AMENDED AND RESTATED
PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT ("Agreement"), made
and entered into as of this 1st day of September, 2006 by and among the
following parties:
o IDS LIFE INSURANCE COMPANY (the "Company"), organized under the
laws of the State of Minnesota, on its own behalf and on behalf of
each of its separate accounts (an "Account") named in Schedule A
to this Agreement, as may be amended from time to time;
x XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS I, INC. (formerly Salomon
Brothers Variable Series Fund, Inc.)(a "Fund"), an open-end
management investment company organized under the laws of
Maryland;
x XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS II (formerly Greenwich
Street Series Fund, formerly Xxxxx Xxxxxx Series Fund, formerly
Xxxxx Xxxxxx Shearson Series Fund, formerly Shearson Series
Fund)(a "Fund"), an open-end management investment company
organized as a business trust under the laws of Massachusetts;
x XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS III, INC. (formerly
Travelers Series Fund Inc., formerly Xxxxx Xxxxxx Travelers Series
Fund Inc.)(a "Fund"), an open-end management investment company
organized under the laws of Maryland; and,
x XXXX XXXXX INVESTOR SERVICES, LLC (the "Distributor"), a limited
liability company organized under the laws of Delaware.
WHEREAS, each Fund engages in business as an open-end management
investment company and is available to act as (i) the investment vehicle for
certain qualified pension and retirement plans ("Qualified Plans"), and (ii)
the investment vehicle for separate accounts established for variable life
insurance policies and variable annuity contracts (collectively, the
"Contracts") to be offered by insurance companies that have entered into
participation agreements with the Fund and the Distributor (hereinafter
"Participating Insurance Company"); and
WHEREAS, the beneficial interests in each Fund are divided into several
series of shares,
(each designated a "Portfolio") and, in certain cases classes of shares,
represent the interest in a particular managed portfolio of securities and
other assets; and
WHEREAS, each Fund has obtained an order from the Securities and
Exchange Commission, granting Participating Insurance Company and variable
annuity and variable insurance separate accounts exemptions from the
provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company
Act of 1940, as amended, (hereinafter the "1940 Act") and Rules 6e-2(b)(15)
and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of
each Fund to be sold to and held by variable annuity and variable life
insurance separate accounts of both affiliated and unaffiliated life insurance
companies (the "Mixed and Shared Funding Exemptive Order"); and
WHEREAS, each Fund is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934 (hereinafter the "Exchange Act") and any
applicable state securities law; and
WHEREAS, the Distributor is the distributor of shares of the Portfolios
of each Fund; and
WHEREAS, the Company has registered or will register certain Contracts
under the 1933 Act, or such Contracts are or will be exempt from registration
thereunder; and
WHEREAS, the Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company to set aside and invest assets attributable to one or more Contracts;
and
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WHEREAS, the Account is or will be registered as an investment company
under the 1940 Act, or the Account is or will be exempt from registration
under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on
behalf of each Account to fund certain of the aforesaid Contracts,
NOW, THEREFORE, in consideration of their mutual promises the Company,
each Fund and the Distributor agree as follows:
ARTICLE A.
AMENDMENT AND RESTATEMENT
-------------------------
A.1 Each Fund and the Distributor acknowledge the re-naming of the
Company to RiverSource Life Insurance Company on December 31, 2006 at 10:59:59
p.m. Central Time (the "Effective Time"). On and after the Effective Time, all
references in this Agreement and its Schedule to IDS Life Insurance Company
shall mean and refer to RiverSource Life Insurance Company.
A.2 This Agreement shall amend and supersede the following agreements as
of September 1, 2006, 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:
A.2.1 Participation Agreement, dated November 1, 2005, by and
between Salomon Brothers Variable Series Fund, Inc., Citigroup Global Markets
Inc. and IDS Life Insurance Company.
A.2.2 Participation Agreement, dated December 19, 2002, by and
among Greenwich Street Series Fund, Xxxxxxx Xxxxx Xxxxxx Inc. and IDS Life
Insurance Company.
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ARTICLE I.
SALE OF FUND SHARES
-------------------
1.1 Each Fund agrees to sell to the Company those shares of the Fund
which each Account orders, executing such orders on a daily basis at the net
asset value next computed after receipt by the Fund or its designee of the
order for Fund shares. For purposes of this Section 1.1, the Company shall be
the designee of the Fund for receipt of such orders from each Account and
receipt by such designee shall constitute receipt by the Fund, provided that:
(i) the orders are received by the Company (or their designee) in good order
prior to the time the net asset value of each Portfolio is priced in
accordance with its prospectus (generally at the close of regular trading on
the New York Stock Exchange at 4:00 p.m. Eastern Time), and (ii) the Fund
receives notice of such order by 10:00 a.m. Eastern Time on the next following
"Business Day." "Business Day" shall mean any day on which the New York Stock
Exchange is open for regular trading and on which the Fund calculates its net
asset value pursuant to the rules of the Securities and Exchange Commission.
