JANUS ASPEN SERIES
AMENDED AND RESTATED
FUND PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT ("Agreement") is made this 1st day of
September, 2006 by and among the following parties:
o AMERICAN CENTURION LIFE ASSURANCE COMPANY ("American Centurion
Life"), organized under the laws of the State of New York, on its
own behalf and on behalf of each segregated asset account named in
Schedule A to this Agreement, as may be amended from time to time
(each account referred to as an "Account");
o IDS LIFE INSURANCE COMPANY OF NEW YORK ("IDS Life of New York"),
organized under the laws of the State of New York, on its own
behalf and on behalf of each segregated asset account named in
Schedule A to this Agreement, as may be amended from time to time
(each account referred to as an "Account");
each of American Centurion Life and IDS Life of New York hereinafter also
referred to as a "Company"; and,
o JANUS ASPEN SERIES, an open-end management investment company
organized as a Delaware business trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust has registered with the Securities and Exchange
Commission as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the beneficial interest
in the Trust is divided into several series of shares, each series
representing an interest in a particular managed portfolio of securities and
other assets (the "Portfolios"); and
WHEREAS, the Trust has registered the offer and sale of a class of
shares designated the Service Shares ("Shares") of each of its Portfolios
under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts to be offered by insurance companies that have entered into
participation agreements with the Trust (the "Participating Insurance
Companies"); and
WHEREAS, the Trust has received an order from the Securities and
Exchange Commission granting Participating Insurance Companies and their
separate accounts exemptions from the provisions of Sections 9(a), 13(a),
15(a) and 15(b) of the 1940 Act, and Rules 6e-
2(b)(15) and 60(T)(b)(15) thereunder, to the extent necessary to permit shares
of the Trust to be sold to and held by variable annuity and variable life
insurance separate accounts of both affiliated and unaffiliated life insurance
companies and certain qualified pension and retirement plans (the "Exemptive
Order"); and
WHEREAS, the Company has registered or will register (unless
registration is not required under applicable law) certain variable life
insurance policies and/or variable annuity contracts under the 1933 Act (the
"Contracts"); and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act; and
WHEREAS, the Company desires to utilize Shares of the Portfolios listed
on Schedule A as may be amended from time to time, as an investment vehicle of
the Accounts;
NOW THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE A
Amendment and Restatement; Form of Agreement
A.1. The Trust acknowledges the planned merger of American Centurion
Life with and into IDS Life of New York (the "Merger") and the "intact
transfer" (the "Transfer") of the Accounts of American Centurion Life to IDS
Life of New York by operation of law and incident to the Merger, on December
31, 2006 at 10:59:59 p.m. Central Time (the "Effective Time"), subject to all
necessary regulatory approvals being obtained in connection with the Merger
and the Transfer, and the re-naming of IDS Life of New York to RiverSource
Life Insurance Co. of New York simultaneously with the Merger. On and after
the Effective Time, all references in this Agreement and its Schedule to
American Centurion Life and IDS Life of New York shall mean and refer to
RiverSource Life Insurance Co. of New York. The Trust consents to the transfer
of the rights and obligations of American Centurion Life under this Agreement
to IDS Life of New York at the Effective Time of the Merger.
A.2. This Agreement shall amend and supersede the following agreements
as of the date stated above between the Company named therein and the Trust
with respect to all investments by the Company and its Accounts prior to the
date of this Agreement, as though identical separate agreements had been
executed by the parties hereto on the dates as indicated below:
o Fund Participation Agreement, dated October 23, 1996, by and
between American Centurion Life and the Trust, as amended by
the following documents: (a) Amendment to Fund Participation
Agreement dated October 8, 1997; (b) Amendment to Fund
Participation Agreement dated July 27, 2001; and (c)
Amendment to Fund Participation Agreement dated September 1,
2002.
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o Fund Participation Agreement, dated September 29, 2000, by
and between IDS Life of New York and the Trust, as amended
by the following documents: (a) Amendment to Fund
Participation Agreement dated June 29, 2001; (b) Amendment
to Fund Participation Agreement dated July 27, 2001; (c)
Amendment to Fund Participation Agreement dated September 1,
2002; (d) Amendment to Fund Participation Agreement dated
November 7, 2002; and (e) Amendment to Fund Participation
Agreement dated August 18, 2003.
