PAGE 1
PARTICIPATION AGREEMENT
By and Among
IDS LIFE INSURANCE COMPANY OF NEW YORK
And
WARBURG PINCUS TRUST
And
WARBURG, ▇▇▇▇▇▇ COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
THIS AGREEMENT, made and entered into this 7th day of October, 1996 by and among
IDS Life Insurance Company of New York, organized under the laws of the State of
New York (the "Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule 1 to this Agreement, as may be amended
from time to time (each account referred to as the "Account"), Warburg Pincus
Trust, an open-end management investment company and business trust organized
under the laws of the Commonwealth of Massachusetts (the "Fund"); Warburg,
▇▇▇▇▇▇ Counsellors, Inc. a corporation organized under the laws of the State of
Delaware (the "Adviser"); and Counsellors Securities Inc., a corporation
organized under the laws of the State of New York ("CSI").
WHEREAS, the Fund engages in business as an open-end management investment
company and was established for the purpose of serving as the investment vehicle
for separate accounts established for variable life insurance contracts and
variable annuity contracts to be offered by insurance companies that have
entered into participation agreements similar to this Agreement (the
"Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Fund has received an order from the Securities and Exchange
Commission (the "SEC") granting Participating Insurance Companies and variable
annuity separate accounts and variable life insurance separate accounts relief
from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund
to be sold to and held by variable annuity separate accounts and variable life
insurance separate accounts of both affiliated and unaffiliated Participating
Insurance Companies and qualified pension and retirement plans outside of the
separate account context (the "Mixed and Shared Funding Exemptive Order"). The
parties to this Agreement agree that the conditions or undertakings specified in
the Mixed and Shared Funding Exemptive Order and that may be imposed on the
Company, the Fund, the Adviser and/or CSI by virtue of the receipt of such order
by the SEC will be incorporated herein by reference, and such parties agree to
comply with such conditions and undertakings to the extent applicable to each
such party; and
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WHEREAS, the Fund 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 (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable annuity
contracts (the "Contracts") under the 1933 Act; and
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company
under the insurance laws of the State of New York, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, the Company has registered the Account as a unit
investment trust under the 1940 Act; and
WHEREAS, CSI, the Fund's distributor, is registered as a broker-dealer with the
SEC under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
is a member in good standing of the National Association of Securities Dealers,
Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule 2, as
such schedule may be amended from time to time (the "Designated Portfolios") on
behalf of the Account to fund the Contracts, and the Fund is authorized to sell
such shares to unit investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Adviser and CSI agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company those shares of the
Designated Portfolios that each Account orders, executing
such orders on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its
designee of the order for the shares of the Fund. For
purposes of this Section 1.1, the Company will be the
designee of the Fund for receipt of such orders from each
Account and receipt by such designee will constitute receipt
by the Fund; provided that the Fund receives notice of such
order by 10:00 a.m. Eastern Time on the next following
business day ("T+1"). "Business Day" will mean any day on
which the New York Stock Exchange, Inc. (the "NYSE") is open
for trading and on which the Fund calculates its net asset
value pursuant to the rules of the SEC.
1.2. The Company will pay for Fund shares on T+1 in each case that
an order to purchase Fund shares is made in accordance with
Section 1.1 above. Payment will be in federal funds
transmitted by wire. This wire transfer will be initiated by
12:00 p.m. Eastern Time.
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1.3. The Fund agrees to make shares of the Designated Portfolios
available for purchase at the applicable net asset value per
share by Participating Insurance Companies and their separate
accounts on those days on which the Fund calculates its
Designated Portfolio net asset value pursuant to rules of the
SEC; provided, however, that the Fund, the Adviser, or CSI
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 its or their sole
discretion, necessary in the best interests of the Fund as
described in the prospectus for the Designated Portfolio.
1.4. On each Business Day on which the Fund calculates its net
asset value, the Company will aggregate and calculate the net
purchase or redemption orders for each Account maintained by
the Fund in which contractowner assets are invested. Net
orders will only reflect orders that the Company has received
prior to the close of regular trading on the NYSE (currently
4:00 p.m., Eastern Time) on that Business Day. Orders that
the Company has received after the close of regular trading
on the NYSE will be treated as though received on the next
Business Day. Each communication of orders by the Company
will constitute a representation that such orders were
received by it prior to the close of regular trading on the
NYSE on the Business Day on which the purchase or redemption
order is priced in accordance with Rule 22c-1 under the 1940
Act. Other procedures relating to the handling of orders
will be in accordance with the prospectus and statement of
additional information of the relevant Designated Portfolio
or with oral or written instructions that CSI or the Fund
will forward to the Company from time to time.
