AMENDED AND RESTATED
PARTICIPATION AGREEMENT
BY AND AMONG
ROYCE CAPITAL FUND
AND
ROYCE & ASSOCIATES LLC
AND
RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT ("Agreement") made and
entered into as of this 1st day of January, 2007 by and among the following
parties:
o RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK ("Company", formerly IDS
Life Insurance Company of New York and American Centurion Life
Assurance Company), a New York life insurance company, on its own
behalf and on behalf of the separate accounts set forth on Schedule
1 hereto as may be amended from time to time by mutual consent (each
such account referred to as an "Account");
o ROYCE CAPITAL FUND, an open-end management investment company
organized as a Delaware business trust (the "Fund"); and,
o ROYCE & ASSOCIATES LLC, a limited liability company organized under
the laws of Delaware (the "Adviser").
WHEREAS, the Fund was established for the purpose of serving as the investment
vehicle for insurance company separate accounts supporting variable annuity
contracts and variable life insurance policies to be offered by insurance
companies that have entered into participation agreements with the Fund and
the Adviser (the "Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets; and
WHEREAS, the Fund has received an order from the Securities & Exchange
Commission (the "SEC") granting Participating Insurance Companies and their
separate accounts relief from the provisions of Sections 9(a), 13(a), 15(a),
and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder,
to the extent necessary to permit shares of the Fund to be sold to and held by
variable annuity and variable life insurance separate accounts of both
affiliated and
unaffiliated Participating Insurance Companies and certain qualified pension
and retirement plans outside of the separate account context (the "Exemptive
Order"); and
WHEREAS, the Company has registered or will register certain variable annuity
contracts and/or variable life insurance polices (the "Contracts") under the
1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the portfolios named in Schedule 2
to this Agreement, as may be amended from time to time, (the "Portfolios") on
behalf of the Account to fund the Contracts; and
WHEREAS, under the terms and conditions set forth in this Agreement, the
Adviser desires to make shares of the Fund available as investment options
under the Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree
as follows:
ARTICLE A. AMENDMENT AND RESTATEMENT; FORM OF AGREEMENT
--------------------------------------------
A.1. The Fund and the Adviser acknowledge the merger of American Centurion
Life Assurance Company ("American Centurion Life") with and into IDS
Life Insurance Company of New York (the "Merger") and the "intact
transfer" ("Transfer") of the Accounts of American Centurion Life to
IDS Life Insurance Company of New York by operation of law and
incident to the Merger, on December 31, 2006 at 10:59:59 p.m. Central
Time ("Effective Time")and the re-naming of IDS Life Insurance Company
of New York to RiverSource Life Insurance Co. of New York
simultaneously with the Merger.
A.2. This Agreement shall amend and supersede the Participation Agreement
dated July 1, 2002 by and among IDS Life Insurance Company of New
York, the Fund and the Adviser as of January 1, 2007 with respect to
all investments by IDS Life Insurance Company of New York and its
Accounts 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 Trustees of the Fund (the "Fund Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the
offering of shares of any Portfolio if such action is required by law
or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Fund Board, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Portfolio.
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1.2. The Fund will redeem any full or fractional shares of any Portfolio
when requested by the Company on behalf of an Account at the net asset
value next computed after receipt by the Fund (or its agent) of the
request for redemption, as established in accordance with the
provisions of the then current prospectus of the Fund.
1.3. For purposes of Sections 1.1 and 1.2, the Fund hereby appoints the
Company as its agent for the limited purpose of receiving and
accepting purchase and redemption orders resulting from investment in
and payments under the Contracts. Receipt by the Company will
constitute receipt by the Fund provided that: (a) such orders are
received by the Company in good order prior to the time the net asset
value of each Portfolio is priced in accordance with its prospectus;
and (b) The Fund receives notice of such orders by 10:00 a.m. Central
Time on the next following Business Day. "Business Day" will mean any
day on which the New York Stock Exchange is open for trading and on
which the Fund calculates its net asset value pursuant to the rules of
the SEC.
1.4. The Company will pay for a purchase order on the same Business Day as
the Fund receives notice of the purchase order in accordance with
Section 1.3. Notwithstanding the above, if the Fund receives notice of
the purchase order on a federal bank holiday, the Company will pay for
the purchase order on the next Business Day. The Fund will pay for a
redemption order on the same Business Day as the Fund receives notice
of the redemption order in accordance with Section 1.3 (or on the next
Business Day if such redemption order notice is received on a federal
bank holiday) and in the manner established from time to time by the
Fund, except that the Fund reserves the right to suspend payment
consistent with Section 22(e) of the Investment Company Act of 1940,
as amended (the "1940 Act") and any rules thereunder. In any event,
absent extraordinary circumstances specified in Section 22(e) of the
1940 Act, the Fund will make such payment within five (5) calendar
days after the date the redemption order is placed in order to enable
the Company to pay redemption proceeds within the time specified in
Section 22(e) of the 1940 Act or such shorter period of time as may be
required by law. All payments will be made in federal funds
transmitted by wire or other method agreed to by the parties.
