FUND PARTICIPATION AGREEMENT
This Fund Participation Agreement (the "Agreement"), effective as of 24th
day of April, 2009, is made by and among Riversource Life Insurance Company
("Company"), JPMorgan Insurance Trust (the Trust"), the Trust's investment
advisors, JPMorgan Investment Advisors Inc. and ▇. ▇. ▇▇▇▇▇▇ Investment
Management Inc. (the "Advisers"), and the Trust's administrator, JPMorgan Funds
Management, Inc. (the "Administrator").
WHEREAS, the Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established by insurance companies for individual and group life insurance
policies and annuity contracts with variable accumulation and/or pay-out
provisions (hereinafter referred to individually and/or collectively as
"Variable Insurance Products");
WHEREAS, insurance companies desiring to utilize the Trust as an investment
vehicle under their Variable Insurance Products are required to enter into
participation agreements with the Trust and the Administrator (the
"Participating Insurance Companies");
WHEREAS, shares of the Trust are divided into several series of shares,
each representing the interest in a particular managed portfolio of securities
and other assets, any one or more of which may be made available for Variable
Insurance Products of Participating Insurance Companies;
WHEREAS, the Trust intends to offer shares of the series set forth on
Schedule B (each such series hereinafter referred to as a "Portfolio") as may be
amended from time to time by mutual agreement of the parties hereto under this
Agreement to the accounts of the Company specified on Schedule A (hereinafter
referred to individually as an "Account," collectively, the "Accounts");
WHEREAS, the Trust has obtained an order from the Securities and Exchange
Commission, granting the Trust exemptions from the provisions of Sections 9(a),
13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended
(hereinafter the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Trust to be sold to
and held by Variable Insurance Product separate accounts of both affiliated and
unaffiliated insurance companies (hereinafter the "Shared Funding Exemptive
Order");
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act");
WHEREAS, the Advisers are duly registered as an investment advisers under
the Investment Advisers Act of 1940, as amended, and any applicable state
securities laws;
WHEREAS, the Advisers is the investment adviser of the Portfolios of the
Trust;
WHEREAS, the Company has registered certain Variable Insurance Products
under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, each Account intends to purchase shares of the Portfolios to fund
certain of the aforesaid Variable Insurance Products and the Trust is authorized
to sell such shares to each such Account at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, the Advisers, and the Administrator agree as follows:
ARTICLE 1
THE CONTRACTS
1. The Company represents that it has established each of the Accounts
specified on Schedule A as a separate account under Indiana law, and has
registered each such Account as a unit investment trust under the 1940 Act
to serve as an investment vehicle for variable annuity contracts and/or
variable life
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insurance contracts offered by the Company (the "Contracts"). The Accounts
are and have been governed by Minnesota law effective December 31, 2006,
the date of consummation of the merger of American Enterprise Life
Insurance Company and American Partners Life Insurance Company with and
into IDS Life Insurance Company, the surviving entity of the merger, which
was renamed RiverSource Life Insurance Company. The Contracts provide for
the allocation of net amounts received by the Company to separate divisions
of the Account for investment in the shares of the Portfolios. Selection of
a particular division is made by the Contract owner who may change such
selection from time to time in accordance with the terms of the applicable
Contract. The Company agrees to make every reasonable effort to market its
Contracts. In marketing its Contracts, the Company will comply with all
applicable state or Federal laws.
ARTICLE 2
TRUST SHARES
2.1. The Trust agrees to make available for purchase by the Company
shares of the Portfolios and shall execute orders placed for each Account
on a daily basis at the net asset value next computed after receipt by the
Trust or its designee of such order. For purposes of this Section 2.1, the
Company shall be the designee of the Trust for receipt of such orders from
the Account and receipt by such designee shall constitute receipt by the
Trust; provided that the Trust's designated transfer agent receives notice
of such order by 10:00 a.m. Eastern Time on the next following Business Day
("Trade Date plus 1"). Notwithstanding the foregoing, the Company shall use
its best efforts to provide the Trust's designated transfer agent with
notice of such orders by 9:30 a.m. Eastern Time on Trade Date plus 1.
"Business Day" shall mean any day on which the New York Stock Exchange is
open for trading and on which the Trust calculates its net asset value
pursuant to the rules of the Securities and Exchange Commission, as set
forth in the Trust's prospectus and statement of additional information.
Notwithstanding the foregoing, the Board of Trustees of the Trust
(hereinafter the "Board") may refuse to permit the Trust to sell shares of
any Portfolio to any person, or suspend or terminate the offering of snares
of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of their fiduciary duties under federal
and any applicable state laws, necessary in the best interests of the
shareholders of such Portfolio.
2.2. The Trust agrees that shares of the Trust will be sold only to
Participating Insurance Companies for their Variable Insurance Products
and, in the Trust's discretion, to qualified pension and retirement plans.
No shares of any Portfolio will be sold to the general public.
2.3. The Trust agrees to redeem for cash, on the Company's request,
any full or fractional shares of the Trust held by an Account, executing
such requests on a daily basis at the net asset value next computed after
receipt by the Trust or its designee of the request for redemption. For
purposes of this Section 2.3, the Company shall be the designee of the
Trust for receipt of requests for redemption from each Account and receipt
by such designee shall constitute receipt by the Trust; provided that the
Trust's designated transfer agent receives notice of such request for
redemption on Trade Date plus 1 in accordance with the timing rules
described in Section 2.1.
2.4. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Trust shall be made in
accordance with the provisions of such prospectus. The Accounts of the
Company, under which amounts may be invested in the Trust are listed on
Schedule A attached hereto and incorporated herein by reference, as such
Schedule A may be amended from time to time by mutual written agreement of
all of the parties hereto.
2.5. The Company will place separate orders to purchase or redeem
shares of each Portfolio. Each order shall describe the net amount of
shares and dollar amount of each Portfolio to be purchased or redeemed. In
the event of net purchases, the Company shall pay for Portfolio shares on
Trade Date plus 1. Payment shall be in federal funds transmitted by wire.
In the event of net redemptions, the Portfolio shall pay the redemption
proceeds in federal funds transmitted by wire by 2:00 p.m. Eastern Time on
Trade Date plus 1. Notwithstanding the foregoing, if the payment of
redemption proceeds on the next Business Day would require the Portfolio to
dispose of Portfolio securities or otherwise incur substantial additional
costs, and if the Portfolio has determined to settle redemption
transactions for ail shareholders on a delayed basis, proceeds
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shall be wired to the Company within seven (7) days and the Portfolio shall
notify in writing the person designated by the Company as the recipient for
such notice of such delay by 3:00 p.m. Eastern Time on Trade Date plus 1.
