JANUS ASPEN SERIES
AMENDED AND RESTATED
FUND PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT ("Agreement") is made this 1st day of
September, 2006 by and among the following parties:
o AMERICAN ENTERPRISE LIFE INSURANCE COMPANY ("American Enterprise
Life"), organized under the laws of the State of Indiana, on its
own behalf and on behalf of each segregated asset account named
in Schedule A to this Agreement, as may be amended from time to
time (each account referred to as an "Account");
o AMERICAN PARTNERS LIFE INSURANCE COMPANY ("American Partners
Life"), organized under the laws of the state of Arizona, on its
own behalf and on behalf of each segregated asset account named
in Schedule A to this Agreement, as may be amended from time to
time (each account referred to as an "Account");
o IDS LIFE INSURANCE COMPANY ("IDS Life"), organized under the
laws of the State of Minnesota, on its own behalf and on behalf
of each segregated asset account named in Schedule A to this
Agreement, as may be amended from time to time (each account
referred to as an "Account");
each of American Enterprise Life, American Partners Life and IDS Life
hereinafter also referred to as a "Company"; and,
o JANUS ASPEN SERIES, an open-end management investment company
organized as a Delaware business trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust has registered with the Securities and Exchange
Commission as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the beneficial
interest in the Trust is divided into several series of shares, each series
representing an interest in a particular managed portfolio of securities and
other assets (the "Portfolios"); and
WHEREAS, the Trust has registered the offer and sale of a class of
shares designated the Service Shares ("Shares") of each of its Portfolios
under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for
separate accounts established for variable life insurance policies and
variable annuity contracts to be offered by
insurance companies that have entered into participation agreements with the
Trust (the "Participating Insurance Companies"); and
WHEREAS, the Trust has received an order from the Securities and
Exchange Commission granting Participating Insurance Companies and their
separate accounts exemptions from the provisions of Sections 9(a), 13(a),
15(a) and 15(b) of the 1940 Act, and Rules 6e-2(b)(15) and 60(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Trust to be sold
to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated life insurance companies and
certain qualified pension and retirement plans (the "Exemptive Order"); and
WHEREAS, the Company has registered or will register (unless
registration is not required under applicable law) certain variable life
insurance policies and/or variable annuity contracts under the 1933 Act (the
"Contracts"); and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act; and
WHEREAS, the Company desires to utilize Shares of the Portfolios
listed on Schedule A as may be amended from time to time, as an investment
vehicle of the Accounts;
NOW THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE A
Amendment and Restatement; Form of Agreement
A.1. The Trust acknowledges the planned merger of American Enterprise
Life and American Partners Life with and into IDS Life (the "Merger") and
the "intact transfer" (the "Transfer") of the Accounts of American
Enterprise Life and American Partners Life to IDS Life by operation of law
and incident to the Merger, on December 31, 2006 at 10:59:59 p.m. Central
Time (the "Effective Time"), subject to all necessary regulatory approvals
being obtained in connection with the Merger and the Transfer, and the
re-naming of IDS Life to RiverSource Life Insurance Company simultaneously
with the Merger. On and after the Effective Time, all references in this
Agreement and its Schedule to American Enterprise Life, American Partners
Life and IDS Life shall mean and refer to RiverSource Life Insurance
Company. The Trust consents to the transfer of the rights and obligations of
American Enterprise Life and American Partners Life under this Agreement to
IDS Life at the Effective Time of the Merger.
A.2. This Agreement shall amend and supersede the following agreements
as of the date stated above between the Company named therein and the Trust
with respect to all investments by the Company and its Accounts prior to the
date of this Agreement, as though identical separate agreements had been
executed by the parties hereto on the dates as indicated below:
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o Fund Participation Agreement, dated March 1, 2000, by and
between American Enterprise Life and the Trust, as amended
by the following documents: (a) Amendment to Fund
Participation Agreement dated July 27, 2001; and (b)
Amendment to Fund Participation Agreement dated September
1, 2002.
o Fund Participation Agreement, dated October 8, 1997, by
and between American Enterprise Life and the Trust, as
amended by the following documents: (a) Amendment to Fund
Participation Agreement dated October 19, 1998; (b) )
Amendment to Fund Participation Agreement dated July 27,
2001; and (c) Amendment to Fund Participation Agreement
dated September 1, 2002.
o Fund Participation Agreement, dated January 23, 1996, by
and between American Partners Life and the Trust, as
amended by the following documents: (a) Amendment to Fund
Participation Agreement dated July 27, 2001; and (b)
Amendment to Fund Participation Agreement dated September
1, 2002.
o Fund Participation Agreement, dated April 21, 2000, by and
between IDS Life and the Trust, as amended by the
following documents: (a) Amendment to Fund Participation
Agreement dated July 27, 2001; (b) Amendment to Fund
Participation Agreement dated February 13, 2002; (c)
Amendment to Fund Participation Agreement dated May 31,
2002; and (d) Amendment to Fund Participation Agreement
dated September 1, 2002.
