PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of the 26th day of April, 2012 by and among
RIVERSOURCE LIFE INSURANCE COMPANY (the "Company"), a Minnesota life insurance
company, on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A hereto as may be amended from time to time
(each separate account hereinafter referred to as the "Account"), RIVERSOURCE
DISTRIBUTORS, INC., a Minnesota corporation (Contracts Distributor), DWS
VARIABLE SERIES I, DWS VARIABLE SERIES II AND DWS INVESTMENTS VIT FUNDS
(individually, a "Fund"), each a Massachusetts business trust created under a
Declaration of Trust, as amended, DWS INVESTMENTS DISTRIBUTORS, INC. (the
"Underwriter"), a Delaware corporation, and DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC., a Delaware corporation (the "Adviser"). The parties agree that a
single document is being used for ease of administration and that this
Agreement shall be treated as if it were a separate agreement with respect to
each Fund, and each series thereof, that is a party hereto, severally and not
jointly, as if such entity had entered into a separate agreement naming only
itself as a party. Without limiting the foregoing, no Fund, or series thereof,
shall have any liability under this Agreement for the obligations of any other
Fund, or series thereof.
WHEREAS, the Fund engages in business as an open-end management
investment company and is or will be available to act as the investment vehicle
for separate accounts established for variable life insurance and variable
annuity contracts (the "Variable Insurance Products") to be offered by
insurance companies which have entered into participation agreements with the
Fund and Underwriter ("Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares of beneficial interest without par value, and, with respect to
certain series, classes thereof ("Shares"), and additional series of Shares,
and classes thereof, may be established, each such series of Shares designated
a "Portfolio" and representing the interest in a particular managed portfolio
of securities and other assets, any one or more of which may be made available
under this Agreement, as may be amended from time to time by mutual agreement
of the parties hereto;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC") granting Participating Insurance Companies and
variable annuity and variable life 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 (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit Shares of the Fund
to be sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated life insurance companies (the
"Mixed and Shared Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and Shares of the Portfolios are registered under
the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Adviser, which serves as investment adviser to the Fund,
is duly registered as an investment adviser under the Investment Advisers Act
of 1940, as amended, and any applicable state securities laws;
WHEREAS, the Company has issued or will issue certain variable life
insurance and/or variable annuity contracts supported wholly or partially by
the Account (the "Contracts"), and said Contracts are listed in Schedule A
hereto, as it may be amended from time to time by mutual written agreement;
WHEREAS, the Account is duly established and maintained as a
segregated asset account, established by resolution of the Board of Directors
of the Company, on the date shown for such Account on Schedule A hereto, to set
aside and invest assets attributable to the aforesaid Contracts;
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act, unless such Account is exempt from
registration thereunder;
WHEREAS, the Underwriter, which serves as distributor to the Fund, is
registered as a broker dealer with the SEC under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and is a member in good standing of the
Financial Industry Regulatory Authority ("FINRA"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios, and
classes thereof, listed in Schedule B hereto, as it may be amended from time to
time by mutual written agreement of the parties (the "Designated Portfolios")
on behalf of the Account to fund the aforesaid Contracts, and the Underwriter
is authorized to sell such Shares to the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Adviser and the Underwriter agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund has granted to the Underwriter exclusive authority to
distribute the Fund's Shares, and has agreed to instruct, and has so instructed,
the Underwriter to make available to the Company for purchase, on behalf of the
Account, Fund Shares of those Designated Portfolios selected by the Underwriter.
Pursuant to such authority and instructions, and subject to Article X hereof,
the Underwriter agrees to make available to the Company for purchase on behalf
of the Account, Shares of those Designated Portfolios listed on Schedule B to
this Agreement, such purchases to be effected at net asset value in accordance
with Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) Fund
series (other than those listed on Schedule B) in existence now or that may be
established in the future will be made available to the Company only as the
Underwriter may so provide, and (ii) the Board of Trustees of the Fund (the
"Board") may refuse to sell shares of any Designated Portfolio to any person, or
suspend or terminate the offering of Fund Shares of any Designated Portfolio or
class thereof, if such action is required by law or by regulatory authorities
having jurisdiction or if, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, suspension or termination is in the best interests of the
shareholders of such Designated Portfolio.
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1.2. The Fund shall redeem, at the Company's request, any full or fractional
Designated Portfolio Shares held by the Company on behalf of the Account, such
redemptions to be effected at net asset value in accordance with Section 1.3 of
this Agreement. Notwithstanding the foregoing, (i) the Company shall not redeem
Fund Shares attributable to Contract owners except in the circumstances
permitted in Section 10.3 of this Agreement, and (ii) the Fund may suspend the
right of redemption or postpone the date of payment or satisfaction upon
redemption of Fund Shares of any Designated Portfolio to the extent permitted by
the 1940 Act, any rules, regulations or orders thereunder.
1.3. Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as an agent of the Fund for
the limited purpose of receiving purchase and redemption requests on behalf of
the Account (but not with respect to any Fund Shares that may be held in the
general account of the Company) for Shares of those Designated Portfolios made
available hereunder, based on allocations of amounts to the Account or
subaccounts thereof under the Contracts and other transactions relating to the
Contracts or the Account. Receipt of any such request (or relevant
transactional information therefore) on any day the New York Stock Exchange is
open for trading and on which the Fund calculates its net asset value pursuant
to the rules of the SEC (a "Business Day") by the Company as such limited agent
of the Fund prior to the time that the Fund calculates its net asset value as
described from time to time in the Fund Prospectus (which as of the date of
execution of this Agreement is 4:00 p.m. Eastern Time) shall constitute receipt
by the Fund on that same Business Day, provided that the Fund receives notice
of such request by 9:30 a.m. Eastern Time on the next following Business Day.
(b) The Company shall pay for Shares of each Designated Portfolio on
the same day that it notifies the Fund of a purchase request for such Shares.
Payment for Designated Portfolio Shares shall be made in federal funds
transmitted to the Fund by wire to be received by the Fund by 2:00 p.m. Eastern
Time on the same Business Day the Fund is notified of the purchase request for
Designated Portfolio Shares pursuant to Section 1.3(a) (unless the Fund
determines and so advises the Company that sufficient proceeds are available
from redemption of Shares of other Designated Portfolios effected pursuant to
redemption requests tendered by the Company on behalf of the Account). If
federal funds are not received on time, such funds will be invested, and
Designated Portfolio Shares purchased thereby will be issued, as soon as
practicable and the Company shall promptly, upon the Fund's request, reimburse
the Fund for any charges, costs, fees, interest or other expenses incurred by
the Fund in connection with any advances to, or borrowing or overdrafts by, the
Fund, or any similar expenses incurred by the Fund, as a result of portfolio
transactions effected by the Fund based upon such purchase request. Upon
receipt of federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the Fund.
(c) The Fund will redeem Designated Portfolio Shares requested on
behalf of the Account, and make payment therefore, in accordance with the
provisions of the then current registration statement of the Fund. Payment for
Designated Portfolio Shares redeemed by the Account or the Company normally
shall be made in federal funds transmitted by wire to the Company or any other
designated person on the same Business Day that the Fund is properly notified
of the redemption order for such Shares pursuant to Section 1.3(a) (unless
redemption proceeds are to be applied to the purchase of Shares of other
Designated Portfolios in accordance
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with Section 1.3(b) of this Agreement). The Fund shall not bear any
responsibility whatsoever for the proper disbursement or crediting of redemption
proceeds by the Company, the Company alone shall be responsible for such action.
(d) Any purchase or redemption request for Designated Portfolio Shares
held or to be held in the Company's general account shall be effected at the
net asset value per share next determined after the Fund's receipt of such
request, provided that, in the case of a purchase request, payment for Fund
Shares so requested is received by the Fund in federal funds prior to close of
business for determination of such value, as defined from time to time in the
Fund Prospectus.
1.4. The Fund shall use its best efforts to make the net asset value per
share for each Designated Portfolio available to the Company by 6:30 p.m.
Eastern Time each Business Day, and in any event, as soon as reasonably
practicable after the net asset value per share for such Designated Portfolio is
calculated, and shall calculate such net asset value in accordance with the
Fund's Prospectus. Any material error in the calculation or reporting of net
asset value per share, dividend or capital gain information shall be reported to
the Company promptly upon discovery by the Fund. A material error in the
calculation of net asset value per share shall be corrected in accordance with
the procedures for correcting net asset value errors adopted by the Fund's Board
of Trustees and in effect at the time of the error. Any administrative or other
costs or losses directly incurred for correcting Contract owner accounts shall
be the Underwriter's expense. The Fund represents and warrants that its
procedures for correcting net asset value errors, including determinations of
materiality, currently comply, and will continue to comply, with the 1940 Act
and generally industry-wide accepted SEC staff interpretations concerning
pricing errors in effect at the time of an error.
1.5. The Fund shall furnish notice (by wire or telephone followed by
written confirmation) to the Company as soon as reasonably practicable of any
income dividends or capital gain distributions payable on any Designated
Portfolio Shares. The Company, on its behalf and on behalf of the Account,
hereby elects to receive all such dividends and distributions as are payable on
any Designated Portfolio Shares in the form of additional Shares of that
Designated Portfolio. The Company reserves the right, on its behalf and on
behalf of the Account, to revoke this election and to receive all such dividends
and capital gain distributions in cash. The Fund shall notify the Company of the
number of Designated Portfolio Shares so issued as payment of such dividends and
distributions.