2.6. Issuance and transfer of the Trust's shares will be by book entry
only. Share certificates will not be issued to the Company or any Account.
Shares ordered from the Trust will be recorded in an appropriate title for
each Account or the appropriate subaccount of each Account
2.7. On each record date, the Administrator shall use its best efforts
to furnish same day notice by 6:30 p.m. Eastern Time (by wire, telephone,
electronic media or by fax) to the Company of any dividends or capital gain
distributions payable on the Trust's shares. The Company hereby elects to
receive all such dividends and capital gain distributions as are payable on
the Portfolio shares in additional shares of that Portfolio. The Company
reserves the right to revoke this election and to receive all such
dividends and capital gain distributions in cash. The Trust shall notify
the Company of the number of shares so issued as payment of such dividends
and distributions.
2.8. The Administrator shall make the net asset value per share of
each Portfolio available to the Company on a daily basis as soon as
reasonably practical after the net asset value per share is calculated and
shall use its best efforts to make such net asset value per share available
by 6:30 p.m. Eastern Time. In the event that the Administrator is unable to
meet the 6:30 p.m. time stated immediately above, then the Administrator
shall provide the Company with additional time to notify the Administrator
of purchase or redemption orders pursuant to Sections 2.1 and 2.3,
respectively, above. Such additional time shall be equal to the additional
time that the Administrator takes to make the net asset values available to
the Company.
2.9. If the Administrator provides materially incorrect share net
asset value information through no fault of the Company, the Company shall
be entitled to an adjustment with respect to the Trust shares purchased or
redeemed to reflect the correct net asset value per share as subsequently
determined by the Administrator. The determination of the materiality of
any net asset value pricing error shall be based on the Trust's policy for
correction of pricing errors (the "Pricing Policy"). The Company shall
correct such error in its records and in the records prepared by it for
Contract owners in accordance with information provided by the
Administrator. Any material error in the calculation or reporting of net
asset value per share, dividend or capital gain information shall be
reported promptly upon discovery to the Company.
2.10 The Administrator shall provide information to the Company of the
amount of shares traded and the associated cost per share (NAV) total trade
amount and the outstanding share balances held by the Account in each
Portfolio as of the end of each Business Day. Such information will be
furnished (electronically or by fax) by 1:00 p.m. Eastern time on the next
Business Day.
2.11 Contract Owner Information
2.11 (a) Agreement to Provide Information. Company agrees to provide the
Fund, or its designee, upon written request, the taxpayer identification
number ("TIN"), the Individual/International Taxpayer Identification Number
("ITIN"), or other government-issued identifier ("GII"), and the Contract
owner number or participant account number associated with the Shareholder,
if known, of any or all Shareholder(s) of the account, and the amount, date
and transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an
Insurance Company Fund Account maintained by the Company during the period
covered by the request. Unless otherwise specifically requested by the
Fund, the Intermediary shall only be required to provide information
relating to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions.
(i) Period Covered by Request. Requests must set forth a specific
period, not to exceed 180 days from the date of the request, for which
transaction information is sought. A request may be ongoing and
continuous (e.g., for each trading day throughout the year) or for
specified periods of time. A Portfolio may request transaction
information older than 180 days from the date of the
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request as it deems necessary to investigate compliance with policies
established by the Portfolio for the purpose of eliminating or
reducing market timing and abusive trading practices.
(ii) Form and Timing of Response. Company agrees to provide, promptly
upon request of the Fund or its designee, the requested information
specified in 3(a). If requested by the Fund, or its designee, Company
agrees to use best efforts to determine promptly whether any specific
person about whom it has received the identification and transaction
information specified in 3(a) is itself a financial intermediary
("indirect intermediary") and, upon further request of the Fund, or
its designee, promptly either (i) provide (or arrange to have
provided) the information set forth in 3(a) for those shareholders who
hold an account with an indirect intermediary or (ii) restrict or
prohibit the indirect intermediary from purchasing, in nominee name on
behalf of other persons, securities issued by the Fund. Company
additionally agrees to inform the Fund whether it plans to perform (i)
or (ii). (b) Responses required by this paragraph must be communicated
in writing and in a format mutually agreed upon by the Fund or its
designee and the Company; and (c) To the extent practicable, the
format for any transaction information provided to the Fund should be
consistent with the NSCC Standardized Data Reporting Format.
(iii) Limitations on Use of Information. The Fund agrees not to use
the information received pursuant to this Amendment for any purpose
other than as necessary to comply with the provisions of Rule 22c-2 or
to fulfill other regulatory or legal requirements subject to the
privacy provisions of Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (Public
Law 106-102) and comparable state laws.
2.11(b) Agreement to Restrict Trading. Company agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the Fund
as having engaged in transactions of the Fund's Shares (directly or
indirectly through the Insurance Company Fund Account) that violate
policies established by the Fund for the purpose of eliminating or reducing
market timing and abusive trading practices. Unless otherwise directed by
the Fund, any such restrictions or prohibitions shall only apply to
Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer
Redemptions that are effected directly or indirectly through Company.
Instructions must be received by us at the following address, or such other
address that Company may communicate to you in writing from time to time,
including, if applicable, an e-mail and/or facsimile telephone number:
(i) Form of Instructions. Instructions to restrict or prohibit trading
must include the TIN, ITIN, or GII and the specific individual
Contract owner number or participant account number associated with
the Shareholder, if known, and the specific restriction(s) to be
executed, including how long the restriction(s) is(are) to remain in
place. If the TIN, ITIN, GII or the specific individual contract owner
number or participant account number associated with the Shareholder
is not known, the instructions must include an equivalent identifying
number of the Shareholder(s) or account(s) or other agreed upon
information to which the instruction relates.
(ii) Notice Provisions. Instructions must be received by Company at
the following address, or such other address that Company may
communicate to Trust in writing from time to time, including, if
applicable, an email or facsimile number:
RiverSource Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
e-mail: ▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(iii) Timing of Response. Company agrees to execute instructions as
soon as reasonably practicable, but not later than five Business Days
after receipt of the instructions by the Company.
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(iv) Confirmation by Intermediary. Company must provide written
confirmation to the Fund that instructions have been executed. Company
agrees to provide confirmation as soon as reasonably practicable, but
not later than ten business days after the instructions have been
executed.
2.11(c) Definitions. For purposes of this Section 2.11:
(i) The term "Insurance Company Fund Account" means an omnibus
account with the Fund maintained by Company.