Although the parties have executed this Agreement in this form for
administrative convenience, this Agreement shall constitute a separate
participation agreement with each Company until the Effective Time of the
Merger.
ARTICLE I
Sale of Trust Shares
--------------------
1.1 The Trust shall make Shares of its Portfolios available to the
Accounts at the net asset value next computed after receipt of such purchase
order by the Trust (or its agent), as established in accordance with the
provisions of the then current prospectus of the Trust. Shares of a
particular Portfolio of the Trust shall 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 Trustees of the Trust (the "Trustees")
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 Trustees 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.
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1.2 The Trust 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 Trust (or its agent) of the
request for redemption, as established in accordance with the provisions of
the then current prospectus of the Trust. The Trust shall make payment for
such Shares on the same Business Day (as defined below) as the Trust
receives notice of redemption orders in accordance with Section 1.3 and in
the manner established from time to time by the Trust, except that the Trust
reserves the right to suspend payment consistent with Section 22(e) of the
1940 Act and any rules thereunder.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby
appoints the Company as its agent for the limited purpose of receiving and
accepting purchase and redemption orders resulting from investment in and
payments under the Contracts. Receipt by the Company shall constitute
receipt by the Trust provided that: (i) 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 and (ii) the Trust
receives notice of such orders by 11:00 a.m. New York time on the next
following Business Day. "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. Notwithstanding the foregoing, with respect to any purchase
and/or redemption orders relating to any Portfolio sub-advised by Enhanced
Investment Technologies, LLC ("INTECH") as identified in the then current
Prospectus for each Fund, receipt by the Company shall constitute receipt by
the Trust provided that i) 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 and ii) the Trust receives notice of such
orders by 8:00 a.m. New York time on the next following Business Day.
1.4 Purchase orders that are transmitted to the Trust in accordance
with Section 1.3 shall be initiated by wire no later than 12:00 noon New
York time on the same Business Day that the Trust receives notice of the
order. Payments shall be made in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust's Shares will be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Shares ordered from the Trust will be recorded in the appropriate title for
each Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish same-day notice (by wire or telephone
followed by written confirmation) to the Company of any income dividends or
capital gain distributions payable on the Trust's shares. The Company hereby
elects to receive all such income dividends and capital gain distributions
as are payable on a Portfolio's Shares in additional Shares of that
Portfolio. The Company reserves the right to revoke this election and to
receive all such dividends and distributions in cash upon 90 days' prior
notice to the Trust. The Trust shall notify the Company of the number of
Shares so issued as payment of such dividends and distributions.
1.7 The Trust shall 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
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calculated and shall use its best efforts to make such net asset value per
Share available by 6 p.m. New York time.
1.8 The Trust agrees that its Shares will be sold only to
Participating Insurance Companies and their separate accounts and to certain
qualified pension and retirement plans 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 Trust Shares will be used only for
the purposes of funding the Contracts and Accounts listed in Schedule A, as
amended from time to time.
1.9 The Trust agrees that all Participating Insurance Companies shall
have the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.8 and
Article IV of this Agreement.
ARTICLE II
Obligations of the Parties
--------------------------
2.1 The Trust shall prepare and be responsible for filing with the
Securities and Exchange Commission 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 Trust. The Trust shall bear
the costs of registration and qualification of its shares, preparation and
filing of the documents listed in this Section 2.1 and all taxes to which an
issuer is subject on the issuance and transfer of its shares.
2.2 At the option of the Company, the Trust shall either (a) provide
the Company (at the Company's expense) with as many copies of the Trust's
current prospectus, annual report, semi-annual report and other
Trust-sponsored shareholder communications, including any amendments or
supplements to the foregoing, as the Company shall reasonably request (at
the Trust's expense for existing Contract owners and at the Company's
expense for prospective owners); or (b) provide the Company with a camera
ready copy, a computer disk or other electronic communication of such
documents in a form suitable for printing. The Trust (at its expense) shall
provide the Company with a copy of its statement of additional information
in a form suitable for duplication by the Company. The Trust (at its
expense) shall provide the Company with copies of any Trust-sponsored proxy
materials in such quantity as the Company shall reasonably require for
distribution to Contract owners.