1.2 Each Fund agrees to make its shares available indefinitely for
purchase at applicable net asset value per share by the Company and its
Accounts on those days on which the Fund calculates its net asset value
pursuant to rules of the Securities and Exchange Commission and the Fund shall
use its best efforts to calculate such net asset value on each day which the
New York Stock Exchange is open for trading. Notwithstanding the foregoing,
the Board of Directors of each Fund (hereinafter, the "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 Board acting in good faith and in light of their fiduciary duties under
federal and any applicable
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state laws, necessary in the best interest of the shareholders of such
Portfolio.
1.3 Each Fund and the Distributor agree that shares of the Fund will be
sold only to Participating Insurance Company and their separate accounts and,
in accordance with the terms of each Fund's Mixed and Shared Funding Exemptive
Order, certain Qualified Plans. No shares of any Portfolio will be sold to the
general public.
1.4 No Fund will sell its shares to any insurance company or separate
account unless an agreement containing provisions substantially the same as
Articles I, III, V, VI and Section 2.5 of Article II of this Agreement is in
effect to govern such sales.
1.5 Each Fund agrees to redeem for cash, on the Company's request, any
full or fractional shares of that Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after receipt
by that Fund or its designee of the request for redemption. For purposes of
this Section 1.5, the Company shall be the designee of each Fund for receipt
of requests for redemption from the Account and receipt by such designee shall
constitute receipt by the Fund, provided that: (i) the orders are received by
the Company (or their designee) in good order prior to the time the net asset
value of each Portfolio is priced in accordance with its prospectus (generally
at the close of regular trading on the New York Stock Exchange at 4:00 p.m.
Eastern Time), and (ii) provided that the Fund receives notice of such request
for redemption by 10:00 a.m. Eastern Time on the next following Business Day.
1.6 The Company agrees to purchase and redeem the shares of each
Portfolio offered by the then current prospectus of each Fund and in
accordance with the provisions of such prospectus. The Company agrees that all
net amounts available under the Contracts shall be invested in Portfolios of
the Funds designated on Schedule A to this Agreement as it may hereafter be
amended from time to time, and in other funds selected by the Company, the
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Company' general account or in the Company's Guarantee Period Accounts.
1.7 The Company shall pay for Fund shares on the next Business Day after
an order to purchase Fund shares is made in accordance with the provisions of
Section 1.1 hereof. Payment shall be in federal funds transmitted by wire. For
purpose of Sections 2.9 and 2.10, upon receipt by the Fund of the federal
funds so wired, such funds shall cease to be the responsibility of the Company
and shall become the responsibility of the Fund.
1.8 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.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
1.9 Each Fund shall furnish same day notice by wire, telephone (followed
by written confirmation), electronic media or fax to the Company of any
income, dividends or capital gain distributions payable on the Fund's shares.
The Company hereby elects to receive all such income dividends and capital
gain distributions as are payable on Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. Each
Fund shall notify the Company of the number of shares so issued as payment of
such dividends and distributions.
1.10 Each Fund shall provide (electronically or by fax) the closing net
asset value per share for each Portfolio to the Company on a daily basis as
soon as reasonably practical after the closing net asset value per share is
calculated (normally 6:30 p.m. Eastern Time) and shall use its best efforts to
make such net asset value per share available by 7:00 p.m. Eastern Time. In
the event that a Fund is unable to meet the 7:00 p.m. time stated immediately
above, then that Fund shall immediately notify the Company and provide the
Company with additional time to notify
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that Fund of purchase or redemption orders pursuant to Sections 1.1 and 1.5,
respectively, above. Such additional time shall be equal to the additional
time that the Fund takes to make the closing net asset values available to the
Company.
1.11 Any material errors in the calculation of net asset value,
dividends or capital gain information shall be reported immediately upon
discovery to the Company. The Fund or its agent will promptly correct any such
errors and promptly recalculate transactions made under this Agreement using
the correct net asset value, dividends or capital gains consistent with the
Fund's then current net asset value error correction policy. To the extent
that recalculation of one or more transactions does not make the Company's
account with a Fund whole, the Distributor shall make such account whole. The
Distributor shall not be responsible for payment of any costs of reprocessing
transactions in units issued by an Account (or a sub-account of an Account)
under the Contracts arising out of an error in the calculation of a Fund's net
asset value, dividends or capital gains distributions if such error is
discovered and corrected within five business days. The Company agrees to use
its best efforts to minimize any costs incurred under this Section and shall
provide the Distributor with acceptable documentation of any such costs
incurred.
1.12 Each Fund shall, upon request of the Company, provide confirmation
of trade activity from the previous Business Day. Such confirmation shall
include the dollar amount of purchases or redemptions submitted by the Company
for each Portfolio, price per share of each Portfolio, and the corresponding
total share amount of such purchase or redemption, and shall be transmitted to
the Company on the Business Day following the request.
1.13 Each Fund shall, upon request of the Company, provide on a monthly
basis, a report of the monthly trade activity for the Account which shall be
transmitted to the Company
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on the "Business Day" following the request.
