PARTICIPATION AGREEMENT
By and Among
XXXXXX ADVISORS TRUST
And
LIBERTY XXXXXX ASSET MANAGEMENT, L.P.
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of this 30th day of August,
1999, by and among XXXXXX ADVISORS TRUST, an open-end management investment
company organized under the laws of the Commonwealth of Massachusetts (the
"Fund"), LIBERTY XXXXXX ASSET MANAGEMENT, L.P., a limited partnership organized
under the laws of Delaware (the "Adviser") and AMERICAN ENTERPRISE LIFE
INSURANCE COMPANY, an Indiana life insurance company (the "Company"), on its own
behalf and on behalf of each separate account of the Company named in Schedule 1
to this Agreement, as may be amended from time to time, (each account referred
to as the "Account").
WHEREAS, the Fund was established for the purpose of serving as the investment
vehicle for (i) insurance company separate accounts supporting variable annuity
contracts and variable life insurance policies to be offered by insurance
companies that have entered into participation agreements with the Fund (the
"Participating Insurance Companies"), and (ii) certain pension and retirement
plans ("Qualified Entities") receiving favorable tax treatment under the
Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"); and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (each a "Portfolio" and collectively, the
"Portfolios"); and
WHEREAS, the Fund has received an order from the Securities & Exchange
Commission (the "SEC") granting Participating Insurance Companies and their
separate accounts relief from the provisions of Sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940 (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 and each Portfolio thereof to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
unaffiliated Participating Insurance Companies and certain qualified pension and
retirement plans outside of the separate account context (the "Exemptive
Order"); and
WHEREAS, the Company has registered or, prior to offering for sale will
register, certain variable annuity contracts and/or variable life insurance
polices (the "Contracts") under the Securities Act of 1933 (the "1933 Act"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule 2 to
this Agreement, as may be amended from time to time, on behalf of the Account to
fund the Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree as
follows:
ARTICLE I. SALE AND REDEMPTION OF FUND SHARES
1.1. The Fund will sell to the Company those shares of the Portfolios that each
Account orders, executing such orders on a daily basis at the net asset
value next computed after receipt and acceptance by the Fund (or its
agent). Shares of a particular Portfolio of the Fund will be ordered in
such quantities and at such times as determined by the Company to be
necessary to meet the requirements of the Contracts. The Board of Trustees
of the Fund (the "Fund Board") may refuse to sell shares of any Portfolio
to any person, or suspend or
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terminate the offering of shares of any Portfolio if such action is
required by law or by regulatory authorities having jurisdiction or is,
in the sole discretion of the Fund Board, acting in good faith and in light
of its fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Portfolio.
1.2. The Fund will redeem any full or fractional shares of any Portfolio when
requested by the Company on behalf of an Account at the net asset value
next computed after receipt by the Fund (or its agent) of the request for
redemption, as established in accordance with the provisions of the then
current prospectus of a Portfolio. Notwithstanding the foregoing, (i) the
Company shall not redeem Fund shares attributable to Contract owners except
in the circumstances permitted in Section 1.12, and (ii) the Fund may delay
redemption of Fund shares of any Portfolio to the extent permitted by the
1940 Act and any rules thereunder, or as described in a Portfolio's
prospectus.
1.3. For purposes of Sections 1.1 and 1.2, the Fund hereby appoints the Company
as its agent for the limited purpose of receiving purchase and redemption
orders resulting from investment in and payments under the Contracts.
Receipt by the Company will constitute receipt by the Fund provided that:
(a) such orders are received by the Company in good order prior to the time
the net asset value of each Portfolio is priced in accordance with its
prospectus (such time referred to as the "Close of Trading"); and (b) the
Fund receives notice of such orders by 9:00 a.m. Central Time on the next
following Business Day. "Business Day" will mean any day on which the New
York Stock Exchange is open for trading and on which the Fund calculates
its net asset value pursuant to the rules of the SEC.
1.4. The Company will pay for a purchase order on the same Business Day as the
Fund receives notice of the purchase order in accordance with Section 1.3.
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Payment for such purchase order will be made in Federal funds transmitted
by wire to the Fund. Such wire transfer will be initiated by the Company's
bank by 1:00 p.m. Central Time. The Fund will pay for a redemption order on
the same Business Day as the Fund receives notice of the redemption order
in accordance with Section 1.3. Payment for such redemption order will be
made in Federal funds transmitted by wire to the Company or any other
person properly designated in writing by the Company. The Fund reserves the
right to suspend payment consistent with Section 22(e) of the Investment
Company Act of 1940, as amended (the "1940 Act") and any rules thereunder.
If payment for a redemption order would require a Portfolio to dispose of
portfolio securities or otherwise incur additional costs, payment will be
made within five days and the Fund will promptly notify the Company of such
delay. The Fund will not bear any responsibility whatsoever for the proper
disbursement or crediting of redemption proceeds by the Company; the
Company alone will be responsible for such action.
1.5. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate subaccount of each
Account.
1.6. The Fund will furnish same-day notice (by wire or telephone, followed by
written confirmation) to the Company of the declaration of any income,
dividends or capital gain distributions payable on each Portfolio's shares.
The Company hereby elects to receive all such dividends and distributions
as are payable on the Portfolio shares in the form of additional shares of
that Portfolio. The Company reserves the right to revoke this election and
to receive all such dividends and distributions in cash. The Fund will
notify the Company of the number of shares so issued as payment of such
dividends and distributions.