1.5. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate subaccount of
each Account.
1.6. The Fund will furnish same day notice (by wire or telephone, followed
by written confirmation) to the Company of the declaration of any
income, dividends or capital gain distributions payable on each
Portfolio's shares. The Company hereby elects to receive all such
dividends and distributions as are payable on the Portfolio shares in
the form of additional shares of that Portfolio. The Fund will notify
the Company of the number of shares so issued as payment of such
dividends and distributions.
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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, on behalf of the Account, will be entitled
to an adjustment to the number of shares purchased or redeemed to
reflect the correct net asset value per share. Neither the Fund, the
Adviser nor any of their affiliates will be liable for any information
provided to the Company pursuant to this Agreement which information
is based on incorrect information supplied by or on behalf of the
Company to the Fund or the Adviser.
1.9. The Fund agrees that its shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain
qualified pension and retirement plans to the extent permitted by the
Exemptive Order. No shares of any Portfolio will be sold directly to
the. general public. The Company agrees that Fund shares will be used
only for the purposes of funding the Contracts and Accounts listed in
Schedule 1, as amended from time to time.
1.10. The Fund agrees that all Participating Insurance Companies will have
the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 3.4
and Article IV of this Agreement.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
------------------------------
2.1. The Company represents and warrants that:
(a) it is an insurance company duly organized and in good standing
under applicable law;
(b) it has legally and validly established or will legally and
validly establish each Account as a separate account under
applicable state law;
(c) it has registered or will register to the extent necessary each
Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment
account for the Contracts;
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(d) it has filed or will file to the extent necessary the Contracts'
registration statements under the Securities Act of 1933 (the
"1933 Act") and these registration statements will be declared
effective by the SEC prior to the sale of any Contracts;
(e) the Contracts will be filed and qualified and/or approved for
sale, as applicable, under the insurance laws and regulations of
the states in which the Contracts will be offered prior to the
sale of Contracts in such states; and
(f) it will amend the registration statement under the 1933 Act for
the Contracts and the registration statement under the 1940 Act
for the Account from time to time as required in order to effect
the continuous offering of the Contracts or as may otherwise be
required by applicable law, but in any event it will maintain a
current effective Contracts' and Account's registration statement
for so long as the Contracts are outstanding unless the Company
has supplied the Fund with an SEC no-action letter, opinion of
counsel or other evidence satisfactory to the Fund's counsel to
the effect that maintaining such registration statement on a
current basis is no longer required.
2.2. The Company represents and warrants that the Contracts are intended to
be treated as annuity or life insurance contracts under applicable
provisions of the Internal Revenue Code of 1986, as amended (the
"Internal Revenue Code"), and that it will make every effort to
maintain such treatment and. that it will notify the Fund and the
Adviser immediately upon having a reasonable basis for believing that
the Contracts have ceased to be so treated or that they might not be
so treated in the future.
2.3. The Fund represents and warrants that:
(a) it is duly organized and validly existing under applicable state
law;
(b) it has registered with the SEC as an open-end management
investment company under the 1940 Act;
(c) Fund shares of the Portfolios offered and sold pursuant to this
Agreement will be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law;
(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;
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(f) it is currently qualified as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code, it will make every
effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and it will notify the Company
immediately upon having a reasonable basis for believing that it
has ceased to so qualify or that it might not so qualify in the
future; and
(g) its investment objectives, policies and restrictions comply with
applicable state securities laws as they may apply to the Fund
and it will register and qualify the shares of the Portfolios for
sale in accordance with the laws of the various states only if
and to the extent deemed advisable by the Fund. The Fund makes no
representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment
policies, objectives and restrictions) complies with the
insurance laws and regulations of any state. The Fund and the
Adviser agree that they will furnish, upon the Company's request,
the information required by state insurance laws so that the
Company can obtain the authority needed to issue the Contracts in
the various states.
2.4. The Fund may make payments to finance distribution expenses pursuant
to Rule 12b-1 under the 1940 Act. The Fund's Board, a majority of whom
are not "interested persons of the Fund, will formulate and approve
any plan under Rule 12b-1 to finance distribution expenses.