2.3 The Company shall bear the costs of printing and distributing the
Trust's prospectus, statement of additional information, shareholder reports
and other shareholder communications to prospective owners of Contracts for
which the Trust is serving or is to serve as an investment vehicle. The
Trust shall bear the costs of printing and distributing the Trust's
prospectus, statement of additional information, shareholder reports and
other Trust-sponsored shareholder communications to existing Contract owners
for which the Trust is serving as an investment vehicle. The Company shall
bear the costs of distributing proxy materials (or similar materials such as
voting solicitation instructions) to Contract owners. The Company assumes
sole responsibility for ensuring that such materials are delivered to
Contract owners in
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accordance with applicable federal and state securities laws. The Trust will
provide notice to all Participating Insurance Companies including the
Company each time the Trust amends or supplements the Trust's current
prospectus or statement of additional information indicating to the
Participating Insurance Companies whether Janus has determined that such
supplement is for fulfillment purposes only. The Company will deliver such
supplements in accordance with applicable law, plan documents, or variable
contract requirements.
In the event the Trust initiates the merger or liquidation of a Portfolio,
the Trust will bear, or arrange for others to bear, the Company's internal
and out-of-pocket costs associated with the aforementioned actions. Company
agrees to use its best efforts to minimize any costs incurred and shall
provide the Trust or its designated agent with acceptable documentation of
any such costs incurred.
2.4 The Company agrees and acknowledges that the Trust's adviser,
Janus Capital Corporation ("Janus Capital"), is the sole owner of the name
and xxxx "Xxxxx" and that all use of any designation comprised in whole or
part of Janus (a "Xxxxx Xxxx") under this Agreement shall inure to the
benefit of Janus Capital. Except as provided in Section 2.5, the Company
shall not use any Xxxxx Xxxx on its own behalf or on behalf of the Accounts
or Contracts in any registration statement, advertisement, sales literature
or other materials relating to the Accounts or Contracts without the prior
written consent of Janus Capital. Upon termination of this Agreement for any
reason, the Company shall cease all use of any Xxxxx Xxxx(s) as soon as
reasonably practicable.
2.5 The Company shall furnish, or cause to be furnished, to the Trust
or its designee, a copy of each Contract prospectus or statement of
additional information in which the Trust or its investment adviser is named
prior to the filing of such document with the Securities and Exchange
Commission. The Company shall furnish, or shall cause to be furnished, to
the Trust or its designee, each piece of sales literature or other
promotional material in which the Trust or its investment adviser is named,
at least ten Business Days prior to its use. No such material shall be used
if the Trust or its designee reasonably objects to such use within five
Business Days after receipt of such material.
2.6 The Trust shall furnish, or cause to be furnished, to the Company
or its designee, a copy of each Trust prospectus or statement of additional
information in which the Company is named prior to the filing of such
document with the Securities and Exchange Commission. The Trust shall
furnish, or shall cause to be furnished, to the Company or its designee,
each piece of sales literature or other promotional material in which the
Company is named, 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 five Business Days after receipt of such material.
2.7 The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust
or its investment adviser in connection with the sale of the Contracts other
than information or representations contained in and accurately derived from
the registration statement, prospectus or statement of additional
information for the Trust shares (as such registration statement, prospectus
and statement of
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additional information may be amended or supplemented from time to time),
reports of the Trust, Trust-sponsored proxy statements, or in sales
literature or published reports in the public domain or other promotional
material approved by the Trust or its designee, except as required by legal
process or regulatory authorities or with the written permission of the
Trust or its designee. Nothing in this Section 2.7 will be construed as
preventing the Company or its employees or agents from giving advice on
investments in the Trust.
2.8 The Trust shall not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, the Accounts or the Contracts other than information or
representations contained in and accurately derived from the 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 materials approved by the Company for distribution including sales
literature or other promotional materials, except as required by legal
process or regulatory authorities or with the written permission of the
Company.
2.9 So long as, and to the extent that the Securities and Exchange
Commission interprets the 1940 Act to require pass-through voting privileges
for variable policyowners, the Company will provide pass-through voting
privileges to owners of policies whose cash values are invested, through the
Accounts, in shares of the Trust. The Trust shall require all Participating
Insurance Companies to calculate voting privileges in the same manner and
the Company shall be responsible for assuring that the Accounts calculate
voting privileges in the manner established by the Trust. With respect to
each Account, the Company will vote Shares of the Trust held by the Account
and for which no timely voting instructions from policyowners, are received
as well as Shares it owns that are held by that Account, in the same
proportion as those shares for which voting instructions are received. The
Company and its agents will in no way recommend or oppose or interfere with
the solicitation of proxies for Trust shares held by Contract owners without
the prior written consent of the Trust, which consent may be withheld in the
Trust's sole discretion.