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1.7. The Fund will make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical
after the net asset value per share is calculated. The Fund will use its
reasonable best efforts to make such net asset value per share available by
5:30 p.m. Central Time, and will use its best efforts to make such net
asset value per share available by 6:00 p.m. Central Time each Business
Day. The Fund will notify the Company as soon as possible if it is
determined that the net asset value per share will be available after 6:00
p.m. Central Time on any Business Day, and the Fund and the Company will
mutually agree upon a final deadline for timely receipt of the net asset
value on such Business Day.
1.8. Any material errors in the calculation of net asset value, dividends or
capital gain information will be reported immediately upon discovery to the
Company. An error will be deemed "material" based on the Fund's
interpretation of the SEC's position and policy with regard to materiality,
as it may be modified from time to time. If the Company is provided with
materially incorrect net asset value information, the Company will be
entitled to an adjustment to the number of shares purchased or redeemed to
reflect the correct net asset value per share. Neither the Fund, the
Adviser, nor any of their affiliates will be liable for any information
provided to the Company pursuant to this Agreement which information is
based on incorrect information supplied by or on behalf of the Company to
the Fund or the Adviser.
1.9. The Fund agrees that its shares will be sold only to Participating
Insurance Companies and their separate accounts and to Qualified Entities
to the extent permitted by the Exemptive Order. No shares of any Portfolio
will be sold directly to the general public. The Company agrees that Fund
shares will be used only for the purposes of funding the Contracts and
Accounts listed in Schedule 1, as amended from time to time.
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1.10.The Company and the Fund acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the cash value of the Contracts may be
invested in other investment companies, provided, however, that (i) such
other investment company, or series thereof, has investment objectives or
policies that are substantially different from the investment objectives
and policies of the Fund underlying the Contracts specified; or (ii) the
Company gives the Fund thirty days written notice of its intention to make
such other investment company available as a funding vehicle for the
Contracts; or (iii) such other investment company was available as a
funding vehicle for the Contracts prior to the date of this Agreement and
the Company so informs the Fund prior to the execution of this Agreement;
or (iv) the Fund consents to the use of such other investment company, such
consent not to be unreasonably withheld.
1.11.The Fund agrees that all Participating Insurance Companies will have the
obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 3.4 and
Article IV of this Agreement.
1.12.The Company may withdraw the Account's investment in the Fund or a series
thereof only: (i) as necessary to facilitate Contract owner requests; (ii)
upon a determination by a majority of the Fund Board, or a majority of
disinterested Fund Board members, that an irreconcilable material conflict
exists among the interests of (x) some or all Contract owners or owners of
other variable annuity contracts and variable life insurance policies
supported by accounts investing assets attributable thereto in the Fund or
(y) some or all of the Participating Insurance Companies and/or a person or
plan that qualifies to purchase shares of the Fund that is investing in the
Fund; or (iii) in the event that shares of another investment company are
substituted for Portfolio shares in accordance with the terms of the
Contracts upon the (x) requisite vote of the Contract owners having an
interest in the affected
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Portfolio and the requisite written consent of the Fund (unless otherwise
required by applicable law); (y) upon issuance of an SEC exemptive order
pursuant to Section 26(b) of the 1940 Act permitting such substitution; or
(z) as may otherwise be permitted under applicable law.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that:
(a) it is an insurance company duly organized and in good standing
under applicable law;
(b) it has legally and validly established or, prior to offering
the Contracts for sale will legally and validly establish,
each Account as a separate account under applicable state law;
(c) it has registered or, prior to offering the Contracts for sale
will register, to the extent necessary each Account as a unit
investment trust in accordance with the provisions of the 1940
Act to serve as a segregated investment account for the
Contracts;
(d) it has filed or will file to the extent necessary the
Contracts' registration statements under the 1933 Act and
these registration statements will be declared effective by
the SEC prior to offering the Contracts;
(e) the Contracts will be filed and qualified and/or approved for
sale, as applicable, under the insurance laws and regulations
of the states in which the Contracts will be offered prior to
the sale of Contracts in such states;
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(f) it will amend the registration statement under the 1933 Act
for the Contracts and the registration statement under the
1940 Act for the Account from time to time as required in
order to effect the continuous offering of the Contracts or as
may otherwise be required by applicable law, but in any event
it will maintain a current effective Contracts' and Account's
registration statement for so long as the Contracts are
outstanding unless the Company has supplied the Fund with an
SEC no-action letter, opinion of counsel or other evidence
satisfactory to the Fund's counsel to the effect that
maintaining such registration statement on a current basis is
no longer required;
(g) it has adopted and implement internal controls reasonably
designed to prevent purchase and redemption orders received
after the Close of Trading on any given Business Day from
being aggegated with orders received before the Close of
Trading on that Business Day; and
(h) all orders that the Company transmits to the Fund or it's
agent for processing as of a particular Business Day will
relate only to instructions received by the Company prior to
the Close of Trading on that Business Day.
2.2. The Company represents and warrants that the Contracts are intended to
be treated as annuity or life insurance contracts under applicable
provisions of the Internal Revenue Code, and that it will make every
effort to maintain such treatment and that it will notify the Fund and
the Adviser immediately upon having a reasonable basis for believing
that the Contracts have ceased to be so treated or that they might not
be so treated in the future.