Although the parties have executed this Agreement in this form for
administrative convenience, this Agreement shall constitute a separate
participation agreement with each Company until the Effective Time of the
Merger.
ARTICLE I
Sale of Trust Shares
--------------------
1.1 The Trust shall make Shares of its Portfolios available to the
Accounts at the net asset value next computed after receipt of such purchase
order by the Trust (or its agent), as established in accordance with the
provisions of the then current prospectus of the Trust. Shares of a particular
Portfolio of the Trust shall be ordered in such quantities and at such times
as determined by the Company to be necessary to meet the requirements of the
Contracts. The Trustees of the Trust (the "Trustees") 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 Trustees
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.2 The Trust 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 Trust (or its agent) of the
request for redemption, as established in accordance with the provisions of
the then current prospectus of the Trust. The Trust shall make payment for
such Shares on the same Business Day (as defined below) as the Trust receives
notice of redemption orders in accordance with Section 1.3 and in the manner
established from time to time by the Trust, except that the Trust reserves the
right to suspend payment consistent with Section 22(e) of the 1940 Act and any
rules thereunder.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust 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 shall constitute receipt
by the Trust provided that: (i) 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 (ii) the Trust receives notice of such
orders by 11:00 a.m. New York time on the next following Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange is open
for trading and on which the Trust calculates its net asset value pursuant to
the rules of the Securities and Exchange Commission. Notwithstanding the
foregoing, with respect
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to any purchase and/or redemption orders relating to any Portfolio sub-advised
by Enhanced Investment Technologies, LLC ("INTECH") as identified in the then
current Prospectus for each Fund, receipt by the Company shall constitute
receipt by the Trust provided that i) 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 ii) the Trust receives notice of
such orders by 8:00 a.m. New York time on the next following Business Day.
1.4 Purchase orders that are transmitted to the Trust in accordance
with Section 1.3 shall be initiated by wire no later than 12:00 noon New York
time on the same Business Day that the Trust receives notice of the order.
Payments shall be made in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust's Shares will be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Shares ordered from the Trust will be recorded in the appropriate title for
each Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish same-day notice (by wire or telephone
followed by written confirmation) to the Company of any income dividends or
capital gain distributions payable on the Trust's shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on a Portfolio's Shares in additional Shares of that Portfolio.
The Company reserves the right to revoke this election and to receive all such
dividends and distributions in cash upon 90 days' prior notice to the Trust.
The Trust shall notify the Company of the number of Shares so issued as
payment of such dividends and distributions.
1.7 The Trust shall 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 shall use its
best efforts to make such net asset value per Share available by 6 p.m. New
York time.
1.8 The Trust 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 Trust Shares will be used only for the
purposes of funding the Contracts and Accounts listed in Schedule A, as
amended from time to time.
1.9 The Trust agrees that all Participating Insurance Companies shall
have the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.8 and
Article IV of this Agreement.
ARTICLE II
Obligations of the Parties
--------------------------
2.1 The Trust shall prepare and be responsible for filing with the
Securities and Exchange Commission and any state regulators requiring such
filing all shareholder reports,
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notices, proxy materials (or similar materials such as voting instruction
solicitation materials), prospectuses and statements of additional information
of the Trust. The Trust shall bear the costs of registration and qualification
of its shares, preparation and filing of the documents listed in this Section
2.1 and all taxes to which an issuer is subject on the issuance and transfer
of its shares.
2.2 At the option of the Company, the Trust shall either (a) provide
the Company (at the Company's expense) with as many copies of the Trust's
current prospectus, annual report, semi-annual report and other
Trust-sponsored shareholder communications, including any amendments or
supplements to the foregoing, as the Company shall reasonably request (at the
Trust's expense for existing Contract owners and at the Company's expense for
prospective owners); or (b) provide the Company with a camera ready copy, a
computer disk or other electronic communication of such documents in a form
suitable for printing. The Trust (at its expense) shall provide the Company
with a copy of its statement of additional information in a form suitable for
duplication by the Company. The Trust (at its expense) shall provide the
Company with copies of any Trust-sponsored proxy materials in such quantity as
the Company shall reasonably require for distribution to Contract owners.
