AMENDED AND RESTATED
PARTICIPATION AGREEMENT
BY AND AMONG
XXXXXXX VARIABLE SERIES, INC.
AND
XXXXXXX ASSET MANAGEMENT COMPANY, INC.
AND
XXXXXXX DISTRIBUTORS, INC.
AND
IDS LIFE INSURANCE COMPANY
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT, made and entered
into as of this 19th day of June, 2006, by and among XXXXXXX VARIABLE
SERIES, INC., an open-end management investment company organized under the
laws of Maryland (the "Fund"), XXXXXXX ASSET MANAGEMENT COMPANY, INC., a
corporation organized under the laws of Delaware (the "Adviser"), XXXXXXX
DISTRIBUTORS, INC., a corporation organized under the laws of Delaware (the
"Distributor") (the Adviser and the Distributor collectively referred to as
"Xxxxxxx") and IDS LIFE INSURANCE COMPANY, a Minnesota life insurance
company (the "Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule 1 to this Agreement, as may be
amended from time to time, (each account referred to as the "Account").
WHEREAS, the Fund was established for the purpose of serving as the
investment vehicle for insurance company separate accounts supporting
variable annuity contracts and variable life insurance policies to be
offered by insurance companies that have entered into participation
agreements with the Fund and Xxxxxxx (the "Participating Insurance
Companies"), and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets; and
WHEREAS, the Fund has received an order from the Securities & Exchange
Commission (the "SEC") granting Participating Insurance Companies and their
separate accounts relief from the provisions of Sections 9(a), 13(a), 15(a),
and 15(b) of the Investment Company Act of 1940, as amended (the "1940 Act")
and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary
to permit shares of the Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and
unaffiliated Participating Insurance Companies
and certain qualified pension and retirement plans outside of the separate
account context (the "Exemptive Order"); and
WHEREAS, the Company has registered or will register certain variable
annuity contracts and/or variable life insurance polices (the "Contracts")
under the Securities Act of 1933 (the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a
member in good standing with the National Association of Securities Dealers,
Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the portfolios named
in Schedule 2 to this Agreement, as may be amended from time to time, (the
"Portfolios") on behalf of the Account to fund the Contracts; and
WHEREAS, under the terms and conditions set forth in this Agreement, Xxxxxxx
desires to make shares of the Fund available as investment options under the
Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree
as follows:
ARTICLE A. AMENDMENT AND RESTATEMENT; FORM OF AGREEMENT
--------------------------------------------
A.1 The Fund and Xxxxxxx acknowledge the planned re-naming of the Company
to RiverSource Life Insurance Company effective on December 31, 2006
at 10:59:59 p.m. Central Time (the "Effective Time"). On and after the
Effective Time, all references in this Agreement and its Schedules to
the Company shall mean and refer to RiverSource Life Insurance
Company.
A.2 This Agreement shall amend and supersede, as of the date stated above,
the Participation Agreement, dated April 14, 2000, by and among the
Fund, Xxxxxxx and the Company, as amended by Amendment to
Participation Agreement, dated January 1, 2002, with respect to all
investments by the Company or the Account prior to the date of this
Agreement.
ARTICLE I. SALE AND REDEMPTION OF FUND SHARES
----------------------------------
1.1 The Fund will sell to the Company those shares of the Portfolios that
each Account orders, executing such orders on a daily basis at the net
asset value next computed after receipt and acceptance by the Fund (or
its agent). Shares of a particular Portfolio of the Fund will be
ordered in such quantities and at such times as determined by the
Company to be necessary to meet the requirements of the Contracts. The
Board of Directors of the Fund (the "Fund Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the
offering of shares of any Portfolio if such action is required by law
or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Fund
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Board, acting in good faith and in light of its fiduciary duties under
federal and any applicable state laws, necessary in the best interests
of the shareholders of such Portfolio.
1.2 The Fund will redeem any full or fractional shares of any Portfolio
when requested by the Company on behalf of an Account at the net asset
value next computed after receipt by the Fund (or its agent) of the
request for redemption, as established in accordance with the
provisions of the then current prospectus of the Fund.
1.3 For purposes of Sections 1.1 and 1.2, the Fund hereby appoints the
Company as its agent for the limited purpose of receiving and
accepting purchase and redemption orders resulting from investment in
and payments under the Contracts. Receipt by the Company will
constitute receipt by the Fund provided that: (a) such orders are
received by the Company in good order prior to the time the net asset
value of each Portfolio is priced in accordance with its prospectus;
and (b) the Fund receives notice of such orders by 10:00 a.m. Central
Time on the next following Business Day. "Business Day" will mean any
day on which the New York Stock Exchange is open for trading and on
which the Fund calculates its net asset value pursuant to the rules of
the SEC.
1.4 The Company will pay for a purchase order on the same Business Day as
the Fund receives notice of the purchase order in accordance with
Section 1.3. The Fund will pay for a redemption order on the same
Business Day as the Fund receives notice of the redemption order in
accordance with Section 1.3 and in the manner established from time to
time by the Fund, except that the Fund reserves the right to suspend
payment consistent with Section 22(e) of the 1940 Act and any rules
thereunder. In any event, absent extraordinary circumstances specified
in Section 22(e) of the 1940 Act, the Fund will make such payment
within five (5) calendar days after the date the redemption order is
placed in order to enable the Company to pay redemption proceeds
within the time specified in Section 22(e) of the 1940 Act or such
shorter period of time as may be required by law. All payments will be
made in federal funds transmitted by wire or other method agreed to by
the parties.
1.5 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate subaccount of
each Account.