1.6. Issuance and transfer of Fund Shares shall be by book entry only.
Stock certificates will not be issued to the Company or the Account. Purchase
and redemption orders for Fund Shares shall be recorded in an appropriate ledger
for the Account or the appropriate subaccount of the Account.
1.7. The parties hereto acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the Fund's Shares may be sold to other
insurance companies (subject to Section 1.8 hereof) and to certain qualified
retirement plans, and the cash value of the Contracts may be invested in other
investment companies.
1.8. The Underwriter and the Fund shall sell Fund Shares only to
Participating Insurance Companies and their separate accounts and to persons or
plans ("Qualified Persons") that qualify to purchase Shares of the Fund under
Section 817(h) of the Internal Revenue Code of
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1986, as amended (the "Code"), and the regulations thereunder without impairing
the ability of the Account to consider the portfolio investments of the Fund as
constituting investments of the Account for the purpose of satisfying the
diversification requirements of Section 817(h). The Underwriter and the Fund
shall not sell Fund Shares to any insurance company or separate account unless
an agreement complying with Article VI of this Agreement is in effect to govern
such sales. The Company hereby represents and warrants that it and the Account
are Qualified Persons. The Fund reserves the right to cease offering Shares of
any Designated Portfolio in the discretion of the Fund.
ARTICLE II. Representations, Warranties and Covenants
2.1. The Company represents and warrants that the Contracts (a) are or,
prior to issuance, will be registered under the 1933 Act or, alternatively (b)
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 securities and state securities
and insurance laws. The Company further represents and warrants that it is an
insurance company duly organized and in good standing under applicable law, that
it has legally and validly established the Account prior to any issuance or sale
thereof as a segregated asset account under applicable insurance laws, and that
it (a) has registered or, prior to any issuance or sale of the Contracts, will
register the 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, or alternatively (b) has not registered the Account in proper
reliance upon an exclusion from registration under the 1940 Act. The Company
shall register and qualify the Contracts or interests therein as securities in
accordance with the laws of the various states only if and to the extent deemed
advisable by the Company.
2.2. The Fund represents and warrants that Fund Shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance in all material respects with all applicable
federal and state securities laws and that the Fund is and shall remain
registered under the 0000 Xxx. The 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 the shares of the Designated
Portfolios. The Fund shall register and qualify such 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 Underwriter after taking into consideration any
state insurance law requirements.
2.3. The Fund makes no representations as to whether any aspect of its
operations, including, but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states, except that the Fund represents that the investment policies, fees and
expenses of the Designated Portfolios, are and shall at all times remain in
compliance with the insurance laws of the State of Minnesota to the extent
required to perform this Agreement.
2.4. The Fund represents that it is a Massachusetts business trust duly
organized and validly existing under the laws of the Commonwealth of
Massachusetts and that the Designated Portfolios do and will comply in all
material respects with all applicable provisions of the 1940 Act.
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2.5. The Underwriter represents and warrants that it is a member in good
standing of FINRA and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the shares of
the Designated Portfolios in accordance with any applicable state and federal
securities laws.
2.6. The Adviser represents and warrants that it is and shall remain duly
registered as an investment adviser under all applicable federal and state
securities laws and that it shall perform its obligations for the Fund in
compliance in all material respects with any applicable state and federal
securities laws.
2.7. The Fund, the Adviser and the Underwriter represent and warrant that
all of their trustees, directors, officers, employees, investment advisers, and
other individuals or entities dealing with the money and/or securities of the
Fund are and shall continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund in an amount not less than
the minimum coverage as required currently by Rule 17g-1 of the 1940 Act or such
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.
2.8. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals or entities
employed or controlled by the Company dealing with the money and/or securities
of the Account are covered by a blanket fidelity bond or similar coverage for
the benefit of the Account, in an amount not less than $5 million. The aforesaid
bond includes coverage for larceny and embezzlement and is issued by a reputable
bonding company. The Company agrees to hold for the benefit of the Fund and to
pay to the Fund any amounts lost from larceny, embezzlement or other events
covered by the aforesaid bond to the extent such amounts properly belong to the
Fund pursuant to the terms of this Agreement. The Company agrees to make all
reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
2.9. The Company represents and warrants that all shares of the Designated
Portfolios purchased by the Company will be purchased on behalf of one or more
unmanaged separate accounts that offer interests therein that are registered
under the 1933 Act and upon which a registration fee has been or will be paid or
that are unregistered because the interests are exempt from registration under
the 1933 Act, and the Company acknowledges that the Fund intends to rely upon
this representation and warranty for purposes of calculating SEC registration
fees payable with respect to such Shares of the Designated Portfolios pursuant
to Form 24F-2 or any similar form or SEC registration fee calculation procedure
that allows the Fund to exclude Shares so sold for purposes of calculating its
SEC registration fee. The Company will certify the amount of any Shares of the
Designated Portfolios purchased by the Company on behalf of any separate account
offering interests not subject to registration under the 1933 Act. The Company
agrees to cooperate with the Fund on no less than an annual basis to certify as
to its continuing compliance with this representation and warranty.
2.10. The Company represents and warrants as follows:
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(a) The Company has in place an AML Program including at a minimum
the following elements:
(i) Implementation and maintenance of client identification
procedures and "know your customer" procedures appropriate to potential and
existing customers.
(ii) Adoption of an AML Program by a designated person with
authority to oversee the AML policies and procedures; and
(iii) Education and/or training programs for officers and
employees regarding AML policies and procedures.
Company agrees to comply with its obligations under anti-money laundering
("AML") laws, rules and regulations, including but not limited to its
obligations under the United States Bank Secrecy Act of 1970, as amended (by the
USA PATRIOT Act of 2001 and other laws) and the rules, regulations and official
guidance issued thereunder (collectively, the "BSA").
(b) The Company agrees to take all reasonable steps to ensure that it
does not engage in transactions with any person, government or entity (i)
subject to economic sanctions administered by the Department of the Treasury's
Office of Foreign Assets Control ("OFAC") or (ii) appearing on OFAC's Specially
Designated Nationals ("SDN") list or (iii) designated by the Department of
Treasury as being subject to Special Measures under Section 311 of the USA
Patriot Act. .
(c) The Company hereby represents, covenants and warrants to the Fund
and the Underwriter that:
(i) None of the Company's employees who are authorized in connection with
their employment to transact business with the Fund or Underwriter in accounts
in the Company's name, in any nominee name maintained for the Company, or for
which the Company serves as financial institution of record are designated or
targeted under any of the Sanctions or Special Measures and that no transactions
placed in any such accounts by any of the Company's authorized employees will
contravene any of the Sanctions or Special Measures;
(ii) As the Sanctions or Special Measures are updated, the Company shall
periodically review them to confirm that none of the Company's employees that
are authorized to transact business with the Fund or Underwriter are designated
or targeted under any of the Sanctions or Special Measures; and
(iii) The Company, including any of the Company's affiliates, does not
maintain offices in any country or territory to which any of the Sanctions or
Special Measures prohibit the export of services or other dealings.
The Company agrees to notify the Fund and the Underwriter or the Portfolios'
transfer agent promptly when and if it learns that the establishment or
maintenance of any account holding, or transaction in or relationship with a
holder of, Portfolio shares pursuant to this Agreement violates or appears to
violate any of the Sanctions or Special Measures.
The Fund and/or Underwriter reserve the right to request written certification
from the Company affirming that its AML program continues to abide by applicable
AML laws and regulations. The Company agrees to make AML documentation available
for review by the Fund and/or Underwriter, its auditors and/or Government
Examiners.
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2.11. The Company has developed, implemented and maintains policies and
procedures reasonably designed to prevent the use of the Account(s) by persons
engaged in short-term trading or excessive trading. The Company agrees to
comply with the provisions of Schedule D attached hereto, which are designed to
carry out the provisions of Rule 22c-2 of the 1940 Act.
The Company represents and warrants that it has reserved sufficient
flexibility in the Contracts to impose such limitations and restrictions on
transfers and purchases of the underlying investments for the Contracts,
including specifically the Designated Portfolios, as provided for in Schedule D
to this Agreement.
The Company acknowledges that all orders accepted by the Company for the
Accounts are subject to the obligations of the Company in this Section 2.11,
including the obligation to prevent the use of the Accounts for short-term
trading or excessive trading, and that the Fund, the Adviser or the Underwriter
may take such actions as it deems to be in the best interests of shareholders
of the Designated Portfolios to enforce such obligations and to otherwise
prevent such trading in shares of the Designated Portfolios as provided for in
Schedule D to this Agreement.
The Fund, the Adviser and the Underwriter shall not be responsible for any
losses or costs incurred by the Company, the Account or Account participants as
a result of the revocation, rejection or cancellation of orders made by the
Company in furtherance of the enforcement of their policy to prevent short-term
trading and excessive trading in shares of the Designated Portfolios.
2.12. The Company shall comply with any applicable privacy and notice
provisions of 15 U.S.C. sections 6801-6827 and any applicable regulations
promulgated thereunder (including but not limited to 17 C.F.R. Part 248) as
they may be amended.