2.3 The Company shall bear the costs of printing and distributing the
Trust's prospectus, statement of additional information, shareholder reports
and other shareholder communications to prospective owners of Contracts for
which the Trust is serving or is to serve as an investment vehicle. The Trust
shall bear the costs of printing and distributing the Trust's prospectus,
statement of additional information, shareholder reports and other
Trust-sponsored shareholder communications to existing Contract owners for
which the Trust is serving as an investment vehicle. The Company shall bear
the costs of distributing proxy materials (or similar materials such as voting
solicitation instructions) to Contract owners. The Company assumes sole
responsibility for ensuring that such materials are delivered to Contract
owners in accordance with applicable federal and state securities laws. The
Trust will provide notice to all Participating Insurance Companies including
the Company each time the Trust amends or supplements the Trust's current
prospectus or statement of additional information indicating to the
Participating Insurance Companies whether Janus has determined that such
supplement is for fulfillment purposes only. The Company will deliver such
supplements in accordance with applicable law, plan documents, or variable
contract requirements.
In the event the Trust initiates the merger or liquidation of a Portfolio, the
Trust 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
Trust or its designated agent with acceptable documentation of any such costs
incurred.
2.4 The Company agrees and acknowledges that the Trust's adviser,
Janus Capital Corporation ("Janus Capital"), is the sole owner of the name and
xxxx "Xxxxx" and that all use of any designation comprised in whole or part of
Janus (a "Xxxxx Xxxx") under this Agreement shall inure to the benefit of
Janus Capital. Except as provided in Section 2.5, the Company shall not use
any Xxxxx Xxxx on its own behalf or on behalf of the Accounts or Contracts in
any
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registration statement, advertisement, sales literature or other materials
relating to the Accounts or Contracts without the prior written consent of
Janus Capital. Upon termination of this Agreement for any reason, the Company
shall cease all use of any Xxxxx Xxxx(s) as soon as reasonably practicable.
2.5 The Company shall furnish, or cause to be furnished, to the Trust
or its designee, a copy of each Contract prospectus or statement of additional
information in which the Trust or its investment adviser is named prior to the
filing of such document with the Securities and Exchange Commission. The
Company shall furnish, or shall cause to be furnished, to the Trust or its
designee, each piece of sales literature or other promotional material in
which the Trust or its investment adviser is named, at least ten Business Days
prior to its use. No such material shall be used if the Trust or its designee
reasonably objects to such use within five Business Days after receipt of such
material.
2.6 The Trust shall furnish, or cause to be furnished, to the Company
or its designee, a copy of each Trust prospectus or statement of additional
information in which the Company is named prior to the filing of such document
with the Securities and Exchange Commission. The Trust shall furnish, or shall
cause to be furnished, to the Company or its designee, each piece of sales
literature or other promotional material in which the Company is named, at
least ten Business Days prior to its use. No such material shall be used if
the Company or its designee reasonably objects to such use within five
Business Days after receipt of such material.
2.7 The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust
or its investment adviser in connection with the sale of the Contracts other
than information or representations contained in and accurately derived from
the registration statement, prospectus or statement of additional information
for the Trust shares (as such registration statement, prospectus and statement
of additional information may be amended or supplemented from time to time),
reports of the Trust, Trust-sponsored proxy statements, or in sales literature
or published reports in the public domain or other promotional material
approved by the Trust or its designee, except as required by legal process or
regulatory authorities or with the written permission of the Trust or its
designee. Nothing in this Section 2.7 will be construed as preventing the
Company or its employees or agents from giving advice on investments in the
Trust.
2.8 The Trust shall not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, the Accounts or the Contracts other than information or
representations contained in and accurately derived from the 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 materials
approved by the Company for distribution including sales literature or other
promotional materials, except as required by legal process or regulatory
authorities or with the written permission of the Company.
2.9 So long as, and to the extent that the Securities and Exchange
Commission interprets the 1940 Act to require pass-through voting privileges
for variable policyowners, the
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Company will provide pass-through voting privileges to owners of policies
whose cash values are invested, through the Accounts, in shares of the Trust.