1.14 Company acknowledges that each Fund has adopted policies and
procedures reasonably designed to detect and deter frequent purchases and
redemptions of Portfolio shares or excessive or short-term trading that might
disadvantage owners investing in Portfolios of the Fund on a long-term basis
through the Contracts and other variable contracts issued by other
Participating Insurance Companies. This policy is described in the Fund's
registration statement. Each Fund and Distributor acknowledge that Company, on
behalf of its Account(s), has adopted policies and procedures reasonably
designed to detect and deter frequent transfers of contract value among the
subaccounts of the Account(s) including those investing in Portfolios of each
Fund which are available as investment options under the Contracts. This
policy is described in the registration statements of the Account(s) through
which the Contracts are offered. Company will cooperate with each Fund or its
designee's reasonable requests in taking steps to deter and detect such
transfers by any Contract owner. Subject to applicable law and the terms of
each Contract, the Company will provide promptly upon request by the Fund,
directly or through its designee, the following information:
o the Taxpayer Identification Number of all Contract owners that
purchased, redeemed, transferred, or exchanged units of
subaccounts investing in Portfolios of a Fund available under a
Contract; and,
o the amount and dates of such Contract owners purchases,
redemptions, transfers and exchanges in subaccounts available
under a Contract which invest in Portfolios of a Fund.
If the requested information is not on the Company's books and records,
it agrees to make reasonable efforts to promptly obtain the requested
information. The Company will execute any instructions from the Fund, directly
or through its designee, to restrict or prohibit further purchases,
redemptions, transfers or exchanges in subaccounts available under a Contract
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which invest in shares of any Portfolios of a Fund by any Contract owner who
has been identified by the Fund, or its designee, as having engaged in
transactions that violate policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
securities issued by the Fund.
The parties shall negotiate in good faith such additional terms and
conditions regarding implementation of the foregoing obligations of the
parties under Rule 22c-2 as any party may wish to address.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
------------------------------
2.1 The Company represents and warrants that the Contracts are or will
be registered under the 1933 Act, unless exempt from such registration, and
that the Contracts will be issued and sold in compliance in all material
respects with all applicable Federal and State laws and regulations. The
Company shall amend the registration statements for their Contracts under the
1933 Act and 1940 Act from time to time as required to effect the continuous
offering of their Contracts. The Company represents and warrants that it is an
insurance company duly organized and in good standing under applicable law and
that it has legally and validly established each Account as a segregated asset
account under its domiciliary state insurance laws prior to any issuance or
sale of the Contracts and has registered or, prior to any issuance or sale of
the Contracts, will register each Account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts, unless exempt from such registration.
Further, the Company represents and warrants that the Account is in compliance
with Rule 38a-1 under the 1940 Act.
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2.2 Each Fund represents and warrants that its shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the state in which it is
organized, as applicable, and all applicable federal and state securities
laws. Further, each Fund represents and warrants that the Fund is in
compliance with Rule 38a-1 under the 1940 Act. Each Fund is and shall remain
registered under the 1940 Act. Each Fund shall 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. Each
Fund shall register and qualify the shares for sale in accordance with the
laws of the various states only if and to the extent deemed advisable by the
Fund or the Distributor. Each Fund shall provide to the Company upon request a
list of the various jurisdictions in which the Portfolios are registered.
2.3 Each Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as
amended, (the "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. The parties acknowledge that compliance with Subchapter M is an
essential element of compliance with Section 817(h) of the Code.
2.4 The Company represents that the Contracts are currently treated as
endowment, annuity or life insurance contracts, under applicable provisions of
the Code and that it will make every effort to maintain such treatment and
that it will notify the Funds and the Distributor 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.
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2.5 Each Fund shall at all times, consistent with instructions from the
Company received initially and from time to time thereafter, invest money from
the Contracts in such a manner as to ensure that the Contracts shall be
treated as variable contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, each Fund and its
Portfolios shall at all times comply with Section 817(h) of the Code,
including without limitation Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section
or Regulations. Each Fund will notify the Company immediately upon having a
reasonable basis for believing that a Portfolio has ceased to so qualify or
that a Portfolio might not so qualify in the future. In addition, the Fund
will immediately take all steps necessary to adequately diversify the
Portfolio to achieve compliance.
2.6 Each Fund has adopted a Rule 12b-1 Plan under which it makes
payments to finance administrative, service, and distribution expenses with
respect to certain Portfolios. Each Fund represents and warrants that its
Board, a majority of whom are not interested persons of that Fund, has
approved such Rule 12b-1 Plan to finance administrative, service, and
distribution expenses of the Fund's Portfolios that have a 12b-1 share, and
that any changes to that Fund's Rule 12b-1 Plan will be approved, in
accordance with Rule 12b-1 under the 1940 Act.
2.7 No Fund makes any representation as to whether any aspect of its
operations (including, but not limited to, fees, expenses and investment
policies) complies with the insurance laws or regulations of various states
except that each Fund represents that its investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of its
state of domicile, and each Fund represents that its respective operations are
and shall
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at all times remain in material compliance with the laws of its state of
domicile, to the extent required to perform this Agreement.