2.10 The Company shall notify the Trust of any applicable state
insurance laws of which it becomes aware that restrict the Portfolios'
investments or otherwise affect the operation of the Trust and shall notify
the Trust of any changes in such laws.
2.11 The Company acknowledges the Trust has adopted policies and
procedures reasonably designed to prevent frequent or excessive purchases,
exchanges and redemptions of the shares of Portfolios in quantities great
enough to disrupt orderly management of the corresponding Portfolio's
investment portfolio. These policies are disclosed in the Trust's
prospectus.
The Trust acknowledges that the Company, on behalf of its Accounts,
has adopted policies and procedures reasonably designed to detect and deter
frequent transfers of Contract value among the subaccounts of the Accounts
including those investing in Portfolios available as investment options
under the Contracts. These policies and procedures are described in the
current prospectuses of the Accounts through which the Contracts are
offered.
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The Trust may consider the Company's policies and procedures
pertaining to frequent transfers of Contract value among the subaccounts of
the Account(s) including those investing in Portfolios when the Trust
periodically reviews or amends the Trust's disruptive trading policies and
procedures from time to time. The Trust may invite comment from and confer
with Company regarding any proposed policy and procedure of the Trust
pertaining to disruptive trading to determine prior to adopting such
proposed policy or procedure the Company's then-present ability to apply
such proposed policy or procedure to Contract owners who allocate Contract
value to subaccounts investing in Portfolios available under the Contracts,
including without limitation whether the Company can apply such proposed
policy or procedure without the need to modify its automated data processing
systems or to develop and staff manual systems to accommodate the
implementation of the Trust's proposed policy or procedure.
The Company will cooperate with the Trust's reasonable requests in taking
steps to deter and detect such transfers by any Contract owner. The Company
will provide promptly upon written request by the Trust, directly or through
its designee:
o the Taxpayer Identification Number of all Contract owners that
purchased, redeemed, transferred, or exchanged shares of a Fund
held under a Contract during the period covered by the request;
and,
o the amount and dates of such Contract owners purchases,
redemptions, transfers and exchanges in subaccounts available
under the Contract which invest in shares of any Fund during the
period covered by the request.
The Trust acknowledges that the Company's standard report provides
transaction information for the 90 day period immediately preceding the
Company's receipt of the Trust's written request. The Trust may request
transaction information for earlier periods as it deems necessary to
investigate compliance with policies established by the Trust for the
purposes of eliminating or reducing any dilution of the value of the
outstanding shares of any Portfolio of the Trust. To the extent practicable,
the format for any transaction information provided to the Trust will be
consistent with the NSCC Standardized Data Reporting Format.
The Company will execute any written instructions from the Trust, directly
or through its designee, to restrict or prohibit further purchases,
transfers or exchanges in subaccounts available under the Contract which
invest in shares of any Portfolio of the Trust by any Contract owner who has
been identified by the Trust, or its designee, as having engaged in
transactions that violate policies established by the Trust for the purpose
of eliminating or reducing any dilution of the value of the outstanding
securities issued by the Trust . The Company agrees to execute the Trust's
written instructions as soon as reasonably practicable, but not later than
seven (7) Business Days after receipt of the Trust's instructions. The
Company must provide written confirmation to the Trust, that instructions
have been executed as soon as reasonably practicable, but not later than ten
(10) Business Days after the instructions have been executed.
The parties shall negotiate in good faith such additional terms and
conditions regarding implementation of the foregoing obligations of the
parties under Rule 22c-2 as any party may
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wish to address, including without limitation, reimbursement of a reasonable
portion of expenses the Company incurs in order to provide such information
to the Trust or its designee and to execute any instructions from the Trust
or its designee to restrict or prohibit purchases, transfers or exchanges by
any Contract owner in subaccounts available under a Contract which invest in
shares of any Portfolio of the Trust.
ARTICLE III
Representations and Warranties
------------------------------
3.1 The Company represents and warrants that it is an insurance
company duly organized and in good standing under the laws of the state
identified on the first page of this Agreement and that it has legally and
validly established each Account as a segregated asset account under such
law on the date set forth in Schedule A.
3.2 The Company represents and warrants that each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered as a unit investment trust in accordance with the provisions of
the 0000 Xxx.