(ii) The term "Fund" includes JPMorgan Distribution Services,
Inc., which is the Trust's principal underwriter; the Trust's transfer
agent and the series of the Trust listed in the Agreement.
(iii) The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the
Fund under the Investment Company Act that are held by or through an
Insurance Company Fund Account.
(iv) The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued by the
Company ("Contract"), or a participant in an employee benefit plan
with a beneficial interest in a Contract.
(v) The term "Shareholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Shareholder that
results in a transfer of assets within a Contract to a Fund, but does
not include transactions that are executed: (a) automatically pursuant
to a contractual or systematic program or enrollment such as transfer
of assets within a Contract to a Fund as a result of "dollar cost
averaging" programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (b) pursuant to a
Contract death benefit; (c) one-time step-up in Contract value
pursuant to a Contract death benefit; (d) allocation of assets to a
Fund through a Contract as a result of payments such as loan
repayments, scheduled contributions, retirement plan salary reduction
contributions, or planned premium payments to the Contract; or (e)
pre-arranged transfers at the conclusion of a required free look
period.
(vi) The term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that
results in a transfer of assets within a Contract out of a Fund, but
does not include transactions that are executed: (a) automatically
pursuant to a contractual or systematic program or enrollments such as
transfers of assets within a Contract out of a Fund as a result of
annuity payouts, loans, systematic withdrawal programs, insurance
company approved asset allocation programs and automatic rebalancing
programs; (b) as a result of any deduction of charges or fees under a
Contract; (c) within a Contract out of a Fund as a result of scheduled
withdrawals or surrenders from a Contract; or (d) as a result of
payment of a death benefit from a Contract.
(vii) The term "written" and/or "in writing" within this Section
2.11 or any Section of this Agreement includes electronic writings and
facsimile transmissions.
(viii) The term "Financial Intermediary" shall mean a "financial
intermediary" as defined in 22c-2 of the Investment Company Act.
(ix) The term "purchase" does not include the automatic
reinvestment of dividends.
(x) The term "promptly" as used in 3(a)(ii) shall mean as soon as
practicable but in no event later than 10 business days from the
Company's receipt of the request for information from the Fund or its
designee.
ARTICLE 3
PROSPECTUSES, REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS. VOTING
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3.1. The Trust shall provide the Company with as many printed copies
of the Trust's current prospectuses as the Company may reasonably request.
The Administrator will provide the Company with a copy of the statement of
additional information suitable for duplication. If requested by the
Company, in lieu of providing printed copies, the Trust shall provide
camera-ready film or computer diskettes containing the Trust's prospectuses
and statement of additional information in order for the Company once each
year (or more frequently if the prospectuses and/or statement of additional
information for the Trust is amended during the year) to have the
prospectuses for the Contracts and the applicable Trust prospectuses
printed together in one document or separately. The Company may elect to
print the Trust's prospectuses and/or its statement of additional
information in combination with other investment companies' prospectuses
and statements of additional information.
3.2(a). The Company will deliver or cause to be delivered to each of
its Contract owners, at or prior to the time of purchase of any Portfolio
shares, a copy of such Portfolio's prospectus and, upon request, a copy of
its statement of additional information. For prospectuses and statements of
additional information provided by the Company to its existing owners of
Contracts in order to update disclosure as required by the 1933 Act and/or
the 1940 Act, the cost of setting in type, printing and distributing shall
be borne by the Trust. If the Company chooses to receive camera-ready film
or computer diskettes in lieu of receiving printed copies of the Trust's
prospectus and/or statement of additional information, the Trust shall bear
the cost of typesetting to provide the Trust's prospectus and/or statement
of additional information to the Company in the format in which the Trust
is accustomed to formatting prospectuses and statements of additional
information, respectively, and the Company shall bear the expense of
adjusting or changing the format to conform with any of its prospectuses
and/or statements of additional information. In such event, the Trust will
reimburse the Company in an amount equal to the product of x and y where x
is the number of such prospectuses distributed to owners of the Contracts,
and y is the Trust's per unit cost of printing the Trust's prospectuses.
The same procedures shall be followed with respect to the Trust's statement
of additional information. The Trust shall not pay any costs of
typesetting, printing and distributing the Trust's prospectus and/or
statement of additional information to prospective Contract owners. Except
as otherwise provided in this Section 3.2, all expenses of preparing,
setting in type and printing and distributing Trust prospectuses and
statements of additional information shall be the expense of the Company.
3.2(b). The Trust, at the Company's expense, shall provide the Company
with copies of Annual and Semi-Annual Reports (the "Reports") in such
quantity as the Company shall reasonably require for distributing to
Contract owners. The Trust, at its expense, shall provide the Contract
owners designated by the Company with copies of its proxy statements and
other communications to shareholders (except for prospectuses and
statements of additional information, which are covered in Section 3.2(a)
above, and Reports). The Trust shall not pay any costs of distributing
Reports and other communications to prospective Contract owners.
3.2(c). The Company agrees to provide the Trust or its designee with
such information as may be reasonably requested by the Trust to assure that
the Trust's expenses do not include the cost of typesetting, printing or
distributing any of the foregoing documents other than those actually
distributed to existing Contract owners.
3.2(d). Except as otherwise provided in this Agreement, the Trust
shall pay no fee, other compensation or other expenses under this
Agreement. The Trust may, however, pay the Company servicing fees under a
written servicing agreement for certain Portfolios pursuant to the services
plan it has adopted. In addition, the Trust has adopted a plan pursuant to
Rule 12b-1 to finance distribution expenses for certain Portfolios, and the
Trust's distributor may pay fees under such plan to the Company or to a
designated affiliate under a separate written agreement between such
parties.
3.2(e). All expenses, including expenses to be borne by the Trust
pursuant to Section 3.2 hereof, incident to performance by the Trust under
this Agreement shall be paid by the Trust. The Trust shall see to it that
all its shares are registered and authorized for issuance in accordance
with applicable federal law and, if and to the extent deemed advisable by
the Trust, in accordance with applicable state laws prior to their sale.
The Trust shall bear the expenses for the cost of registration and
qualification of the Trust's shares.
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3.3. If and to the extent required by law, the Company shall with
respect to proxy material distributed by the Trust to Contract owners
designated by the Company to whom voting privileges are required to be
extended:
(i) solicit voting instructions from Contract owners;
(ii) vote the Trust shares in accordance with instructions
received from Contract owners; and
(iii) vote Trust shares for which no instructions have been
received in the same proportion as Trust shares of such
Portfolio for which instructions have been received, so long
as and to the extent that the Securities and Exchange
Commission continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners.
The Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law.