2.3. The Fund represents and warrants that:
(a) it is duly organized and validly existing under applicable
state law;
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(b) it has registered with the SEC as an open-end management
investment company under the 1940 Act;
(c) Fund shares of the Portfolios offered and sold pursuant to
this Agreement will be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law;
(d) it is registered under the 1940 Act;
(e) it will amend the registration statement for its shares under
the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of its shares;
(f) it believes that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue
Code, it will make every effort to maintain such qualification
(under Subchapter M or any successor or similar provision) and
it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so
qualify or that it might not so qualify in the future; and
(g) it will qualify the shares of the Portfolios for sale in
accordance with the laws of the various states to the extent
deemed advisable by the Fund. The Fund makes no representation
as to whether any aspect of its operations (including, but not
limited to, fees and expenses and investment policies,
objectives and restrictions) complies with the insurance laws
and regulations of any state. The Fund agrees that it will
furnish the information required by state insurance laws so
that the Company can obtain the authority needed to issue the
Contracts in the various states.
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2.4. The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it reserves the right to make such payments in the
future. To the extent that the Fund decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund undertakes to have its Fund
Board, a majority of whom are not "interested" persons of the Fund,
formulate and approve any plan under Rule 12b-1 to finance distribution
expenses.
2.5. The Fund represents and warrants that it believes that the Fund's
investment policies are in material compliance with any investment
restriction set forth in Schedule 3, including restrictions relating to
the diversification requirements for variable annuity, endowment, or
life insurance contracts as set forth in Section 817(h) of the Internal
Revenue Code and Treasury Regulation 1.817-5, as amended from time to
time. Without limiting the scope of the foregoing, the Fund further
represents and warrants that it believes that it currently complies
with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, as amended from time to time, and any amendments or
other modifications to such Section or Regulation. In the event of a
breach of this representation and warranty, the Fund will take all
reasonable steps:
(a) to notify the Company of such breach; and
(b) to adequately diversify the Fund so as to achieve compliance
within the grace period afforded by Treasury
Regulation 1.817-5.
2.6. Each party represents and warrants that, as applicable, all of its
directors, officers, employees, investment advisers, and other
individuals/entities each having access to the funds and/or securities
of the Fund are and will continue to be at all times covered by a
blanket fidelity bond or similar coverage in an amount not less than
the minimal coverage as required currently by Rule
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17g-(1) of the 1940 Act or related provisions as may be promulgated
from time to time. The aforesaid bond includes coverage for larceny
and embezzlement and is issued by a reputable bonding company.
ARTICLE III. OBLIGATIONS OF THE PARTIES
3.1. The Fund will prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports,
notices, proxy materials (or similar materials such as voting
instruction solicitation materials), prospectuses and statements of
additional information of the Fund. The Fund will bear the costs of
registration and qualification of its shares, preparation and filing of
documents listed in this Section 3.1 and all taxes to which an issuer
is subject on the issuance and transfer of its shares.
3.2. At the option of the Company, the Fund will either: (a) provide the
Company with as many copies of the Fund's current prospectus, statement
of additional information, annual report, semi-annual report and other
shareholder communications, including any amendments or supplements to
any of the foregoing, as the Company will reasonably request; or (b)
provide the Company with a camera-ready copy, computer disk or other
medium agreed to by the parties of such documents in a form suitable
for printing. The Fund will bear the cost of typesetting and printing
such documents and of distributing such documents to existing Contract
owners. The Company will bear the cost of distributing such documents
to prospective Contract owners and applicants as required.
3.3. The Fund, at its expense, either will:
(a) distribute its proxy materials directly to the appropriate
Contract owners; or
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(b) provide the Company or its mailing agent with copies of its
proxy materials in such quantity as the Company will
reasonably require and the Company will distribute the
materials to existing Contract owners and will xxxx the Fund
for the reasonable cost of such distribution. The Fund will
bear the cost of tabulation of proxy votes.
3.4. With respect to any matter put to vote of the holders of Fund shares or
Portfolio shares ("Voting Shares"), if and to the extent required by
law the Company will:
(a) provide for the solicitation of voting instructions
from Contract owners;
(b) vote Voting Shares of each Portfolio held in the
Account in accordance with instructions or proxies
timely received from Contract owners; and
(c) vote Voting Shares of the Portfolios held in the
Account for which no timely instructions have been
received, in the same proportion as Voting Shares of
such Portfolio for which instructions have been
received from the Company's Contract owners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contract owners. The Company reserves the right to vote Fund shares
held in any segregated asset account in its own right, to the extent
permitted by law. The Company will be responsible for assuring that
voting privileges for the Account are determined in a manner consistent
with the provisions set forth above.
3.5. The Company will prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports,
notices,
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prospectuses and statements of additional information of the
Contracts. The Company will bear the cost of registration and
qualification of the Contracts and preparation and filing of documents
listed in this Section 3.5. The Company also will bear the cost of
typesetting, printing and distributing the documents listed in this
Section 3.5 to existing and prospective Contract owners.
3.6. The Company will furnish, or will cause to be furnished, to the Fund
or the Adviser, each piece of sales literature or other promotional
material in which the Fund or the Adviser is named, at least ten (10)
Business Days prior to its use. No such material will be used if the
Fund or the Adviser reasonably objects to such use within five (5)
Business Days after receipt of such material.
3.7. The Company will not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information
or representations contained in the registration statement, prospectus
or statement of additional information for Fund shares, as such
registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
reports or proxy statements for the Fund, or in published reports for
the Fund which are in the public domain or approved by the Fund or the
Adviser for distribution, or in sales literature or other material
provided by the Fund or by the Adviser, except with the written
permission of the Fund or the Adviser. The Fund and the Adviser agree
to respond to any request for approval on a prompt and timely basis.
