement | Page 23 of 30 |
Schedule B
Portfolios and Classes of Fund Shares offered to Separate Accounts of RiverSource Life
Insurance Company
Ibbotson Aggressive Growth ETF Asset Allocation Portfolio (Class I/Class II)
Ibbotson Growth ETF Asset Allocation Portfolio (Class I/Class II)
Ibbotson Balanced ETF Asset Allocation Portfolio (Class I/Class II)
Ibbotson Income and Growth ETF Asset Allocation Portfolio (Class I/Class II)
Ibbotson Conservative ETF Asset Allocation Portfolio (Class I/Class II)
Ibbotson MVP ETF Portfolio (Class I/Class II/Class III)
ALPS/Alerian Energy Infrastructure Portfolio (Class I/Class III)
ALPS Variable Investment Trust | RVSL Participation Agreement | Page 24 of 30 |
Schedule C
Shareholder Information
Shareholder Information Schedule entered into by and between ALPS Variable Investment Trust (the
“Fund”), ALPS Portfolio Solutions Distributor, Inc. and its successors, assigns and designees
(“APSD” or “Underwriter”) and RiverSource Life Insurance Company (the “Company”), a Minnesota life
insurance company.
For Schedule C, the following terms shall have the following meanings, unless a different meaning
is clearly required by the contexts:
The term “Good Cause” means an instance where the Fund has experienced unusual levels or patterns
of purchase or redemption activity and the Fund reasonably believes such activity is an indication
that trading activity in an account is inconsistent with Fund policies, thereby requiring
additional Shareholder information to investigate compliance with Fund policies.
The term “Shares” means the interests of Shareholders corresponding to the redeemable securities of
record issued by the Fund under the Investment Company Act of 1940 that are held by the Company on
behalf of its separate accounts.
The term “Shareholder” means the holder of interests in a variable annuity or variable life
insurance contract issued by the Company (“Contract”), or a participant in an employee benefit plan
with a beneficial interest in a Contract.
The term “Shareholder-Initiated Transfer Purchase” means a transaction that is initiated or
directed by a Shareholder that results in a transfer of assets within a Contract to a Fund, but
does not include the following: (i) transactions that are executed automatically pursuant to a
contractual or systematic program or enrollment such as transfer of assets within a Contract to a
Fund as a result of “dollar cost averaging” programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (ii) transactions that are executed pursuant to a
Contract death benefit; (iii) step-up in Contract value pursuant to a Contract death benefit; (iv)
allocation of assets to a Fund through a Contract as a result of payments such as loan repayments,
scheduled contributions, retirement plan salary reduction contributions, employer matching
contributions, or planned premium payments to the Contract; or (v) prearranged transfers at the
conclusion of a required free look period.
The term “Shareholder-Initiated Transfer Redemption” means a transaction that is initiated or
directed by a Shareholder that results in a transfer of assets within a Contract out of a Fund, but
does not include transactions that are executed: (i) automatically pursuant to a contractual or
systematic program or enrollments such as transfers of assets within a Contract out of a Fund as a
result of annuity payouts, loans, systematic withdrawal programs, dollar-cost averaging programs,
insurance company approved asset allocation programs or automatic rebalancing programs; (ii) as a
result of any deduction of charges or fees under a Contract; (iii) within a Contract out of a Fund
as a result of scheduled withdrawals or surrenders from a Contract; (iv) as a result of payment of
a death benefit from a Contract; or (v) as a result of loans.
The Fund, the Underwriter and the Company hereby agree as follows:
Shareholder Information
1. | Agreement to Provide Information. The Company agrees to provide the Fund or its designee, upon written request of the Underwriter or the Fund, the taxpayer identification number (“TIN”), the Individual/International Taxpayer Identification Number (“ITIN”), or other government issued identifier (“GII”) and the Contract owner number or participant account number associated with the Shareholder, if known, of any or all |
ALPS Variable Investment Trust | RVSL Participation Agreement | Page 25 of 30 |
Shareholder(s) of the account, and the amount, date, name or other identifier of any investment professional(s) associated with the Shareholder(s) or the account (if known) and transaction type (purchase, redemption, transfer, or exchange) of every purchase, redemption, transfer, or exchange of Shares held through an account for Shareholder maintained by the Company during the period covered by the request. Unless otherwise specifically requested by the Fund for Good Cause, the Company shall only be required to provide information relating to Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer Redemptions. | ||
2. | Period Covered by Request. Requests must set forth a specific period, which generally will not exceed 90 days from the date of the request, for which transaction information is sought. The Underwriter and/or the Fund may request transaction information older than 90 days from the date of the request as they deem necessary to investigate compliance with policies established by the Fund for the purpose of eliminating or reducing any dilution of the value of the outstanding Shares issued by the Fund. | |
3. | Timing of Requests. The Fund requests for Shareholder information shall be made no more frequently than quarterly except as the Fund has Good Cause that a more frequent request is necessary to enforce the Fund’s restrictions on market timing and similar abusive transactions. | |
4. | Form and Timing of Response. |
(a) The Company agrees to provide the requested information specified in Section 1 that is on
its books and records, promptly, but in any event not later than seven (7) business days after
receipt of a request from the Fund, the Underwriter or their designee. If requested by the Fund,
the Underwriter or their designee, the Company agrees to use its best efforts to determine
promptly, but in any event not later than seven (7) business days after receipt of a request,
whether any specific person about whom it has received the identification and transaction
information specified in Section 1 is itself a financial intermediary (as defined in Rule 22c-2)
(“indirect intermediary”) and, upon further request of the Fund, the Underwriter or its designee,
promptly, but in any event not later than seven (7) business days after receipt of a request,
either (i) provide (or arrange to have provided) the information set forth in Section 1 for those
Shareholders who hold an account with an indirect intermediary or (ii) restrict or prohibit the
indirect intermediary from purchasing, in nominee name on behalf of other persons, securities
issued by the Fund. The Company additionally agrees to inform the Fund whether it plans to
perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing and in a format mutually
agreed upon by the Fund, the Underwriter or their designee and the Company; and
(c) To the extent practicable, the format for any transaction information provided to the Fund,
the Underwriter or their designee should be consistent with the NSCC Standardized Data Reporting
Format.