1.6 The Fund will furnish same day notice (by wire or telephone, followed
by written confirmation) to the Company of the declaration of any
income, dividends or capital gain distributions payable on each
Portfolio's shares. The Company hereby elects to receive all such
dividends and distributions as are payable on the Portfolio shares in
the form of additional shares of that Portfolio. The Company reserves
the right to revoke this election and to receive all such dividends
and distributions in cash. The Fund will notify the Company of the
number of shares so issued as payment of such dividends and
distributions.
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1.7 The Fund will make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and will
use its best efforts to make such net asset value per share available
by 5:30 p.m. Central Time, but in no event later than 6:00 p.m.
Central Time each Business Day. The Fund will notify the Company as
soon as possible if it is determined that the net asset value per
share will be available after 6:00 p.m. Central Time on any Business
Day, and the Fund and the Company will mutually agree upon a final
deadline for timely receipt of the net asset value on such Business
Day.
1.8 Any material errors in the calculation of net asset value, dividends
or capital gain information will be reported immediately upon
discovery to the Company. An error will be deemed "material" based on
the Fund's interpretation of the SEC's position and policy with regard
to materiality, as it may be modified from time to time. If the
Company is provided with materially incorrect net asset value
information, the Company will be entitled to an adjustment to the
number of shares purchased or redeemed to reflect the correct net
asset value per share. Neither the Fund, Xxxxxxx nor any of their
affiliates will be liable for any information provided to the Company
pursuant to this Agreement which information is based on incorrect
information supplied by or on behalf of the Company to the Fund or
Xxxxxxx.
1.9 The Fund agrees that its shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain
qualified pension and retirement plans to the extent permitted by the
Exemptive Order. No shares of any Portfolio will be sold directly to
the general public. The Company agrees that Fund shares will be used
only for the purposes of funding the Contracts and Accounts listed in
Schedule 1, as amended from time to time.
1.10 The Fund agrees that all Participating Insurance Companies will have
the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 3.4
and Article IV of this Agreement.
1.11 (a) The Company acknowledges the Fund has adopted policies and
procedures reasonably designed to prevent frequent or excessive
purchases, exchanges and redemptions of the shares of Portfolios in
quantities great enough to disrupt orderly management of the
corresponding Portfolio's investment portfolio. These policies are
disclosed in Fund's prospectus.
(b) The Fund and Xxxxxxx acknowledge that the Company, on behalf of
its Accounts, has adopted policies and procedures reasonably
designed to detect and deter frequent transfers of Contract
value among the subaccounts of the Accounts including those
investing in Portfolios available as investment options under
the Contracts. These policies and procedures are described in
the current prospectuses of the Accounts through which the
Contracts are offered.
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(c) The Fund may consider the Company's policies and procedures
pertaining to frequent transfers of Contract value among the
subaccounts of the Account(s) including those investing in
Portfolios when the Fund periodically reviews or amends the
Fund's disruptive trading policies and procedures from time to
time. The Fund and Xxxxxxx may invite comment from and confer
with Company regarding any proposed policy and procedure of the
Fund and Xxxxxxx pertaining to disruptive trading to determine
prior to adopting such proposed policy or procedure the
Company's then-present ability to apply such proposed policy or
procedure to Contract owners who allocate Contract value to
subaccounts investing in Portfolios available under the
Contracts, including without limitation whether the Company can
apply such proposed policy or procedure without the need to
modify its automated data processing systems or to develop and
staff manual systems to accommodate the implementation of the
Fund's proposed policy or procedure.
(d) The Company will cooperate with the Fund's and Xxxxxxx'x
reasonable requests in taking steps to deter and detect such
transfers by any Contract owner. Subject to applicable law and
the terms of each Contract, the Company will provide promptly
upon request by the Fund, directly or through its designee:
o the Taxpayer Identification Number of all Contract owners that
purchased, redeemed, transferred, or exchanged shares of a Fund
held under a Contract; and,
o the amount and dates of such Contract owners purchases,
redemptions, transfers and exchanges in subaccounts available
under the Contract which invest in shares of any Fund.
The Company will execute any instructions from the Fund, directly or
through its designee, to restrict or prohibit further purchases,
redemptions, transfers or exchanges in subaccounts available under the
Contract which invest in shares of any Fund by any Contract owner who
has been identified by the Fund, or its designee, as having engaged in
transactions that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding securities issued by the Fund.
The parties shall negotiate in good faith such additional terms and
conditions regarding implementation of the foregoing obligations of
the parties under Rule 22c-2 as any party may wish to address,
including without limitation, reimbursement of expenses the Company
incurs in order to provide such information to the Fund and to execute
any instructions from the Fund or its designee to restrict or prohibit
purchases, redemptions, transfers or exchanges by any Contract owner
in subaccounts available under a Contract which invest in shares of
any Fund.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
------------------------------
2.1 The Company represents and warrants that:
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(a) it is an insurance company duly organized and in good standing
under applicable law;
(b) it has legally and validly established or will legally and
validly establish each Account as a separate account under
applicable state law;
(c) it has registered or will register to the extent necessary each
Account as a unit investment trust in accordance with the
provisions of the1940 Act to serve as a segregated investment
account for the Contracts;
(d) it has filed or will file to the extent necessary the Contracts'
registration statements under 1933 Act and these registration
statements will be declared effective by the SEC prior to the
sale of any Contracts;
(e) the Contracts will be filed and qualified and/or approved for
sale, as applicable, under the insurance laws and regulations of
the states in which the Contracts will be offered prior to the
sale of Contracts in such states; and
(f) it will amend the registration statement under the 1933 Act for
the Contracts and the registration statement under the 1940 Act
for the Account from time to time as required in order to effect
the continuous offering of the Contracts or as may otherwise be
required by applicable law, but in any event it will maintain a
current effective Contracts' and Account's registration
statement for so long as the Contracts are outstanding unless
the Company has supplied the Fund with an SEC no-action letter,
opinion of counsel or other evidence satisfactory to the Fund's
counsel to the effect that maintaining such registration
statement on a current basis is no longer required.