2.13. Neither the Fund, any Designated Portfolio, the Underwriter, nor
any of their affiliates shall be liable for any information provided to the
Company pursuant to this Agreement which information is based on incorrect
information supplied by the Company to the Fund or the Underwriter. The Company
agrees that the Fund, the Underwriter and the Adviser shall bear no
responsibility for any act of any unaffiliated fund or the investment adviser or
underwriter thereof.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company with as many copies of
the Fund's current prospectus (describing only the Designated Portfolios listed
on Schedule B) and Statement of Additional Information ("SAI") as the Company
may reasonably request. If requested by the Company in lieu thereof, the Fund
shall provide such documentation (including a final copy of the new prospectus
on computer diskette or other electronic means at the Fund's expense) and other
assistance as is reasonably necessary in order for the Company once each year
(or more frequently if the prospectus and/or SAI for a Designated Portfolio is
amended) to have the prospectus, private offering memorandum or other disclosure
document ("Disclosure Document") for the Contracts and the prospectus for the
Designated Portfolios printed together in one document. Alternatively, the
Company may print the Fund's prospectus and/or its SAI in
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combination with other fund companies' prospectuses and statements of
additional information. Expenses with respect to the foregoing shall be borne
as provided under Article V.
3.2. The Fund's prospectus shall state that the current SAI for the Fund is
available from the Underwriter or the Company (or in the Fund's discretion, the
prospectus shall state that the SAI is available from the Fund) and the Fund
shall provide a copy of such SAI to any owner of a Contract who requests such
SAI and to the Company in such quantities as the Company may reasonably request.
Expenses with respect to the foregoing shall be borne as provided under Article
V.
3.3. The Fund shall provide the Company with copies of its proxy
statements, reports to shareholders, and other communications to shareholders of
the Designated Portfolios in such quantity as the Company shall reasonably
require for distributing to Contract owners. Expenses with respect to the
foregoing shall be borne as provided under Article V.
3.4. The Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote the shares of each Designated Portfolio in accordance
with instructions received from Contract owners; and
(c) vote shares of each Designated Portfolio for which no
instructions have been received in a particular separate account
in the same proportion as shares of such Designated Portfolio for
which instructions have been received in that separate account, so
long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contract owners or to the extent otherwise required by law. The
Company reserves the right to vote shares of each Designated
Portfolio held in any segregated asset account in its own right,
to the extent permitted by law.
3.5. The Fund reserves the right, upon prior written notice to the Company
(given at the earliest practicable time), to take all actions, including but not
limited to, the dissolution, termination, merger and sale of all assets of the
Fund or any Designated Portfolio upon the sole authorization of the Board, to
the extent permitted by the laws of the Commonwealth of Massachusetts and the
1940 Act.
3.6. Participating Insurance Companies shall be responsible for assuring
that each of their separate accounts participating in a Designated Portfolio
calculates voting privileges as required by the Mixed and Shared Funding
Exemptive Order and consistent with any reasonable standards that the Fund may
adopt and provide in writing.
3.7. It is understood and agreed that, except with respect to information
regarding the Fund, the Underwriter, the Adviser or Designated Portfolios
provided in writing by the Fund, the Underwriter or the Adviser, none of the
Fund, the Underwriter or the Adviser is responsible for the content of the
prospectus or statement of additional information for the Contracts.
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3.8 If the Fund and the Company agree to distribute Fund summary
prospectuses to Contract owners pursuant to Rule 498 of the 1933 Act, as set
forth in Schedule E of this Agreement, then each party to the Agreement
represents and warrants that it complies with the requirements of Rule 498 and
applicable SEC guidance regarding the Rule in connection therewith, and that it
maintains policies and procedures reasonably designed to ensure that it can meet
its obligations in connection with Fund summary prospectuses. The parties agree
to comply with the terms included in the attached Schedule E as of the effective
date of this Agreement.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, each piece of sales literature or other promotional
material that the Company develops or uses and in which the Fund (or a
Designated Portfolio thereof) or the Adviser or the Underwriter is named at
least ten Business Days prior to its use. The Fund or its designee reserves the
right to reasonably object to the use of any such sales literature or other
promotional material in which the Fund (or a Designated Portfolio thereof) or
the Adviser or the Underwriter is named within ten Business Days after receipt
of such material, and no such material shall be used if the Fund or its designee
so objects.
4.2. The Company shall not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus or SAI for the Fund
Shares, as such registration statement and prospectus or SAI may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee or by the Underwriter, except with the written permission of the Fund
or the Underwriter or the designee of either.
4.3. The Fund and the Underwriter, or their designee, shall furnish, or
shall cause to be, furnished, to the Company or its designee, each piece of
sales literature or other promotional material that it develops or uses and in
which the Company, the Account(s) and/or the Contracts are named at least ten
Business Days prior to its use. The Company or its designee reserves the right
to reasonably object to the use of any such sales literature or other
promotional material in which the Company, the Account(s) and/or the Contracts
are named within ten Business Days after receipt of such material, and no such
material shall be used if the Company or its designee so objects.
4.4. The Fund and the Underwriter shall not give any information or make
any representations on behalf of the Company or concerning the Company, the
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), or SAI for the Contracts, as
such registration statement, prospectus, or SAI may be amended or supplemented
from time to time, or in published reports for the 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 its
designee, except with the written permission of the Company.
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4.5. The Fund will provide to the Company at least one complete copy of all
registration statements, any prospectuses and SAIs, reports, proxy statements,
and all amendments to any of the above, that relate to the Designated
Portfolio(s) reasonably promptly after the filing of such document(s) with the
SEC or FINRA or other regulatory authorities. Upon request, the Fund will
provide to the Company copies of SEC exemptive orders and no-action letters and
sales literature and other promotional material that relate to the Designated
Portfolios and to the performance of this Agreement by the parties.
4.6. The Company will provide to the Fund at least one complete copy of all
registration statements, any prospectuses (which shall include an offering
memorandum, if any, if the Contracts issued by the Company or interests therein
are not registered under the 0000 Xxx) and SAIs, reports, solicitations for
voting instructions, and all amendments to any of the above, that relate to the
Contracts or the Account(s) reasonably promptly after the filing of such
document(s) with the SEC or FINRA or other regulatory authorities. Or, if a
Contract and its associated Account are exempt from registration, at the time
such documents are first published. Upon request, the Company will provide to
the Fund copies of SEC exemptive orders and no-action letters, solicitations of
voting instructions and sales literature and other promotional material that
relate to the Contracts or the Account and the performance of this Agreement by
the parties. The Company shall use reasonable efforts to provide to the Fund and
the Underwriter any complaints received from the Contract owners pertaining to
the Fund or the Designated Portfolios.
4.7. The Fund will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Designated Portfolio, and of any
material change in the Fund's registration statement, particularly any change
resulting in a change to the registration statement or prospectus for any
Account. The Fund will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or
registration statement, in an orderly manner. The Fund will make reasonable
efforts to attempt to have changes affecting Contract prospectuses become
effective simultaneously with the annual updates for such prospectuses.
4.8. For purposes of this Article IV, the phrase "sales literature and
other promotional materials" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, internet website (or other electronic
media), 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, 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, SAIs, shareholder reports,
proxy materials, and any other communications distributed or made generally
available with regard to the Fund.
ARTICLE V. Fees and Expenses
5.1. Except as specifically provided in Section 5.4 of this Agreement
related to Class B or Class B2 shares, the Fund, the Adviser and the Underwriter
shall pay no fee or other
- 11 -
compensation to the Company under this Agreement, although the parties hereto
will bear certain expenses in accordance with Schedule C and other provisions of
this Agreement.
5.2. All expenses incident to performance by the Fund under this Agreement
shall be paid by the Fund, except and as further provided in Schedule C. The
cost of setting the Fund's prospectus in type, setting in type and printing the
Fund's proxy materials and reports to shareholders (including the costs of
printing a prospectus that constitutes an annual report), the preparation of all
statements and notices relating to the Fund required by any federal or state
law, and all taxes on the issuance or transfer of the Fund's Shares shall be
borne by the parties hereto as set forth in Sections 5.5 and 5.6 and on Schedule
C.
5.3. The expenses of distributing the Fund's prospectus to new and existing
owners of Contracts issued by the Company and of distributing the Fund's proxy
materials and reports to Contract owners shall be borne by the parties hereto as
set forth in Sections 5.5 and 5.6 and on Schedule C.
5.4. The provisions of this Section 5.4 apply to Class B Shares and, if
applicable, Class B2 Shares. The Company or Contracts Distributor agrees to
provide distribution services ("Distribution Services") for the Class B Shares
and, if applicable, Class B2 Shares of the Designated Portfolios including the
following types of services:
(1) Printing and mailing of Fund prospectuses, statements of
additional information, any supplements thereto and shareholder reports for
prospective Contract owners.
(2) Developing, preparing, printing and mailing of Fund
advertisements, sales literature and other promotional materials describing
and/or relating to the Fund and including materials intended for use within the
Company, or for broker-dealer only use or retail use.
(3) Holding seminars and sales meetings designed to promote the
distribution of Fund Shares.
(4) Obtaining information and providing explanations to Contract
owners regarding Fund investment objectives and policies and other information
about the Fund and its Portfolios, including the performance of the Portfolios.
(5) Training sales personnel regarding the Fund.
(6) Compensating sales personnel and financial services firms in
connection with the allocation of cash values and premiums of the Contracts to
the Fund.
(7) Personal service with respect to Fund Shares attributable to
Contract owners' accounts.