The Trust shall require all Participating Insurance Companies to calculate
voting privileges in the same manner and the Company shall be responsible for
assuring that the Accounts calculate voting privileges in the manner
established by the Trust. With respect to each Account, the Company will vote
Shares of the Trust held by the Account and for which no timely voting
instructions from policyowners, are received as well as Shares it owns that
are held by that Account, in the same proportion as those shares for which
voting instructions are received. The Company and its agents will in no way
recommend or oppose or interfere with the solicitation of proxies for Trust
shares held by Contract owners without the prior written consent of the Trust,
which consent may be withheld in the Trust's sole discretion.
2.10 The Company shall notify the Trust of any applicable state
insurance laws of which it becomes aware that restrict the Portfolios'
investments or otherwise affect the operation of the Trust and shall notify
the Trust of any changes in such laws.
2.11 The Company acknowledges the Trust 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 the Trust's prospectus.
The Trust 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 Trust 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 Trust
periodically reviews or amends the Trust's disruptive trading policies and
procedures from time to time. The Trust may invite comment from and confer
with Company regarding any proposed policy and procedure of the Trust
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
Trust's proposed policy or procedure.
The Company will cooperate with the Trust's reasonable requests in taking
steps to deter and detect such transfers by any Contract owner. The Company
will provide promptly upon written request by the Trust, directly or through
its designee:
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o the Taxpayer Identification Number of all Contract owners that
purchased, redeemed, transferred, or exchanged shares of a Fund
held under a Contract during the period covered by the request;
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 during the
period covered by the request.
The Trust acknowledges that the Company's standard report provides transaction
information for the 90 day period immediately preceding the Company's receipt
of the Trust's written request. The Trust may request transaction information
for earlier periods as it deems necessary to investigate compliance with
policies established by the Trust for the purposes of eliminating or reducing
any dilution of the value of the outstanding shares of any Portfolio of the
Trust. To the extent practicable, the format for any transaction information
provided to the Trust will be consistent with the NSCC Standardized Data
Reporting Format.
The Company will execute any written instructions from the Trust, directly or
through its designee, to restrict or prohibit further purchases, transfers or
exchanges in subaccounts available under the Contract which invest in shares
of any Portfolio of the Trust by any Contract owner who has been identified by
the Trust, or its designee, as having engaged in transactions that violate
policies established by the Trust for the purpose of eliminating or reducing
any dilution of the value of the outstanding securities issued by the Trust.
The Company agrees to execute the Trust's written instructions as soon as
reasonably practicable, but not later than seven (7) Business Days after
receipt of the Trust's instructions. The Company must provide written
confirmation to the Trust, that instructions have been executed as soon as
reasonably practicable, but not later than ten (10) Business Days after the
instructions have been executed.
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 a reasonable portion of expenses the Company incurs in order
to provide such information to the Trust or its designee and to execute any
instructions from the Trust or its designee to restrict or prohibit purchases,
transfers or exchanges by any Contract owner in subaccounts available under a
Contract which invest in shares of any Portfolio of the Trust.
ARTICLE III
Representations and Warranties
------------------------------
3.1 The Company represents and warrants that it is an insurance
company duly organized and in good standing under the laws of the state
identified on the first page of this Agreement and that it has legally and
validly established each Account as a segregated asset account under such law
on the date set forth in Schedule A.
3.2 The Company represents and warrants that each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered as a unit investment trust in accordance with the provisions of the
1940 Act.
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3.3 The Company represents and warrants that the Contracts or
interests in the Accounts (1) are or, prior to issuance, will be registered as
securities under the 1933 Act or, alternatively (2) are not registered because
they are properly exempt from registration under the 1933 Act or will be
offered exclusively in transactions that are properly exempt from registration
under the 1933 Act. The Company further represents and warrants that the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws; and the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements.
3.4 The Trust represents and warrants that it is duly organized and
validly existing under the laws of the State of Delaware.
3.5 The Trust represents and warrants that the Trust Shares offered
and sold pursuant to this Agreement will be registered under the 1933 Act and
the Trust shall be registered under the 1940 Act prior to any issuance or sale
of such Shares. The Trust shall amend its registration statement under the
1933 Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its Shares. The Trust shall register and qualify its
Shares for sale in accordance with the laws of the various states only if and
to the extent deemed advisable by the Trust.