2.8 The Distributor represents and warrants that the Distributor is and
shall remain duly registered in all material respects under all applicable
federal and state laws and regulations and that the Distributor shall perform
its obligations for each Fund in compliance in all material respects with the
laws of the State of Delaware, and any applicable state and federal laws and
regulations.
2.9 Each party represents and warrants that its directors, officers,
employees, and other individuals/entities dealing with the money and/or
securities of each Fund are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of that Fund in an
amount not less than the minimal coverage as required currently by Rule 17g-1
of the 1940 Act or related provisions as may be promulgated from time to time.
The aforesaid bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.10 Each party to this Agreement will maintain all records required by
law, including records detailing the services it provides. Such records will
be preserved, maintained and made available to the extent required by law and
in accordance with the 1940 Act and the rules thereunder. The Company agrees
that each Fund or the Distributor will have the right to inspect, audit and
copy all records pertaining to the Company's performance of services under
this Agreement for each Fund or the Distributor, as the case may be. Each Fund
and Distributor agree that the Company will have the right to inspect, audit
and copy all records pertaining to the performance of services under this
Agreement by each Fund or the Distributor, as the case may be, pursuant to the
requirements of any state insurance department. Each party also agrees
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promptly to notify the other parties if it experiences any difficulty in
maintaining the records in an accurate and complete manner. This provision
shall survive termination of the Agreement.
ARTICLE III.
PROSPECTUSES AND PROXY STATEMENTS; VOTING
-----------------------------------------
3.1 At the option of the Company, each 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. Each Fund will
bear the cost of typesetting, printing and distributing such documents to
existing Contract owners. The Company will bear the cost of typesetting,
printing and distributing such documents to prospective Contract owners and
applicants as required.
3.2 Each Fund's prospectus shall state that the Statement of Additional
Information for that Fund is available from the Distributor (or in the Fund's
discretion, the prospectus shall state that such Statement is available from
the Fund), and the Distributor (or the Fund), at its expense, shall print and
provide such Statement free of charge to the Company and to any owner of a
Contract or prospective owner who requests such Statement.
3.3 Each Fund, at its expense, shall provide the Company with copies of
its proxy material, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners. In the event that a Fund initiates (i) a
reorganization of a Portfolio as defined by Section 2 of the 1940 Act, or (ii)
a change in the name of the Portfolio or the Fund, that Fund shall reimburse
the Company for the
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Company's 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 with acceptable
documentation of any such costs incurred.
3.4 If and to the extent required by law the Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote Fund shares in accordance with instructions received from
Contract owners; and
(c) vote Fund shares for which no instructions have been received
in the same proportion as Fund shares of such Portfolio for which instructions
have been received, so long as and to the extent that the Securities and
Exchange Commission continues to interpret the 1940 Act to require
pass-through voting privileges for owners of Contracts. 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. Participating Insurance Company shall
be responsible for assuring that each Account participating in the Fund
calculates voting privileges in a manner consistent with this Section.
3.5 Each Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular each Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the
Funds are 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, each
Fund will act in accordance with the Securities and Exchange Commission's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of trustees and with whatever rules the Commission may promulgate
with respect thereto.
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ARTICLE IV.
SALES MATERIAL AND INFORMATION
------------------------------
4.1 The Company shall furnish, or shall cause to be furnished, to a Fund
or its designee, each piece of sales literature or other promotional material
in which the Fund or its investment adviser or its underwriter is named, at
least ten Business Days prior to its use. No such material shall be used if
the Fund or its designee object to such use within ten Business Days after
receipt of such material.
4.2 The Company shall not give any information or make any
representations or statements on behalf of a Fund or concerning a Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for that
Fund's shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for that
Fund, or in sales literature or other promotional material approved by that
Fund or the Distributor or the designee of either, except with the permission
of the Fund or the Distributor or the designee of either.
4.3 Each Fund and the Distributor, or the designee of either shall
furnish, or shall cause to be furnished, to the Company or their designee,
each piece of sales literature or other promotional material in which the
Company and/or their Account(s) is named at least ten Business Days prior to
its use. No such material shall be used if the Company or their designee
object to such use within ten Business Days after receipt of such material.
4.4 Each Fund and the Distributor shall not give any information or make
any representations on behalf of the Company or concerning the Company, an
Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may be amended or
15
supplemented from time to time, or in published reports for each Account which
are in the public domain or approved by the Company for distribution to
Contract owners, or in sales literature or other promotional material approved
by the Company or their designee, except with the permission of the Company.
4.5 Upon request, each 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 a Fund or its
shares.
4.6 Upon request, the Company will provide each 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 the Account.
4.7 For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as materials published, or designed for use, in a newspaper, magazine,
or other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media), sales
literature, (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
prospectuses, Statements of Additional Information, shareholder reports, and
proxy materials and any other
16
material constituting sales literature or advertising under the NASD rules,
the 1940 Act, the 1933 Act, or rules thereunder.