In consideration of the Company or Contracts Distributor performing the
Distribution Services and subject to the conditions and limitations provided
below, the Underwriter will make quarterly payments to the Company or Contracts
Distributor pursuant to the Fund's Master Distribution Plan for Class B Shares
and, if applicable, for Class B2 Shares, as amended from time to time, at the
annual rate of 0.25% of the average daily net asset value of the Class B Shares
and, if applicable, of the Class B2 Shares of each Designated Portfolio held by
the Company pursuant to this Agreement. The payments to the Company or
Contracts Distributor under the Master Distribution Plan for Class B or Class B2
Shares, as applicable, pursuant to the foregoing may be reduced or eliminated by
action of the Board of Trustees of the Fund, effective
- 12 -
upon notice to the Company or Contracts Distributor of such action.
The Company shall perform all record keeping services (the "Record
Keeping Services") with respect to the Contracts, including, without
limitation, the following:
(a) Maintaining separate records for each Contract owner , which shall
reflect the Designated Portfolio shares purchased and redeemed and Designated
Portfolio share balances of such Contract owners. The Company will maintain
omnibus accounts with each Designated Portfolio on behalf of Contract owners,
and such accounts shall be in the name of the Company (or its nominee) as the
record owner of shares owned by such Contract owners.
(b) Disbursing or crediting to Contract owners all proceeds of
redemptions of shares of the Designated Portfolios and processing all dividends
and other distributions reinvested in shares of the Designated Portfolios.
(c) Preparing and transmitting to Contract owners, as required by law,
periodic statements showing the total number of shares owned, purchases and
redemptions of Designated Portfolio shares and dividends and other
distributions paid, and such other information as may be required, from time to
time, by Contract owners.
(d) Maintaining and preserving all records required by law to be
maintained and preserved in connection with providing the foregoing services
for Contract owners.
(e) Generating written confirmations to Contract owners, to the extent
required by law.
(f) Administering the distribution to existing Contract owners of Fund
prospectuses, proxy materials, periodic reports to shareholders and other
materials that the Designated Portfolios provide to their shareholders (the
printing and distribution expense to be borne as set forth in Sections 5.5 and
5.6 and on Schedule C).
(g) Aggregating and transmitting purchase and redemption orders to the
Designated Portfolios on behalf of the Contract owners.
In consideration of the Company performing the Record Keeping Services and
subject to the conditions and limitations provided below, the Fund agrees to pay
the Company, quarterly, a record keeping fee at the annual rate of 0.15% of the
average daily net assets of the Class B Shares and, if applicable, of the Class
B2 Shares of each Designated Portfolio held by the Company pursuant to this
Agreement. The Company represents and agrees that no charge imposed by it on
Contract owners is specifically intended or designed to compensate the Company
for the Record Keeping Services. Only the following classes and series of DWS
INVESTMENTS VIT FUNDS pay a record keeping fee: the Class B shares of DWS RREEF
Real Estate Securities VIP and the Class B-2 shares of DWS Equity 500 index VIP.
The payments to the Company for Record Keeping Services pursuant to the
foregoing may be reduced or eliminated by action of the Board of Trustees of the
Fund, effective upon notice to the Company of such action.
- 13 -
5.5 In addition to the provisions set forth in Schedule C, the
Fund will bear, or arrange for others to bear, the material, usual, customary
and reasonable costs of preparing and filing with the SEC the Fund's prospectus,
statement of additional information and any amendments or supplements thereto
(collectively, the "Fund Prospectus"), fund proxy and similar materials such as
voting solicitation instructions, and other shareholder communications required
to be produced and distributed as determined by the Company as a result of Fund
changes driven by Fund including, but not limited to, a liquidation of the
assets and termination of its existence or other reorganization, or merger of
Fund; a change in the name, fund fees, investment strategy or objective or an
investment adviser of Fund; and any other Fund change not otherwise itemized
herein (collectively "Fund-Driven Event Fund Disclosure Materials").
Fund will bear, or arrange for others to bear, the material, usual,
customary and reasonable costs of providing any Fund-Driven Event Fund
Disclosure Materials to the Company; printing any Fund-Driven Event Fund
Disclosure Materials; distributing any printed Fund-Driven Event Fund Disclosure
Materials to Participants including postage costs of mailing printed Fund-Driven
Event Fund Disclosure Materials and making Fund-Driven Event Fund Disclosure
Materials available electronically; and expenses associated with the operational
(i.e. systems and technology) costs to facilitate the Fund changes. At the
option of the Company, Fund will either:
(a) set for printing, print and provide to the Company as many copies
of the Fund-Driven Event Fund Disclosure Materials as the Company may
reasonably request for distribution to Participants; or
(b) provide the Company with camera-ready copy, computer disk, or
other medium agreed to by the Parties, of Fund-Driven Event Fund Disclosure
Materials in a form suitable for printing.
Fund will provide to the Company in a timely fashion the complete
information needed to distribute printed Fund-Driven Event Fund Disclosure
Materials or make such Fund-Driven Event Fund Disclosure Materials available
electronically.
Fund will bear, or arrange for others to bear, the material, usual,
customary and reasonable costs of proxy voting including, but not limited to,
vote assembly, postage, processing, tabulation and project management.
Fund will reimburse the Company for any material, usual, customary and
reasonable costs the Company incurs under this Section 5.5. The Company agrees
to use its best efforts to minimize any such costs and will provide Fund with
acceptable documentation of any such costs incurred.
5.6 In addition to the provisions set forth in Schedule C, the Fund
will bear, or arrange for others to bear, the material, usual, customary and
reasonable costs of preparing and filing with the SEC the Account's prospectus
and statement of additional information and any amendments or supplements
thereto (collectively, the "Account Prospectus"), account proxy and similar
materials such as voting solicitation instructions, and other communications
required to be produced and distributed as determined by the Company as a result
of Fund changes driven by Fund including, but not limited to, a liquidation of
the assets and termination of its existence or
- 14 -
other reorganization, or merger of Fund; a change in the name, fund fees,
investment strategy or objective or an investment adviser of Fund; and any other
Fund change not otherwise itemized herein (collectively, "Fund-Driven Event
Account Disclosure Materials").
Fund will bear, or arrange for others to bear, the material, usual,
customary and reasonable costs of printing any Fund-Driven Event Account
Disclosure Materials; distributing any printed Fund-Driven Event Account
Disclosure Materials to Participants and prospective Participants (as
appropriate) under the Contracts (collectively, "Prospects") including postage
costs of mailing printed Fund-Driven Event Account Disclosure Materials and
making Fund-Driven Event Account Disclosure Materials available electronically;
and expenses associated with the operational (i.e. systems and technology) costs
to facilitate the Fund changes. At its option, the Company will, as appropriate:
(a) set for printing and print as many copies of the Fund-Driven Event
Account Disclosure Materials as the Company may reasonably need for
distribution to Participants and Prospects, and mail such materials; and
(b) prepare the Fund-Driven Event Account Disclosure Materials in
electronic format, and make such materials available electronically.
Fund will provide to Company in a timely fashion the complete information
needed to distribute printed Fund-Driven Event Account Disclosure Materials or
make Fund-Driven Event Account Disclosure Materials available electronically.
Fund will reimburse the Company for the Company's material, usual,
customary and reasonable costs incurred under this Section 5.6. The Company
agrees to use its best efforts to minimize any such costs and will provide Fund
with acceptable documentation of any such costs incurred.
ARTICLE VI. Diversification and Qualification
6.1. The Fund will invest the assets of each Designated Portfolio in such a
manner as to ensure that the Contracts will be treated as annuity or life
insurance contracts, whichever is appropriate, under the Code and the
regulations issued thereunder (or any successor provisions). Without limiting
the scope of the foregoing, the Fund will, with respect to each Designated
Portfolio, comply with Section 817(h) of the Code and Treasury Regulation
Section 1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, and any amendments or other modifications or successor provisions to
such Section or Regulations. In the event of a breach of this Article VI by the
Fund, it will take all reasonable steps (a) to notify the Company of such breach
and (b) to adequately diversify the affected Designated Portfolio so as to
achieve compliance within the grace period afforded by Treasury Regulation
Section 1.817-5.
6.2. The Fund represents that each Designated Portfolio is or will be
qualified as a Regulated Investment Company under Subchapter M of the Code, and
that it will make every
- 15 -
effort to maintain such qualification (under Subchapter M or any successor or
similar provisions) and that it will notify the Company immediately upon having
a reasonable basis for believing that a Designated Portfolio has ceased to so
qualify or that it might not so qualify in the future.
6.3. The Company represents that the Contracts are currently, and at the
time of issuance shall be, treated as life insurance or annuity contracts, under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment, and that it will notify the Fund and the Underwriter
immediately upon having a reasonable basis for believing the Contracts have
ceased to be so treated or that they might not be so treated in the future. The
Company agrees that any prospectus offering a contract that is intended to be a
"modified endowment contract" as that term is defined in Section 7702A of the
Code (or any successor or similar provision), shall identify such contract as a
modified endowment contract.
ARTICLE VII. Potential Conflicts
7.1. The 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 insurance laws or
regulations; (c) a tax ruling or provision of the Internal Revenue Code or the
regulations thereunder; (d) any other development relating to the tax treatment
of insurers, contract or policy owners or beneficiaries of variable annuity
contracts or variable life insurance policies; (e) the manner in which the
investments of any Designated Portfolio are being managed; (f) a difference in
voting instructions given by variable annuity contract owners, on the one hand,
and variable life insurance policy owners, on the other hand, or by the contract
owners or policy owners of different Participating Insurance Companies; or (g) a
decision by a Participating Insurance Company to disregard the voting
instructions of its contract owners. The Board shall promptly inform the
Company by written notice if it determines that an irreconcilable material
conflict exists and the implications thereof.