2.2 The Company represents and warrants that the Contracts are intended to
be treated as annuity or life insurance contracts under applicable
provisions of the Internal Revenue Code of 1986, as amended (the
"Internal Revenue Code"), and that it will make every effort to
maintain such treatment and that it will notify the Fund and the
Adviser immediately upon having a reasonable basis for believing that
the Contracts have ceased to be so treated or that they might not be
so treated in the future.
2.3 The Fund represents and warrants that:
(a) it is duly organized and validly existing under applicable state
law;
(b) it has registered with the SEC as an open-end management
investment company under the 1940 Act;
6
(c) Fund shares of the Portfolios offered and sold pursuant to this
Agreement will be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law;
(d) it is and will remain registered under the 1940 Act for as long
as such shares of the Portfolios are sold;
(e) it will amend the registration statement for its shares under
the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of its shares;
(f) it is currently qualified as a Regulated Investment Company
under Subchapter M of the Internal Revenue Code, it will make
every effort to maintain such qualification (under Subchapter M
or any successor or similar provision) and it will notify the
Company immediately upon having a reasonable basis for believing
that it has ceased to so qualify or that it might not so qualify
in the future; and
(g) its investment objectives, policies and restrictions comply with
applicable state securities laws as they may apply to the Fund
and it will register and qualify the shares of the Portfolios
for sale in accordance with the laws of the various states to
the extent deemed advisable by the Fund. The Fund makes no
representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment
policies, objectives and restrictions) complies with the
insurance laws and regulations of any state. The Fund and the
Adviser agree that they will furnish the information required by
state insurance laws so that the Company can obtain the
authority needed to issue the Contracts in the various states.
2.4 The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it reserves the right to make such payments in the
future. To the extent that the Fund decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund undertakes to have its Fund
Board, a majority of whom are not "interested" persons of the Fund,
formulate and approve any plan under Rule 12b-1 to finance
distribution expenses.
2.5 The Fund and Xxxxxxx represent and warrant that they will invest money
from the Contracts in such a manner as to ensure that the Contracts
will be treated as variable annuity contracts and variable life
insurance policies under the Internal Revenue Code and the regulations
issued thereunder. Without limiting the scope of the foregoing, the
Fund and the Adviser further represent and warrant that they will
comply with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, as amended from time to time, relating to the
diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such
Section or Regulation. In the event of a breach of this representation
and warranty by the Fund and/or the Adviser, they will take all
reasonable steps:
7
(a) to notify the Company of such breach; and
(b) to adequately diversify the Fund so as to achieve compliance
within the grace period afforded by Treasury Regulation 1.817-5.
2.6 The Adviser represents and warrants that:
(a) it is and will remain duly registered under all applicable
federal and state securities laws; and
(b) it will perform its obligations for the Fund in accordance with
applicable state and federal securities laws and that it will
notify the Company promptly if for any reason it is unable to
perform its obligations under this Agreement.
2.7 Each party represents and warrants that, as applicable, all of its
directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of
the Fund are and will continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act
or related provisions as may be promulgated from time to time. The
aforesaid bond includes coverage for larceny and embezzlement and is
issued by a reputable bonding company.
2.8 The parties to this Agreement represent and warrant that they shall
comply with all the applicable laws and regulations designed to
prevent money laundering including without limitation the
International Money Laundering Abatement and Anti-Terrorist Financing
Act of 2001 (Title III of the USA PATRIOT ACT), and if required by
such laws or regulations will share information with each other about
individuals, entities, organizations and countries suspected of
possible terrorist or money laundering activities in accordance with
Section 314(b) of the USA PATRIOT ACT.
ARTICLE III. OBLIGATIONS OF THE PARTIES
--------------------------
3.1 The Fund will prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports,
notices, proxy materials (or similar materials such as voting
instruction solicitation materials), prospectuses and statements of
additional information of the Fund. The Fund will bear the costs of
registration and qualification of its shares, preparation and filing
of documents listed in this Section 3.1 and all taxes to which an
issuer is subject on the issuance and transfer of its shares. In the
event the Fund initiates (i) a reorganization as defined by Section 2
of the 1940 Act, or (ii) changes the Fund's name or the name of a
Portfolio, the Fund will bear, or arrange for others to bear, the
Company's internal and out-of-pocket costs associated with the
aforementioned actions. Company agrees to use its best efforts to
minimize any costs incurred and shall provide the Fund or its
designated agent with acceptable documentation of any such costs
incurred.
8
3.2 At the option of the Company, the Fund will either: (a) provide the
Company with as many copies of the Fund's current prospectus,
statement of additional information, annual report, semi-annual report
and other shareholder communications, including any amendments or
supplements to any of the foregoing, as the Company will reasonably
request; or (b) provide the Company with a camera-ready copy, computer
disk or other medium agreed to by the parties of such documents in a
form suitable for printing. The Fund or the Distributor will bear the
cost of typesetting and printing such documents and of distributing
such documents to existing Contract owners. The Company will bear the
cost of distributing such documents to prospective Contract owners and
applicants as required. The Fund will provide written instruction to
all Participating Insurance Companies including the Company each time
the Fund amends or supplements a Portfolio's current prospectus or
statement of additional information directing the Participating
Insurance Companies including the Company as to whether the amendment
or supplement is to be provided (a) immediately to Contract owners who
have Contract value allocated to a Portfolio or (b) is to be held and
combined with another Fund or Contract related mailing as permitted by
applicable federal securities laws. The Fund agrees that the
instruction it gives the Company in each instance will be identical to
the instruction it provides other Participating Insurance Companies.