ARTICLE 4
SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Trust, the Advisers or their designee, drafts of the separate accounts
prospectuses and statements of additional information and each piece of
sales literature or other promotional material prepared by the Company or
any person contracting with the Company to prepare such material in which
the Trust, the Advisers or the Administrator is described, at least ten
Business Days prior to its use. No such material shall be used if the
Trust, the Advisers, the Administrator or their designee reasonably objects
to such use within ten Business Days after receipt of such material.
4.2. Neither the Company nor any person contracting with the Company
to prepare sales literature or other promotional material shall give any
information or make any representations or statements on behalf of the
Trust or concerning the Trust in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement or Trust prospectus, as such registration statement or Trust
prospectus may be amended or supplemented from time to time, or in reports
to shareholders or proxy statements for the Trust, or in sales literature
or other promotional material approved by the Trust or its designee, except
with the permission of the Trust or its designee.
4.3. The Administrator shall furnish, or shall cause to be furnished,
to the Company or its designee, each piece of sales literature or other
promotional material prepared by the Trust in which the Company or its
Accounts, are described at least ten Business Days prior to its use. No
such material shall be used if the Company or its designee reasonably
objects to such use within ten Business Days after receipt of such
material.
4.4. Neither the Trust, the Administrator, nor the Advisers shall give
any information or make any representations 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 or
prospectus for the Contracts, as such registration statement or prospectus
may be amended or supplemented from time to time, or in published reports
or solicitations for voting instruction for each Account which are in the
public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other promotional material approved by
the Company or its designee, except with the permission of the Company.
4.5. The Trust will provide to the Company, upon its request, at least
one complete copy of all registration statements, prospectuses, statements
of additional information, reports, proxy statements, applications for
exemptions, requests for no-action letters, and all amendments to any of
the above, that relate to the Trust or its shares, promptly after the
filing of such document with the Securities and Exchange Commission or
other regulatory authorities.
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4.6. The Company will provide to the Trust, upon the Trust's request,
at least one complete copy of all registration statements, prospectuses,
statements of additional information, reports, solicitations for voting
instructions, sales literature and other promotional materials,
applications for exemptions, requests for no action letters, and all
amendments to any of the above, that relate to the investment in an Account
or Contract, prior to with the filing of such documents with the Securities
and Exchange Commission or other regulatory authorities.
4.7. For purposes of this Article 4, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following: advertisements (such as material published, or designed for use
in, a newspaper, magazine, or other periodical, radio, television,
internet, telephone or tape recording, videotape, display, signs or
billboards, motion pictures, or other public media), sales literature
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts of any
other advertisement, sales literature, or published article), and
educational or training materials or other communications distributed or
made generally available to some or all agents or employees.
4.8. The Company and its agents shall make no representations
concerning the Trust except those contained in the then-current prospectus
and statement of additional information of the Trust and in current printed
sales literature of the Trust.
ARTICLE 5
ADMINISTRATIVE SERVICES TO CONTRACT OWNERS
5. Administrative services to Contract owners shall be the
responsibility of the Company and shall not be the responsibility of the
Trust, the Advisers or the Administrator. The Company, the Trust and the
Administrator recognize that the Account(s) will be the sole shareholder(s)
of Trust shares issued pursuant to the Contracts.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1. The Trust represents that it believes, in good faith, that each
Portfolio is currently qualified as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code")
and that it will make every effort to maintain such qualification of the
Trust and that it will notify the Company immediately upon having a
reasonable basis for believing that a Portfolio has ceased to so qualify or
that it might not so qualify in the future.
6.2. The Company represents that it believes, in good faith, that the
Contracts will at all times be treated as life insurance contracts and/or
annuity contracts under applicable provisions of the Code, and that it will
make every effort to maintain such treatment and that it will notify the
Trust 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.
6.3. The Trust represents that it believes, in good faith, that the
Portfolios will at all times comply with the diversification requirements
set forth in Section 817(h) of the Code and Section l.817-5(b) of the
regulations under the Code, and that it will make every effort to maintain
the Trust's compliance with such diversification requirements, and that it
will notify the Company immediately upon having a reasonable basis for
believing that a Fund has ceased to so qualify or that a Portfolio might
not so qualify in the future.
6.4. The Company represents and warrants that the interests of the
Contracts are or will be registered unless exempt and that it will maintain
such registration under the 1933 Act and the regulations thereunder to the
extent required by the 1933 Act and that the Contracts will be issued and
sold in compliance with all applicable federal and state laws and
regulations. The Company also represents and warrants that the Portfolios
will be sold in accordance with such Portfolio's current prospectus. The
Company further represents and warrants that it is an insurance company
duly organized and in good standing under applicable law and that it has
legally and validly established each Account prior to any issuance or sale
thereof as a segregated
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asset account under the Minnesota Insurance Code and the regulations
thereunder and has registered or, prior to any issuance or sale of the
Contracts, will maintain the registration of each Account as a unit
investment trust in accordance with and to the extent required by the
provisions of the 1940 Act and the regulations thereunder, unless exempt
therefrom, to serve as a segregated investment account for the Contracts.
The Company shall amend its registration statement for its Contracts under
the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts.
6.5. The Company represents that it believes, in good faith, that the
Account is a "segregated asset account" and that interests in the Account
are offered exclusively through the purchase of a "variable contract,"
within the meaning of such terms under Section 1.817-5(f)(2) of the
regulations under the Code, and that it will make every effort to continue
to meet such definitional requirements, and that it will notify the Trust
immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they might not be met in the
future.
6.6. The Trust represents and warrants that it is and shall continue
to be at all times covered by a blanket fidelity bond or similar coverage
for the benefit of the Trust in an amount no less than the minimal coverage
as required currently by Rule 17g-(l) of the 1940 Act or related provisions
as may be promulgated from time to time. Such bond shall include coverage
for larceny and embezzlement and shall be issued by a reputable bonding
company. The Trust will notify the Company immediately upon having a
reasonable basis for believing that the Trust no longer has the coverage
required by this Section 6.6.
6.7. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other entities dealing with
the money or securities of the Trust are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the
benefit of the Trust, in an amount not less than five million dollars
($5,000,000). Such bond shall include coverage for larceny and embezzlement
and shall be issued by a reputable bonding company. The Company agrees to
make all reasonable efforts to see that this bond or another bond
containing these provisions is always in effect and agrees to notify the
Trust immediately upon having a reasonable basis for believing that the
Company no longer has the coverage required by this Section 6.7.
6.8. The Trust represents that a majority of its disinterest trustees
have approved the Trust's distribution plan adopted pursuant to Rule 12b-l
under the ▇▇▇▇ ▇▇▇.