3.6 The Trust represents and warrants that the investments of each
Portfolio will comply with the diversification requirements set forth in
Section 817(h) of the Internal Revenue Code of 1986, as amended, and the rules
and regulations thereunder. In the event the Trust fails to comply with these
diversification requirements, the Trust will take all reasonable steps: (a) to
notify the Company of such noncompliance; and (b) to adequately diversify the
Trust so as to achieve compliance within the grace period afforded by Treasury
Regulation 1.817-5.
3.7 The Trust represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, and that
it will make every effort to maintain such qualification (under Subchapter M
or any successor or similar provision) and that 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.
3.8 The Trust represents that its investment objectives, policies and
restrictions comply in all material respects with any applicable state
securities laws of which the Trust is aware as they may apply to the Trust.
The Trust 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 Trust agrees that it will furnish the information required
by state insurance laws and requested by the Company to assist the Company in
obtaining the authority needed to issue the Contracts in the various states.
3.9 The Trust represents and warrants that all of its trustees,
officers, employees, investment advisers, and other individuals/entities
having access to the funds and/or securities of
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the Trust are and continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Trust 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.
3.10 The Company represents and warrants to the Trust that the Company
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 the Trust 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 IV
Potential Conflicts
-------------------
4.1 The parties acknowledge that the Trust's shares may be made
available for investment to other Participating Insurance Companies. In such
event, the Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. 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 variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Trustees shall promptly inform the
Company if they determine that an irreconcilable material conflict exists and
the implications thereof.
4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. The Company will assist the
Trustees in carrying out their responsibilities under the Exemptive Order by
providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting
instructions.
4.3 If it is determined by a majority of the Trustees, or a majority
of its disinterested Trustees, that a material irreconcilable conflict exists
that affects the interests of Contract owners, the Company shall, in
cooperation with other Participating Insurance Companies whose contract owners
are also affected, at its expense and to the extent reasonably practicable (as
determined by the Trustees) take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, which steps could include: (a)
withdrawing the assets allocable to some or all of the subaccounts of the
Accounts from the Trust or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio
of
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the Trust, or submitting the question of whether or not such segregation
should be implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
---
contract owners, life insurance contract owners, or variable contract owners
of one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of making
such a change; and (b) establishing a new registered management investment
company or managed separate account.
4.4 If a material irreconcilable conflict arises because of a decision
by the Company to disregard Contract owner voting instructions and that
decision represents a minority position or would preclude a majority vote, the
Company may be required, at the Trust's election, to withdraw the affected
subaccount of the Account's investment in the Trust and terminate this
Agreement with respect to such subaccount of the Account; provided, however
that such withdrawal and termination shall be limited to the extent required
by the foregoing material irreconcilable conflict as determined by a majority
of the disinterested Trustees. 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 Trust gives written notice that this provision
is being implemented. Until the end of such six (6) month period, the Trust
shall continue to accept and implement orders by the Company for the purchase
and redemption of shares of the Trust.
4.5 If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected subaccount of the Account's investment in the Trust and terminate
this Agreement with respect to such subaccount of the Account within six (6)
months after the Trustees inform the Company in writing that it has determined
that such decision has created an irreconcilable material conflict; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested Trustees. No charge or penalty will be imposed
as a result of such withdrawal. Until the end of such six (6) month period,
the Trust shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust.
4.6 For purposes of Sections 4.3 through 4.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no
event will the Company be required to establish a new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable material
conflict. In the event that the Trustees determine that any proposed action
does not adequately remedy any irreconcilable material conflict, then the
Company will withdraw the subaccount of the Account's investment in the Trust
and terminate this Agreement within six (6) months after the Trustees inform
the Company in writing of the foregoing determination; provided, however, that
such withdrawal and termination shall be limited to the extent required by any
such material irreconcilable conflict as determined by a majority of the
disinterested Trustees. No charge or penalty will be imposed as a result of
such withdrawal.
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4.7 The Company shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonable request so that the
Trustees may fully carry out the duties imposed upon them by the Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Trustees.