7.2. The Company and the Adviser will report any potential or existing
conflicts of which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, by providing the 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
owner voting instructions are disregarded. At least annually, and more
frequently if deemed appropriate by the Board, the Company shall submit to the
Adviser, and the Adviser shall at least annually submit to the Board, such
reports, materials and data as the Board may reasonably request so that the
Board may fully carry out the obligations imposed upon it by the conditions
contained in the Mixed and Shared Funding Exemptive Order; and said reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Board. The responsibility to report such information and conflicts to the
Board will be carried out with a view only to the interests of the Contract
owners.
7.3. If it is determined by a majority of the Board, or a majority of its
disinterested members, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested Board members), take whatever steps are necessary
- 16 -
to remedy or eliminate the irreconcilable material conflict, up to and
including: (1) withdrawing the assets allocable to some or all of the separate
accounts from the Fund or any Designated Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to) another
Designated 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 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 (2) establishing a new registered management
investment company or managed separate account.
7.4. 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 any Designated Portfolio 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.
The Company will bear the cost of any remedial action, including such withdrawal
and termination. 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 the Fund shall continue
to accept and implement orders by the Company for the purchase (and redemption)
of shares of such Designated Portfolio.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the Fund and terminate this Agreement with
respect to such Account within 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 Fund shall continue to
accept and implement orders by the Company for the purchase (and redemption) of
shares of such Designated Portfolios.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority
of the disinterested members of the 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 7.3 to establish a new funding
medium for the Contract 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 an Account's investment in any Designated Portfolio and
terminate this Agreement 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.
- 17 -
7.7. If and to the extent the Mixed and Shared Funding Exemption Order or
any amendment thereto contains terms and conditions different from Sections 3.4,
3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement, then the Fund and/or the
Participating Insurance Companies, as appropriate, shall take such steps as may
be necessary to comply with the Mixed and Shared Funding Exemptive Order, and
Sections 3.4, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue
in effect only to the extent that terms and conditions substantially identical
to such Sections are contained in the Mixed and Shared Funding Exemptive Order
or any amendment thereto. If and to the extent that Rule 6e-2 and Rule 6e-3(T)
are amended, or Rule 6e-3 or any similar rule 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 Mixed and Shared
Funding Exemptive Order) on terms and conditions materially different from those
contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund
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 or any similar rule, as adopted, to the extent such rules are
applicable; and (b) Sections 3.4, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 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 VIII. Indemnification
8.1. Indemnification By the Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Adviser and the Underwriter and each of its trustees, directors and officers,
and each person, if any, who controls the Fund, the Adviser or Underwriter
within the meaning of Section 15 of the 1933 Act or who is under common control
with the Underwriter, excluding any Participating Insurance Company,
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company) or litigation
(including legal and other expenses) ("Losses"), to which the Indemnified
Parties may become subject under any statute or 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 Shares of the Designated Portfolios or the Contracts; and:
(i) arise out of or are based upon any
untrue statement or alleged untrue statements of any material fact contained in
the registration statement, prospectus (which shall include an offering
memorandum, if any), or SAI for the Contracts or contained in the Contracts or
sales literature or promotional materials 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 in writing
to the Company by or on behalf of the Fund for use in the registration
statement, prospectus or SAI for the Contracts or in the Contracts or sales
literature or promotional materials (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or Fund Shares;
or
- 18 -
(ii) arise out of or as a result of
statements or representations (other than statements or representations
contained in the registration statement, prospectus, SAI, or sales literature
or promotional materials of the Fund not supplied by the Company or persons
under its control) or wrongful conduct of the Company or its agents or persons
under the Company's authorization or control, with respect to the sale or
distribution of the Contracts or Fund Shares; or
(iii) arise out of or are based upon any
untrue statements or alleged untrue statements of any material fact contained
in any registration statement, prospectus, statement of additional information
or sales literature for any fund not affiliated with the Fund or the Company
("Unaffiliated Fund"), or arise out of or are based upon 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, or otherwise
pertain to or arise in connection with the availability of any Unaffiliated
Fund as an underlying funding vehicle in respect of the Contracts, or arise out
of or are based upon any act or omission on the part of the investment adviser
or underwriter of an Unaffiliated Fund, but only to the extent that the Company
is entitled to indemnification for such Losses from the Unaffiliated Fund. To
the extent such Losses are with respect to a fund affiliated with the Company,
the limitation created by the final clause preceding this sentence will not
apply; or
(iv)arise out of any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement, prospectus, SAI, or sales literature or promotional materials 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 and in conformity with information furnished
to the Fund by or on behalf of the Company; or
(v) 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
(vi) 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 8.1(b), 8.1(c)
and 8.1(d) hereof.
(b) The Company 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 its obligations or duties either under this
Agreement or to the Company, the Fund, the Adviser, the Underwriter or the
Account, whichever is applicable.
- 19 -
(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 that it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision, except to the extent that
the Company has been materially prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, the Company shall
be entitled to participate, at its 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 and to settle the claim at its
own expense; provided, however, that no such settlement shall, without the
Indemnified Parties' written consent, include any factual stipulation referring
to the Indemnified Parties or their conduct. After notice from the Company to
such party of the Company'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 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 operation of
the Fund.
8.2. Indemnification by the Underwriter
(a) The Underwriter agrees to indemnify and hold harmless the Company
and each of its 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 8.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter) or litigation (including legal and
other expenses) to which the Indemnified Parties may become subject under any
statute or 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 Shares of the Designated
Portfolios 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 SAI or sales literature or
promotional materials of the 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
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 Underwriter
or Fund by or on behalf of the Company for use in the registration statement,
prospectus or SAI for the Fund or in sales literature or promotional materials
(or any amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Fund Shares; or
- 20 -
(ii) arise out of or as a result of
statements or representations (other than statements or representations
contained in the registration statement, prospectus, SAI or sales literature or
promotional materials for the Contracts not supplied by the Underwriter or
persons under its control) or wrongful conduct of the Fund or Underwriter 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, SAI or sales literature or promotional materials
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 the Fund or the Underwriter; or
(iv) arise out of or result from any
material breach of any representation, warranty or agreement made by the
Underwriter, the Adviser or the Fund in this Agreement (including a failure of
the Fund, whether unintentional or in good faith or otherwise, to comply with
the diversification and other qualification requirements specified in Article
VI of this Agreement);
as limited by and in accordance with the provisions of Sections 8.2(b), 8.2(c)
and 8.2(d) hereof.
(b) The Underwriter 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 either under
this Agreement or to the Company, the Fund, the Adviser, the Underwriter or the
Account, whichever is applicable.
(c) The Underwriter 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 Underwriter 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 Underwriter
of any such claim shall not relieve the Underwriter from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision, except to the extent that
the Underwriter has been materially prejudiced by such failure to give notice.
In case any such action is brought against the Indemnified Party, the
Underwriter will be entitled to participate, at its own expense, in the defense
thereof. The Underwriter also shall be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action and to settle the
claim at its own expense; provided, however, that no such settlement shall,
without the Indemnified Parties' written consent, include any factual
stipulation referring to the Indemnified Parties or their conduct. After notice
from the Underwriter to such party of the Underwriter'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 Underwriter will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by such party
- 21 -
independently in connection with the defense thereof other than reasonable
costs of investigation.
(d) The Indemnified Parties agree promptly to notify the Underwriter
of the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Contracts or the operation of the Account.
8.3. Indemnification By the Fund
(a) The Fund agrees to indemnify and hold harmless the Company and
each of its 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 8.3) against any and all
losses, claims, expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Fund) or litigation (including legal
and other expenses) to which the Indemnified Parties may be required to pay or
may become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, expenses, damages, liabilities or expenses (or
actions in respect thereof) or settlements, are related to the operations of
the Fund and arise out of or result from any material breach of any
representation, warranty or agreement made by the Fund in this Agreement
(including a failure, whether unintentional or in good faith or otherwise, to
comply with the diversification and other qualification requirements specified
in Article VI of this Agreement);
as limited by and in accordance with the provisions of Sections 8.3(b), 8.3(c)
and 8.3(d) hereof.
(b) The Fund 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 either under this Agreement or to
the Company, the Fund, the Adviser, the Underwriter or the Account, whichever
is applicable.
(c) The Fund 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 Fund 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 Fund of any such claim shall not
relieve the Fund from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision, except to the extent the Fund has been materially
prejudiced by such failure to give notice. In case any such action is brought
against the Indemnified Parties, the Fund will be entitled to participate, at
its own expense, in the defense thereof. The Fund also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action and to settle the claim at its own expense; provided, however, that no
such settlement shall, without the Indemnified Parties' written consent include
any factual stipulation referring to the Indemnified Parties or their conduct.
After notice from the Fund to such party of the Fund'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 Fund will not be liable to such
party under this Agreement for any legal or other
- 22 -
expenses subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation.