3.3 The Fund, at its expense, either will:
(a) distribute its proxy materials directly to the appropriate
Contract owners; or
(b) provide the Company or its mailing agent with copies of its
proxy materials in such quantity as the Company will reasonably
require and the Company will distribute the materials to
existing Contract owners and will xxxx the Fund for the
reasonable cost of such distribution. The Fund will bear the
cost of tabulation of proxy votes.
3.4 If and to the extent required by law the Company will:
(a) provide for the solicitation of voting instructions from
Contract owners;
(b) vote the shares of the Portfolios held in the Account in
accordance with instructions received from Contract owners; and
(c) vote shares of the Portfolios held in the Account for which no
timely instructions have been received, in the same proportion
as shares of such Portfolio for which instructions have been
received from the Company's Contract owners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contract owners. The Company reserves the right to vote Fund shares
held in any segregated asset account in its own right, to the extent
permitted by law.
9
3.5 The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular, the Fund either will
provide for annual meetings (except insofar as the SEC may interpret
Section 16 of the 1940 Act not to require such meetings) or, as the
Fund currently intends, to comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c)
of that Act) as well as with Sections 16(a) and, if and when
applicable, 16(b). Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect
to periodic elections of directors and with whatever rules the SEC may
promulgate with respect thereto.
3.6 The Company will prepare and be responsible for filing with the SEC
and any state regulators requiring such filing all shareholder
reports, notices, prospectuses and statements of additional
information of the Contracts. The Company will bear the cost of
registration and qualification of the Contracts and preparation and
filing of documents listed in this Section 3.6. The Company also will
bear the cost of typesetting, printing and distributing the documents
listed in this Section 3.6 to existing and prospective Contract
owners.
3.7 The Company will furnish, or will cause to be furnished, to the Fund
or the Adviser, each piece of sales literature or other promotional
material in which the Fund or the Adviser is named, at least ten (10)
Business Days prior to its use. No such material will be used if the
Fund or Xxxxxxx reasonably objects to such use within five (5)
Business Days after receipt of such material.
3.8 The Company will not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information
or representations contained in the registration statement, prospectus
or statement of additional information for Fund shares, as such
registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
reports or proxy statements for the Fund, or in published reports for
the Fund which are in the public domain or approved by the Fund or the
Adviser for distribution, or in sales literature or other material
provided by the Fund or by the Adviser, except with permission of the
Fund or the Adviser. The Fund and the Adviser agree to respond to any
request for approval on a prompt and timely basis. Nothing in this
Section 3.8 will be construed as preventing the Company or its
employees or agents from giving advice on investment in the Fund.
3.9 Xxxxxxx will provide within ten (10) Business Days following the end
of each calendar quarter, the Portfolio information, (including, but
not limited to, Portfolio composition), that is necessary for the
Company to update its sales literature or other promotional materials.
Xxxxxxx will provide such information via Excel spreadsheet diskette
format or in electronic transmission to the Company.
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3.10 The Fund or Xxxxxxx will furnish, or will cause to be furnished, to
the Company or its designee, each piece of sales literature or other
promotional material in which the Company or its separate account is
named, at least ten (10) Business Days prior to its use. No such
material will be used if the Company reasonably objects to such use
within five (5) Business Days after receipt of such material.
3.11 The Fund and Xxxxxxx will not give any information or make any
representations or statements on behalf of the Company or concerning
the Company, each Account, or the Contracts other than the information
or representations contained in a registration statement, prospectus
or statement of additional information for the Contracts, as such
registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
published reports for each Account or the Contracts which are in the
public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other material provided by the
Company, except with permission of the Company. The Company agrees to
respond to any request for approval on a prompt and timely basis.
3.12 The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for
no-action letters that relate to the Fund or its shares at the request
of the Company. The Fund will provide to the Company all amendments to
any of the above contemporaneously with the filing of such document
with the SEC or the NASD.
3.13 The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for
exemptions, requests for no action letters, and all amendments to any
of the above, that relate to the Contracts or each Account,
contemporaneously with the filing of such document with the SEC or the
NASD.
3.14 For purposes of this Article III, the phrase "sales literature or
other promotional material" includes, but is not limited to,
advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical), radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures, or other public media, (e.g., on-line networks such
----
as the Internet or other electronic messages), sales literature (i.e.,
----
any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature, or published
article), educational or training materials or other communications
distributed or made generally available to some or all agents or
employees, registration statements, prospectuses, statements of
additional information, shareholder reports, and proxy materials and
any other material constituting sales literature or advertising under
the NASD rules, the 1933 Act or the 1940 Act.
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3.15 The Fund and the Adviser hereby consent to the Company's use of the
name [insert appropriate trademarked or service marked name or names]
in connection with marketing the Contracts, subject to the terms of
Sections 3.7 and 3.8 of this Agreement. Such consent will terminate
with the termination of this Agreement.
3.16 The Adviser will be responsible for calculating the performance
information for the Fund. The Company will be responsible for
calculating the performance information for the Contracts. The Adviser
will be liable to the Company for any material mistakes it makes in
calculating the performance information for the Fund which cause
losses to the Company. The Company will be liable to the Adviser for
any material mistakes it makes in calculating the performance
information for the Contracts which cause losses to the Adviser. Each
party will be liable for any material mistakes it makes in reproducing
the performance information for Contracts or the Fund, as appropriate.
The Fund and the Adviser agree to provide the Company with performance
information for the Fund on a timely basis to enable the Company to
calculate performance information for the Contracts in accordance with
applicable state and federal law.