Nothing in this Section 3.7 will be construed as preventing the
Company or its employees or agents from giving advice on investment in
the Fund.
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3.8. The Adviser will furnish, or will cause to be furnished, to the Company
or its designee, each piece of sales literature or other promotional
material in which the Company or its separate account is named, at
least ten (10) Business Days prior to its use. No such material will be
used if the Company reasonably objects to such use within five (5)
Business Days after receipt of such material.
3.9. The Fund and the Adviser will not give any information or make any
representations or statements on behalf of the Company or concerning
the Company, each Account, or the Contracts other than the information
or representations contained in a registration statement, prospectus or
statement of additional information for the Contracts, as such
registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
published reports for each Account or the Contracts which are in the
public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other material provided by the
Company, except with the written permission of the Company. The
Company agrees to respond to any request for approval on a prompt and
timely basis.
3.10. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, and all amendments to any of
the above, that relate to the Fund or its shares, promptly after the
filing of such document with the SEC.
3.11. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, and all
amendments to any of the above, that relate to the Contracts or each
Account, promptly after the filing of such document with the SEC.
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3.12. For purposes of this Article III, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper,
magazine, or other periodical), radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, or
other public media, (e.g., on-line networks such as the Internet or
other electronic messages), sales literature (i.e., any written
communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market
letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made
generally available to some or all agents or employees, registration
statements, prospectuses, statements of additional information,
shareholder reports, and proxy materials and any other material
constituting sales literature or advertising under the rules of the
National Association of Securities Dealers, Inc. (the "NASD"), the 1933
Act or the 0000 Xxx.
3.13. The Fund and the Adviser hereby consent to the Company's use of the
name Xxxxxx Advisors Trust and the names of the Portfolios listed on
Schedule 2, as may be amended from time to time, in connection with
marketing the Contracts, subject to the terms of Sections 3.6 and 3.7
of this Agreement. Such consent will terminate with the termination of
this Agreement.
3.14. The Adviser will be responsible for calculating the performance
information for the Fund. The Company will be responsible for
calculating the performance information for the Contracts. The Adviser
will be liable to the Company for any material mistakes it makes in
calculating the performance information for the Fund which cause losses
to the Company. The Company will be liable to the Adviser for any
material mistakes it makes in calculating the performance information
for the Contracts that cause losses to the
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Adviser. Each party will be liable for any material mistakes it makes
in reproducing the performance information for Contracts or the Fund,
as appropriate. The Fund and the Adviser agree to provide the Company
with performance information for the Fund on a timely basis to enable
the Company to calculate performance information for the Contracts in
accordance with applicable state and federal law.
ARTICLE IV. POTENTIAL CONFLICTS
4.1. The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the contract
owners of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are being managed; (e)
a difference in voting instructions given by Participating Insurance
Companies or by variable annuity and variable life insurance contract
owners; (f) a decision by an insurer to disregard the voting
instructions of contract owners; or (g) if applicable, a decision by a
Qualified Entity to disregard the voting instructions of a person
participating in such entity. The Fund Board will promptly inform the
Company if it determines that an irreconcilable material conflict
exists and the implications thereof. A majority of the Fund Board will
consist of persons who are not "interested" persons of the Fund.
4.2. The Company will report any potential or existing conflicts of which it
is aware to the Fund Board. The Company agrees to assist the Fund Board
in carrying out its responsibilities, as delineated in the Exemptive
Order, by
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providing the Fund Board with all information reasonably
necessary for the Fund Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform
the Fund Board whenever Contract owner voting instructions are to be
disregarded. The Fund Board will record in its minutes, or other
appropriate records, all reports received by it and all action with
regard to a conflict.
4.3. If it is determined by a majority of the Fund Board, or a majority of
its disinterested directors, that an irreconcilable material conflict
exists, the Company and other Participating Insurance Companies will,
at their expense and to the extent reasonably practicable (as
determined by a majority of the disinterested directors), take
whatever steps are necessary to remedy or eliminate the irreconcilable
material conflict, up to and including: (a) withdrawing the assets
allocable to some or all of the Accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another portfolio of the Fund,
or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e.,
variable annuity Contract owners or variable life insurance contract
owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected
Contract owners the option of making such a change; and (b)
establishing a new registered management investment company or managed
separate account.
4.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions, and such
disregard of voting instructions could conflict with the majority of
contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw the
affected Account's
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investment in the Fund and terminate this Agreement
with respect to such Account; provided, however, that such withdrawal
and termination will be limited to the extent required by the
foregoing irreconcilable material conflict as determined by a majority
of the disinterested directors of the Fund Board. No charge or penalty
will be imposed as a result of such withdrawal. Any such withdrawal
and termination must take place within six (6) months after the Fund
gives written notice to the Company that this provision is being
implemented. Until the end of such six-month period the Adviser and
Fund will, to the extent permitted by law and any exemptive relief
previously granted to the Fund, continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of
the Fund.
4.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company
conflicts with the majority of other state insurance regulators, then
the Company will withdraw the affected Account's investment in the
Fund and terminate this Agreement with respect to such Account;
provided, however, that such withdrawal and termination will be
limited to the extent required by the foregoing irreconcilable
material conflict as determined by a majority of the disinterested
directors of the Fund Board. No charge or penalty will be imposed as a
result of such withdrawal. Any such withdrawal and termination must
take place within six (6) months after the Fund gives written notice
to the Company that this provision is being implemented. Until the end
of such six-month period the Adviser and Fund will, to the extent
permitted by law and any exemptive relief previously granted to the
Fund, continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
4.6. For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested members of the Fund Board will determine whether
any proposed action adequately remedies any irreconcilable material
conflict, but
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in no event will the Fund or the Adviser be required to
establish a new funding medium for the Contracts. The Company will not
be required by this Article IV to establish a new funding medium for
the Contracts if an offer to do so has been declined by vote of a
majority of Contract owners affected by the irreconcilable material
conflict.