1.5. The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate
accounts, qualified pension and retirement plans or such
other persons as are permitted under applicable provisions of
the Internal Revenue Code of 1986, as amended, (the "Internal
Revenue Code"), and regulations promulgated thereunder, the
sale to which will not impair the tax treatment currently
afforded the Contracts. No shares of any Portfolio will be
sold to the general public except as set forth in this
Section 1.5.
1.6. The Fund agrees to redeem for cash, upon the Company's
request, any full or fractional shares of the Fund held by
the Company, executing such requests on a daily basis at the
net asset value next computed after receipt and acceptance by
the Fund or its designee of the request for redemption. For
purposes of this Section 1.6, the Company will be the
designee of the Fund for receipt of requests for redemption
from each Account and receipt by such designee will
constitute receipt by the Fund, provided the Fund receives
notice of request for redemption by 10:00 a.m. Eastern Time
on the next following Business Day. Payment will be in
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federal funds transmitted by wire to the Company's account as
designated by the Company in writing from time to time, on the same
Business Day the Fund receives notice of the redemption order from the
Company. The Fund reserves the right to delay payment of redemption
proceeds, but in no event may such payment be delayed longer than the
period permitted by the ▇▇▇▇ ▇▇▇. The Fund will not bear any
responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds; the Company alone will be responsible for such
action. If notification of redemption is received after 10:00 a.m.
Eastern Time, payment for redeemed shares will be made on the next
following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund in
accordance with the provisions of such prospectus.
1.8. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate subaccount of
each Account.
1.9. The Fund will furnish same day notice (by telecopier,
followed by written confirmation) to the Company of the
declaration of any income, dividends or capital gain
distributions payable on each Designated Portfolio's shares.
The Company hereby elects to receive all such dividends and
distributions as are payable on the Designated Portfolio
shares in the form of additional shares of that Designated
Portfolio. The Fund will notify the Company of the number of
shares so issued as payment of such dividends and
distributions. The Company reserves the right to revoke this
election upon reasonable prior notice to the Fund and to
receive all such dividends and distributions in cash.
1.10. The Fund will make the net asset value per share for each Designated
Portfolio available to the Company on a daily basis as soon as
reasonably practical after the net asset value per share is calculated
and will use its best efforts to make such net asset value per share
available by 6:00 p.m., Eastern Time, but in no event later than 7:00
p.m., Eastern Time, each Business Day.
1.11. In the event adjustments are required to correct any error in
the computation of the net asset value of the Fund's shares,
the Fund or CSI will notify the Company as soon as
practicable after discovering the need for those adjustments
that result in an aggregate reimbursement of $150 or more.
The Company will make an adjustment to any contractowner's
account that requires an adjustment of $10 or more. Any such
notice will state for each day for which an error occurred
the incorrect price, the correct price and, to the extent
communicated to the Fund's shareholders, the reason for the
price change. The Company may send this notice or a
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derivation thereof (so long as such derivation is approved in advance
by CSI or the Adviser) to contractowners whose accounts are affected by
the price change. The parties will negotiate in good faith to develop a
reasonable method for effecting such adjustments.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act and that the Contracts
will be issued and sold in compliance with all applicable
federal and state laws, including state insurance suitability
requirements. 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 as a separate account under
applicable state law and has registered the Account as a unit
investment trust in accordance with the provisions of the
1940 Act to serve as a segregated investment account for the
Contracts, and that it will maintain such registration for so
long as any Contracts are outstanding. The Company will
amend the registration statement under the 1933 Act for the
Contracts and the registration statement under the 1940 Act
for the Account from time to time as required in order to
effect the continuous offering of the Contracts or as may
otherwise be required by applicable law. The Company will
register and qualify the Contracts for sale in accordance
with the securities laws of any state only if and to the
extent deemed necessary by the Company.
2.2. The Company represents that the Contracts are currently and
at the time of issuance will be treated as annuity contracts
under applicable provisions of the Internal Revenue Code, and
that it will make every effort to maintain such treatment and
that it will notify the Fund and the Adviser immediately upon
having a reasonable basis for believing that the Contracts
have ceased to be so treated or that they might not be so
treated in the future.