ARTICLE IV. POTENTIAL CONFLICTS
-------------------
4.1 The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the contract
owners of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d)
the manner in which the investments of any Portfolio are being
managed; (e) a difference in voting instructions given by
Participating Insurance Companies or by variable annuity and variable
life insurance contract owners; or (f) a decision by an insurer to
disregard the voting instructions of contract owners. The Fund Board
will promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications thereof.
A majority of the Fund Board will consist of persons who are not
"interested" persons of the Fund.
4.2 The Company will report any potential or existing conflicts of which
it is aware to the Fund Board. The Company agrees to assist the Fund
Board in carrying out its responsibilities, as delineated in the
Exemptive Order, by providing the Fund Board with all information
reasonably necessary for the Fund Board to consider any issues raised.
This includes, but is not limited to, an obligation by the Company to
inform the Fund Board whenever Contract owner voting instructions are
to be disregarded. The Fund Board will record in its minutes, or other
appropriate records, all reports received by it and all action with
regard to a conflict.
4.3 If it is determined by a majority of the Fund Board, or a majority of
its disinterested directors, that an irreconcilable material conflict
exists, the Company and other
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Participating Insurance Companies will, at their expense and to the
extent reasonably practicable (as determined by a majority of the
disinterested directors), take whatever steps are necessary to remedy
or eliminate the irreconcilable material conflict, up to and
including: (a) withdrawing the assets allocable to some or all of the
Accounts from the Fund or any Portfolio and reinvesting such assets in
a different investment medium, including (but not limited to) another
portfolio of the Fund, or submitting the question whether such
segregation should be implemented to a vote of all affected contract
owners and, as appropriate, segregating the assets of any appropriate
group (i.e., variable annuity contract owners or variable life
----
insurance contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the
affected contract owners the option of making such a change; and (b)
establishing a new registered management investment company or managed
separate account.
4.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions, and such
disregard of voting instructions could conflict with the majority of
contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Funds election, to withdraw the
affected subaccount of the Account's investment in the Fund and
terminate this Agreement with respect to such subaccount; provided,
however, that such withdrawal and termination will be limited to the
extent required by the foregoing irreconcilable material conflict as
determined by a majority of the disinterested directors of the Fund
Board. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place within
six (6) months after the Fund gives written notice to the Company that
this provision is being implemented. Until the end of such six-month
period the Adviser and Fund will, to the extent permitted by law and
any exemptive relief previously granted to the Fund, continue to
accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund.
4.5 If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company
conflicts with the majority of other state insurance regulators, then
the Company will withdraw the affected subaccount of the Account's
investment in the Fund and terminate this Agreement with respect to
such subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
disinterested directors of the Fund Board. No charge or penalty will
be imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the Fund gives
written notice to the Company that this provision is being
implemented. Until the end of such six-month period the Adviser and
Fund will, to the extent permitted by law and any exemptive relief
previously granted to the Fund, continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of
the Fund.
4.6 For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested members of the Fund Board will determine whether
any proposed action
13
adequately remedies any irreconcilable material conflict, but in no
event will the Fund be required to establish a new funding medium for
the Contracts. The Company will not be required by this Article IV to
establish a new funding medium for the Contracts if an offer to do so
has been declined by vote of a majority of Contract owners affected by
the irreconcilable material conflict.
4.7 The Company will at least annually submit to the Fund Board such
reports, materials or data as the Fund Board may reasonably request so
that the Fund Board may fully carry out the duties imposed upon it as
delineated in the Exemptive Order, and said reports, materials and
data will be submitted more frequently if deemed appropriate by the
Fund Board.
4.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Exemptive Order) on terms
and conditions materially different from those contained in the
Exemptive Order, then: (a) the Fund and/or the Participating Insurance
Companies, as appropriate, will take such steps as may be necessary to
comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as
adopted, to the extent such rules are applicable; and (b) Sections
3.4, 3.5, 4.1, 4.2, 4.3, 4.4, and 4.5 of this Agreement will continue
in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended
or adopted.
ARTICLE V. INDEMNIFICATION
---------------
5.1 Indemnification By The Company
------------------------------
(a) The Company agrees to indemnify and hold harmless the Fund,
Xxxxxxx, and each person, if any, who controls or is associated
with the Fund or Xxxxxxx within the meaning of such terms under
the federal securities laws (but not any Participating Insurance
Companies) and any director, trustee, officer, partner, employee
or agent of the foregoing (collectively, the "Indemnified
Parties" for purposes of this Section 5.1) against any and all
losses, claims, expenses, damages, liabilities (including
amounts paid in settlement with the written consent of the
Company) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements:
(1) arise out of or are based on any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement, prospectus or statement of
additional information for the Contracts or contained in
the Contracts or sales literature or other promotional
material for the Contracts (or any amendment or supplement
to any of the foregoing), or arise out of or are based
upon the omission or the alleged
14
omission to state therein a material fact required to be
stated or necessary to make such statements not misleading
in light of the circumstances in which they were made;
provided that this agreement to indemnify will not apply
as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the
Company by or on behalf of Xxxxxxx or the Fund for use in
the registration statement, prospectus or statement of
additional information for the Contracts or in the
Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the
sale of the Contracts or Fund shares; or
(2) arise out of or are based on any untrue statement or
alleged untrue statement of a material fact contained in
the Fund registration statement, prospectus, statement of
additional information or sales literature or other
promotional material of the Fund (or any amendment or
supplement to any of the foregoing), or the omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances in which they
were made, if such statement or omission was made in
reliance upon and in conformity with information furnished
to the Fund or Xxxxxxx in writing by or on behalf of the
Company or persons under its control; or
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal or state law by, the
Company or persons under its control or subject to its
authorization, with respect to the purchase of Fund shares
or the sale, marketing or distribution of the Contracts;
or
(4) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of
this Agreement; or
(5) arise out of any material breach of any representation
and/or warranty made by the Company in this Agreement or
arise out of or result from any other material breach of
this Agreement by the Company or persons under its control
or subject to its authorization;
except to the extent provided in Sections 5.1(b) and 5.3 hereof.