ARTICLE V.
FEES AND EXPENSES
-----------------
5.1 All expenses incident to performance by a Fund under this Agreement
shall be paid by the Fund. Each Fund shall see to it that all its shares are
registered and authorized for issuance in accordance with applicable federal
law and, if and to the extent deemed advisable by the Fund, in accordance with
applicable state laws prior to their sale. Each Fund shall bear the expenses
for the cost of registration and qualification of the Fund's shares,
preparation and filing of the Fund's prospectus and registration statement,
proxy material, information statements and reports, setting the Fund's
prospectus for printing, setting in type and printing the proxy material,
information statements and reports to shareholders, and the preparation of all
statements and notices required by any federal or state law. Each Fund shall
bear the cost of printing and distributing its prospectus, periodic reports to
shareholders, proxy materials and other shareholder communications to existing
Contract owners. The Company shall see to it that each of the Contracts and
the Accounts are registered and are authorized for issuance in accordance with
applicable federal law. The Company shall bear the expenses for the cost of
registration and qualification of the Contracts and the Accounts, preparation
and filing of the applicable prospectus and registration statements, setting
each Contract prospectus for printing, and the preparation of all statements
and notices required by any federal or state law.
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ARTICLE VI.
POTENTIAL CONFLICTS
-------------------
6.1 Each Fund's Board will monitor the Fund for the existence of any
material irreconcilable 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 interpretive 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 owners and variable life
insurance contract owners; or (f) a decision by an insurer to disregard the
voting instructions of Contract owners. The Board shall promptly inform the
Company if they determine that an irreconcilable material conflict exists and
the implications thereof.
6.2 The Company will report any potential or existing conflicts of which
they are aware to the Board of the Fund to which the potential or existing
conflict may apply. The Company will assist that Fund's Board in carrying out
its responsibilities under that Fund's Mixed and Shared Funding Exemptive
Order, by providing that Board with all information reasonably necessary for
the Board to consider any issues raised. This includes, but is not limited to,
an obligation by the Company to inform the Board whenever Contract owners
voting instructions are disregarded.
6.3 If it is determined by a majority of the Board, or a majority of its
disinterested directors, that a material irreconcilable conflict exists, the
Company and other Participating
18
Insurance Companies shall, at their expense and to the extent reasonably
practicable (as determined by a majority of the disinterested directors), take
whatever steps are necessary to remedy or eliminate the irreconcilable
material conflict, up to and including: (1) withdrawing the assets allocable
to some or all of the Company's Accounts and the separate accounts of other
Participating Insurance Companies 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., annuity Contract owners, life insurance Contract owners, or 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 (2) establishing a new registered management
investment company or managed separate account.
6.4 If a material irreconcilable conflict arises because of a decision
by the Company to disregard Contract owner voting instructions and that
decision represents a minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account; provided, however that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the
Board. Any such withdrawal and termination must take place within six (6)
months after the Fund gives written notice that this provision is being
implemented, and until the end of that six month period that Fund and the
Distributor shall continue to accept and implement orders by the Company for
the purchase (and redemption) of Fund shares.
19
6.5 If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the applicable Portfolios of a Fund and
terminate this Agreement with respect to such Account within six months after
the Board informs 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 members of the Board. Until the end of the foregoing six
month period, the affected Fund and the Distributor shall continue to accept
and implement orders by the Company for the purchase (and redemption) of Fund
shares.
6.6 For purposes of Sections 6.3 through 6.6 of this Agreement, a
majority of the disinterested members of the Fund's Board shall 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 shall not be required by Section 6.3 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 Board
determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will withdraw the Account's
investment in that Fund and terminate this Agreement as to such Fund within
six (6) months after the Board informs 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 members of the Board of that
Fund.
20
6.7 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
Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in each Fund's Mixed and Shared Funding Exemptive Order)
on terms and conditions materially different from those contained in the Mixed
and Shared Funding Exemptive Order applicable to a Fund, then (a) that Fund
and/or the Participating Insurance Company, 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; and (b)
Sections 3.4, 3.5, 6.1, 6.2, 6.3, 6.4 and 6.5 of this Agreement shall 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 VII.
INDEMNIFICATION
---------------
7.1 Indemnification by the Company
------------------------------
(a) The Company agree to indemnify and hold harmless each Fund and
each of its directors and officers and each person, if any, who controls the
Fund within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 7.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Company, which consent will not be
unreasonably withheld) or litigation (including 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 are related to the sale or acquisition of the Fund's shares or the
Contracts and:
21
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the Registration
Statement or prospectus for the Contracts or contained in the Contracts or
sales literature 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 therein or
necessary to make the statements therein not misleading, provided that this
agreement to indemnify 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 in conformity with information furnished to the Company by
or on behalf of the Fund for use in the Registration Statement or prospectus
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
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
Registration Statement, prospectus or sales literature of the Fund not
supplied by the Company, or persons under their control) or wrongful conduct
of the Company or persons under their control, with respect to the sale or
distribution of the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement,
prospectus, or sales literature of the Fund or any amendment thereof or
supplement thereto 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 a statement or omission was made in
reliance upon information furnished to the Fund by or on behalf of the
Company; or
22
(iv) 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
(v) 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, as limited by and in accordance with the provisions of Sections
7.1(b) and 7.1(c) hereof.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may 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 or to the Fund, whichever is applicable.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Company of
any such claim shall not relieve the Company from any liability which they may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Company shall be entitled to
participate, at their own expense, in the defense of such action. The Company
also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from
23
the Company to such party of the Company' election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Company 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.