6.9. The Advisers and the Administrator each represents and warrants
that it complies with all applicable federal and state laws and regulations
and that it will perform its obligations for the Trust and the Company in
compliance with the laws and regulations of its state of domicile and any
applicable state and federal laws and regulations.
ARTICLE 7
STATEMENTS AND REPORTS
7.1. The Administrator or its designee will make available
electronically to the Company within five (5) Business Days after the end
of each month a monthly statement of account confirming all transactions
made during that month in the Account.
7.2. The Trust and Administrator agree to provide the Company no later
than March 1 of each year with the investment advisory and other expenses
of the Trust incurred during the Trust's most recently completed fiscal
year, to permit the Company to fulfill its prospectus disclosure
obligations under the SEC's variable annuity fee table requirements.
ARTICLE 8
POTENTIAL CONFLICTS
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8.1. If required under the Shared Funding Exemptive Order, the Board
will monitor the Trust for the existence of any material irreconcilable
conflict between the interests of the Contract owners of all Accounts
investing in the Trust. An irreconcilable material conflict may arise for a
variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are being managed; (e) a
difference in voting instructions given by variable annuity contract owners
and variable life insurance Contract owners; or (f) a decision by a
Participating Insurance Company to disregard the voting instructions of
contract owners. The Board shall promptly inform the Company if it
determines that an irreconcilable material conflict exists and the
implications thereof.
8.2. If required under the Shared Funding Exemptive Order, the Company
will report in writing any potential or existing material irreconcilable
conflict of which it is aware to the Administrator. Upon receipt of such
report, the Administrator shall report the potential or existing material
irreconcilable conflict to the Board. The Administrator shall also report
to the Board on a quarterly basis whether the Company has reported any
potential or existing material irreconcilable conflicts during the previous
calendar quarter. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider
any issues raised. This includes, but is not limited to, an obligation by
the Company to inform the Board whenever Contract owner voting instructions
are disregarded.
8.3. If required under the Shared Funding Exemptive Order, and it is
determined by a majority of the Board, or a majority of its disinterested
trustees, that a material irreconcilable conflict exists, the Company and
other Participating Insurance Companies shall, at their expense and to the
extent reasonably practicable (as determined by a majority of the
disinterested trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts
from the Trust or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Trust, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract
owners, life insurance policy owners, or variable contract owners of one or
more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of
making such a change; and (2) establishing a new registered management
investment company or managed separate account. No charge or penalty will
be imposed as a result of such withdrawal. The Company agrees that it bears
the responsibility to take remedial action in the event of a Board
determination of an irreconcilable material conflict and the cost of such
remedial action, and these responsibilities will be carried out with a view
only to the interests of Contract owners.
8.4. If required under the Shared Funding Exemptive Order, if a
material irreconcilable conflict arises because of a decision by the
Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the
Company may be required, at the Trust's election, to withdraw the affected
Account's investment in the Trust and terminate this Agreement with respect
to such Account (at the Company's expense); provided, however that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of
the disinterested members of the Board. No charge or penalty will be
imposed as a result of such withdrawal. The Company agrees that it bears
the responsibility to take remedial action in the event of a Board
determination of an irreconcilable material conflict and the cost of such
remedial action, and these responsibilities will be carried out with a view
only to the interests of Contract owners.
8.5. If required under the Shared Funding Exemptive Order, the, for
purposes of Sections 8.3 through 8.4 of this Agreement, a majority of the
disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no
event will the Trust be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 8.3 through 8.4 to
establish a new funding medium for the Contracts if an offer to do so has
been declined by vote of a majority of Contract owners materially adversely
affected by the irreconcilable material conflict.
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8.6. If required under the Shared Funding Exemptive Order, i and to
the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act 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 Shared Funding Exemptive Order) on terms
and conditions materially different from those contained in the Shared
Funding Exemptive Order, then the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to
comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted,
to the extent such rules are applicable.
8.7. If required under the Shared Funding Exemptive Order, each of the
Company and the Advisers shall, upon request, submit to the Board such
reports, materials or data as the Board may reasonably request so that the
Board may fully carry out the obligations imposed upon them by the
provisions hereof and in the Shared Funding Exemptive Order, and said
reports, materials and data shall be submitted more frequently if deemed
appropriate by the Board. Without limiting the generality of the foregoing
or the Company's obligations under Section 8.2, the Company shall, upon
request, provide to the Administrator a written report to the Board no
later than January 15th of each year indicating whether any material
irreconcilable conflicts have arisen during the prior fiscal year of the
Trust. All reports received by the Board of potential or existing
conflicts, and all Board action with regard to determining the existence of
a conflict, notifying Participating Insurance Companies of a conflict, and
determining whether any proposed action adequately remedies a conflict,
shall be properly recorded in the minutes of the Board or other appropriate
records, and such minutes or other records shall be made available to the
Securities and Exchange Commission upon request.
ARTICLE 9
INDEMNIFICATION
9.1. Indemnification By The Company
9.1 (a). The Company agrees to indemnify and hold harmless the Trust,
the Administrator, the Advisers, and each member of their respective Boards
and officers and each person, if any, who controls the Trust within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 9.1) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Company) or litigation (including legal and other
expenses), to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Trust's shares or
the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statement or prospectus for the Contracts or
contained in the Contracts or sales literature for the Contracts
(or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Company by or
on behalf of the Trust for use in the registration statement or
prospectus for the Contracts or in the Contracts or sales
literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Contracts or Trust shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature of the
Trust not supplied by the Company, or persons under its control
and other than statements or representations authorized by the
Trust) or unlawful conduct of the Company or persons under its
control, with respect to the sale or distribution of the
Contracts or Trust shares; or
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(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature of the Trust or any
amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance
upon and in conformity with information furnished to the Trust by
or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company; as limited by and in
accordance with the provisions of Section 9.1(b) and 9.1(c)
hereof.
9.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or
by reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement.
9.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Company of any such claim shall not relieve the Company from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the
Company shall be entitled to participate, at as own expense, in the defense
of such action. The Company also shall be entitled to assume the defense
thereof, with counsel satisfactory to the Indemnified Party named in the
action. After notice from the Company to such Indemnified Party of the
Company's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it,
and the Company shall not be liable to such Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such
Indemnified Party independently in connection with the defense thereof
other than reasonable costs of investigation.
9.1(d). The Indemnified Parties will promptly notify the Company of
the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Trust shares or the Contracts
or the operation of the Trust.