4.8 If and to the extent that 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 the Trust and/or
the Participating Insurance Companies, as appropriate, shall 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.
ARTICLE V
Indemnification
---------------
5.1 Indemnification by the Company. The Company agrees to indemnify
------------------------------
and hold harmless the Trust and each person, if any, who controls the Trust
within the meaning of Section 15 of the 1933 Act and any Trustees, officers,
employees and agents of the foregoing (collectively, the "Indemnified Parties"
for purposes of this Article V) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, liability or expense and reasonable
legal counsel fees incurred in connection therewith) (collectively, "Losses"),
to which the Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a registration
statement, prospectus or statement of additional information for the Contracts
or in the Contracts themselves or in sales literature generated or approved by
the Company on behalf of the Contracts or Accounts (or any amendment or
supplement to any of the foregoing) (collectively, "Company Documents" for the
purposes of this Article V), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided
that this indemnity shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in
reliance upon and was accurately derived from written information furnished to
the Company by or on behalf of the Trust for use in Company Documents or
otherwise for use in connection with the sale of the Contracts or Trust
Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Trust Documents as defined in Section 5.2(a)) or wrongful conduct of the
Company or persons under its control, with respect to the sale or acquisition
of the Contracts or Trust Shares; or
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(c) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Trust Documents as defined in
Section 5.2(a) 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 if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Trust by or on
behalf of the Company; or
(d) arise out of or result from any failure by the Company to
provide the services or furnish the materials required under the terms of this
Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company.
5.2 Indemnification by the Trust. The Trust agrees to indemnify and
----------------------------
hold harmless the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act and any directors, officers,
employees and agents of the foregoing (collectively, the "Indemnified Parties"
for purposes of this Article V) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Trust) or expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, liability or expense and reasonable
legal counsel fees incurred in connection therewith) (collectively, "Losses"),
to which the Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the registration
statement, prospectus or statement of additional information for the Trust or
any sales literature generated or approved by the Trust (or any amendment or
supplement thereto), (collectively, "Trust Documents" for the purposes of this
Article V), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
indemnity shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance upon and
was accurately derived from written information furnished to the Trust by or
on behalf of the Company for use in Trust Documents or otherwise for use in
connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents) or wrongful conduct of the Trust or persons under its
control, with respect to the sale or acquisition of the Contracts or Trust
Shares; or
(c) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Company Documents or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
13
not misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Company by or on
behalf of the Trust; or
(d) arise out of or result from any failure by the Trust to
provide the services or furnish the materials required under the terms of this
Agreement, including, but not limited to, any material (based on current
standards of the Securities and Exchange Commission) errors in or untimely
calculation or reporting of the daily net asset value per share or dividend or
capital gain distribution rate; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Trust.
5.3 Neither the Company nor the Trust shall be liable under the
indemnification provisions of Sections 5.1 or 5.2, as applicable, with respect
to any Losses incurred or assessed against an Indemnified Party that arise
from such Indemnified Party's willful misfeasance, bad faith or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations or duties under
this Agreement.
5.4 Neither the Company nor the Trust shall be liable under the
indemnification provisions of Sections 5.1 or 5.2, as applicable, with respect
to any claim made against an Indemnified Party unless such Indemnified Party
shall have notified the other party in writing within a reasonable time after
the summons, or other first written notification, giving information of the
nature of the claim, complaint or action by a regulatory authority shall have
been served upon or otherwise received by such Indemnified Party (or after
such Indemnified Party shall have received notice of service upon or other
notification to any designated agent), but failure to notify the party against
whom indemnification is sought of any such claim shall not relieve that party
from any liability which it may have to the Indemnified Party in the absence
of Sections 5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified
Parties, the indemnifying party shall be entitled to participate, at its own
expense, in the defense of such action. The indemnifying party also shall be
entitled to assume the defense thereof, with counsel reasonably satisfactory
to the party named in the action. After notice from the indemnifying party to
the Indemnified Party of an election to assume such defense, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by
it, and the indemnifying party will not be liable to the Indemnified Party
under this Agreement for any legal or other expenses subsequently incurred by
such party independently in connection with the defense thereof other than
reasonable costs of investigation.