(d) The Indemnified Parties will promptly notify the Company of
the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Fund Shares or the Contracts or the
operations of the Fund.
7.2 Indemnification by Each Fund and the Distributor
------------------------------------------------
(a) Each Fund and the Distributor agree to indemnify and hold
harmless the Company and each of their directors and officers and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this Section 7.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of a Fund, which consent shall not
be unreasonably withheld) or litigation (including legal and other expenses)
to which the Indemnified Parties may become subject under any statute, at
common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of a Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or prospectus or sales literature of a Fund (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 therein or necessary to make the statements therein not misleading,
provided that this
24
agreement to indemnify 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 in conformity with information furnished to the Distributor
or Fund by or on behalf of the Company for use in the Registration Statement
or prospectus for the Fund or in sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the Contracts
or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
Registration Statement, prospectus or sales literature for the Contracts not
supplied by the Distributor or Fund or persons under its control) or wrongful
conduct of a Fund or Distributor or persons under their control, with respect
to the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement, prospectus
or sales literature covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or omission was made
in reliance upon information furnished to the Company by or on behalf of a
Fund; or
(iv) arise as a result of any failure by a Fund to provide
the services and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or otherwise, to
comply with the diversification requirements specified in Article II of this
Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by a Fund or the Distributor in this
Agreement or arise out
25
of or result from any other material breach of this Agreement by a Fund or the
Distributor; as limited by and in accordance with the provisions of Sections
7.2(b) and 7.2(c) hereof.
(b) Any Fund or the Distributor shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of 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 and
duties under this Agreement or to the Company or Account, whichever is
applicable.
(c) Each Fund and the Distributor shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
affected Fund and the Distributor in writing within a reasonable time after
the summons or other first legal process giving information of the nature of
the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the affected Fund and the Distributor of any
such claim shall not relieve the affected Fund and the Distributor from any
liability which they may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties, the
affected Fund and the Distributor will be entitled to participate, at their
own expense, in the defense thereof. The affected Fund and the Distributor
also shall be entitled to assume the defense thereof with counsel satisfactory
to the party named in the action. After notice from the affected Fund and the
Distributor to such party of that Fund's and the Distributor's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the affected Fund
26
and the Distributor 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.
(d) The Company agrees promptly to notify each Fund and the
Distributor of the commencement of any litigation or proceedings against the
Company or any of its officers or directors in connection with the issuance or
sale of the Contracts or the operation of the Account.
7.3 Limitation of Liability. Except as expressly stated herein, as
-----------------------
between the parties, in no event will any party to this Agreement be
responsible to any other party for any incidental, indirect, consequential,
punitive, or exemplary damages of any kind arising from this Agreement,
including without limitation, lost revenues, loss of profits or loss of
business.
7.4 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 affected Fund and/or the Distributor 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 New York, New York.
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
27
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
seeking 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 VIII.
APPLICABLE LAW
--------------
8.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of New York.
8.2 This Agreement shall be subject to the provisions of the federal
securities laws, and the rules, 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, each Fund's
Mixed and Shared Funding Exemptive Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE IX.
TERMINATION
-----------
9.1 This Agreement shall terminate:
(a) at the option of any party upon ninety (90) days advance
written notice to the other parties unless otherwise agreed in a separate
written agreement among the parties; or
(b) at the option of the Company if shares of the Portfolios
delineated in Schedule B are not reasonably available to meet the requirements
of the Contracts as determined by the Company; or
(c) at the option of a Fund upon institution of formal proceedings
against the Company by the NASD, the SEC, the insurance commission of any
state or any other regulatory
28
body regarding the Company' duties under this Agreement or related to the sale
of the Contracts, the administration of the Contracts, the operation of an
Account, or the purchase of a Fund's shares; or
(d) at the option of the Company upon institution of formal
proceedings against a Fund by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body; or
(e) at the option of the Company or a 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 a 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 30 days' prior written notice to a Fund of the date of any proposed
vote or other action taken to replace a Fund's shares; or
(f) at the option of the Company or a Fund upon a determination by
a majority of that Fund's Board, or a majority of the disinterested Fund Board
members, that an irreconcilable material conflict exists among the interests
of (i) all Contract owners of Contracts of all separate accounts, or (ii) the
interests of the Participating Insurance Company investing in that Fund as
delineated in Article VI of this Agreement; or
(g) at the option of the Company if a Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code, or under any
successor or similar provision, or if the Company reasonably believe that the
Fund may fail to so qualify; or
(h) at the option of the Company if a Fund fails to meet the
diversification requirements specified in Article II hereof; or
29
(i) at the option of any party to this Agreement, upon another
party's material breach of any provision of this Agreement; or
(j) at the option of the Company, if the Company determines in
their sole judgment exercised in good faith, that either a Fund or the
Distributor 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; or
(k) at the option of a Fund or the Distributor, if the Fund or
Distributor respectively, shall determine 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 or the
Distributor, or
(l) at the option of a Fund in the event any of the Contracts are
not issued or sold in accordance with applicable federal and/or state law.