9.2. Indemnification by Administrator
9.2(a). The Administrator agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 9.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Administrator) or
litigation (including legal and other expenses) to which the Indemnified
Parties may become subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of the
Trust (or any amendment or supplement to any of the foregoing),
or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or
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omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished to the
Trust or the Administrator by or on behalf of the Company, the
Advisers, Counsel for the Trust, the independent public
accountant to the Trust, or any person or entity that is not
acting as agent for or controlled by the Administrator for use in
the registration statement or prospectus for the Trust or in
sales literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or Portfolio
shares; or
(ii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to the
Company by or on behalf of the Administrator; or
(iii) arise out of or are based on any unlawful conduct of the
Administrator or persons under its control, with respect to the
sale of Trust shares; or
(iv) arise as a result of any failure by the Administrator to provide
the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Administrator in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Administrator; as limited by and
in accordance with the provisions of Section 9.2(b) and 9.2(c)
hereof.
9.2(b). The Administrator shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified Party
as such may arise from such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement.
9.2(c). The Administrator shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Administrator in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim
shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Administrator of any such
claim shall not relieve the Administrator from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action
is brought against the Indemnified Parties, the Administrator will be
entitled to participate, at its own expense, in the defense thereof. The
Administrator also shall be entitled to assume the defense thereof, with
counsel satisfactory to the Indemnified Party named in the action. After
notice from the Administrator to such Indemnified Party of the
Administrator's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained
by it, and the Administrator will not be liable to such Indemnified Party
under this Agreement for any legal or other expenses subsequently incurred
by such Indemnified Party independently in connection with the defense
thereof other than reasonable costs of investigation.
9.2(d). The Company agrees promptly to notify the Administrator of the
commencement of any litigation or proceedings against it or any of its
Indemnified Parties in connection with the issuance or sale of the
Contracts or the operation of each Account in which the Portfolios are made
available.
9.3. Indemnification by the Advisers
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9.3(a). The Advisers agree to indemnify and hold harmless the Company
and its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (hereinafter
collectively, the "Indemnified Parties" and individually, "Indemnified
Party," for purposes of this Section 9.3) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Advisers) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any
statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of the
Trust (or any amendment or supplement to any of the foregoing),
or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Advisers or
the Trust by or on behalf of the Company, the Administrator,
Counsel for the Trust, the independent public accountant to the
Trust, or any person or entity that is not acting as agent for or
controlled by the Advisers for use in the registration statement
or prospectus for the Trust or in sales literature (or any
amendment or supplement) or otherwise for use in connection with
the sale of the Contracts or Portfolio shares; or
(ii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to the
Company by or on behalf of the Advisers; or
(iii) arise out of or are based on any unlawful conduct of the
Advisers or persons under their control, with respect to the sale
of Trust shares; or
(iv) arise as a result of any failure by the Advisers to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Advisers in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Advisers; as limited by and in
accordance with the provisions of Section 9.3(b) and 9.3(c)
hereof.
9.3(b). The Advisers shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement.
9.3(c). The Advisers shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Advisers in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Advisers of any such claim shall not relieve the Advisers from any
liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified
Parties, the Advisers will be entitled to participate, at its own expense,
in the defense thereof. The Advisers also shall be entitled to assume the
defense thereof, with counsel satisfactory to the Indemnified Party named
in the action. After notice from the Advisers to such Indemnified Party of
the
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Advisers's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it,
and the Advisers will not be liable to such Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such
Indemnified Party independently in connection with the defense thereof
other then reasonable costs of investigation.
9.3(d). The Company agrees to promptly notify the Advisers of the
commencement of any litigation or proceedings against it or any of
Indemnified Parties in connection with this Agreement, the issuance or sale
of the Contracts, with respect to the operation of each Account, or the
sale or acquisition of shares of the Trust.
9.4. Indemnification by the Trust
9.4(a). The Trust agrees to indemnify and hold harmless the Company
and its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (hereinafter
collectively, the "Indemnified Parties" and individually, "Indemnified
Party," for purposes of this Section 9.4) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Trust) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any
statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of the
Trust (or any amendment or supplement to any of the foregoing),
or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished the Trust by or on
behalf of the Advisers, the Company, or the Administrator for use
in the registration statement or prospectus for the Trust or in
sales literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or Portfolio
shares; or
(ii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to the
Company by or on behalf of the Trust; or
(iii) arise out of or are based on any unlawful conduct of the Trust
or persons under its control, with respect to the sale of Trust
shares; or
(iv) arise as a result of any failure by the Trust to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Trust; as limited by and in
accordance with the provisions of Section 9.4(b) and 9.4(c)
hereof.
9.4(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement.
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9.4(c). The Trust shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Trust in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the
Trust of any such claim shall not relieve the Trust from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the Trust
will be entitled to participate, at its own expense, in the defense
thereof. The Trust also shall be entitled to assume the defense thereof,
with counsel satisfactory to the Indemnified Party named in the action.
After notice from the Trust to such Indemnified Party of the Trust's
election to assume the defense thereof, the Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and the
Trust will not be liable to such Indemnified Party under this Agreement for
any legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other then reasonable
costs of investigation.
9.4(d). The Company agrees to promptly notify the Trust of the
commencement of any litigation or proceedings against it or any of the
Indemnified Parties in connection with this Agreement, the issuance or sale
of the Contracts, with respect to the operation of each Account, or the
sale or acquisition of shares of the Trust.