3.3 The Company represents and warrants that the Contracts or
interests in the Accounts (1) are or, prior to issuance, will be registered
as securities under the 1933 Act or, alternatively (2) are not registered
because they are properly exempt from registration under the 1933 Act or
will be offered exclusively in transactions that are properly exempt from
registration under the 1933 Act. The Company further represents and warrants
that the Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws; and the sale of the
Contracts shall comply in all material respects with state insurance
suitability requirements.
3.4 The Trust represents and warrants that it is duly organized and
validly existing under the laws of the State of Delaware.
3.5 The Trust represents and warrants that the Trust Shares offered
and sold pursuant to this Agreement will be registered under the 1933 Act
and the Trust shall be registered under the 1940 Act prior to any issuance
or sale of such Shares. The Trust shall amend its registration statement
under the 1933 Act and the 1940 Act from time to time as required in order
to effect the continuous offering of its Shares. The Trust shall register
and qualify its Shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust.
3.6 The Trust represents and warrants that the investments of each
Portfolio will comply with the diversification requirements set forth in
Section 817(h) of the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder. In the event the Trust fails to comply
with these diversification requirements, the Trust will take all reasonable
steps: (a) to notify the Company of such noncompliance; and (b) to
adequately diversify the Trust so as to achieve compliance within the grace
period afforded by Treasury Regulation 1.817-5.
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3.7 The Trust represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, and that
it will make every effort to maintain such qualification (under Subchapter M
or any successor or similar provision) and that it will notify the Company
immediately upon having a reasonable basis for believing that it has ceased
to so qualify or that it might not so qualify in the future.
3.8 The Trust represents that its investment objectives, policies and
restrictions comply in all material respects with any applicable state
securities laws of which the Trust is aware as they may apply to the Trust.
The Trust makes no representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies,
objectives and restrictions) complies with the insurance laws and
regulations of any state. The Trust agrees that it will furnish the
information required by state insurance laws and requested by the Company to
assist the Company in obtaining the authority needed to issue the Contracts
in the various states.
3.9 The Trust represents and warrants that all of its trustees,
officers, employees, investment advisers, and other individuals/entities
having access to the funds and/or securities of the Trust are and 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 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.
3.10 The Company represents and warrants to the Trust that the Company
shall comply with all the applicable laws and regulations designed to
prevent money laundering including without limitation the International
Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (Title
III of the USA PATRIOT ACT), and if required by such laws or regulations
will share information with the Trust about individuals, entities,
organizations and countries suspected of possible terrorist or money
laundering activities in accordance with Section 314(b) of the USA PATRIOT
ACT.
ARTICLE IV
Potential Conflicts
-------------------
4.1 The parties acknowledge that the Trust's shares may be made
available for investment to other Participating Insurance Companies. In such
event, the Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. 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 and
variable life insurance contract owners; or (f) a decision by an insurer to
disregard
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the voting instructions of contract owners. The Trustees shall promptly
inform the Company if they determine that an irreconcilable material
conflict exists and the implications thereof.
4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. The Company will assist the
Trustees in carrying out their responsibilities under the Exemptive Order by
providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner
voting instructions.
4.3 If it is determined by a majority of the Trustees, or a majority
of its disinterested Trustees, that a material irreconcilable conflict
exists that affects the interests of Contract owners, the Company shall, in
cooperation with other Participating Insurance Companies whose contract
owners are also affected, at its expense and to the extent reasonably
practicable (as determined by the Trustees) take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, which
steps could include: (a) withdrawing the assets allocable to some or all of
the subaccounts of the 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 of
whether or not such segregation should be implemented to a vote of all
affected Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity contract owners, life insurance contract
----
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the
affected Contract owners the option of making such a change; and (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 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 subaccount of the Account's investment in the Trust and terminate
this Agreement with respect to such subaccount of the Account; provided,
however that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by
a majority of the disinterested Trustees. 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 Trust gives written notice
that this provision is being implemented. Until the end of such six (6)
month period, the Trust shall continue to accept and implement orders by the
Company for the purchase and redemption of shares of the Trust.
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 regulators, then the Company will withdraw
the affected subaccount of the Account's investment in the Trust and
terminate this Agreement with respect to such subaccount of the Account
within six (6) months after the Trustees inform the Company in writing that
it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested Trustees. No
charge or penalty will be imposed as a result of such withdrawal. Until the
end of such six (6) month period, the Trust
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shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust.