Termination shall be effective immediately upon such occurrence without
notice.
9.2 Notice Requirement
------------------
(a) In the event that any termination of this Agreement is based
upon the provisions of Article VI, such prior written notice shall be given in
advance of the effective date of termination as required by such provisions.
(b) In the event that any termination of this Agreement is based
upon the provisions of Sections 9.1(b) - (d) or 9.1(g) - (i), prompt written
notice of the election to terminate this Agreement for cause shall be
furnished by the party terminating the Agreement to
30
the non-terminating parties, with said termination to be effective upon
receipt of such notice by the non-terminating parties.
(c) In the event that any termination of this Agreement is based
upon the provisions of Sections 9.1(i) or 9.1(k), prior written notice of the
election to terminate this Agreement for cause shall be furnished by the party
terminating this Agreement to the non-terminating parties. Such prior written
notice shall be given by the party terminating this Agreement to the
non-terminating parties at least 30 days before the effective date of
termination.
9.3 No Reason Required for Termination. It is understood and agreed that
----------------------------------
the right to terminate this Agreement pursuant to Section 9.1 (a) may be
exercised for any reason or for no reason.
9.4 Effect of Termination.
---------------------
(a) Notwithstanding any termination of this Agreement, the
affected Fund or the Distributor will at the option of the Company, continue
to make available additional shares of the affected 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 shall be permitted to reallocate investments in the affected Fund,
redeem investments in the affected Fund and/or invest in the affected Fund
upon the making of additional purchase payments under the Existing Contracts.
The parties agree that this Section 9.4 shall not apply to any terminations
under Article VI and the effect of such Article VI terminations shall be
governed by Article VI of this Agreement.
31
(b) In the event of termination pursuant to Section 9.1(l), or
such laws preclude the use of such shares as the underlying investment medium
for the Contracts issued or to be issued by the Company, and if through no
fault of the Company, the need for substitution of a Fund's shares for the
shares of another registered investment company arises out of this event, the
expenses of obtaining such an order shall be reimbursed by the affected Fund.
The affected Fund and the Distributor shall cooperate fully with the Company
in connection with such application.
9.5 Surviving Provisions. Each party's obligations under Section 2.11
--------------------
and Article VII will survive and will not be affected by any termination of
this Agreement. In addition, with respect to Existing Contracts, all
provisions of this Agreement also will survive and not be affected by any
termination of this Agreement.
ARTICLE X.
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 a Fund:
XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS I, INC.
XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS II
XXXX XXXXX PARTNERS VARIABLE PORTFOLIOS III, INC.
000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
If to the Company:
IDS LIFE INSURANCE COMPANY
50605 Ameriprise Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
32
Attention: Vice President and Group Counsel
If to the Distributor:
XXXX XXXXX INVESTOR SERVICES, LLC
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxx
ARTICLE XI.
MISCELLANEOUS
-------------
11.1 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.
11.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.3 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.
11.4 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
the NASD 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.
11.5 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.
33
11.6 Use and Disclosure of Confidential Information.
----------------------------------------------
Notwithstanding anything to the contrary contained in this Agreement,
and in addition to and not in lieu of other provisions in this Agreement:
(a) Confidential Information includes without limitation all
information regarding the customers of the Company or the customers of any of
the Company's subsidiaries, affiliates or licensees; or the accounts, account
numbers, names, addresses, social security numbers or any other personal
identifier of customers of any of the foregoing information derived therefrom.
(b) No Fund nor the Distributor may use or disclose Confidential
Information for any purpose other than to carry out the purpose for which
Confidential Information was provided to the Fund and/or the Distributor as
set forth in this Agreement, and agree to cause any party to whom a Fund
and/or the Distributor may provide access to or disclose Confidential
Information to limit the use and disclosure of Confidential Information to
that purpose.
(c) Each Fund and the Distributor agree to implement appropriate
measures designed to ensure the security and confidentiality of Confidential
Information, to protect such information against any anticipated threats or
hazards to the security or integrity of such information, and to protect
against unauthorized access to, or use of, Confidential Information that could
result in substantial harm or inconvenience to any of the customers of the
Company or the customers of any of the Company's subsidiaries affiliates or
licensees; each Fund and the Distributor further agree to cause any party to
whom the Fund and/or the Distributor may provide access to or disclose
Confidential Information to implement appropriate measures designed to meet
the objectives set forth in this paragraph.