ARTICLE 10
APPLICABLE LAW
10.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
10.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
Securities and Exchange Commission may grant (including, but not limited
to, the Shared Funding Exemptive Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE 11
TERMINATION
11.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason upon ninety days advance
written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Trust, the
Advisers, and the Administrator with respect to any Portfolio
based upon the Company's determination that shares of such
Portfolio are not reasonably available to meet the requirements
of the Contracts. Reasonable advance notice of election to
terminate shall be furnished by the Company, said termination to
be effective ten (10) days after receipt of notice unless the
Trust makes available a sufficient number of shares to reasonably
meet the requirements of the Account within said ten (10) day
period; or
(c) termination by the Company upon written notice to the Trust, the
Advisers, and the Administrator 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 medium of the Contracts issued or to be
issued by the Company. The terminating party shall give prompt
notice to the other parties of its decision to terminate; or
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(d) termination by the Company upon written notice to the Trust, the
Advisers and the Administrator with respect to any Portfolio in
the event that such portfolio ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any
successor or similar provision; or
(e) termination by the Company upon written notice to the Trust, the
Advisers, and the Administrator with respect to any Portfolio in
the event that such Portfolio fails to meet the diversification
requirements specified in Section 6.3 hereof; or
(f) termination by either the Trust, the Advisers, or the
Administrator by written notice to the Company, if either one or
more of the Trust, the Advisers, or the Administrator, shall
determine, in its or their sole judgment exercised in good faith,
that the Company and/or their affiliated companies has suffered a
material adverse change in its business, operations, financial
condition or prospects since the date of this Agreement or is the
subject of material adverse publicity, provided that the Trust,
the Advisers, or the Administrator will give the Company sixty
(60) days' advance written notice of such determination of its
intent to terminate this Agreement, and provided further that
after consideration of the actions taken by the Company and any
other changes in circumstances since the giving of such notice,
the determination of the Trust, the Advisers, or the
Administrator shall continue to apply on the 60th day since
giving of such notice, then such 60th day shall be the effective
date of termination; or
(g) termination by the Company by written notice to the Trust, the
Advisers, Administrator, if the Company shall determine, in its
sole judgment exercised in good faith, that either the Trust, the
Advisers, or the Administrator has suffered a material adverse
change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity, provided that the Company will give
the Trust, the Advisers, and the Administrator sixty (60) days'
advance written notice of such determination of its intent to
terminate this Agreement, and provided further that after
consideration of the actions taken by the Trust, the Advisers, or
the Administrator and any other changes in circumstances since
the giving of such notice, the determination of the Company shall
continue to apply on the 60th day since giving of such notice,
then such 60th day shall be the effective date of termination; or
(h) termination by any party upon the other party's breach of any
representation or any material breach of any provision of this
Agreement, which breach has not been cured to the satisfaction of
the terminating party within ten (10) days after written notice
of such breach is delivered to the Trust or the Company, as the
case may be; or
(i) termination by the Trust, the Advisers, or Administrator by
written notice to the Company in the event an Account or Contract
is not registered (unless exempt from registration) or sold in
accordance with applicable federal or state law or regulation, or
the Company fails to provide pass-through voting privileges as
specified in Section 3.3.
11.2. Effect of Termination. Notwithstanding any termination of this
Agreement, the Trust shall continue to make available additional shares of
the Trust pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts") unless such further sale
of Trust shares is proscribed by law, regulation or applicable regulatory
body, or unless the Trust determines that liquidation of the Trust
following termination of this Agreement is in the best interests of the
Trust and its shareholders. If Series shares continue to be available after
a termination of this Agreement pursuant to Section 11.1, the provisions of
this Agreement shall remain in effect and thereafter either the Trust or
Company may terminate the Agreement, as so continued pursuant to this
Section 11.2, upon prior written notice to the other party, such notice to
be for a period that is reasonable under the circumstances but if given by
the Trust, shall not be longer than the period needed by the Company,
making a good faith effort, to obtain any necessary approval(s) from the
Commission
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or any state regulatory authority. The parties agree that this Section 11.2
shall not apply to any terminations under Article 8 and the effect of such
Article 8 terminations shall be governed by Article 8 of this Agreement.
11.3. The Company shall not redeem Trust shares attributable to the
Contracts (as distinct from Trust shares attributable to the Company's
assets held in the Account) except (i) as necessary to implement Contract
owner initiated or approved transactions, or (ii) as required by state
and/or federal laws or regulations or judicial or other legal precedent of
general application (hereinafter referred to as a "Legally Required
Redemption") or (iii) as permitted by an order of the SEC pursuant to
Section 26(b) of the 1940 Act. Upon request, the Company will promptly
furnish to the Trust, the Advisers and the Administrator the opinion of
counsel for the Company (which counsel shall be reasonably satisfactory to
the Trust and the Advisers) to the effect that any redemption pursuant to
clause (ii) above is a Legally Required Redemption. Furthermore, except in
cases where permitted under the terms of the Contracts, the Company shall
not prevent Contract owners from allocating payments to a Portfolio that
was otherwise available under the Contracts without first giving the Trust
or the Advisers 30 days notice of its intention to do so.
ARTICLE 12
NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify
in writing to the other party.
If to the Trust:
JPMorgan Insurance Trust
Mail Code OH1-1235
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
If to the Administrator:
JPMorgan Funds Management, Inc.
Mail Code OH1-1235
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Contract Administrator
If to the Advisers:
JPMorgan Investment Advisors Inc.
Mail Code OH1-0211
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
▇.▇. ▇▇▇▇▇▇ Investment Management Inc.
Mail Code OH1-0211
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Contract Administrator
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If to the Company:
RiverSource Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
ATTN: Vice President
With a copy to:
RiverSource Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
ATTN: General Counsel's Office
ARTICLE 13
MISCELLANEOUS
13.1. All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust
as neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust. Each of the
Company, the Advisers, and the Administrator acknowledges and agrees that,
as provided by the Trust's Amended and Restated Declaration of Trust, the
shareholders, trustees, officers, employees and other agents of the Trust
and the Portfolios shall not personally be bound by or liable for matters
set forth hereunder, nor shall resort be had to their private property for
the satisfaction of any obligation or claim hereunder. The Trust's Amended
and Restated Declaration of Trust is on file with the Secretary of State
The Commonwealth of Massachusetts.
13.2. The Company will comply with all applicable laws and regulations
aimed at preventing, detecting, and reporting money laundering and
suspicious transactions. Without limiting the generality of the foregoing,
the Company shall take all necessary and appropriate steps, consistent with
applicable regulations and generally accepted industry practices, to: (i)
obtain, verify, and retain information with regard to Contract owner
identification and source of Contract owner funds, and (ii) maintain
records of all Contract owner transactions. The Company will (but only to
the extent consistent with applicable law) take all steps necessary and
appropriate to provide the Trust with any requested information about
Contract owners and their accounts in the event that the Trust shall
request such information due to an inquiry or investigation by any law
enforcement, regulatory, or administrative authority. To the extent
permitted by applicable law and regulations, the Company will notify the
Trust of any concerns that the Company may have in connection with any
Contract owner in the context of relevant anti-money laundering laws or
regulations.
13.3. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate or utilize
such names and addresses and other confidential information until such time
as it may come into the public domain without the express written consent
of the affected party.
13.4. 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.
13.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the
same instrument.
13.6. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
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13.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the National Association of Securities
Dealers and state insurance regulators) and shall permit such authorities
(and other parties hereto) reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
13.8. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations at law or in equity, which the parties hereto are entitled to
under state and federal laws.
13.9. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Advisers may, with advance
written notice to the other parties hereto, assign this Agreement or any
rights or obligations hereunder to any affiliate of or company under common
control with the Advisers if such assignee is duly licensed and registered
to perform the obligations of the Advisers under this Agreement.