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ARTICLE VI
Termination
-----------
6.1 This Agreement may be terminated by either party for any reason by
ninety (90) days' advance written notice delivered to the other party or as
otherwise agreed in writing by both parties.
6.2 Notwithstanding any termination of this Agreement, the Trust
shall, at the option of the Company, continue to make available additional
shares of the Trust (or any Portfolio) pursuant to the terms and conditions of
this Agreement for all Contracts in effect on the effective date of
termination of this Agreement, provided that the Company continues to pay the
costs set forth in Section 2.3.
6.3 The provisions of Article V shall survive the termination of this
Agreement, and as long as shares of the Trust are held on behalf of Contract
owners in accordance with Section 6.2, the provisions of this Agreement shall
survive the termination of this Agreement with respect to those Contract
owners.
ARTICLE VII
Notices
-------
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in
writing to the other party.
If to the Trust:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Company:
American Centurion Life Assurance Company
IDS Life Insurance Company of New York
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President
With a simultaneous copy to:
Ameriprise Financial Services, Inc.
50607 Ameriprise Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attenttion: Vice President and Group Counsel
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ARTICLE VIII
Miscellaneous
-------------
8.1 The captions in this' Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
8.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.3 If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
8.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of State of Colorado. 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 Securities and Exchange Commission may grant (including,
but not limited to, the Exemptive Order) and the terms hereof will be
interpreted and construed in accordance therewith.
8.5 The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this
Agreement, of any and every nature whatsoever, shall be satisfied solely out
of the assets of the Trust and that no Trustee, officer, agent or holder of
shares of beneficial interest of the Trust shall be personally liable for any
such liabilities.
8.6 Each party shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc., and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. The Trust agrees that the Company will have the right to
inspect, audit and copy all records pertaining to the performance of services
under this Agreement to the extent required by any state insurance department
upon reasonable notice to the Trust and during the Trust's normal business
hours.
8.7 The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
8.8 The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
8.9 Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the prior written approval of the other
party.
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8.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties.
8.11 The Trust acknowledges that the identities of the customers of the
Company or any of its affiliates (collectively the "Protected Parties" for
purposes of this Section 8.11), information maintained regarding those
customers, and 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. The Trust agrees
that if it comes into possession of any list or compilation of the identities
of or other information about the Protected Parties' customers, or any other
information or property of the Protected Parties, other than such information
as may be independently developed or compiled by the Trust from information
supplied to it by the Protected Parties' customers who also maintain accounts
directly with the Trust, the Trust will hold such information or property in
confidence and refrain from using, disclosing or distributing any of such
information or other property except: (a) with the Company's prior written
consent; or (b) as required by law or judicial process. The Trust acknowledges
that any breach of the agreements in this Section 8. 11 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.
8.12 Notwithstanding anything to the contrary contained in this
Agreement, in addition to and not in lieu of other provisions in this
Agreement:
(a) Company Confidential Information.
(i) "Company Confidential Information" includes but is not
limited to all proprietary and confidential information of the Company and its
subsidiaries, affiliates or licensees, including without limitation all
information regarding the customers of Company and its subsidiaries,
affiliates and licensees; and the accounts, account numbers, names, addresses,
social security numbers or any other personal identifier of such customers;
and any information derived therefrom.
(ii) Trust must not use or disclose Company Confidential
Information for any purpose other than to carry out the purpose for which
Company Confidential Information was provided to Trust as set forth in the
Agreement or unless disclosure is required by applicable law or regulatory
authority, and agrees to cause all its employees, agents, representatives, or
any other party to whom Trust may provide access to or disclose Company
Confidential Information to limit the use and disclosure of Company
Confidential Information to that purpose.
(iii) Trust agrees to implement appropriate measures
designed to ensure the security and confidentiality of Company 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, Company Confidential
17
Information that could result in substantial harm or inconvenience to any
customer of the Company or its subsidiaries, affiliates or licensees; Trust
further agrees to cause all its agents, representatives or subcontractors, or
any other party to whom Trust may provide access to or disclose Company
Confidential Information to implement appropriate measures designed to meet
the objectives set forth in this paragraph.
(b) Trust Confidential Information.