2.5. The Fund and the Adviser represent and warrant that they will use
their best efforts to comply at all times with Section 817(h) of the
Internal Revenue Code and Treasury Regulation 1.817-5, as amended from
time to time, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any
amendments or other modifications to such Section or Regulation. In
the event of a breach of this representation and warranty by the Fund
and/or the Adviser, they will take all reasonable steps:
(a) to notify the Company of such breach; and
(b) to adequately diversify the Fund so as to achieve compliance
within the grace period afforded by Treasury Regulation 1.817-5.
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.
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2.7. Each party represents and warrants that, as applicable, an of its
directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of
the Fund are and will continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act
or related provisions as may be promulgated from time to time. The
aforesaid bond includes coverage for larceny and embezzlement and is
issued by a reputable bonding company.
2.8. The parties to this Agreement represent and warrant that they shall
comply with all the applicable laws and regulations designed to
prevent money laundering including without limitation the
International Money Laundering Abatement and Anti-Terrorist Financing
Act of 2001 (Title III of the USA PATRIOT ACT), and if required by
such laws or regulations will share information with each other about
individuals, entities, organizations and countries suspected of
possible terrorist or money laundering activities in accordance with
Section 314(b) of the USA PATRIOT ACT.
2.9. The Company, Fund and Adviser agree that all non-public records,
information, and data relating to the business of the other (including
customer names and information and portfolio holdings information)
that are exchanged or negotiated pursuant to this Agreement or in
carrying out this Agreement shall remain confidential, and shall not
be voluntarily disclosed by either party without the prior written
consent of the other party, except as may be required by law or by
such party to carry out this Agreement or an order of an court,
governmental agency or regulatory body.
2.10. The Company acknowledges the Fund has adopted policies and procedures
reasonably designed to prevent frequent or excessive purchases,
exchanges and redemptions of the shares of Portfolios in quantities
great enough to disrupt orderly management of the corresponding
investment portfolio. These policies are disclosed in the Fund's
prospectus.
The Fund acknowledges that the Company, on behalf of its Accounts, has
adopted policies and procedures reasonably designed to detect and
deter frequent transfers of Contract value among the subaccounts of
the Accounts including those investing in Portfolios available as
investment options under the Contracts. These policies and procedures
are described in the current prospectuses of the Accounts through
which the Contracts are offered.
The Fund may (but is not obligated to) consider the Company's policies
and procedures pertaining to frequent transfers of Contract value
among the subaccounts of the Account(s) including those investing in
Portfolios when the Fund periodically reviews or amends the Fund's
disruptive trading policies and procedures from time to time. The Fund
may invite comment from and confer with Company regarding any proposed
policy and procedure of the Fund pertaining to disruptive trading to
determine prior to adopting such proposed policy or procedure the
Company's then-present ability to apply such proposed policy or
procedure to Contract owners who allocate Contract value to
7
subaccounts investing in Portfolios available under the Contracts,
including without limitation whether the Company can apply such
proposed policy or procedure without the need to modify its automated
data processing systems or to develop and staff manual systems to
accommodate the implementation of the Fund's proposed policy or
procedure.
The Company will cooperate with the Fund's reasonable requests in
taking steps to deter and detect such transfers by any Contract owner.
ARTICLE III. OBLIGATIONS OF THE PARTIES
--------------------------
3.1. Each 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. Each Fund will bear the costs of
registration and qualification of its shares, preparation and filing
of documents listed in this Section 3.1 and all taxes to which an
issuer is subject on the issuance and transfer of its shares. In the
event that the Fund initiates (i) a reorganization as defined by
Section 2 of the 1940 Act of the Fund or a Portfolio, or (ii) a change
in the name of the Fund or a Portfolio, the Fund or its designee shall
reimburse the Company for its reasonable internal and out-of-pocket
costs associated with the aforementioned actions. The Company agrees
to use its best efforts to minimize any costs incurred under this
Section and shall provide the Fund or its designee with acceptable
documentation of any such costs incurred.
3.2. At the option of the Company, the Fund will either: (a) provide the
Company with as many copies of the Fund's current prospectus,
statement of additional information, annual report, semi-annual report
and other shareholder communications, including any amendments or
supplements to any of the foregoing, as the Company will reasonably
request; or (b) provide the Company with a camera-ready copy, computer
disk or other medium agreed to by the parties of such documents in a
form suitable for printing. The Fund will bear the cost of typesetting
and printing such documents and of distributing such documents to
existing Contract owners. The Company will bear the cost of
distributing such documents to prospective Contract owners and
applicants as required.