4.6 For purposes of Sections 4.3 through 4.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no
event will the Company be required to establish a new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable material
conflict. In the event that the Trustees determine that any proposed action
does not adequately remedy any irreconcilable material conflict, then the
Company will withdraw the subaccount of the Account's investment in the
Trust and terminate this Agreement within six (6) months after the Trustees
inform the Company in writing of the foregoing determination; provided,
however, that such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as determined by a
majority of the disinterested Trustees. No charge or penalty will be imposed
as a result of such withdrawal.
4.7 The Company shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonable request so that
the Trustees may fully carry out the duties imposed upon them by the
Exemptive Order, and said reports, materials and data shall be submitted
more frequently if deemed appropriate by the Trustees.
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 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.
ARTICLE V
Indemnification
---------------
5.1 Indemnification by the Company. The Company agrees to indemnify
------------------------------
and hold harmless the Trust and each person, if any, who controls the Trust
within the meaning of Section 15 of the 1933 Act and any Trustees, officers,
employees and agents of the foregoing (collectively, the "Indemnified
Parties" for purposes of this Article V) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Company) or expenses (including the reasonable costs of
investigating or defending any alleged loss, claim, damage, liability or
expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise,
insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a registration
statement, prospectus or statement of additional information for the
Contracts or in the Contracts themselves or in sales literature
12
generated or approved by the Company on behalf of the Contracts or Accounts
(or any amendment or supplement to any of the foregoing) (collectively,
"Company Documents" for the purposes of this Article V), 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 indemnity 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 was accurately
derived from written information furnished to the Company by or on behalf of
the Trust for use in Company Documents or otherwise for use in connection
with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately
derived from Trust Documents as defined in Section 5.2(a)) or wrongful
conduct of the Company or persons under its control, with respect to the
sale or acquisition of the Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Trust Documents as defined
in Section 5.2(a) 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 statement or omission was made in
reliance upon and accurately derived from written information furnished to
the Trust by or on behalf of the Company; or
(d) arise out of or result from any failure by the Company to
provide the services or furnish the materials required under the terms of
this Agreement; or
(e) 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.
5.2 Indemnification by the Trust. The Trust agrees to indemnify and
----------------------------
hold harmless the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act and any directors,
officers, employees and agents of the foregoing (collectively, the
"Indemnified Parties" for purposes of this Article V) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Trust) or expenses (including the reasonable
costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Indemnified
Parties may become subject under any statute or regulation, or at common law
or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the registration
statement, prospectus or statement of additional information for the Trust
or any sales literature generated or approved by the Trust (or any amendment
or supplement thereto), (collectively, "Trust Documents" for the purposes of
this Article V), 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
13
misleading, provided that this indemnity 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 was accurately derived from written information
furnished to the Trust by or on behalf of the Company for use in Trust
Documents or otherwise for use in connection with the sale of the Contracts or
Trust Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately
derived from Company Documents) or wrongful conduct of the Trust or persons
under its control, with respect to the sale or acquisition of the Contracts
or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Company Documents 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 statement or omission was made in reliance upon and accurately derived
from written information furnished to the Company by or on behalf of the
Trust; or
(d) arise out of or result from any failure by the Trust to
provide the services or furnish the materials required under the terms of
this Agreement, including, but not limited to, any material (based on
current standards of the Securities and Exchange Commission) errors in or
untimely calculation or reporting of the daily net asset value per share or
dividend or capital gain distribution rate; or
(e) 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.
5.3 Neither the Company nor the Trust shall be liable under the
indemnification provisions of Sections 5.1 or 5.2, as applicable, with
respect to any Losses incurred or assessed against an Indemnified Party that
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.
5.4 Neither the Company nor the Trust shall be liable under the
indemnification provisions of Sections 5.1 or 5.2, as applicable, with
respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the other party in writing within a
reasonable time after the summons, or other first written notification,
giving information of the nature of the claim, complaint or action by a
regulatory authority shall have been served upon or otherwise received by
such Indemnified Party (or after such Indemnified Party shall have received
notice of service upon or other notification to any designated agent), but
failure to notify the party against whom indemnification is sought of any
such claim shall not relieve that party from any liability which it may have
to the Indemnified Party in the absence of Sections 5.1 and 5.2.
14
5.5 In case any such action is brought against the Indemnified
Parties, the indemnifying party shall be entitled to participate, at its own
expense, in the defense of such action. The indemnifying party also shall be
entitled to assume the defense thereof, with counsel reasonably satisfactory
to the party named in the action. After notice from the indemnifying party
to the Indemnified Party of an election to assume such defense, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the indemnifying party will not be liable to the
Indemnified 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.
ARTICLE VI
Termination
-----------
6.1 This Agreement may be terminated by either party for any reason by
ninety (90) days' advance written notice delivered to the other party or as
otherwise agreed in writing by both parties.