(i) "Trust Confidential Information" includes but is not
limited to all proprietary and confidential information of Trust and its
subsidiaries, affiliates, or licensees, including without limitation all
information regarding the customers of Trust and its subsidiaries, affiliates
and licensees; and the accounts, account numbers, names, addresses, social
security numbers or any other personal identifier of such customers; and any
information derived therefrom.
(ii) Company must not use or disclose Trust Confidential
Information for any purpose other than to carry out the purpose for which
Trust Confidential Information was provided to Company as set forth in the
Agreement or unless disclosure is required by applicable law or regulatory
authority, and agrees to cause all its employees, agents, representatives, or
any other party to whom Company may provide access to or disclose Trust
Confidential Information to limit the use and disclosure of Trust Confidential
Information to that purpose.
(iii) Company agrees to implement appropriate measures
designed to ensure the security and confidentiality of Trust 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, Trust Confidential Information that
could result in substantial harm or inconvenience to any customer of Trust or
its subsidiaries, affiliates or licensees; Company further agrees to cause all
its agents, representatives or subcontractors, or any other party to whom
Company may provide access to or disclose Trust Confidential Information to
implement appropriate measures designed to meet the objectives set forth in
this paragraph.
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IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Participation Agreement as of the date and year first
above written.
AMERICAN CENTURION LIFE ASSURANCE COMPANY
IDS LIFE INSURANCE COMPANY OF NEW YORK
ATTEST:
By: /s/ Xxx X. Xxxxx III
-------------------------------------
Name: Xxx X. Xxxxx III
By: /s/ Xxxxx Xxxxxx Title: Vice President of each Company
-----------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Secretary of
each Company
JANUS ASPEN SERIES
By: /s/ Xxxxxx Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx Xxxxx
Title: President and CEO
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SCHEDULE A
AMERICAN CENTURION LIFE ASSURANCE COMPANY
Separate Accounts, Contracts and Designated Portfolios
NAME OF SEPARATE ACCOUNTS AND DATE ESTABLISHED BY BOARD OF DIRECTORS:
---------------------------------------------------------------------
ACL Variable Annuity Account 1,
established October 12, 1995
CONTRACTS FUNDED BY ACCOUNT:
----------------------------
ACL Personal Portfolio Plus 2 Variable Annuity
DESIGNATED PORTFOLIOS AND SHARE CLASSES:
Janus Aspen Series Balanced Portfolio: Institutional Shares
Janus Aspen Series Worldwide Growth Portfolio: Institutional Shares
IDS LIFE INSURANCE COMPANY OF NEW YORK
Separate Accounts, Contracts and Designated Portfolios
------------------------------------------------------
NAME OF SEPARATE ACCOUNTS AND DATE ESTABLISHED BY BOARD OF DIRECTORS:
---------------------------------------------------------------------
IDS Life of New York Variable Annuity
Account (formerly IDS Life of New York
Flexible Portfolio Annuity Account)
established April 17, 1996.
IDS Life of New York Account 8
established September 12, 1985.
CONTRACTS FUNDED BY IDS LIFE OF NEW YORK VARIABLE ANNUITY ACCOUNT:
------------------------------------------------------------------
RiverSource Retirement Advisor Advantage(SM) Variable Annuity
RiverSource Retirement Advisor Select(SM) Variable Annuity
RiverSource Retirement Advisor Variable Annuity
RiverSource Retirement Advisor Variable Annuity--Band 3
CONTRACTS FUNDED BY IDS LIFE OF NEW YORK ACCOUNT 8:
---------------------------------------------------
RiverSource Succession Select(SM) Variable Life Insurance
RiverSource Variable Universal Life Insurance(SM)
RiverSource Variable Universal Life III(SM)
RiverSource(R) Variable Universal Life IV(SM)
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RiverSource(R) Variable Universal Life IV - Estate Series
RiverSource(R) Variable Second-To-Die Life Insurance(SM)
DESIGNATED PORTFOLIOS AND SHARE CLASSES:
Janus Aspen Series Global Technology Portfolio: Service Shares
Janus Aspen Series International Growth Portfolio: Service Shares
Janus Aspen Series Mid Cap Growth Portfolio: Service Shares
21