3.3. The Fund, at its expense, either will:
(a) distribute its proxy materials directly to the appropriate
Contract owners; or
(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:
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(a) provide for the solicitation of voting instructions from Contract
owners;
(b) vote the shares of the Portfolios held in the Account in
accordance with instructions received from Contract owners; and
(c) vote shares of the Portfolios held in the Account for which no
timely instructions have been received, in the same proportion as
shares of such Portfolio for which instructions have been
received from the Company's Contract owners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contract owners. The Company reserves the right to vote Fund shares
held in any segregated asset account in its own right, to the extent
permitted by law.
3.5. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular, the Fund either will
provide for annual meetings (except insofar as the SEC may interpret
Section 16 of the 1940 Act not to require such meetings) or, as the
Fund currently intends, to comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c)
of that Act) as well as with Sections 16(a) and, if and when
applicable, 16(b). Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect
to periodic elections of directors and with whatever rules the SEC may
promulgate with respect thereto.
3.6. The Company will prepare and be responsible for filing with the SEC
and any state regulators requiring such filing all shareholder
reports, notices, prospectuses and statements of additional
information of the Contracts. The Company will bear the cost of
registration and qualification of the Contracts and preparation and
filing of documents listed in this Section 3.6. The Company also will
bear the cost of typesetting, printing and distributing the documents
listed in this Section 3.6 to existing and prospective Contract
owners.
3.7. The Company will furnish, or will cause to be furnished, to the Fund
or the Adviser, each piece of sales literature or other promotional
material in which the Fund or the Adviser is named, at least ten (10)
Business Days prior to its use. No such material will be used if the
Fund or the Adviser reasonably objects to such use within five (5)
Business Days after receipt of such material.
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
9
the Adviser for distribution, or in sales literature or other material
provided by the Fund or by the Adviser, except with permission of the
Fund or the Adviser. The Fund and the Adviser agree to respond to any
request for approval on a prompt and timely basis. Nothing in this
Section 3.8 will be construed as preventing the Company or its
employees or agents from giving advice on investment in the Fund.
3.9. The Fund or the Adviser will furnish, or will cause to be furnished,
to the Company or its designee, each piece of sales literature or
other promotional material in which the Company or its separate
account is named, at least ten (10) Business Days prior to its use. No
such material will be used if the Company reasonably objects to such
use within five (5) Business Days after receipt of such material.
3.10. The Fund and the Adviser will not give any information or make any
representations or statements on behalf of the Company or concerning
the Company, each Account, or the Contracts other than the information
or representations contained in a registration statement, prospectus
or statement of additional information for the Contracts, as such
registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
published reports for each Account or the Contracts which are in the
public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other material provided by the
Company, except with permission of the Company. The Company agrees to
respond to any request for approval on a prompt and timely basis.
3.11. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate
to the Fund or its shares, contemporaneously with the filing of such
document with the SEC or the NASD.
3.12. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for
exemptions, requests for no action letters, and all amendments to any
of the above, that relate to the Contracts or each Account,
contemporaneously with the filing of such document with the SEC or the
NASD.
3.13. For purposes of this Article III, the phrase "sales literature or
other promotional material" includes, but is not limited to,
advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical), radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures, or other public media, (e.g., on-line networks such
---
as the Internet or other electronic messages), sales literature (i.e.,
---
any written communication distributed or made generally available
to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature, or published
article), educational or training materials or other communications
distributed
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or made generally available to some or all agents or employees,
registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials and any other
material constituting sales literature or advertising under the NASD
rules, the 1933 Act or the 0000 Xxx.
3.14. The Fund and the Adviser hereby consent to the Company's use of the
name Royce Capital Fund in connection with marketing the Contracts,
subject to the terms of Sections 3.7 and 3.8 of this Agreement. Such
consent will terminate with the termination of this Agreement.
3.15. The Adviser will be responsible for calculating the performance
information for the Fund. The Company will be responsible for
calculating the performance information for the Contracts. The Adviser
will be liable to the Company for any material mistakes it makes in
calculating the performance information for the Fund which cause
losses to the Company. The Company will be liable to the Adviser for
any material mistakes it makes in calculating the performance
information for the Contracts which cause losses to the Adviser. Each
party will be liable for any material mistakes it makes in reproducing
the performance information for Contracts or the Fund, as appropriate.
The Fund and the Adviser agree to provide the Company with performance
information for the Fund on a timely basis to enable the Company to
calculate performance information for the Contracts in accordance with
applicable state and federal law.
ARTICLE IV. POTENTIAL CONFLICTS
-------------------
4.1. The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the contract
owners of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d)
the manner in which the investments of any Portfolio are being
managed; (e) a difference in voting instructions given by
Participating Insurance Companies or by variable annuity and variable
life insurance contract owners; or (f) a decision by an insurer to
disregard the voting instructions of contract owners. The Fund Board
will promptly inform the Company if it determines that an
irreconcilable 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
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Board will record in its minutes, or other appropriate records, all
reports received by it and all action with regard to a conflict.