34
11.7 The Company shall comply with all 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 with the Fund and the Distributor information about
the individuals, entities, organizations and countries suspected of possible
terrorist or money laundering activities in accordance with Section 314(b) of
the USA PATRIOT Act.
Each Fund and the Distributor shall comply with all applicable laws and
regulations designed to prevent money launding including without limitation
the International Money Laundering Abatement and Anti-Terrorism Financing Act
of 2001 (Title III of the USA PATRIOT Act), and if required by such laws or
regulations, will share with the Company information about individuals,
entites, organizations and countries suspected of possible terrorist or money
laundering activities in accordance with Section 314(b) of the USA PATRIOT
Act.
11.8 Each Fund agrees to consult with the Company concerning whether any
Portfolio of the Fund qualifies to provide a foreign tax credit pursuant to
Section 853 of the Code.
35
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by its duly authorized
representative as of the date first above written.
Company:
IDS LIFE INSURANCE COMPANY
By its authorized officer: Attest:
By: /s/ Xxxxxxx X. Xxxxx III By: /s/ Xxxxx Xxxxxx
------------------------------ ---------------------------------
Xxx. X. Xxxxx III Xxxxx Xxxxxx
Title: Vice President Title: Assistant Secretary
Fund: Fund:
XXXX XXXXX PARTNERS VARIABLE XXXX XXXXX PARTNERS
PORTFOLIOS I, INC. VARIABLE PORTFOLIOS II
By its authorized officer: By its authorized officer:
By: /s/ R. Xxx Xxxxxx By: /s/ R. Xxx Xxxxxx
------------------------------ ---------------------------------
Title: President Title: President
Date: October 6, 2006 Date: October 6, 2006
Distributor: Fund:
XXXX XXXXX INVESTOR SERVICES, LLC XXXX XXXXX PARTNERS VARIABLE
PORTFOLIOS III, INC.
By its authorized officer: By its authorized officer:
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ R. Xxx Xxxxxx
------------------------------ ---------------------------------
Title: Managing Director Title: President
Date: October 4, 2006 Date: October 6, 2006
SCHEDULE A
Accounts, Contracts, Funds and Designated Portfolios
ACCOUNTS: IDS Life Variable Account 10 (established August 23, 1995) and IDS
Life Account SBS (established May 9, 1991).
CONTRACTS, FUNDS AND DESIGNATED PORTFOLIOS:
----------------------------------------------------------------------------------------------------------------------
CONTRACTS FUNDS PORTFOLIOS
----------------------------------------------------------------------------------------------------------------------
RiverSource Retirement Advisor 4 XXXX XXXXX PARTNERS VARIABLE Xxxx Xxxxx Partners Variable Small
Advantage Variable Annuity PORTFOLIOS I, INC. Cap Growth Portfolio
----------------------------------------------------------------------------------------------------------------------
RiverSource Retirement Advisor 4 XXXX XXXXX PARTNERS VARIABLE Xxxx Xxxxx Partners Variable Small
Select Variable Annuity PORTFOLIOS I, INC. Cap Growth Portfolio
----------------------------------------------------------------------------------------------------------------------
RiverSource Retirement Advisor 4 XXXX XXXXX PARTNERS VARIABLE Xxxx Xxxxx Partners Variable Small
Access Variable Annuity PORTFOLIOS I, INC. Cap Growth Portfolio
----------------------------------------------------------------------------------------------------------------------
RiverSource Retirement Advisor XXXX XXXXX PARTNERS VARIABLE Xxxx Xxxxx Partners Variable Small
Advantage Plus Variable Annuity PORTFOLIOS I, INC. Cap Growth Portfolio
----------------------------------------------------------------------------------------------------------------------
RiverSource Retirement Advisor Select XXXX XXXXX PARTNERS VARIABLE Xxxx Xxxxx Partners Variable Small
Plus Variable Annuity PORTFOLIOS I, INC. Cap Growth Portfolio
----------------------------------------------------------------------------------------------------------------------
IDS Life Symphony Annuity XXXX XXXXX PARTNERS VARIABLE Xxxx Xxxxx Partners Variable
PORTFOLIOS II Aggressive Growth Portfolio
Xxxx Xxxxx Partners Variable
Appreciation Portfolio
Xxxx Xxxxx Partners Variable
Diversified Strategic Income
Portfolio
Xxxx Xxxxx Partners Variable Equity
Index Portfolio
Xxxx Xxxxx Partners Variable
Fundamental Value Portfolio
Xxxx Xxxxx Partners Variable Growth
and Income Portfolio
----------------------------------------------------------------------------------------------------------------------
IDS Life Symphony Annuity XXXX XXXXX PARTNERS VARIABLE Xxxx Xxxxx Partners Variable
PORTFOLIOS III, INC. International All Cap Growth
Portfolio
Xxxx Xxxxx Partners Variable Money
Market Portfolio
----------------------------------------------------------------------------------------------------------------------