4.7. The Company will at least annually submit to the Fund Board such
reports, materials or data as the Fund Board may reasonably request so
that the Fund Board may fully carry out the duties imposed upon it as
delineated in the Exemptive Order, and said reports, materials and data
will be submitted more frequently if deemed appropriate by the Fund
Board.
4.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of
the 1940 Act or the rules promulgated thereunder with respect to mixed
or shared funding (as defined in the Exemptive Order) on terms and
conditions materially different from those contained in the Exemptive
Order, then: (a) the Fund and/or the Company, as appropriate, will take
such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) Sections 3.4, 4.1, 4.2, 4.3, 4.4, and 4.5 of this
Agreement will continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
4.9. The Company, or any affiliate, will maintain at its home office,
available to the SEC (a) a list of its officers, directors and
employees who participate directly in the management or administration
of any Accounts and/or (b) a list of its agents who, as registered
representatives, offer and sell Contracts.
ARTICLE V. INDEMNIFICATION
19
5.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund and
each person, if any, who controls or is associated with the Fund
within the meaning of such terms under the federal securities
laws (but not any Participating Insurance Companies or Qualified
Entities) and any director, trustee, officer, partner, employee
or agent of the foregoing (collectively, the "Indemnified
Parties" for purposes of this Section 5.1) against any and all
losses, claims, expenses, damages, liabilities, joint or several
(including amounts paid in settlement with the written consent of
the Company) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements:
(1) arise out of or are based on any untrue statement or
alleged untrue statement of any material fact
contained in the registration statement, prospectus
or statement of additional information for the
Contracts or contained in the Contracts or sales
literature or other promotional material for the
Contracts (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated or necessary to
make such statements not misleading in light of the
circumstances in which they were made; provided that
this agreement to indemnify will not apply as to any
Indemnified Party if such statement or omission or
such alleged statement or omission was made in
reliance upon and in conformity with information
furnished to the Company in writing by or on behalf
of the Fund for use in the registration statement,
prospectus or
20
statement of additional information for
the Contracts or in the Contracts or sales literature
(or any amendment or supplement) or otherwise for use
in connection with the sale of the Contracts or Fund
shares; or
(2) arise out of or are based on any untrue statement or
alleged untrue statement of a material fact contained
in the Fund registration statement, prospectus,
statement of additional information or sales
literature or other promotional material of the Fund
(or any amendment or supplement to any of the
foregoing), or the omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading in light of the circumstances in which
they were made, if such statement or omission was
made in reliance upon and in conformity with
information furnished to the Fund in writing by or on
behalf of the Company or persons under its control;
or
(3) arise out of or are based on any wrongful conduct of,
or violation of applicable federal or state law by,
the Company or persons under its control or subject
to its authorization or supervision with respect to
the purchase of Fund shares or the sale, marketing or
distribution of the Contracts; or
(4) arise as a result of any failure by the Company to
provide the services and furnish the materials under
the terms of this Agreement; (including but not
limited to a failure, whether unintentional or in
good faith or otherwise, to comply with the
provisions of Section 2.2 of the Agreement, unless
such failure is a result of the Fund's material
breach of the Agreement);
21
(5) arise out of any material breach of any
representation and/or warranty made by the Company in
this Agreement or arise out of or result from any
other material breach of this Agreement by the
Company or persons under its control or subject to
its authorization or supervision;
(6) arise out of any failure by the Company to prevent
orders received after the Close of Trading on a
Business Day from being aggregated and communicated
to the Fund or it's agent with orders received before
the Close of Trading on that Business Day; or
(7) arise out of any errors within the reasonable control
of the Company that result in late transmission of
orders to the Fund or it's agent;
except to the extent provided in Sections 5.1(b) and 5.3
hereof. This indemnification will be in addition to any
liability that the Company otherwise may have.
(b) No party will be entitled to indemnification under Section
5.1(a) if such loss, claim, damage, liability or litigation is
due to the willful misfeasance, bad faith, or gross negligence
in the performance of such party's duties under this
Agreement, or by reason of such party's reckless disregard of
its obligations or duties under this Agreement by the party
seeking indemnification.
(c) The Indemnified Parties promptly will notify the Company of
the commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection
with the issuance or sale of the Fund shares or the Contracts
or the operation of the Fund.