(d) The Indemnified Parties agree promptly to notify the Fund of the
commencement of any litigation or proceeding against it or any of its
respective officers or trustees in connection with the Agreement, the issuance
or sale of the Contracts, the operation of any Account, or the sale or
acquisition of Shares of the Fund.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
9.2. This Agreement shall be subject to the applicable provisions of the
1933, 1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, any Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith. If, in the future, the Mixed and Shared Funding Exemptive Order
should no longer be necessary under applicable law, then Article VII shall no
longer apply.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party, for any reason with respect to some or
all Designated Portfolios, by sixty (60) days advance written notice delivered
to the other parties; or
(b) termination by the Company by written notice to the Fund, the
Adviser and the Underwriter based upon the Company's reasonable and good faith
determination that Shares of any Designated Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(c) termination by the Company by written notice to the Fund, the
Adviser and the Underwriter in the event any of the Designated Portfolio's
Shares are not registered, issued or sold in accordance with applicable state
and/or federal securities laws or such law precludes the use of such Shares as
the underlying investment media of the Contracts issued or to be issued by the
Company; or
(d) termination by the Fund, the Adviser or Underwriter in the event
that formal administrative proceedings are instituted against the Company or
any affiliate by FINRA, the SEC, the Insurance Commissioner or like official of
any state or any other regulatory body regarding the Company's duties under
this Agreement or related to the sale of the Contracts, the operation of any
Account, or the purchase of the Fund's Shares; provided, however, that the
Fund, the Adviser or Underwriter determines in its sole judgment exercised in
good faith, that any such administrative proceedings will have a material
adverse effect upon the ability of the Company to perform its obligations under
this Agreement; or
- 23 -
(e) termination by the Company in the event that formal administrative
proceedings are instituted against the Fund, the Adviser or Underwriter or any
affiliate by FINRA, the SEC, or any state securities or insurance department or
any other regulatory body; provided, however, that the Company determines in its
sole judgment exercised in good faith, that any such administrative proceedings
will have a material adverse effect upon the ability of the Fund or Underwriter
to perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the Fund, the
Adviser and the Underwriter with respect to any Designated Portfolio in the
event that such Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M or fails to comply with the Section 817(h) diversification
requirements specified in Article VI hereof, or if the Company reasonably
believes that such Designated Portfolio may fail to so qualify or comply; or
(g) termination by any of the Fund, the Adviser or the Underwriter by
written notice to the Company, if any of the Fund, the Adviser or the
Underwriter respectively, shall determine, in their sole judgment exercised in
good faith, that the Company has suffered a material adverse change in its
business, operations, financial condition or prospects since the date of this
Agreement or is the subject of material adverse publicity; or
(h) termination by the Company by written notice to the Fund, the
Adviser and the Underwriter, if the Company shall determine, in its sole
judgment exercised in good faith, that the Fund, the Adviser or the Underwriter
has suffered a material adverse change in its business, operations, financial
condition or prospects since the date of this Agreement or is the subject of
material adverse publicity; or
(i) termination by the Company upon any substitution of the Shares of
another investment company or series thereof for Shares of a Designated
Portfolio of the Fund in accordance with the terms of the Contracts, provided
that the Company has given at least 45 days prior written notice to the Fund and
Underwriter of the date of substitution; or
(j) termination by any party in the event that the Fund's Board of
Trustees determines that a material irreconcilable conflict exists as provided
in Article VII; or
(k) at the option of the Company, as one party, or the Fund, the
Adviser and the Underwriter, as one party, upon the other party's material
breach of any provision of this Agreement upon 30 days' written notice and the
opportunity to cure within such notice period; or
(l) at the option of the Fund or the Adviser in the event the
Contracts are not treated as life insurance or annuity contracts under
applicable provisions of the Code.
10.2. Notwithstanding any termination of this Agreement, the Fund and the
Underwriter shall, at the option of the Company, continue, for a two year period
from the date of termination and from year to year thereafter if deemed
appropriate by the Fund and the Adviser, to make available additional Shares of
a Designated Portfolio 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"), unless the
Underwriter elects to compel a substitution of other securities for the Shares
of the Designated Portfolios, in which case, the substituted securities shall be
available for such period to the Company. Specifically, the owners of the
Existing Contracts may be permitted to reallocate investments in the Designated
Portfolios, redeem investments in the Designated Portfolios and/or invest in the
- 24 -
Designated Portfolios upon the making of additional purchase payments under the
Existing Contracts (subject to any such election by the Underwriter). The
parties agree that this Section 10.2 shall not apply to any terminations under
Article VII and the effect of such Article VII terminations shall be governed by
Article VII of this Agreement. The parties further agree that this Section 10.2
shall not apply to any terminations under Section 10.1(d) or (l) of this
Agreement.
10.3. The Company shall not redeem Fund Shares attributable to the
Contracts (as opposed to Fund Shares attributable to the Company's assets held
in the Account) except (i) as necessary to implement Contract owner initiated or
approved transactions, (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"), (iii) as permitted
by an order of the SEC pursuant to Section 26(c) of the 1940 Act, but only if a
substitution of other securities for the Shares of the Designated Portfolios is
consistent with the terms of the Contracts or (iv) as permitted under the terms
of the Contract. Upon request, the Company will promptly furnish to the Fund and
the Underwriter reasonable assurance that any redemption pursuant to clause (ii)
above is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terms of the Contacts, the Company shall not prevent
Contract owners from allocating payments to a Designated Portfolio that is
otherwise available under the Contracts without first giving the Fund or the
Underwriter 90 days notice of its intention to do so.
10.4. In the event of termination of this Agreement, (i) so long as Shares
of the Fund are made available to Existing Contracts pursuant to Section 10.2,
the provisions of this Agreement shall continue as to Existing Contracts; and
(ii) each party's obligations under Article II (Representations, Warranties and
Covenants), Article V (Fees and Expenses), Article VIII (Indemnification),
Article IX (Applicable Law) and under Section 12.1 of Article XII related to
confidentiality shall survive termination regardless of whether Shares continue
to be offered to Existing Contracts.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail or overnight mail through a nationally-recognized delivery
service 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 Fund:
DWS Variable Series I
DWS Variable Series II
DWS Investments VIT Funds
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
- 25 -
If to the Company: With a copy to:
RiverSource Life Insurance Company RiverSource Life Insurance Company
1765 Ameriprise Financial Center 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Xxxxxx, Attn: General Counsel
Vice President - National Sales Manager
and Fund Management
If to the Contracts Distributor: With a copy to:
RiverSource Distributors, Inc. RiverSource Distributors, Inc.
50606 Ameriprise Financial Center 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Xxxxxx, President Attn: General Counsel
If to the Underwriter:
DWS Investments Distributors, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
If to the Adviser:
Deutsche Investment Management Americas Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
ARTICLE XII. Miscellaneous
12.1. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names, addresses
and TINs of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize such
names and addresses and other confidential information without the express
written consent of the affected party until such time as such information has
come into the public domain.
In addition, each Fund and the Underwriter shall not, directly or indirectly,
disclose or use any nonpublic personal information, including but not limited to
TINs, regarding the consumers or customers of the Company (as defined in Rule
3(g) and 3(j), respectively, of Regulation S-P of the Securities and Exchange
Commission) ("Confidential Information"), other than to carry out the functions
contemplated by this Agreement. The foregoing obligation of confidentiality
shall not extend to any portion of the Confidential Information that is, or
becomes, generally available
- 26 -
to the general public from: (a) federal, State or local governmental records, (
b) widely distributed media, or (c) disclosures to the general public that are
required to be made by federal, State or local law.
12.2. 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.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. This Agreement incorporates the entire understanding and agreement
among the parties hereto, and supersedes any and all prior understandings and
agreements between the parties hereto with respect to the subject matter hereof.
12.5. 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.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
FINRA, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the State Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity
operations of the Company are being conducted in a manner consistent with the
State variable annuity laws and regulations and any other applicable law or
regulations.
12.7. 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.
12.8. This Agreement or any of the rights and obligations hereunder may not
be assigned by any party without the prior written consent of all parties
hereto.
12.9. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee upon request copies of the following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under generally accepted
accounting principles ("GAAP")) filed with any state or federal regulatory body
or otherwise made available to the public, as soon as practicable and in any
event within 90 days after the end of each fiscal year; and
(b) any registration statement (without exhibits) and financial
reports of the Company filed with the Securities and Exchange Commission or any
state insurance regulatory, as soon as practicable after the filing thereof.
- 27 -
12.10. All persons are expressly put on notice of the Fund's Agreement and
Declaration of Trust and all amendments thereto, all of which are on file with
the Secretary of the Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability contained therein. This Agreement has been
executed by and on behalf of the Fund by its representatives as such
representatives and not individually, and the obligations of the Fund with
respect to a Designated Portfolio hereunder are not binding upon any of the
trustees, officers or shareholders of the Fund individually, but are binding
upon only the assets and property of such Designated Portfolio. All parties
dealing with the Fund with respect to a Designated Portfolio shall look solely
to the assets of such Designated Portfolio for the enforcement of any claims
against the Fund hereunder.
12.11. The Company is expressly put on notice that prospectus disclosure
regarding the potential risks of mixed and shared funding may be appropriate.
12.12. No provision of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
parties.
- 28 -
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 and
its seal to be hereunder affixed hereto as of the date first above written.
COMPANY: RIVERSOURCE LIFE INSURANCE
COMPANY
By:
--------------------------------------
Title:
-----------------------------------
CONTRACTS DISTRIBUTOR: RIVERSOURCE DISTRIBUTORS, INC.