4.3. If it is determined by a majority of the Fund Board, or a majority of
its disinterested trustees, that an irreconcilable material conflict
exists, the Company and other Participating Insurance Companies will,
at their expense and to the extent reasonably practicable (as
determined by a majority of the disinterested trustees), take whatever
steps are necessary to remedy or eliminate the irreconcilable material
conflict, up to and including: (a) withdrawing the assets allocable to
some or all of the Accounts from the Fund or any Portfolio and
reinvesting such assets in a different investment medium, including
(but not limited to) another portfolio of the Fund, or submitting the
question whether such segregation should be implemented to a vote of
all affected contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., variable annuity contract
---
owners or variable life insurance contract owners of one or more
Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected contract owners the option of
making such a change; and (b) establishing a new registered management
investment company or managed separate account.
4.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions, and such
disregard of voting instructions could conflict with the majority of
contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw the
affected subaccount of the Account's investment in the Fund and
terminate this Agreement with respect to such subaccount; provided,
however, that such withdrawal and termination will be limited to the
extent required by the foregoing irreconcilable material conflict as
determined by a majority of the disinterested trustees of the Fund
Board. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place within
six (6) months after the Fund gives written notice to the Company that
this provision is being implemented. Until the end of such six-month
period the Adviser and Fund will, to the extent permitted by law and
any exemptive relief previously granted to the Fund, continue to
accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund.
4.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company
conflicts with the majority of other state insurance regulators, then
the Company will withdraw the affected subaccount of the Account's
investment in the Fund and terminate this Agreement with respect to
such subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
disinterested trustees of the Fund Board. No charge or penalty will be
imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the Fund gives
written notice to the Company that this provision is being
implemented. Until the end of such six-month period the Adviser and
Fund will, to the extent permitted by law and any exemptive relief
previously granted to the Fund,
12
continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
4.6. For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested members of the Fund Board will determine whether
any proposed action adequately remedies any irreconcilable material
conflict, but in no event will the Fund be required to establish a new
funding medium for the Contracts. The Company will not be required by
this Article IV to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of Contract
owners affected by the irreconcilable material conflict.
4.7. The Company will at least annually submit to the Fund Board such
reports, materials or data as the Fund Board may reasonably request so
that the Fund Board may fully carry out the duties imposed upon it as
delineated in the Exemptive Order, and said reports, materials and
data will be submitted more frequently if deemed appropriate by the
Fund Board.
4.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Exemptive Order) on terms
and conditions materially different from those contained in the
Exemptive Order, then: (a) the Fund and/or the Participating Insurance
Companies, as appropriate, will take such steps as may be necessary to
comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as
adopted, to the extent such rules are applicable; and (b) Sections
3.4, 3.5, 4.1, 4.2, 4.3, 4.4, and 4.5 of this Agreement will continue
in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended
or adopted.
ARTICLE V. INDEMNIFICATION
---------------
5.1. INDEMNIFICATION BY THE COMPANY
------------------------------
(a) The Company agrees to indemnify and hold harmless the Fund, the
Adviser, and each person, if any, who controls or is associated
with the Fund or the Adviser within the meaning of such terms
under the federal securities laws (but not any Participating
Insurance Companies) and any director, trustee, officer, partner,
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:
13
(1) arise out of or are based on any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of
additional information for the Contracts or contained in the
Contracts or sales literature or other promotional material
for the Contracts (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material
fact required to be stated or necessary to make such
statements not misleading in light of the circumstances in
which they were made; provided that this agreement to
indemnify will not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished to the Company by or on behalf of the Adviser or
the Fund for use in the registration statement, prospectus
or statement of additional information for the Contracts or
in the Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale
of the Contracts or Fund shares; or
(2) arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, prospectus, statement of additional
information or sales literature or other promotional
material of the Fund (or any amendment or supplement to any
of the foregoing), or the omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances in which they were made, if such statement or
omission was made in reliance upon and in conformity with
information furnished to the Fund or Adviser in writing by
or on behalf of the Company or persons under its control; or
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal or state law by, the Company
or persons under its control or subject to its
authorization, with respect to the purchase of Fund shares
or the sale, marketing or distribution of the Contracts; or
(4) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of
this Agreement; or
(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
14
gross negligence in the performance of such party's duties under
this Agreement, or by reason of such party's reckless disregard