This indemnification will be in addition to any liability that
the Company otherwise may have.
(b) No party will be entitled to indemnification under Section
5.1(a) if such loss, claim, damage, liability or litigation is
due to the willful misfeasance, bad faith, or gross negligence
in the performance of such party's duties under this Agreement,
or by reason of such party's reckless disregard of its
obligations or duties under this Agreement by the party seeking
indemnification.
15
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection
with the issuance or sale of the Fund shares or the Contracts or
the operation of the Fund.
5.2 Indemnification By Xxxxxxx
--------------------------
(a) Xxxxxxx agrees to indemnify and hold harmless the Company and
each person, if any, who controls or is associated with the
Company within the meaning of such terms under the federal
securities laws and any director, trustee, officer, partner,
employee or agent of the foregoing (collectively, the
"Indemnified Parties" for purposes of this Section 5.2) against
any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent
of Xxxxxxx) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements:
(1) arise out of or are based on any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement, prospectus or statement of
additional information for the Fund or sales literature or
other promotional material of the Fund (or any amendment
or supplement to any of the foregoing), or arise out of or
are based on the omission or alleged omission to state
therein a material fact required to be stated or necessary
to make such statements not misleading in light of the
circumstances in which they were made; provided that this
agreement to indemnify will not apply as to any
Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon
and in conformity with information furnished to Xxxxxxx or
the Fund by or on behalf of the Company for use in the
registration statement, prospectus or statement of
additional information for the Fund or in sales literature
of the Fund (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or
Fund shares; or
(2) arise out of or are based on any untrue statement or
alleged untrue statement of a material fact contained in
the Contract registration statement, prospectus or
statement of additional information or sales literature or
other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make
the statements therein not misleading in light of the
circumstances in which they were made, if such statement
or omission was made in reliance upon and in conformity
with information furnished to the Company in writing by or
on behalf of Xxxxxxx or persons under its control; or
16
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal and state law by, Xxxxxxx
or the Fund or persons under their respective control or
subject to their authorization with respect to the sale of
Fund shares; or
(4) arise as a result of any failure by the Fund, Xxxxxxx or
persons under their respective control or subject to their
authorization to provide the services and furnish the
materials under the terms of this Agreement including, but
not limited to, a failure, whether unintentional or in
good faith or otherwise, to comply with the
diversification requirements and procedures related
thereto specified in Section 2.5 of this Agreement or any
material errors in or untimely calculation or reporting of
the daily net asset value per share or dividend or capital
gain distribution rate (referred to in this Section
5.2(a)(4) as an "error"); provided, that the foregoing
will not apply where such error is the result of incorrect
information supplied by or on behalf of the Company to the
Fund or Xxxxxxx, and will be limited to (i) reasonable
administrative costs necessary to correct such error, and
(ii) amounts which the Company has paid out of its own
resources to make Contract owners whole as a result of
such error; or
(5) arise out of or result from any material breach of any
representation and/or warranty made by Xxxxxxx or the Fund
in this Agreement, or arise out of or result from any
other material breach of this Agreement by Xxxxxxx or the
Fund or persons under their respective control or subject
to their authorization;
except to the extent provided in Sections 5.2(b) and 5.3 hereof.
(b) No party will be entitled to indemnification under Section
5.2(a) if such loss, claim, damage, liability or litigation is
due to the willful misfeasance, bad faith, or gross negligence
in the performance of such party's duties under this Agreement,
or by reason of such party's reckless disregard of its
obligations or duties under this Agreement by the party seeking
indemnification.
(c) The Indemnified Parties will promptly notify Xxxxxxx and the
Fund of the commencement of any litigation, proceedings,
complaints or actions by regulatory authorities against them in
connection with the issuance or sale of the Contracts or the
operation of the Account.
5.3 Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article V
("Indemnifying Party" for the purpose of this Section 5.3) will not be
liable under the indemnification provisions of this Article V with
respect to any claim made against a party entitled to
17
indemnification under this Article V ("Indemnified Party" for the
purpose of this Section 5.3) unless such Indemnified Party will have
notified the Indemnifying Party in writing within a reasonable time
after the summons or other first legal process giving information of
the nature of the claim will have been served upon such Indemnified
Party (or after such party will have received notice of such service
on any designated agent), but failure to notify the Indemnifying Party
of any such claim will not relieve the Indemnifying Party from any
liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of the indemnification
provision of this Article V, except to the extent that the failure to
notify results in the failure of actual notice to the Indemnifying
Party and such Indemnifying Party is damaged solely as a result of
failure to give such notice. In case any such action is brought
against the Indemnified Party, the Indemnifying Party will be entitled
to participate, at its own expense, in the defense thereof. The
Indemnifying Party also will be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action.
After notice from the Indemnifying Party to the Indemnified Party of
the Indemnifying Party's election to assume the defense thereof, the
Indemnified Party will bear the fees and expenses of any additional
counsel retained by it, and the Indemnifying Party will not be liable
to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation,
unless: (a) the Indemnifying Party and the Indemnified Party will have
mutually agreed to the retention of such counsel; or (b) the named
parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The Indemnifying Party will not be liable for any settlement of
any proceeding effected without its written consent but if settled
with such consent or if there is a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify the Indemnified Party from
and against any loss or liability by reason of such settlement or
judgment. A successor by law of the parties to this Agreement will be
entitled to the benefits of the indemnification contained in this
Article V. The indemnification provisions contained in this Article V
will survive any termination of this Agreement.