2.3. The Company represents and warrants that it will not purchase shares of
the Designated Portfolios with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in
connection with such plans.
2.4. The Fund represents and warrants that Fund shares of the
Designated Portfolios sold pursuant to this Agreement will be
registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law and that the Fund
is and will remain registered under the 1940 Act for as long
as such shares of the Designated Portfolios are sold. The
Fund will amend the registration statement for its shares
under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of its
shares or as may otherwise be required by applicable law.
The Fund will register and qualify the shares of the
Designated Portfolios for sale in accordance with the laws of
any state only if and to the extent deemed advisable by the
Fund.
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2.5. The Fund represents that each Designated Portfolio 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 a Designated Portfolio might not so qualify
in the future.
2.6. The Fund represents and warrants that in performing the
services described in this Agreement, the Fund will comply
with all applicable laws, rules and regulations. The Fund
makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses
and investment policies, objectives and restrictions)
complies with the insurance laws and regulations of any
state. The Fund and CSI agree that upon request they will
use their best efforts to furnish the information required by
state insurance laws so that the Company can obtain the
authority needed to issue the Contracts in any applicable
state.
2.7. The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under
the 1940 Act, although it reserves the right to make such
payments in the future. To the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1, the
Fund undertakes to have its Board of Trustees of the Fund
(the "Fund Board"), formulate and approve any plan under Rule
12b-1 to finance distribution expenses in accordance with the
1940 Act.
2.8. The Fund represents that it is lawfully organized and validly existing
under the laws of the Commonwealth of Massachusetts and that it does
and will comply in all material respects with applicable provisions of
the 1940 Act.
2.9. CSI represents and warrants that it will distribute the Fund shares of
the Designated Portfolios in accordance with all applicable federal and
state securities laws including, without limitation, the 1933 Act, the
1934 Act and the ▇▇▇▇ ▇▇▇.
2.10. CSI represents and warrants that it is and will remain duly registered
under all applicable federal and state securities laws and that it will
perform its obligations for the Fund in accordance in all material
respects with any applicable state and federal securities laws.
2.11. The Fund represents and warrants that all of its trustees,
officers, employees, and other individuals/entities having
access to the funds and/or securities of the Fund are and
continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund in an
amount not less than the 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
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aforesaid bond includes coverage for larceny and embezzlement and is
issued by a reputable bonding company. CSI and the Adviser represent
and warrant that they are and continue to be at all times covered by
policies similar to the aforesaid bond.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Fund or CSI will provide the Company, at the Fund's or
its affiliate's expense, with as many copies of the current
Fund prospectus for the Designated Portfolios as the Company
may reasonably request for distribution, at the Company's
expense, to prospective contractowners and applicants. The
Fund or CSI will provide, at the Fund's or its affiliate's
expense, as many copies of said prospectus as necessary for
distribution, at the Company's expense, to existing
contractowners. The Fund or CSI will provide the copies of
said prospectus to the Company or to its mailing agent. If
requested by the Company in lieu thereof, the Fund or CSI
will provide such documentation, including a computer
diskette or a final copy of a current prospectus set in type
at the Fund's or its affiliate's expense, and such other
assistance as is reasonably necessary in order for the
Company at least annually (or more frequently if the Fund
prospectus is amended more frequently) to have the Fund's
prospectus and the prospectuses of other mutual funds in
which assets attributable to the Contracts may be invested
printed together in one document, in which case the Fund or
its affiliate will bear its reasonable share of expenses as
described above, allocated based on the proportionate number
of pages of the Fund's and other funds' respective portions
of the document.
3.2. The Fund or CSI will provide the Company, at the Fund's or
its affiliate's expense, with as many copies of the statement
of additional information as the Company may reasonably
request for distribution, at the Company's expense, to
prospective contractowners and applicants. The Fund or CSI
will provide, at the Fund's or its affiliate's expense, as
many copies of said statement of additional information as
necessary for distribution, at the Company's expense, to any
existing contractowner who requests such statement or
whenever state or federal law otherwise requires that such
statement be provided. The Fund or CSI will provide the
copies of said statement of additional information to the
Company or to its mailing agent.
3.3. The Fund or CSI, at the Fund's or its affiliate's expense, will provide
the Company or its mailing agent with copies of its proxy material, if
any, reports to shareholders and other communications to shareholders
in such quantity as the Company will reasonably require. The Company
will distribute this proxy material, reports and other communications
to existing contractowners and tabulate the votes.