6.2 Notwithstanding any termination of this Agreement, the Trust
shall, at the option of the Company, continue to make available additional
shares of the Trust (or any Portfolio) pursuant to the terms and conditions
of this Agreement for all Contracts in effect on the effective date of
termination of this Agreement, provided that the Company continues to pay
the costs set forth in Section 2.3.
6.3 The provisions of Article V shall survive the termination of this
Agreement, and as long as shares of the Trust are held on behalf of Contract
owners in accordance with Section 6.2, the provisions of this Agreement
shall survive the termination of this Agreement with respect to those
Contract owners.
ARTICLE VII
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:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Company:
American Enterprise Life Insurance Company
American Partners Life Insurance Company
15
IDS Life Insurance Company
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President
With a simultaneous copy to:
Ameriprise Financial Services, Inc.
50607 Ameriprise Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President and Group Counsel
ARTICLE VIII
Miscellaneous
-------------
8.1 The captions in this' Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
8.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.3 If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
8.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of State of Colorado. 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 Securities and Exchange Commission may grant (including,
but not limited to, the Exemptive Order) and the terms hereof will be
interpreted and construed in accordance therewith.
8.5 The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this
Agreement, of any and every nature whatsoever, shall be satisfied solely out
of the assets of the Trust and that no Trustee, officer, agent or holder of
shares of beneficial interest of the Trust shall be personally liable for
any such liabilities.
8.6 Each party 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, Inc., and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with
any investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. The Trust agrees that the Company will have the right
to inspect, audit and copy all records pertaining to the
16
performance of services under this Agreement to the extent required by any
state insurance department upon reasonable notice to the Trust and during
the Trust's normal business hours.
8.7 The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
8.8 The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
8.9 Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the prior written approval of the other
party.
8.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by
both parties.
8.11 The Trust acknowledges that the identities of the customers of
the Company or any of its affiliates (collectively the "Protected Parties"
for purposes of this Section 8.11), information maintained regarding those
customers, and 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. The Trust
agrees that if it comes into possession of any list or compilation of the
identities of or other information about the Protected Parties' customers,
or any other information or property of the Protected Parties, other than
such information as may be independently developed or compiled by the Trust
from information supplied to it by the Protected Parties' customers who also
maintain accounts directly with the Trust, the Trust will hold such
information or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with the
Company's prior written consent; or (b) as required by law or judicial
process. The Trust acknowledges that any breach of the agreements in this
Section 8. 11 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.
8.12 Notwithstanding anything to the contrary contained in this
Agreement, in addition to and not in lieu of other provisions in this
Agreement:
(a) Company Confidential Information.
(i) "Company Confidential Information" includes but is not
limited to all proprietary and confidential information of the Company and
its subsidiaries, affiliates or licensees, including without limitation all
information regarding the customers of Company and its subsidiaries,
affiliates and licensees; and the accounts, account numbers, names,
addresses,
17
social security numbers or any other personal identifier of such
customers; and any information derived therefrom.
(ii) Trust must not use or disclose Company Confidential
Information for any purpose other than to carry out the purpose for which
Company Confidential Information was provided to Trust as set forth in the
Agreement or unless disclosure is required by applicable law or regulatory
authority, and agrees to cause all its employees, agents, representatives,
or any other party to whom Trust may provide access to or disclose Company
Confidential Information to limit the use and disclosure of Company
Confidential Information to that purpose.
(iii) Trust agrees to implement appropriate measures
designed to ensure the security and confidentiality of Company 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, Company Confidential Information
that could result in substantial harm or inconvenience to any customer of
the Company or its subsidiaries, affiliates or licensees; Trust further
agrees to cause all its agents, representatives or subcontractors, or any
other party to whom Trust may provide access to or disclose Company
Confidential Information to implement appropriate measures designed to meet
the objectives set forth in this paragraph.
(b) Trust Confidential Information.
(i) "Trust Confidential Information" includes but is not
limited to all proprietary and confidential information of Trust and its
subsidiaries, affiliates, or licensees, including without limitation all
information regarding the customers of Trust and its subsidiaries,
affiliates and licensees; and the accounts, account numbers, names,
addresses, social security numbers or any other personal identifier of such
customers; and any information derived therefrom.
(ii) Company must not use or disclose Trust Confidential
Information for any purpose other than to carry out the purpose for which
Trust Confidential Information was provided to Company as set forth in the
Agreement or unless disclosure is required by applicable law or regulatory
authority, and agrees to cause all its employees, agents, representatives,
or any other party to whom Company may provide access to or disclose Trust
Confidential Information to limit the use and disclosure of Trust
Confidential Information to that purpose.