22
5.2. Indemnification By The Fund
(a) The Fund agrees to indemnify and hold harmless the Company
and each person, if any, who controls or is associated with
the Company within the meaning of such terms under the
federal securities laws and any director, trustee, officer,
partner, employee or agent of the foregoing (collectively,
the "Indemnified Parties" for purposes of this Section 5.2)
against any and all losses, claims, expenses, damages,
liabilities, joint or several (including amounts paid in
settlement with the written consent of the Fund) or
litigation (including reasonable legal and other expenses),
to which the Indemnified Parties may become subject under
any statute, regulation, at common law or otherwise, insofar
as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements:
(1) arise out of or are based on any untrue statement or
alleged untrue statement of any material fact
contained in the registration statement, prospectus
or statement of additional information for the Fund
or other information on the Fund provided in writing
to the Company (or any amendment or supplement to any
of the foregoing), or arise out of or are based on
the omission or alleged omission to state therein a
material fact required to be stated or necessary to
make such statements not misleading in light of the
circumstances in which they were made; provided that
this agreement to indemnify will not apply as to any
Indemnified Party if such statement or omission or
such alleged statement or omission was made in
reliance upon and in conformity with information
furnished to the Fund in writing by or on behalf of
the Company for use in the registration statement,
prospectus or statement of additional information for
the Fund or
23
in sales literature of the Fund (or any
amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund
shares; or
(2) arise out of or are based on any untrue statement or
alleged untrue statement of a material fact contained
in the Contract registration statement, prospectus or
statement of additional information or sales
literature or other promotional material for the
Contracts (or any amendment or supplement to any of
the foregoing), or the omission or alleged omission
to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading in light of the circumstances
in which they were made, if such statement or
omission was made in reliance upon and in conformity
with information furnished to the Company in writing
by or on behalf of the Fund or persons under its
control; or
(3) arise out of or are based on any wrongful conduct of,
or violation of applicable federal and state law by,
the Fund or persons under its control or subject to
its authorization with respect to the sale of Fund
shares; or
(4) arise as a result of any failure by the Fund or
persons under its control or subject to its
authorization to provide the services and furnish the
materials under the terms of this Agreement
including, but not limited to, a failure, whether
unintentional or in good faith or otherwise, to
comply with the diversification requirements and
procedures related thereto specified in Section 2.5
of this Agreement or any material errors in or
untimely calculation or reporting of the daily net
asset value per share or dividend or capital gain
distribution rate (referred to in this
24
Section 5.2(a)(4) as an "error"); provided, that the
foregoing will not apply where such error is the
result of incorrect information supplied by or on
behalf of the Company to the Fund, and will be
limited to (i) reasonable administrative costs
necessary to correct such error, provided that the
Fund has approved such costs and the method in which
the error is to be corrected, which approval will not
be unreasonably withheld, and (ii) amounts which the
Company has paid out of its own resources to make
Contract owners whole as a result of such error; or
(5) arise out of or result from any material breach of
any representation and/or warranty made by the Fund
in this Agreement, or arise out of or result from any
other material breach of this Agreement by the Fund
or Adviser or persons under their respective control
or subject to their authorization or supervision;
except to the extent provided in Sections 5.2(b) and 5.3
hereof.
(b) No party will be entitled to indemnification under Section
5.2(a) if such loss, claim, damage, liability or litigation is
due to the willful misfeasance, bad faith, or gross negligence
in the performance of such party's duties under this
Agreement, or by reason of such party's reckless disregard of
its obligations or duties under this Agreement by the party
seeking indemnification.
(c) The Indemnified Parties will promptly notify and the Fund of
the commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection
with the issuance or sale of the Contracts or the operation of
the Account.
25
5.3. Indemnification Procedure
Any person obligated to provide indemnification under this Article V
("Indemnifying Party" for the purpose of this Section 5.3) will not be
liable under the indemnification provisions of this Article V with
respect to any claim made against a party entitled to indemnification
under this Article V ("Indemnified Party" for the purpose of this
Section 5.3) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the
summons or other first legal process giving information of the nature
of the claim will have been served upon such Indemnified Party (or
after such party will have received notice of such service on any
designated agent), but failure to notify the Indemnifying Party of any
such claim will not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of the indemnification provision of
this Article V, except to the extent that the failure to notify results
in the failure of actual notice to the Indemnifying Party and such
Indemnifying Party is damaged solely as a result of failure to give
such notice. In case any such action is brought against the Indemnified
Party, the Indemnifying Party will be entitled to participate, at its
own expense, in the defense thereof. The Indemnifying Party also will
be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Indemnifying Party
to the Indemnified Party of the Indemnifying Party's election to assume
the defense thereof, the Indemnified Party will bear the fees and
expenses of any additional counsel retained by it, and the Indemnifying
Party will not be liable to such party under this Agreement for any
legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than
reasonable costs of investigation, unless: (a) the Indemnifying Party
and the Indemnified Party will have mutually agreed to the retention of
such counsel; or (b) the named parties to any such proceeding
(including any impleaded parties)
26
include both the Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The Indemnifying Party will not be liable for any settlement of
any proceeding effected without its written consent but if settled with
such consent or if there is a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement will be entitled to
the benefits of the indemnification contained in this Article V. The
indemnification provisions contained in this Article V will survive any
termination of this Agreement.
5.4 Limitation of Liability
Except as expressly stated herein, as between the parties, in no event
will any party to this Agreement be responsible to any other party for
any incidental, indirect, consequential, punitive or exemplary damages
of any kind arising from this Agreement, including without limitation,
lost revenues, loss of profits or loss of business.
5.5 Arbitration
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, will be settled by arbitration administered by
the American Arbitration Association in accordance with its Commercial
Arbitration Rules and Title 9 of the U.S. Code. Judgment on the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The number of arbitrators will be three, one of
whom will be appointed by the Company or an affiliate; one of whom will
be appointed by the Fund and/or the Adviser or an affiliate; and the
third of whom will be selected by mutual agreement, if possible, within
30 days of the selection of the second arbitrator
27
and thereafter by the administering authority. The place of arbitration
will be Minneapolis, Minnesota. The arbitrators will have no authority
to award punitive damages or any other damages not measured by the
prevailing party's actual damages, and may not, in any event, make any
ruling, finding or award that does not conform to the terms and
conditions of this Agreement. Any party may make an application to the
arbitrators seeking injunctive relief to maintain the status quo until
such time as the arbitration award is rendered or the controversy is
otherwise resolved. Any party may apply to any court having
jurisdiction hereof and seek injunctive relief in order to maintain the
status quo until such time as the arbitration award is rendered or the
controversy is otherwise resolved.