5. | Limitations on Use of Information. The Underwriter and the Fund agree not to use the information received pursuant to this Agreement for any purpose other than as necessary to comply with the provisions of Rule 22c-2 or to fulfill other regulatory requests or legal requirements subject to the privacy provisions of Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and comparable state laws. The Underwriter and the Fund further agree to protect the information provided pursuant to this Agreement, whether provided to the Underwriter or the Fund or their designee, with at least the same degree of care that is used to protect its own confidential and personally identifiable information, but in no event less than is required for compliance with all applicable laws. | |
6. | Breach of Security. The Fund has established and maintains procedures for the notification of affected persons in the event of a breach of security involving confidential information. The Underwriter and the Fund agree to notify the Company promptly following the discovery or notification of any material breach of security involving information provided to the Fund or its designee by the Company pursuant to this Schedule C. The Underwriter and the Fund agree to reimburse the Company, its affiliated entities, and all other entities acting on |
ALPS Variable Investment Trust | RVSL Participation Agreement | Page 26 of 30 |
behalf of any of them against direct losses relating to such breach of security, including: (i) direct costs for the notification of any Shareholders whose information was subject to the breach of security; and (ii) any other direct costs that may be incurred, including, but not limited to, any fine, penalties, judgment or other losses, each to the extent relating to a breach of security involving information provided to the Fund or its designee pursuant to this Schedule C. | ||
7. | Agreement to Restrict Trading. The Company agrees to execute written instructions from the Underwriter or the Fund to restrict or prohibit further purchases or exchanges of Shares by a Shareholder that has been identified by the Underwriter or the Fund as having engaged in transactions of the Fund’s Shares (directly or indirectly through Company’s separate account) that violate policies established by the Fund for the purpose of eliminating or reducing any dilution of the value of the outstanding Shares issued by the Fund. Unless otherwise directed by the Fund, any such restrictions or prohibitions shall only apply to Shareholder-Initiated Transfer Purchases that are effected directly or indirectly through the Company. In no event shall such restrictions or prohibitions prohibit redemptions from the Fund. Instructions must be received by the Company at the following address, or such other address that the Company may communicate to the Underwriter or the Fund in writing from time to time, including, if applicable, an e-mail and/or facsimile telephone number: |
RiverSource Life Insurance Company
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
xxxxxxx.x.xxxxxxxx@xxxx.xxx
FAX: 000-000-0000
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
xxxxxxx.x.xxxxxxxx@xxxx.xxx
FAX: 000-000-0000
8. | Form of Instructions. Instructions to restrict or prohibit trading must include the TIN, ITIN, or GII and the specific individual Contract owner number or participant account number associated with the Shareholder, if known, and the specific restriction(s) to be executed, including how long the restriction(s) is(are) to remain in place. If the TIN, ITIN, GII or the specific individual Contract owner number or participant account number associated with the Shareholder is not known, the instructions must include an equivalent identifying number of the Shareholder(s) or account(s) or other agreed upon information to which the instruction relates. Upon request of the Company, the Fund agrees to provide to the Company, along with any written instructions to prohibit further purchases or exchanges of Shares by Shareholder, information regarding those trades of the Contract owner that violated the Fund’s policies relating to eliminating or reducing any dilution of the value of the Fund’s outstanding Shares. | |
9. | Timing of Response. The Company agrees to execute instructions to restrict or prohibit trading as soon as reasonably practicable, but not later than five (5) business days after receipt of the instructions by Company. | |
10. | Confirmation by Company. The Company must provide written confirmation to the Underwriter and the Fund that instructions to restrict or prohibit trading have been executed. The Company agrees to provide confirmation as soon as reasonably practicable, but not later than ten (10) business days after the instructions have been executed. | |
11. | Force Majeure. Notwithstanding any other provisions of this Schedule C to the contrary, neither Company, the Fund nor the Underwriter shall be liable for any delay (not to exceed fifteen (15) business days) in performance or non-performance, in whole or in part, resulting from such party’s failure or inability to perform under this Schedule C because of acts of God, acts of governmental or military authority, national emergencies, insurrection, war, riots, equipment failure (other than that of equipment maintained by Company) or damage beyond its reasonable control, or other causes beyond its reasonable control. This section 11 shall not excuse any party from any liability which results from failure to have in place reasonable disaster recovery and safeguarding plans adequate for protection of all data which each party to this Schedule C is responsible for maintaining. |