(iii) Company agrees to implement appropriate measures
designed to ensure the security and confidentiality of Trust 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, Trust Confidential Information
that could result in substantial harm or inconvenience to any customer of
Trust or its subsidiaries, affiliates or licensees; Company further agrees
to cause all its agents, representatives or subcontractors, or any other
party to whom Company may provide access to or disclose Trust Confidential
Information to implement appropriate measures designed to meet the
objectives set forth in this paragraph.
18
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Participation Agreement as of the date and year
first above written.
AMERICAN ENTERPRISE LIFE
INSURANCE COMPANY
AMERICAN PARTNERS LIFE
INSURANCE COMPANY
ATTEST: IDS LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxx By: /s/ Xxx Xxxxx
-------------------------------- -----------------------------
Name: Xxxxx Xxxxxx Name: Xxx X. Xxxxx III
Title: Assistant Secretary of each Title: Vice President of each
Company Company
JANUS ASPEN SERIES
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxxx Xxxxx
Title: President and CEO
19
SCHEDULE A
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
Separate Accounts, Contracts and Designated Portfolios
NAME OF SEPARATE ACCOUNTS AND DATE ESTABLISHED BY BOARD OF DIRECTORS:
---------------------------------------------------------------------
American Enterprise Variable Annuity Account
Established July 15, 1987
CONTRACTS FUNDED BY ACCOUNT:
----------------------------
AEL Personal Portfolio Plus 2 Variable Annuity
RiverSource Galaxy Premier Variable Annuity
RiverSource Signature Variable Annuity
RiverSource Signature One Variable Annuity
DESIGNATED PORTFOLIOS AND SHARE CLASSES:
----------------------------------------
Janus Aspen Series Balanced Portfolio: Institutional Shares
Janus Aspen Series Worldwide Growth Portfolio: Institutional Shares
Janus Aspen Series Global Technology Portfolio: Service Shares
Janus Aspen Series Large Cap Growth Portfolio: Service Shares
Janus Aspen Series International Growth Portfolio: Service Shares
Janus Aspen Series Mid Cap Growth Portfolio: Service Shares
AMERICAN PARTNERS LIFE INSURANCE COMPANY
Separate Accounts, Contracts and Designated Portfolios
------------------------------------------------------
NAME OF SEPARATE ACCOUNTS AND DATE ESTABLISHED BY BOARD OF DIRECTORS:
----------------------------------------------------------------------
APL Variable Annuity Account I
Established February 9, 1995
CONTRACTS FUNDED BY ACCOUNT:
----------------------------
Privileged Assets Select Annuity
DESIGNATED PORTFOLIOS AND SHARE CLASSES:
Janus Aspen Series Large Cap Growth Portfolio: Institutional Shares
Janus Aspen Series Worldwide Growth Portfolio: Institutional Shares
20
IDS LIFE INSURANCE COMPANY
Separate Accounts, Contracts and Designated Portfolios
------------------------------------------------------
NAME OF SEPARATE ACCOUNTS AND DATE ESTABLISHED BY BOARD OF DIRECTORS:
---------------------------------------------------------------------
IDS Life Variable Account 10,
Established August 23, 1995.
IDS Life Variable Life Separate Account
Established October 16, 1985.
CONTRACTS FUNDED BY IDS LIFE VARIABLE ACCOUNT 10:
-------------------------------------------------
RiverSource Retirement Advisor Advantage(SM) Variable Annuity
RiverSource Retirement Advisor Select(SM) Variable Annuity
RiverSource Retirement Advisor Variable Annuity
RiverSource Retirement Advisor Variable Annuity--Band 3
CONTRACTS FUNDED BY IDS LIFE VARIABLE SEPARATE ACCOUNT:
-------------------------------------------------------
RiverSource(R) Single Premium Variable Life
RiverSource Succession Select(SM) Variable Life Insurance
RiverSource Variable Universal Life Insurance(SM)
RiverSource Variable Universal Life III(SM)
RiverSource(R) Variable Universal Life IV(SM)
RiverSource(R) Variable Universal Life IV - Estate Series
RiverSource(R) Variable Second-To-Die Life Insurance(SM)
DESIGNATED PORTFOLIOS AND SHARE CLASSES:
Janus Aspen Series Global Technology Portfolio: Service Shares
Janus Aspen Series International Growth Portfolio: Service Shares
Janus Aspen Series Mid Cap Growth Portfolio: Service Shares