ARTICLE VI. APPLICABLE LAW
6.1. This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Minnesota.
6.2. This Agreement will be subject to the provisions of the 1933 Act, the
Securities Exchange Act of 1934 and the 1940 Act, and the rules and
regulations and rulings thereunder, including such exemptions from
those statutes, rules and regulations as the SEC may grant (including,
but not limited to, the Exemptive Order) and the terms hereof will be
interpreted and construed in accordance therewith.
28
ARTICLE VII. TERMINATION
7.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, with
respect to some or all of the Portfolios, upon sixty (60)
days' advance written notice to the other party or, if the
Company is required to obtain exemptive relief from the SEC to
effect a substitution of some or all of the Portfolios, such
later date as such exemptive order is received by the Company,
unless otherwise agreed to in writing by the parties;
(b) upon 30 days' notice by the Company to the Fund if shares of
the Portfolio are not reasonably available to meet the
requirements of the Contracts as determined in good faith by
the Company, and the Fund, after receiving written notice from
the Company of such non-availability, fails to make available
a sufficient number of Fund shares to meet the requirements of
the Contracts within five days after receipt thereof; or
(c) at the option of the Company, upon receipt of the Company's
written notice by the Fund, with respect to any Portfolio in
the event any of the Portfolio's shares are not registered,
issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such shares as
the underlying investment media of the Contracts issued or to
be issued by Company; or
(d) upon 30 days' notice by the Fund to the Company upon
institution of formal proceedings against the Company by the
NASD, the SEC, the insurance commission of any state or any
other regulatory body regarding the Company's duties under
this Agreement or related to the
29
sale of the Contracts, the administration of the Contracts,
the operation of the Account, or the purchase of the Fund
shares, provided that the Fund determines in its sole
judgment, exercised in good faith, that any such proceeding
would have a material adverse effect on the Company's ability
to perform its obligations under this Agreement; or
(e) upon 30 days' notice by the Company to the Fund, upon
institution of formal proceedings against the Fund or the
Adviser by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body, regarding
the Fund's or the Adviser's duties under this Agreement or
related to the sale of Fund shares or the administration of
the Fund, provided that the Company determines in its sole
judgment, exercised in good faith, that any such proceeding
would have a material adverse effect on the Fund's ability to
perform its obligations under this Agreement; or
(f) upon 30 days' notice by the Company if the Fund ceases to
qualify as a Regulated Investment Company under Subchapter M
of the Internal Revenue Code, or under any successor or
similar provision, or if the Company reasonably and in good
faith believes, based on an opinion of counsel reasonably
satisfactory to the Fund, that the Fund may fail to so qualify
and the Fund, upon written request, fails to provide
reasonable assurance that it will take action to cure or
correct such failure; or
(g) upon 30 days' notice by the Company to the Fund if the Fund
fails to meet the diversification requirements specified in
Article II hereof and the Fund fails to provide reasonable
assurance that it will take action to cure or correct such
failure; or
(h) upon 30 days' written notice by one party to another upon the
other party's material breach of any provision of
this Agreement; or
30
(i) upon 60 days' written notice by the Company, if the Company
determines in its sole judgment exercised in good faith, that
the Fund has suffered a material adverse change in its
business, operations or financial condition since the date of
this Agreement or is the subject of material adverse publicity
which is likely to have a material adverse impact upon the
business and operations of the Company; or
(j) upon 60 days' written notice by the Fund to the Company, if
the Fund determines in its sole judgment exercised in good
faith, that the Company has suffered a material adverse change
in its business, operations or financial condition since the
date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact
upon the business and operations of the Fund; or
(k) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the Contract
owners having an interest in the Account (or any subaccount)
to substitute the shares of another investment company for the
corresponding Portfolio shares of the Fund in accordance with
the terms of the Contracts for which those Portfolio shares
had been selected to serve as the underlying investment media.
The Company will give sixty (60) days' prior written notice to
the Fund of the date of any proposed vote or other action
taken to replace the Fund's shares; or
(l) at the option of the Company or the Fund upon a determination
by a majority of the Fund Board, or a majority of the
disinterested Fund Board members, that an irreconcilable
material conflict exists among the interests of: (i) all
contract owners of variable insurance products of all separate
accounts; or (ii) the interests of the Participating Insurance
31
Companies investing in the Fund as set forth in Article IV of
this Agreement; or
(m) at the option of the Fund in the event any of the Contracts
are not issued or sold in accordance with applicable federal
and/or state law. Termination will be effective immediately
upon such occurrence without notice.
(n) upon 30 day's notice by the Fund to the Company if the
Contracts cease to qualify as annuity contracts under the
Internal Revenue Code, or the Fund reasonably and in good
faith believes, based on an opinion of counsel reasonably
satisfactory to the Company, that the Contracts may fail to so
qualify.
7.2. Notwithstanding any termination of this Agreement, the Fund and the
Adviser will, at the option of the Company, continue to make available
additional shares of the Fund pursuant to the terms and conditions of
this Agreement, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in the
Portfolios (as in effect on such date), redeem investments in the
Portfolios and/or invest in the Portfolios upon the making of
additional purchase payments under the Existing Contracts. The parties
agree that this Section 7.2 will not apply to any terminations under
Article IV and the effect of such Article IV terminations will be
governed by Article IV of this Agreement.