PAGE 8
3.4. If and to the extent required by law the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios held in
the Account in accordance with instructions received
from contractowners; and
(c) vote shares of the Designated Portfolios held in the Account
for which no timely instructions have been received, as well
as shares it owns, in the same proportion as shares of such
Designated Portfolio for which instructions have been received
from the Company's contractowners;
so long as and to the extent that the SEC continues to
interpret the 1940 Act to require pass-through voting
privileges for variable contractowners. Except as set forth
above, the Company reserves the right to vote Fund shares held
in any segregated asset account in its own right, to the
extent permitted by law. The Company will be responsible for
assuring that each of its separate accounts participating in
the Fund calculates voting privileges in a manner consistent
with all legal requirements, including the Mixed and Shared
Funding Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Fund
either will provide for annual meetings (except insofar as
the SEC may interpret Section 16 of the 1940 Act not to
require such meetings) or, as the Fund currently intends,
will comply with Section 16(c) of the 1940 Act (although the
Fund is not one of the trusts described in Section 16(c) of
that Act) as well as with Sections 16(a) and, if and when
applicable, 16(b). Further, the Fund will act in accordance
with the SEC's interpretation of the requirements of Section
16(a) with respect to periodic elections of trustees and with
whatever rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. CSI will provide the Company on a timely basis with
investment performance information for each Designated
Portfolio in which the Company maintains an Account,
including total return for the preceding calendar month and
calendar quarter, the calendar year to date, and the prior
one-year, five-year, and ten-year (or life of the Designated
Portfolio) periods. The Company may, based on the
SEC-mandated information supplied by CSI, prepare
communications for contractowners ("Contractowner
Materials"). The Company will provide copies of all
Contractowner Materials concurrently with their first use for
CSI's internal recordkeeping purposes. It is understood that
neither CSI nor any Designated Portfolio will be responsible
for errors or omissions in, or the content of, Contractowner
Materials except to the extent that the error or omission
resulted from information provided by or on behalf of CSI or
the Designated Portfolio. Any printed information that is
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furnished to the Company other than each Designated Portfolio's
prospectus or statement of additional information (or information
supplemental thereto), periodic reports and proxy solicitation
materials is CSI's sole responsibility and not the responsibility of
any Designated Portfolio or the Fund. The Company agrees that the
Portfolios, the shareholders of the Portfolios and the officers and
governing Board of the Fund will have no liability or responsibility to
the Company in these respects.
4.2. The Company will not give any information or make any
representations or statements on behalf of the Fund or
concerning the Fund in connection with the sale of the
Contracts other than the information or representations
contained in the registration statement, prospectus or
statement of additional information for Fund shares, as such
registration statement, prospectus and statement of
additional information may be amended or supplemented from
time to time, or in reports or proxy statements for the Fund,
or in published reports for the Fund which are in the public
domain or approved by the Fund or CSI for distribution, or in
sales literature or other material provided by the Fund or by
CSI, except with permission of the Fund or CSI. The Fund and
CSI agree to respond to any request for approval on a prompt
and timely basis. Nothing in this Section 4.2 will be
construed as preventing the Company or its employees or
agents from giving advice on investment in the Fund.
4.3. The Fund, the Adviser and CSI will not give any information
or make any representations or statements on behalf of the
Company or concerning the Company, each Account, or the
Contracts other than the information or representations
contained in a registration statement, prospectus or
statement of additional information for the Contracts, as
such registration statement, prospectus and statement of
additional information may be amended or supplemented from
time to time, or in published reports for each Account or the
Contracts which are in the public domain or approved by the
Company for distribution to contractowners, or in sales
literature or other material provided by the Company, except
with permission of the Company. The Company agrees to
respond to any request for approval on a prompt and timely
basis. The Fund, the Adviser or CSI will furnish, or will
cause to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material in
which the Company or its Account is named, at least ten (10)
business days prior to its use. No such material will be
used if the Company reasonably objects to such use within
five (5) Business Days after receipt of such material.
4.4. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, 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 Fund or
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its shares, contemporaneously with the filing of such document with the
SEC, the NASD or other regulatory authority.
4.5. The Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses, statements
of additional information, reports, solicitations for voting
instructions, 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 Contracts or each Account, contemporaneously
with the filing of such document with the SEC, the NASD or
other regulatory authority.
