PARTICIPATION AGREEMENT
By and Among
▇▇▇▇▇▇ ADVISORS TRUST
And
LIBERTY ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ADVISORS TRUST, an open-end management investment company
organized under the laws of the Commonwealth of Massachusetts (the "Fund"),
LIBERTY ▇▇▇▇▇▇ 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 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. 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
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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.
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.
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
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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 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;
(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,
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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.
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 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
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owners. The Company will bear the cost of distributing such documents
to prospective Contract owners and applicants as required.
3.3. The Fund, at its expense, either will:
(a) distribute its proxy materials directly to the appropriate
Contract owners; or
(b) provide the Company or its mailing agent with copies of its proxy
materials in such quantity as the Company will reasonably require
and the Company will distribute the materials to existing
Contract owners and will ▇▇▇▇ 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, 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
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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.
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.
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 1940 Act.
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3.13. The Fund and the Adviser hereby consent to the Company's use of the
name ▇▇▇▇▇▇ 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 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 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
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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 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 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
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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
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
statement of additional information
-11-
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);
(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.
-12-
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with
the issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
5.2. Indemnification By The 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 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
-13-
(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
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.
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
-14-
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)
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 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
-15-
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.
-16-
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 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
-17-
(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
(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
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
-18-
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.
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
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Executive Vice President, Annuities
-19-
With a copy to:
American Express Financial Advisors Inc.
50607 AXP Financial Center
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: General Counsel's Office
If to the Fund or the Adviser:
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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" 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.
-20-
(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 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 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.
-21-
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.
▇▇▇▇▇▇ ADVISORS TRUST LIBERTY ▇▇▇▇▇▇ ASSET MANAGEMENT, L.P.
by its General Partner, WAM
Acquisition GP, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Secretary Title: Senior Vice President and
and Treasurer Secretary
AMERICAN ENTERPRISE LIFE
INSURANCE COMPANY ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President, Title: Assistant Secretary
Annuities
-22-
Schedule 1
PARTICIPATION AGREEMENT
By and Among
▇▇▇▇▇▇ ADVISORS TRUST
And
LIBERTY ▇▇▇▇▇▇ 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
-23-
Schedule 2
PARTICIPATION AGREEMENT
By and Among
▇▇▇▇▇▇ ADVISORS TRUST
And
LIBERTY ▇▇▇▇▇▇ ASSET MANAGEMENT, L.P.
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The Accounts shown on Schedule 1 may invest in the following Portfolios:
▇▇▇▇▇▇ International Small Cap
▇▇▇▇▇▇ U.S. Small Cap
-24-
Schedule 3
PARTICIPATION AGREEMENT
By and Among
▇▇▇▇▇▇ ADVISORS TRUST
And
LIBERTY ▇▇▇▇▇▇ ASSET MANAGEMENT, L.P.
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The following investment restrictions apply to the Fund's investment policies:
-25-