5.4 Limitation of Liability
-----------------------
Except as expressly stated herein, as between the parties, in no event
will any party to this Agreement be responsible to any other party for
any incidental, indirect, consequential, punitive or exemplary damages
of any kind arising from this Agreement, including without limitation,
lost revenues, loss of profits or loss of business.
5.5 Arbitration
-----------
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, will be settled by arbitration administered by
the American Arbitration Association in accordance with its Commercial
Arbitration Rules and Title 9 of the U.S. Code. Judgment on the award
rendered by the arbitrators may be entered in any court
18
having jurisdiction thereof. The number of arbitrators will be three,
one of whom will be appointed by the Company or an affiliate; one of
whom will be appointed by the Fund and/or Xxxxxxx or an affiliate; and
the third of whom will be selected by mutual agreement, if possible,
within 30 days of the selection of the second arbitrator and
thereafter by the administering authority. The place of arbitration
will be Minneapolis, Minnesota. The arbitrators will have no authority
to award punitive damages or any other damages not measured by the
prevailing party's actual damages, and may not, in any event, make any
ruling, finding or award that does not conform to the terms and
conditions of this Agreement. Any party may make an application to the
arbitrators seeking injunctive relief to maintain the status quo until
such time as the arbitration award is rendered or the controversy is
otherwise resolved. Any party may apply to any court having
jurisdiction hereof and seek injunctive relief in order to maintain
the status quo until such time as the arbitration award is rendered or
the controversy is otherwise resolved.
ARTICLE VI. APPLICABLE LAW
--------------
6.1 This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Minnesota.
6.2 This Agreement will be subject to the provisions of the 1933 Act, the
1934 Act and the 1940 Act, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the
Exemptive Order) and the terms hereof will be interpreted and
construed in accordance therewith.
ARTICLE VII. TERMINATION
-----------
7.1 This Agreement will terminate:
(a) at the option of any party, with or without cause, with respect
to some or all of the Portfolios, upon sixty (60) days' advance
written notice to the other parties or, if later, upon receipt
of any required exemptive relief or orders from the SEC, unless
otherwise agreed in a separate written agreement among the
parties;
(b) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Portfolio if shares of the Portfolio are not reasonably
available to meet the requirements of the Contracts as
determined in good faith by the Company; or
(c) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Portfolio in the event any of the Portfolio's shares are not
registered, issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such shares
as the underlying investment media of the Contracts issued or to
be issued by Company; or
19
(d) at the option of the Fund, upon receipt of the Fund's written
notice by the other parties, upon institution of formal
proceedings against the Company by the NASD, the SEC, the
insurance commission of any state or any other regulatory body
regarding the Company's duties under this Agreement or related
to the sale of the Contracts, the administration of the
Contracts, the operation of the Account, or the purchase of the
Fund shares, provided that the Fund determined in its sole
judgment, exercised in good faith, that any such proceeding
would have a material adverse effect on the Company's ability to
perform its obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the Company's
written notice by the other parties, upon institution of formal
proceedings against the Fund or Xxxxxxx by the NASD, the SEC, or
any state securities or insurance department or any other
regulatory body, regarding the Fund's or Xxxxxxx'x duties under
this Agreement or related to the sale of Fund shares or the
administration of the Fund, provided that the Company determines
in its sole judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on the Fund's or
Xxxxxxx'x ability to perform its obligations under this
Agreement; or
(f) at the option of the Company, upon receipt of the Company's
written notice by the other parties, if the Fund ceases to
qualify as a Regulated Investment Company under Subchapter M of
the Internal Revenue Code, or under any successor or similar
provision, or if the Company reasonably and in good faith
believes that the Fund may fail to so qualify; or
(g) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Portfolio if the Fund fails to meet the diversification
requirements specified in Article II hereof or if the Company
reasonably and in good faith believes the Fund may fail to meet
such requirements; or
(h) at the option of any party to this Agreement, upon written
notice to the other parties, upon another party's material
breach of any provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that the Fund or Xxxxxxx
has suffered a material adverse change in its business,
operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity which
is likely to have a material adverse impact upon the business
and operations of the Company, such termination to be effective
sixty (60) days' after receipt by the other parties of written
notice of the election to terminate; or
20
(j) at the option of the Fund, if the Fund determines in its sole
judgment exercised in good faith, that the Company has suffered
a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the
Fund, such termination to be effective sixty (60) days' after
receipt by the other parties of written notice of the election
to terminate; or
(k) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the Contract
owners having an interest in the Account (or any subaccount) to
substitute the shares of another investment company for the
corresponding Portfolio shares of the Fund in accordance with
the terms of the Contracts for which those Portfolio shares had
been selected to serve as the underlying investment media. The
Company will give sixty (60) days' prior written notice to the
Fund of the date of any proposed vote or other action taken to
replace the Fund's shares; or
(l) at the option of the Company or the Fund upon a determination by
a majority of the Fund Board, or a majority of the disinterested
Fund Board members, that an irreconcilable material conflict
exists among the interests of: (i) all contract owners of
variable insurance products of all separate accounts; or (ii)
the interests of the Participating Insurance Companies investing
in the Fund as set forth in Article IV of this Agreement; or
(m) at the option of the Fund in the event any of the Contracts are
not issued or sold in accordance with applicable federal and/or
state law. Termination will be effective immediately upon such
occurrence without notice.