of its obligations or duties under this Agreement by the party
seeking indemnification.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with
the issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
5.2. INDEMNIFICATION BY THE ADVISER
------------------------------
(a) The Adviser agrees to indemnify and hold harmless the Company and
each person, if any, who controls or is associated with the
Company within the meaning of such terms under the federal
securities laws and any director, trustee, officer, partner,
employee or agent of the foregoing (collectively, the
"Indemnified Parties" for purposes of this Section 5.2) against
any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of
the Adviser) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements:
(1) arise out of or are based on any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of
additional information for the Fund or sales literature or
other promotional material of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are
based on the omission or alleged omission to state therein a
material fact required to be stated or necessary to make
such statements not misleading in light of the circumstances
in which they were made; provided that this agreement to
indemnify will not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished to the Adviser or Fund by or on behalf of the
Company for use in the registration statement, prospectus or
statement of additional information for the Fund or in sales
literature of 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
15
of the circumstances in which they were made, if such
statement or omission was made in reliance upon and in
conformity with information furnished to the Company in
writing by or on behalf of the Adviser or persons under its
control; or
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal and state law by, the
Adviser or the Fund or persons under their respective
control or subject to their authorization with respect to
the sale of Fund shares; or
(4) arise as a result of any failure by the Fund, the Adviser or
persons under their respective control or subject to their
authorization to provide the services and furnish the
materials under the terms of this Agreement including, but
not limited to, a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification
requirements and procedures related thereto specified in
Section 2.5 of this Agreement or any material errors in or
untimely calculation or reporting of the daily net asset
value per share or dividend or capital gain distribution
rate (referred to in this Section 5.2(a)(4) as an "error");
provided, that the foregoing will not apply where such error
is the result of incorrect information supplied by or on
behalf of the Company to the Fund or the Adviser, and will
be limited to (i) reasonable administrative costs necessary
to correct such error, and (ii) amounts which the Company
has paid out of its own resources to make Contract owners
whole as a result of such error; or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser or the
Fund in this Agreement, or arise out of or result from any
other material breach of this Agreement by the Adviser or
the Fund or persons under their respective control or
subject to their authorization;
except to the extent provided in Sections 5.2(b) and 5.3
hereof.
(b) No party will be entitled to indemnification under Section 5.2(a)
if such loss, claim, damage, liability or litigation is due to
the willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by
reason of such party's reckless disregard of its obligations or
duties under this Agreement by the party seeking indemnification.
(c) The Indemnified Parties will promptly notify the Adviser and the
Fund of the commencement of any litigation, proceedings,
complaints or actions by regulatory authorities against them in
connection with the issuance or sale of the Contracts or the
operation of the Account.
16
(d) It is understood that these indemnities shall have no effect on
any other agreements or arrangements between the Fund and/or its
series and the Adviser.
5.3. INDEMNIFICATION PROCEDURE
-------------------------
Any person obligated to provide indemnification under this Article V
("Indemnifying Party" for the purpose of this Section 5.3) will not be
liable under the indemnification provisions of this Article V with
respect to any claim made against a party entitled to indemnification
under this Article V ("Indemnified Party" for the purpose of this
Section 5.3) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the
summons or other first legal process giving information of the nature
of the claim will have been served upon such Indemnified Party (or
after such party will have received notice of such service on any
designated agent), but failure to notify the Indemnifying Party of any
such claim will not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of the indemnification provision of
this Article V, except to the extent that the failure to notify
results in the failure of actual notice to the Indemnifying Party and
such Indemnifying Party is damaged solely as a result of failure to
give such notice. In case any such action is brought against the
Indemnified Party, the Indemnifying Party win be entitled to
participate, at its own expense, in the defense thereof. The
Indemnifying Party also will be entitled to assume the defense thereto
with counsel satisfactory to the party named in the action. After
notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the
Indemnified Party will bear the fees and expenses of any additional
counsel retained by it, and the Indemnifying Party will not be liable
to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation,
unless: (a) the Indemnifying Party and the Indemnified Party will have
mutually agreed to the retention of such counsel; or (b) the named
parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The Indemnifying Party will not be liable for any settlement of
any proceeding effected without its written consent but if settled
with such consent or if there is a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify the Indemnified Party from
and against any loss or liability by reason of such settlement or
judgment. A successor by 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,
17
punitive or exemplary damages of any kind arising from this Agreement,
including without limitation, lost revenues, loss of profits or loss
of business.