By:
--------------------------------------
Title:
-----------------------------------
FUND: DWS VARIABLE SERIES I
By:
--------------------------------------
Title:
-----------------------------------
DWS VARIABLE SERIES II
By:
--------------------------------------
Title:
-----------------------------------
DWS INVESTMENTS VIT FUNDS
By:
--------------------------------------
Title:
-----------------------------------
- 29 -
UNDERWRITER: DWS INVESTMENTS DISTRIBUTORS, INC.
By:
--------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Title:
ADVISER: DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By:
--------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Title:
-----------------------------------
- 30 -
SCHEDULE A
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED BY BOARD OF DIRECTORS
-------------------------------------------------------------------
RiverSource Variable Annuity Account July 15, 1987
RiverSource Account F May 13, 1981
RiverSource Variable Account 10 August 23, 1995
RiverSource Variable Life Separate Account October 16, 1985
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
-----------------------------------------
RiverSource Variable Annuity Account
RiverSource(R) AccessChoice Select Variable Annuity
RiverSource(R) Builder Select Variable Annuity
RiverSource(R) Endeavor Select Variable Annuity
RiverSource(R) FlexChoice Variable Annuity
RiverSource(R) FlexChoice Select Variable Annuity
RiverSource(R) Galaxy Premier Variable Annuity
RiverSource(R) Innovations Classic Variable Annuity
RiverSource(R) Innovations Classic Select Variable Annuity
RiverSource(R) Innovations Variable Annuity
RiverSource(R) Innovations Select Variable Annuity
RiverSource(R) New Solutions Variable Annuity
RiverSource(R) New Solutions Select Variable Annuity
RiverSource(R) Pinnacle Variable Annuity
RiverSource(R) Signature Variable Annuity
RiverSource(R) Signature Select Variable Annuity
RiverSource(R) Signature One Select Variable Annuity
RiverSource(R) Signature One Variable Annuity
Evergreen Essential(SM) Variable Annuity
Evergreen New Solutions Variable Annuity
Evergreen New Solutions Select Variable Annuity
Evergreen Pathways(SM) Variable Annuity
Evergreen Pathways(SM) Select Variable Annuity
Evergreen Privilege(SM) Variable Annuity
Xxxxx Fargo Advantage(R) Variable Annuity
Xxxxx Fargo Advantage(R) Select Variable Annuity
Xxxxx Fargo Advantage(R) Builder Variable Annuity
Xxxxx Fargo Advantage Choice(SM) Variable Annuity
Xxxxx Fargo Advantage Choice(SM) Select Variable Annuity
RiverSource Account F
---------------------
RiverSource(R) Flexible Annuity
RiverSource(R) Employee Benefit Annuity
RiverSource(R) Variable Retirement Annuity
RiverSource(R) Combination Retirement Annuity
- 31 -
RiverSource Variable Account 10
-------------------------------
RiverSource(R) Retirement Group Variable Annuity Contract I
RiverSource(R) Retirement Group Variable Annuity Contract II
RiverSource Retirement Advisor 5 Advantage(R) Variable Annuity
RiverSource Retirement Advisor 5 Select(R) Variable Annuity
RiverSource Retirement Advisor 5 Access(R) Variable Annuity
RiverSource Retirement Advisor 4 Advantage(R) Variable Annuity
RiverSource Retirement Advisor 4 Select(R) Variable Annuity
RiverSource Retirement Advisor 4 Access(R) Variable Annuity
RiverSource Retirement Advisor Advantage Plus(R) Variable Annuity
RiverSource Retirement Advisor Advantage Select Plus(R) Variable Annuity
RiverSource Retirement Advisor Advantage(R) Variable Annuity
RiverSource Retirement Advisor Select(R) Variable Annuity
RiverSource Retirement Advisor Advantage(R) Variable Annuity - Band 3
RiverSource Retirement Advisor Variable Annuity(R)
RiverSource Retirement Advisor Variable Annuity(R) - Band 3
RiverSource(R) Flexible Portfolio Annuity
RiverSource Variable Life Separate Account
------------------------------------------
RiverSource Succession Select(R) Variable Life Insurance
RiverSource(R) Variable Universal Life
RiverSource(R) Variable Universal Life III
RiverSource(R) Variable Universal Life IV
RiverSource(R) Variable Universal Life IV - Estate Series
- 32 -
SCHEDULE B
DESIGNATED PORTFOLIOS
AND CLASSES THEREOF
A. DWS VARIABLE SERIES I
DWS Capital Growth VIP
DWS Global Opportunities VIP
DWS Growth & Income VIP
DWS Health Care VIP
DWS International VIP
DWS Bond VIP
B. DWS VARIABLE SERIES II
DWS Blue Chip VIP
DWS Core Fixed Income VIP
DWS Global Thematic VIP
DWS Government & Agency Securities VIP
DWS High Income VIP
DWS International Select Equity VIP
DWS Large Cap Value VIP
DWS Mid Cap Growth VIP
DWS Money Market VIP
DWS Small Cap Growth VIP
DWS Strategic Income VIP
DWS Technology VIP
DWS Balanced VIP
DWS Dreman High Return Equity VIP
DWS Dreman Small Mid Cap Value VIP
DWS Alternative Asset Allocation VIP
C. DWS INVESTMENTS VIT FUNDS
DWS Equity 500 Index VIP
DWS VIT Small Cap Index VIP
- 33 -
SCHEDULE C
EXPENSES
ITEM FUNCTION PARTY
RESPONSIBLE
FOR EXPENSE
FUND PROSPECTUS
Update Typesetting Fund
New Sales: Printing Company
Distribution Company
Existing Owners: Printing Fund
Distribution Fund
STATEMENTS OF ADDITIONAL INFORMATION Same as Prospectus
PROXY MATERIALS OF THE FUND Typesetting Fund
Printing Fund
Distribution Fund
ANNUAL REPORTS AND OTHER COMMUNICATIONS WITH
SHAREHOLDERS OF THE FUND
All Typesetting Fund
Marketing (1) Printing Company
Distribution Company
Existing Owners: Printing Fund
Distribution Fund
OPERATIONS OF FUND All operations and related expenses, including
the cost of registration and qualification
of the Fund's shares, preparation and filing
of the Fund's prospectus and registration
statement, proxy materials and reports,
the preparation of all statements and notices
required by any federal or state law and all taxes
on the issuance of the Fund's shares, and all costs
of management of the business affairs of the Fund.
-------------------------
(1) Solely as it relates to the contracts listed on Schedule A, as it is
attached to the same Agreement as this Schedule C.
- 34 -
SCHEDULE D
RULE 22C-2 PROVISIONS
For Schedule D, the following terms shall have the following meanings, unless a
different meaning is clearly required by the contexts:
The term "Good Cause" means an instance where the Fund has experienced unusual
levels or patterns of purchase or redemption activity and the Fund reasonably
believes such activity is an indication that trading activity in an account is
inconsistent with Fund policies, thereby requiring additional Shareholder
information to investigate compliance with Fund policies.
The term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by the Fund under the Investment Company
Act of 1940 that are held by the Company on behalf of its separate accounts.
The term "Shareholder" means the holder of interests in a variable annuity or
variable life insurance contract issued by the Company ("Contract"), or a
participant in an employee benefit plan with a beneficial interest in a
Contract.
The term "Shareholder-Initiated Transfer Purchase" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract to a Fund, but does not include the following: (i)
transactions that are executed automatically pursuant to a contractual or
systematic program or enrollment such as transfer of assets within a Contract to
a Fund as a result of "dollar cost averaging" programs, insurance company
approved asset allocation programs, or automatic rebalancing programs; (ii)
transactions that are executed pursuant to a Contract death benefit; (iii)
step-up in Contract value pursuant to a Contract death benefit; (iv) allocation
of assets to a Fund through a Contract as a result of payments such as loan
repayments, scheduled contributions, retirement plan salary reduction
contributions, or employer matching contributions, or planned premium payments
to the Contract; or (v) prearranged transfers at the conclusion of a required
free look period.
The term "Shareholder-Initiated Transfer Redemption" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract out of a Fund, but does not include transactions that are
executed: (i) automatically pursuant to a contractual or systematic program or
enrollments such as transfers of assets within a Contract out of a Fund as a
result of annuity payouts, loans, systematic withdrawal programs, dollar-cost
averaging programs, insurance company approved asset allocation programs or
automatic rebalancing programs; (ii) as a result of any deduction of charges or
fees under a Contract; (iii) within a Contract out of a Fund as a result of
scheduled withdrawals or surrenders from a Contract; (iv) as a result of payment
of a death benefit from a Contract; or (v) as a result of loans.
The Fund, Underwriter and the Company hereby agree as follows:
- 35 -
SHAREHOLDER INFORMATION
1. AGREEMENT TO PROVIDE INFORMATION. Company agrees to provide the Fund or its
designee, upon written request of the Underwriter or the Fund, the taxpayer
identification number ("TIN"), the Individual/International Taxpayer
Identification Number ("ITIN"), or other government-issued identifier ("GII")
and the Contract owner number or participant account number associated with the
Shareholder, if known, of any or all Shareholder(s) of the account, and the
amount, date, name or other identifier of any investment professional(s)
associated with the Shareholder(s) or the account (if known) and transaction
type (purchase, redemption, transfer, or exchange) of every purchase,
redemption, transfer, or exchange of Shares held through an account for
Shareholder maintained by the Company during the period covered by the request.
Unless otherwise specifically requested by the Fund for Good Cause, the Company
shall only be required to provide information relating to Shareholder-Initiated
Transfer Purchases or Shareholder-Initiated Transfer Redemptions.