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12. | Monitoring Requirement. Nothing in this Schedule C shall be construed as, or infer that Company has, undertaken any duty or obligation, whether express or implied, at law or in equity, to separately monitor for and detect trading activities inconsistent with or in violation of the Fund’s policies and/or procedures on limiting the dilution of value of outstanding shares of the Fund. | |
13. | Construction of the Schedule; Fund Participation Agreement. This Schedule C supplements the Fund Participation Agreement. To the extent the terms of this Schedule C conflict with the terms of the Fund Participation Agreement, the terms of this Schedule C shall control. | |
14. | Termination. This Schedule C will terminate upon the termination of the Fund Participation Agreement (except for obligations arising from trading activities that occurred prior to such termination). | |
15. | Applicable Law. This Schedule C shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of laws. |
ALPS Variable Investment Trust | RVSL Participation Agreement | Page 28 of 30 |
SCHEDULE D
Summary Fund Prospectus
All capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such
term in the Agreement.
1. | For purposes of this Schedule D, the terms Summary Prospectus and Statutory Prospectus shall have the same meaning as set forth in Rule 498. | |
2. | The Fund shall provide the Company with copies of the Summary Prospectuses and any supplements thereto in the same manner and at the same times as the Agreement requires that the Fund provide the Company with Statutory Prospectuses. | |
3. | The Fund and Underwriter represent and warrant that the Summary Prospectuses and the website hosting of such Summary Prospectuses will comply with the requirements of Rule 498 applicable to the Fund and its Portfolios. The Fund and Underwriter further represent and warrant that it has appropriate procedures in place to ensure that such web site continuously complies with Rule 498. | |
4. | The Fund agrees that the URL indicated on each Summary Prospectus will lead Contract owners directly to the web page used for hosting Summary Prospectuses and that such web page will host the current Fund documents required to be posted in compliance with Rule 498. | |
5. | The Fund and Underwriter represent and warrant that each will be responsible for compliance with the provisions of Rule 498(f)(1) involving Contract owner requests for additional Fund documents made directly to the Fund or the Underwriter, or one of their affiliates. The Fund and Underwriter further represent and warrant that any information obtained about Contract owners pursuant to this provision will be used solely for the purposes of responding to requests for additional Fund documents. | |
6. | The Company represents and warrants that it will be responsible for compliance with the provisions of Rule 498(f)(1) and will respond to requests for additional Fund documents made by Contract owners directly to the Company or one of its affiliates. | |
7. | The Company represents and warrants that any bundling of Summary Prospectuses and Statutory Prospectuses will be done in compliance with Rule 498. The Company agrees to be solely responsible for the maintenance of website links from the Company to the Fund documents site. The Company acknowledges that the Fund documents site is transmitted over the Internet on a best efforts basis, but that the Fund and Underwriter do not warrant or guarantee its reliability. The Company agrees that the Company will comply with any policies concerning Fund documents site usage that the Fund and Underwriter provide to the Company. | |
8. | At the Company’s request, the Fund will provide the Company with URLs to the current Fund documents for use with Company’s electronic delivery of Fund documents or on the Company’s website. The Fund and Underwriter will each be responsible for ensuring the integrity of the URLs and for maintaining the Fund’s current documents on the site to which such URLs originally navigate. | |
9. | If the Fund determines that it will end its use of the Summary Prospectus delivery option, the Fund will provide the Company with at least 45 days’ advance notice of its intent so that the Company can arrange to deliver a Statutory Prospectus in place of a Summary Prospectus. In order to comply with Rule 498(e)(1), the Fund shall continue to maintain its website in compliance with the requirements of this Agreement and Rule 498 for a minimum of 90 days after the termination of any such notice period. |
ALPS Variable Investment Trust | RVSL Participation Agreement | Page 29 of 30 |
10. | The parties agree that all other provisions of the Agreement, including the Indemnification provisions, will apply to the terms of this Schedule D as applicable. | |
11. | The parties agree that the Company is not required to distribute Summary Prospectuses to its Contract owners, but rather use of the Summary Prospectus will be at the discretion of the Company; provided that if the Company does not deliver the Summary Prospectus, it must deliver the Statutory Prospectus instead. The Company agrees that it will give the Fund sufficient notice of its intended use of the Summary Prospectuses or the Statutory Prospectuses. |
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