5.5. ARBITRATION
-----------
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, will be settled by arbitration administered by
the American Arbitration Association in accordance with its Commercial
Arbitration Rules and Title 9 of the U.S. Code. Judgment on the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The number of arbitrators will be three, one of
whom will be appointed by the Company or an affiliate; one of whom
will be appointed by the Fund and/or the Adviser or an affiliate; and
the third of whom will be selected by mutual agreement, if possible,
within 30 days of the selection of the second arbitrator and
thereafter by the administering authority. The place of arbitration
will be Minneapolis, Minnesota. The arbitrators will have no authority
to award punitive damages or any other damages not measured by the
prevailing party's actual damages, and may not, in any event, make any
ruling, finding or award that does not conform to the terms and
conditions of this Agreement. Any party may make an application to the
arbitrators seeking injunctive relief to maintain the status quo until
such time as the arbitration award is rendered or the controversy is
otherwise resolved. Any party may apply to any court having
jurisdiction hereof and seek injunctive relief in order to maintain
the status quo until such time as the arbitration award is rendered or
the controversy is otherwise resolved.
ARTICLE VI. APPLICABLE LAW
--------------
6.1. This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Minnesota.
6.2. This Agreement will be subject to the provisions of the 1933 Act, the
Securities Exchange Act of 1934 and the 1940 Act, and the rules and
regulations and rulings thereunder, including such exemptions from
those statutes, rules and regulations as the SEC may grant (including,
but not limited to, the Exemptive Order) and the terms hereof will be
interpreted and construed in accordance therewith.
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;
18
(b) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Portfolio if shares of the Portfolio are not reasonably available
to meet the requirements of the Contracts as determined in good
faith by the Company; or
(c) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Portfolio in the event any of the Portfolio's shares are not
registered, issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such shares
as the underlying investment media of the Contracts issued or to
be issued by Company; or
(d) at the option of the Fund, upon receipt of the Fund's written
notice by the other parties, upon institution of formal
proceedings against the Company by the NASD, the SEC, the
insurance commission of any state or any other regulatory body
regarding the Company's duties under this Agreement or related to
the sale of the Contracts, the administration of the Contracts,
the operation of the Account, or the purchase of the Fund shares,
provided that the Fund determines in its sole judgment, exercised
in good faith, that any such proceeding would have a material
adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the Company's
written notice by the other parties, upon institution of formal
proceedings against the Fund or the Adviser by the NASD, the SEC,
or any state securities or insurance department or any other
regulatory body, regarding the Fund's or the Adviser's duties
under this Agreement or related to the sale of Fund shares or the
administration of the Fund, provided that the Company determines
in its sole judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on the Fund's or
the Adviser's ability to perform its obligations under this
Agreement; or
(f) at the option of the Company, upon receipt of the Company's
written notice by the other parties, if the Fund ceases to
qualify as a Regulated Investment Company under Subchapter M of
the Internal Revenue Code, or under any successor or similar
provision, or if the Company reasonably and in good faith
believes that the Fund may fail to so qualify; or
(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
19
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that the Fund or the
Adviser has suffered a material adverse change in its business,
operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity which
is likely to have a material adverse impact upon the business and
operations of the Company, such termination to be effective sixty
(60) days' after receipt by the other parties of written notice
of the election to terminate; or
(j) at the option of the Fund, if the Fund determines in its sole
judgment exercised in good faith, that the Company has suffered a
material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Fund, such
termination to be effective sixty (60) days' after receipt by the
other parties of written notice of the election to terminate; or
(k) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the Contract
owners having an interest in the Account (or any subaccount) to
substitute the shares of another investment company for the
corresponding Portfolio shares of the Fund in accordance with the
terms of the Contracts for which those Portfolio shares had been
selected to serve as the underlying investment media. The Company
will give sixty (60) days' prior written notice to the Fund of
the date of any proposed vote or other action taken to replace
the Fund's shares; or
(l) at the option of the Company or the Fund upon a determination by
a majority of the Fund Board, or a majority of the disinterested
Fund Board members, that an irreconcilable material conflict
exists among the interests of. W all contract owners of variable
insurance products of all separate accounts; or (ii) the
interests of the Participating Insurance Companies investing in
the Fund as set forth in Article IV of this Agreement; or
(m) at the option of the Fund in the event any of the Contracts are
not issued or sold in accordance with applicable federal and/or
state law. Termination will be effective immediately upon such
occurrence without notice.
7.2. Notwithstanding any termination of this Agreement, the Fund and the
Adviser will, at the option of the Company, continue to make available
additional shares of the Fund pursuant to the terms and conditions of
this Agreement, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in the
Portfolios (as in effect on such date), redeem investments in the
Portfolios and/or invest in the Portfolios upon the making of
additional purchase payments under the Existing Contracts. The parties
agree that this
20
Section 7.2 will not apply to any terminations under Article IV and
the effect of such Article IV terminations will be governed by Article
IV of this Agreement.
7.3. The provisions of Article V will survive the termination of this
Agreement and as long as shares of the Fund are held under Existing
Contracts in accordance with Section 7.2, the provisions of this
Agreement will survive the termination of this Agreement with respect
to those Existing Contracts.