7.2 Notwithstanding any termination of this Agreement, the Fund and
Xxxxxxx will, at the option of the Company, continue to make available
additional shares of the Fund pursuant to the terms and conditions of
this Agreement, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in the
Portfolios (as in effect on such date), redeem investments in the
Portfolios and/or invest in the Portfolios upon the making of
additional purchase payments under the Existing Contracts. The parties
agree that this Section 7.2 will not apply to any terminations under
Article IV and the effect of such Article IV terminations will be
governed by Article IV of this Agreement.
7.3 The provisions of Article V will survive the termination of this
Agreement and as long as shares of the Fund are held under Existing
Contracts in accordance with Section 7.2, the provisions of this
Agreement will survive the termination of this Agreement with respect
to those Existing Contracts.
21
ARTICLE VIII. NOTICES
-------
Any notice will be deemed duly given when sent by registered or
certified mail (or other method agreed to by the parties) to each other
party at the address of such party set forth below or at such other address
as such party may from time to time specify in writing to the other parties.
If to the Company:
IDS Life Insurance Company
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Xxxxx, Vice President
With a copy to:
IDS Life Insurance Company
50607 Ameriprise Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President and Group Counsel
If to the Fund or Xxxxxxx:
Xxxxxxx Group Ltd.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx
ARTICLE IX. MISCELLANEOUS
-------------
9.1 All persons dealing with the Fund must look solely to the property of
the Fund for the enforcement of any claims against the Fund as neither
the directors, trustees, officers, partners, employees, agents or
shareholders assume any personal liability for obligations entered
into on behalf of the Fund.
9.2 Notwithstanding anything to the contrary contained in this Agreement,
in addition to and not in lieu of other provisions in this Agreement:
(a) "Confidential Information" includes but is not limited to all
proprietary and confidential information of the Company and its
subsidiaries, affiliates and licenses (collectively the
"Protected Parties" for purposes of this Section 9.2), including
without limitation all information regarding the customers of
the Protected Parties; or the accounts, account numbers, names,
addresses, social security numbers or any other personal
identifier of such customers; or any information derived
therefrom.
22
(b) The Fund, the Adviser and the Distributor may not use or
disclose Confidential Information for any purpose other than to
carry out the purpose for which Confidential Information was
provided to the Fund, the Adviser and/or the Distributor as set
forth in the Agreement; and the Fund, the Adviser and the
Distributor agree to cause all their employees, agents and
representatives, or any other party to whom the Fund, the
Adviser and/or the Distributor may provide access to or disclose
Confidential Information to limit the use and disclosure of
Confidential Information to that purpose.
(c) The Adviser and the Fund acknowledge that all computer programs
and procedures or other information developed or used by the
Protected Parties or any of their employees or agents in
connection with the Company's performance of its duties under
this Agreement are the valuable property of the Protected
Parties.
(d) The Fund, the Adviser and the Distributor agree to implement
appropriate measures designed to ensure the security and
confidentiality of Confidential Information, to protect such
information against any anticipated threats or hazards to the
security or integrity of such information, and to protect
against unauthorized access to, or use of Confidential
Information that could result in substantial harm or
inconvenience to any customer of the Protected Parties; the
Fund, the Adviser and the Distributor further agree to cause all
their agents, representatives or subcontractors of, or any other
party to whom the Fund, the Adviser and/or the Distributor may
provide access to or disclose Confidential Information to
implement appropriate measures designed to meet the objectives
set forth in this Section 9.2.
(e) The Fund, the Adviser and the Distributor acknowledge that any
breach of the agreements in this Section 9.2 would result in
immediate and irreparable harm to the Protected Parties for
which there would be no adequate remedy at law and agree that in
the event of such a breach, the Protected Parties will be
entitled to equitable relief by way of temporary and permanent
injunctions, as well as such other relief as any court of
competent jurisdiction deems appropriate.
(f) This Section 9.2 shall survive termination of this Agreement.
9.3 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
9.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
9.5 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
23
9.6 This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties.
9.7 Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including without limitation
the SEC, the NASD and state insurance regulators) and will permit each
other and such authorities reasonable access to its books and records
in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
9.8 Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein
have been duly authorized by all necessary corporate or board action,
as applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
9.9 The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect changes in or relating to the
Contracts, the Accounts or the Portfolios of the Fund or other
applicable terms of this Agreement.
24
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and behalf by its duly authorized representative as
of the date specified above.
XXXXXXX VARIABLE SERIES, INC. XXXXXXX ASSET MANAGEMENT
COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President Title: Senior Vice President
XXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
IDS LIFE INSURANCE COMPANY ATTEST:
By: /s/ Xxx Xxxxx By: /s/ Xxxxx Xxxxxx
------------------------------- -------------------------------
Name: Xxx X. Xxxxx Name: Xxxxx Xxxxxx
Title: Vice President Title: Assistant Secretary
SCHEDULE 1
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
By and Among
XXXXXXX VARIABLE SERIES, INC.
And
XXXXXXX ASSET MANAGEMENT COMPANY, INC.
And
XXXXXXX DISTRIBUTORS, INC.
And
IDS LIFE INSURANCE COMPANY
The following Accounts of IDS Life Insurance Company are permitted in
accordance with the provisions of this Agreement to invest in Portfolios of
the Fund shown in Schedule 2:
IDS Life Variable Account 10
IDS Life Variable Life Separate Account
SCHEDULE 2
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
By and Among
XXXXXXX VARIABLE SERIES, INC.
And
XXXXXXX ASSET MANAGEMENT COMPANY, INC.
And
XXXXXXX DISTRIBUTORS, INC.
And
IDS LIFE INSURANCE COMPANY
The Accounts shown on Schedule 1 may invest in the following Portfolios:
Xxxxxxx Variable Series, Inc.: Social Balanced Portfolio