2. PERIOD COVERED BY REQUEST. Requests must set forth a specific period, not to
exceed 90 days from the date of the request, for which transaction information
is sought. The Underwriter and/or the Fund may request transaction information
older than 90 days from the date of the request as they deem necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund, provided that the Fund shall pay the reasonable expenses of
the Company in complying with requests for information regarding transactions
that occurred more than 90 days prior to the date of such request.
3. TIMING OF REQUESTS. The Fund requests for Shareholder information shall be
made no more frequently than quarterly except as the Fund has Good Cause that a
more frequent request is necessary to enforce the Fund's restrictions on market
timing and similar abusive transactions.
4. FORM AND TIMING OF RESPONSE.
(a) Company agrees to provide, promptly upon request of the Fund or its
designee, the requested information specified in section 1 above. If
requested by the Fund or its designee, Company agrees to use best
efforts to determine promptly whether any specific person about whom
it has received the identification and transaction information
specified in section 1 is itself a financial intermediary (as defined
in Rule 22c-2) ("indirect intermediary") and, upon further request of
the Fund, the Underwriter or their designee, promptly either (i)
provide (or arrange to have provided) the information set forth in
paragraph 1 for those Shareholders who hold an account with an
indirect intermediary or (ii) restrict or prohibit the indirect
intermediary from purchasing, in nominee name on behalf of other
persons, securities issued by the Fund. Company additionally agrees to
inform the Fund whether it plans to perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing
and in a format mutually agreed upon by the Fund, the Underwriter or
their designee and the Company.
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(c) To the extent practicable, the format for any transaction information
provided to the Fund, the Underwriter or their designee should be
consistent with the NSCC Standardized Data Reporting Format
5. LIMITATIONS ON USE OF INFORMATION. The Underwriter and the Fund agree not
to use the information received pursuant to this Agreement for any purpose other
than as necessary to comply with the provisions of Rule 22c-2 or to fulfill
other regulatory requests or legal requirements subject to the privacy
provisions of Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and
comparable state laws. The Underwriter and the Fund further agree to protect
the information provided pursuant to this Agreement, whether provided to the
Underwriter, the Fund or their designee, with at least the same degree of care
that is used to protect its own confidential and personally identifiable
information, but in no event less than is required for compliance with all
applicable laws.
6. BREACH OF SECURITY. The Fund has established and maintains procedures for
the notification of affected persons in the event of a breach of security
involving confidential information. The Underwriter and the Fund agree to
notify the Company promptly following the discovery or notification of any
material breach of security involving information provided to the Fund or its
designee by the Company pursuant to this Schedule D. The Underwriter and the
Fund agree to reimburse the Company, its affiliated entities, and all other
entities acting on behalf of any of them against losses relating to such breach
of security, including: (i) direct costs for the notification of any
Shareholders whose information was subject to the breach of security; and (ii)
any other costs that may be incurred, including, but not limited to, any fine,
penalties, judgment or other losses, each to the extent relating to a breach of
security involving information provided to the Fund or its designee pursuant to
this Schedule D.
7. AGREEMENT TO RESTRICT TRADING. Company agrees to execute written
instructions from the Underwriter or the Fund to restrict or prohibit further
purchases or exchanges of Shares by a Shareholder that has been identified by
the Underwriter or the Fund as having engaged in transactions of the Fund's
Shares (directly or indirectly through the Company's separate account) that
violate policies established by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares issued by the Fund,
except that this provision shall not require the Company to breach any terms of
its existing contracts with Contract owners. Unless otherwise directed by the
Fund, any such restrictions or prohibitions shall only apply to
Shareholder-Initiated Transfer Purchases that are effected directly or
indirectly through Company. In no event shall such restrictions or prohibitions
prohibit redemptions from the Fund. Instructions must be received by Company at
the following address, or such other address that Company may communicate to the
Underwriter or the Fund in writing from time to time, including, if applicable,
an e-mail and/or facsimile telephone number:
RiverSource Life Insurance Company
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
xxxxxxxx.x.xxxx@xxxx.xxx
FAX: 000-000-0000
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8. FORM OF INSTRUCTIONS. Instructions to restrict or prohibit trading must
include the TIN, ITIN, or GII and the specific individual Contract owner number
or participant account number associated with the Shareholder, if known, and the
specific restriction(s) to be executed, including how long the restriction(s)
is(are) to remain in place. If the TIN, ITIN, GII or the specific individual
Contract owner number or participant account number associated with the
Shareholder is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates. Upon request of the Company, the
Fund agrees to provide to the Company, along with any written instructions to
prohibit further purchases or exchanges of Shares by Shareholder, information
regarding those trades of the Contract owner that violated the Fund's policies
relating to eliminating or reducing any dilution of the value of the Fund's
outstanding Shares.
9. TIMING OF RESPONSE. Company agrees to execute instructions from the Fund to
restrict or prohibit trading as soon as reasonably practicable, but not later
than five (5) business days after receipt of the instructions by the Company.
10. CONFIRMATION BY COMPANY. Company must provide written confirmation to the
Underwriter and the Fund that instructions to restrict or prohibit trading have
been executed. Company agrees to provide confirmation as soon as reasonably
practicable, but not later than ten (10) business days after the instructions
have been executed.
11. FORCE MAJEURE. Notwithstanding any other provisions of this Schedule D to
the contrary, neither the Company, the Fund nor the Underwriter shall be liable
for any delay (not to exceed fifteen (15) business days) in performance or
non-performance, in whole or in part, resulting from such party's failure or
inability to perform under this Schedule D because of acts of God, acts of
governmental or military authority, national emergencies, insurrection, war,
riots, equipment failure or damage beyond its reasonable control, or other
causes beyond its reasonable control. This section 11 shall not excuse any
party from any liability which results from failure to have in place reasonable
disaster recovery and safeguarding plans adequate for protection of all data
which each party to this Schedule D is responsible for maintaining.
12. MONITORING REQUIREMENT. Nothing herein, nor any action by the Company,
shall be construed as, or infer that Company has, undertaken any duty or
obligation, whether express or implied, at law or in equity, to separately
monitor for and detect trading activities inconsistent with or in violation of
the Fund's policies and/or procedures on limiting the dilution of value of
outstanding securities of the Fund.
13. CONSTRUCTION OF THE SCHEDULE; FUND PARTICIPATION AGREEMENT. This Schedule
D supplements the Fund Participation Agreement. To the extent the terms of this
Schedule D conflict with the terms of the Fund Participation Agreement, the
terms of this Schedule D shall control.
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SCHEDULE E
All capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such term in the Agreement.
1. For purposes of this Schedule E, the terms Summary Prospectus and Statutory
Prospectus shall have the same meaning as set forth in Rule 498.
2. The Fund shall provide the Company with copies of the Summary Prospectuses
and any supplements thereto in the same manner and at the same times as the
Agreement requires that the Fund provide the Company with Statutory
Prospectuses.
3. The Fund and Underwriter represent and warrant that the Summary Prospectuses
and the web site hosting of such Summary Prospectuses will comply with the
requirements of Rule 498 applicable to the Fund and its Portfolios. The Fund and
Underwriter further represent and warrant that it has appropriate policies and
procedures in place to ensure that such web site continuously complies with Rule
498.
4. The Fund agrees that the URL indicated on each Summary Prospectus will lead
Contract owners directly to the web page used for hosting Summary Prospectuses
and that such web page will host the current Fund documents required to be
posted in compliance with Rule 498.
5. The Fund and Underwriter represent and warrant that each will be responsible
for compliance with the provisions of Rule 498(f)(i) involving Contract owner
requests for additional Fund documents made directly to the Fund or the
Underwriter, or one of their affiliates. The Fund and Underwriter further
represent and warrant that any information obtained about Contract owners
pursuant to this provision will be used solely for the purposes of responding to
requests for additional Fund documents.
6. The Company represents and warrants that it will be responsible for
compliance with the provisions of Rule 498(f)(i) involving Contract owner
requests for additional Fund documents made directly to the Company or one of
its affiliates.
7. The Company represents and warrants that any bundling of Summary Prospectuses
and Statutory Prospectuses will be done in compliance with Rule 498.
8. At the Company's request, the Fund will provide the Company with URLs to the
current Fund documents for use with Company's electronic delivery of Fund
documents or on the Company's website. The Fund and Underwriter will each be
responsible for ensuring the integrity of the URLs and for maintaining the
Fund's current documents on the site to which such URLs originally navigate to.
9. If the Fund determines that it will end its use of the Summary Prospectus
delivery option, the Fund will use its best efforts to provide the Company with
at least 60 days' advance notice of its intent so that the Company can arrange
to deliver a Statutory Prospectus in place of a Summary Prospectus. In order to
comply with Rule 498(e)(1), the Fund shall continue to maintain its website in
compliance with the requirements of this Agreement and Rule 498 for a minimum of
90 days after the termination of any such notice period.
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10. The parties agree that all other provisions of the Agreement, including the
Indemnification provisions, will apply to the terms of this Schedule E as
applicable.
11. The parties agree that the Company is not required to distribute Summary
Prospectuses to its Contract owners, but rather use of the Summary Prospectus
will be at the discretion of the Company; provided that if the Company does not
deliver the Summary Prospectus, it must deliver the Statutory Prospectus
instead. The Company agrees that it will give the Fund sufficient notice of its
intended use of the Summary Prospectuses or the Statutory Prospectus.
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