ARTICLE VIII. NOTICES
-------
Any notice will be deemed duly given when sent by registered or certified mail
(or other method agreed to by the parties) to each other party at the address
of such party set forth below or at such other address as such party may from
time to time specify in writing to the other parties.
If to the Company:
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Vice President
With a Copy to:
RiverSource Distributors, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Chief Counsel
If to the Fund:
Xxxx X. Xxxxxxxxx
Vice President
Royce Capital Fund
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
If to the Adviser:
Xxxx X. Xxxxxxx
Deputy General Counsel
Royce & Associates LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
ARTICLE IX. MISCELLANEOUS
-------------
9.1. All persons dealing with the Fund must look solely to the property of
the Fund for the enforcement of any claims against the Fund as neither
the directors, trustees, officers, partners, employees, agents or
shareholders assume any personal liability for obligations entered
into on behalf of the Fund.
21
9.2. Notwithstanding anything to the contrary contained in this Agreement,
in addition to and not in lieu of other provisions in this Agreement:
(a) "Confidential Information" includes but is not limited to all
proprietary and confidential information of the Company and its
subsidiaries, affiliates and licensees (collectively the
"Protected Parties" for purposes of this Section 9.2), including
without limitation all information regarding the customers of the
Protected Parties; or the accounts, account numbers, names,
addresses, social security numbers or any other personal
identifier of such customers; or any information derived
therefrom.
(b) The Adviser and the Fund may not use or disclose Confidential
Information for any purpose other than to carry out the purpose
for which Confidential Information was provided to the Adviser
and/or the Fund as set forth in the Agreement; and the Adviser
and the Fund agree to cause all their employees, agents and
representatives, or any other party to whom the Adviser and/or
the Fund may provide access to or disclose Confidential
Information to limit the use and disclosure of Confidential
Information to that purpose.
(c) The Adviser and the Fund acknowledge that all computer programs
and procedures or other information developed or used by the
Protected Parties or any of their employees or agents in
connection with the Company's performance of its duties under
this Agreement are the valuable property of the Protected
Parties.
(d) The Adviser and the Fund have taken appropriate measures designed
to ensure the security and confidentiality of Confidential
Information; the Adviser and the Fund further agree to use
reasonable efforts to cause all their agents, representatives or
subcontractors of, or any other party to whom the Adviser and/or
the Fund may provide access to or disclose Confidential
Information to agree to implement appropriate measures designed
to meet the objectives set forth in this Section 9.2.
(e) The Adviser and the Fund acknowledge that any breach of the
agreements in this Section 9.2 could result in immediate and
irreparable harm to the Protected Parties for which there would
be no adequate remedy at law and agree that in the event of such
a breach, the Protected Parties will be entitled to equitable
relief by way of 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.
22
9.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
9.5. If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
9.6. This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties.
9.7. Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including without limitation
the SEC, the NASD and state insurance regulators) and will permit each
other and such authorities reasonable access to its books and records
in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
9.8. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein
have been duly authorized by all necessary corporate or board action,
as applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
9.9. The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect changes in or relating to the
Contracts, the Accounts or the Portfolios of the Fund or other
applicable terms of this Agreement.
23
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of
the date specified above.
ROYCE CAPITAL FUND ROYCE & ASSOCIATES LLC
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------- -------------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxxxxx
Title: Vice President Title: Chief Operating Officer
RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK ATTEST:
By: /s/ Xxxxxxx X. Xxxxx III By: /s/ Xxxxx Xxxxxx
-------------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx III Name: Xxxxx Xxxxxx
Title: Vice President Title: Assistant Secretary
24
Schedule 1
PARTICIPATION AGREEMENT
By and Among
ROYCE CAPITAL FUND
And
ROYCE & ASSOCIATES LLC
And
RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK
The following Accounts of RiverSource Life Insurance Co. of New York are
permitted in accordance with the provisions of this Agreement to invest in
Portfolios of the Fund shown in Schedule 2:
RiverSource of New York Variable Annuity Account (prior to January 1,
2007: IDS Life of New York Variable Annuity Account and IDS Life of
New York Flexible Portfolio Annuity Account)
RiverSource of New York Variable Account 8 (prior to January 1, 2007:
IDS Life of New York Account 8)
Schedule 2
PARTICIPATION AGREEMENT
By and Among
ROYCE CAPITAL FUND
And
ROYCE & ASSOCIATES LLC
And
RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK
The RiverSource Life Insurance Co. of New York Accounts shown on Schedule 1
may invest in the following Portfolio:
Royce Micro-Cap Portfolio