7.3. The provisions of Article V will survive the termination of this
Agreement and as long as shares of the Fund are held under Existing
Contracts in accordance with Section 7.2, the provisions of this
Agreement will survive the termination of this Agreement with respect
to those Existing Contracts.
32
ARTICLE VIII. NOTICES
Any notice will be deemed duly given when sent by registered or certified mail
(or other method agreed to by the parties) to each other party at the address of
such party set forth below or at such other address as such party may from time
to time specify in writing to the other parties.
If to the Company:
American Enterprise Life Insurance Company
1765 AXP Financial Center
Xxxxxxxxxxx, XX 00000
ATTN: Executive Vice President, Annuities
33
With a copy to:
American Express Financial Advisors Inc.
50607 AXP Financial Center
Xxxxxxxxxxx, XX 00000
ATTN: General Counsel's Office
If to the Fund or the Adviser:
Xxxxx X. Xxxxx
000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxx
Xxxx, Xxxx & Xxxxx LLC
00 X. Xxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ARTICLE IX. MISCELLANEOUS
9.1. All persons dealing with the Fund must look solely to the property of
the Fund for the enforcement of any claims against the Fund as neither
the directors, trustees, officers, partners, employees, agents or
shareholders assume any personal liability for obligations entered into
on behalf of the Fund.
9.2. Notwithstanding anything to the contrary contained in this Agreement,
in addition to and not in lieu of other provisions
in this Agreement:
(a) "Confidential Information" includes but is not limited to all
proprietary and confidential information of the Company and
its subsidiaries, affiliates and licensees (collectively the
"Protected Parties"
34
for purposes of this Section 9.2), including without
limitation all information regarding the customers of the
Protected Parties; or the accounts, account numbers, names,
addresses, social security numbers or any other personal
identifier of such customers; or any information derived
therefrom.
(b) Neither the Fund nor the Adviser may use or disclose
Confidential Information for any purpose other than to carry
out the purpose for which Confidential Information was
provided to Fund and/or Adviser as set forth in the Agreement;
and the Fund and the Adviser agree to cause all their
employees, agents and representatives, or any other party to
whom the Fund and/or the Adviser may provide access to or
disclose Confidential Information to limit the use and
disclosure of Confidential Information to that purpose.
(c) The Fund and the Adviser acknowledge that all computer
programs and procedures or other information developed or used
by the Protected Parties or any of their employees or agents
in connection with the Company's performance of its duties
under this Agreement are the valuable property of the
Protected Parties.
(d) The Fund and the Adviser agree to implement appropriate
measures designed to ensure the security and confidentiality
of Confidential Information, to protect such information
against any anticipated threats or hazards to the security
or integrity of such information, and to protect against
unauthorized access to, or use of, Confidential Information
that could result in substantial harm or inconvenience to
any customer of the Protected Parties; the Fund and the
Adviser further agree to cause all their agents,
representatives or subcontractors of, or any other party to
whom the Fund and/or the Adviser may provide access to or
disclose Confidential Information to
35
implement appropriate measures designed to meet the objectives
set forth in this Section 9.2.
(e) The Fund and the Adviser acknowledge that any breach of the
agreements in this Section 9.2 would result in immediate and
irreparable harm to the Protected Parties for which there
would be no adequate remedy at law and agree that in the event
of such a breach, the Protected Parties will be entitled to
equitable relief by way of temporary and permanent
injunctions, as well as such other relief as any court of
competent jurisdiction deems appropriate.
9.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
9.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
9.5. If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
9.6. This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties.
9.7. Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including without limitation
the SEC, the NASD and state insurance regulators) and will permit each
other and such authorities reasonable access to its books and records
in connection with
36
any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
9.8. Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or board action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
9.9. The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts,
the Accounts or the Portfolios of the Fund or other applicable terms of
this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date specified above.
XXXXXX ADVISORS TRUST LIBERTY XXXXXX ASSET MANAGEMENT, L.P. by its General
Partner, WAM Acquisition GP, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------------------- --------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President, Secretary and Treasurer Title: Senior Vice President and Secretary
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
ATTEST:
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxx Xxxxxxx
-------------------------------------------- ---------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxx Xxxxx Xxxxxxx
Title: Executive Vice President, Annuities Title: Assistant Secretary
37
SCHEDULE 1
PARTICIPATION AGREEMENT
By and Among
XXXXXX ADVISORS TRUST
And
LIBERTY XXXXXX ASSET MANAGEMENT, L.P.
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The following Accounts of American Enterprise Life Insurance Company are
permitted in accordance with the provisions of this Agreement to invest in
Portfolios of the Fund shown in Schedule 2:
American Enterprise Variable Annuity Account
American Enterprise Variable Life Account
38
SCHEDULE 2
PARTICIPATION AGREEMENT
By and Among
XXXXXX ADVISORS TRUST
And
LIBERTY XXXXXX ASSET MANAGEMENT, L.P.
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The Accounts shown on Schedule 1 may invest in the following Portfolios:
Xxxxxx International Small Cap
Xxxxxx U.S. Small Cap
39
SCHEDULE 3
PARTICIPATION AGREEMENT
By and Among
XXXXXX ADVISORS TRUST
And
LIBERTY XXXXXX ASSET MANAGEMENT, L.P.
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The following investment restrictions apply to the Fund's investment policies:
40