13.10. The Company shall furnish, or shall cause to be furnished, to
the Trust or its designee upon request, copies of the following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under generally accepted
accounting principles ("GAAP"), if any), as soon as practical and in any
event within 90 days after the end of each fiscal year;
(b) the Company's June 30th quarterly statements (statutory), as soon
as practical and in any event within 45 days following such period;
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/or policyholders, as soon as practical
after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial
reports the Company filed with the Securities and Exchange Commission or
any state insurance regulator, as soon as practical after the filing
thereof; and
(e) any other public report submitted to the Company by independent
accountants in connection with any annual, interim or special audit made by
them of the books of the Company, as soon as practical after the receipt
thereof.
13.11. The names "JPMorgan Insurance Trust" and "Trustees of JPMorgan
Insurance Trust" refer respectively to the Trust created and the Trustees,
as trustees but not individually or personally, acting from time to time
under a Declaration of Trust dated June 7, 1993 to which reference is
hereby made and a copy of which is on file at the office of the Secretary
of The Commonwealth of Massachusetts and elsewhere as required by law, and
to any and all amendments thereto so filed or hereafter filed. The
obligations of "JPMorgan Insurance Trust" entered into in the name or on
behalf thereof by any of the Trustees, representatives or agents are made
not individually, but in such capacities, and are not binding upon any of
the Trustees, shareholders or representatives of the Trust personally, but
bind only the assets of the Trust, and all persons dealing with any series
of shares of the Trust must look solely to the assets of the Trust
belonging to such series for the enforcement of any claims against the
Trust.
13.12. The Trust and the Administrator agree to consult with the
Company concerning whether any Portfolio of the Trust qualifies to provide
a foreign tax credit pursuant to Section 853 of the Code.
[SIGNATURE PAGES FOLLOW]
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RIVERSOURCE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: VP
JPMORGAN INSURANCE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. House
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. House
Title: Assistant Treasurer
JPMORGAN INVESTMENT ADVISORS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer & CFO
▇.▇. ▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: Managing Director
JPMORGAN FUNDS MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
as of April 24, 2009 which Accounts and Contracts may be changed from time to
time upon written notification to the Trust by the Company within a reasonable
time from such change;
RIVERSOURCE LIFE INSURANCE COMPANY ACCOUNTS AND CONTRACTS
RiverSource Variable Annuity Account
RiverSource(R) AccessChoice Select Variable Annuity
RiverSource(R) Endeavor Plus(SM) Variable Annuity
RiverSource(R) Endeavor Select Variable Annuity
RiverSource(R) FlexChoice Variable Annuity
RiverSource(R) FlexChoice Select Variable Annuity
RiverSource(R) Galaxy Premier Variable Annuity
RiverSource(R) Innovations Classic Variable Annuity
RiverSource(R) Innovations Classic Select Variable Annuity
RiverSource(R) Innovations Variable Annuity
RiverSource(R) Innovations Select Variable Annuity
RiverSource(R) New Solutions Select Variable Annuity
RiverSource(R) Personal Portfolio Plus(2) Variable Annuity
RiverSource(R) Personal Portfolio Plus Variable Annuity
RiverSource(R) Personal Portfolio Variable Annuity
RiverSource(R) Pinnacle Variable Annuity
RiverSource(R) Platinum Variable Annuity
RiverSource(R) Signature Variable Annuity
RiverSource(R) Signature Select Variable Annuity
RiverSource(R) Signature One Select Variable Annuity
RiverSource(R) Signature One Variable Annuity
Evergreen Essential(SM) Variable Annuity
Evergreen New Solutions Variable Annuity
Evergreen New Solutions Select Variable Annuity
Evergreen Pathways(SM) Variable Annuity
Evergreen Pathways(SM) Select Variable Annuity
Evergreen Privilege(SM) Variable Annuity
▇▇▇▇▇ Fargo Advantage(R) Variable Annuity
▇▇▇▇▇ Fargo Advantage(R) Select Variable Annuity
▇▇▇▇▇ Fargo Advantage(R) Builder Select Variable Annuity
▇▇▇▇▇ Fargo Advantage(R) Builder Variable Annuity
▇▇▇▇▇ Fargo Advantage Choice(SM) Variable Annuity
▇▇▇▇▇ Fargo Advantage Choice(SM) Select Variable Annuity
RiverSource Variable Annuity Account 1
RiverSource Privileged Assets(R) Select Annuity
RiverSource Variable Account 10
RiverSource Retirement Advisor 4 Advantage(R) Variable Annuity
RiverSource Retirement Advisor 4 Select(R) Variable Annuity
RiverSource Retirement Advisor 4 Access(R) Variable Annuity
RiverSource Retirement Advisor Advantage Plus(R) Variable Annuity
RiverSource Retirement Advisor Advantage Select Plus(R) Variable Annuity
RiverSource Retirement Advisor Advantage(R) Variable Annuity
RiverSource Retirement Advisor Select(R) Variable Annuity
RiverSource Retirement Advisor Advantage(R) Variable Annuity - Band 3
RiverSource Retirement Advisor Variable Annuity(R)
RiverSource Retirement Advisor Variable Annuity(R) - Band 3
RiverSource(R) Flexible Portfolio Annuity
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RiverSource Variable Life Separate Account
RiverSource(R) Single Premium Variable Life
RiverSource Succession Select(R) Variable Life Insurance
RiverSource(R) Variable Second-To-Die Life Insurance
RiverSource(R) Variable Universal Life III
RiverSource(R) Variable Universal Life IV
RiverSource(R) Variable Universal Life IV - Estate Series
RiverSource(R) Variable Universal Life IV - Estate Series
RiverSource Variable Life Account
RiverSource(R) Signature Variable Universal Life
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SCHEDULE B
PORTFOLIOS OF THE TRUST
JPMorgan Insurance Trust Balanced Portfolio Class 1
JPMorgan Insurance Trust Core Bond Portfolio Class 1
JPMorgan Insurance Trust U.S. Equity Portfolio Class 1
JPMorgan Insurance Trust Diversified Mid Cap Growth Portfolio Class 1
JPMorgan Insurance Trust Mid Cap Value Portfolio Class 1
JPMorgan Insurance Trust Equity Index Portfolio Class 1
JPMorgan Insurance Trust International Equity Portfolio Class 1
JPMorgan Insurance Trust Intrepid Growth Portfolio Class 1
JPMorgan Insurance Trust Intrepid Mid Cap Portfolio Class 1
JPMorgan Insurance Trust Small Cap Core Portfolio Class 1
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