4.6. For purposes of this Article IV, the phrase "sales literature
or other promotional material" includes, but is not limited
to, advertisements (such as material published, or designed
for use in, a newspaper, magazine, or other periodical,
radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other
public media, (e.g., on-line networks such as the Internet or
----
other electronic messages)), sales literature (i.e., any
----
written communication distributed or made generally available
to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training
materials or other communications distributed or made
generally available to some or all agents or employees,
registration statements, prospectuses, statements of
additional information, shareholder reports, proxy materials
and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the ▇▇▇▇
▇▇▇.
4.7. The Fund and CSI hereby consent to the Company's use of the names
Warburg Pincus Trust - Small Company Growth Portfolio (or the name of
any other Designated Portfolio) and Warburg, ▇▇▇▇▇▇ Counsellors, Inc.
in connection with the marketing of the Contracts, subject to the terms
of Sections 4.1 and 4.2 of this Agreement. Such consent will terminate
with the termination of this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund, the Adviser and CSI will pay no distribution fee or
other compensation to the Company under this Agreement
pursuant to Rule 12b-1 under the 1940 Act except if the Fund
or any Designated Portfolio adopts and implements a plan
pursuant to Rule 12b-1 to finance distribution expenses,
then, subject to obtaining any required exemptive orders or
other regulatory approvals, the Fund may make payments to the
Company if and in such amounts agreed to by the Fund in
writing.
5.2. All expenses incident to performance by the Fund of this
Agreement will be paid by the Fund to the extent permitted by
law. The Fund will bear the expenses for the cost of
PAGE 11
registration and qualification of the Fund's shares; preparation and
filing of the Fund's prospectus, statement of additional information
and registration statement, proxy materials and reports; setting in
type and printing the Fund's prospectus; setting in type and printing
proxy materials and reports by it to contractowners (including the
costs of printing a Fund prospectus that constitutes an annual report);
the preparation of all statements and notices required by any federal
or state law; all taxes on the issuance or transfer of the Fund's
shares; any expenses permitted to be paid or assumed by the Fund
pursuant to a plan, if any, under Rule 12b-1 under the 1940 Act; and
all other expenses set forth in Article III of this Agreement.
ARTICLE VI. Diversification
6.1. The Fund will at all times invest money from the Contracts in
such a manner as to ensure that the Contracts will be treated
as variable annuity contracts under the Internal Revenue Code
and the regulations issued thereunder. Without limiting the
scope of the foregoing, the Fund will comply with Section
817(h) of the Internal Revenue Code and Treasury Regulation
1.817-5, as amended from time to time, relating to the
diversification requirements for variable annuity, endowment,
or life insurance contracts and any amendments or other
modifications to such Section or Regulation. In the event of
a breach of this Article VI by the Fund, it will take all
reasonable steps: (a) to notify the Company of such breach;
and (b) to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Treasury
Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
7.1. The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the
contractowners of all separate accounts investing in the
Fund. An irreconcilable material conflict may arise for a
variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable
federal or state insurance, tax or securities laws or
regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant
proceeding; (d) the manner in which the investments of any
Portfolio are being managed; (e) a difference in voting
instructions given by Participating Insurance Companies or by
variable annuity and variable life insurance contractowners;
or (f) a decision by an insurer to disregard the voting
instructions of contractowners. The Fund Board will promptly
inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts
of which it is aware to the Fund Board. The Company agrees
to assist the Fund Board in carrying out its
responsibilities, as delineated in the Mixed and Shared
PAGE 12
Funding Exemptive Order, by providing the Fund Board with all
information reasonably necessary for the Fund Board to consider any
issues raised. This includes, but is not limited to, an obligation by
the Company to inform the Fund Board whenever contractowner voting
instructions are to be disregarded. The Company's responsibilities
hereunder will be carried out with a view only to the interest of
contractowners.
7.3. If it is determined by a majority of the Fund Board, or a
majority of its disinterested trustees, that an
irreconcilable material conflict exists, the Company will, at
its 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: (a)
withdrawing the assets allocable to some or all of the
Accounts from the Fund or any Designated Portfolio and
reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio of the Fund,
or submitting the question whether such segregation should be
implemented to a vote of all affected contractowners and, as
appropriate, segregating the assets of any appropriate group
(i.e., variable annuity contractowners or variable life
----
insurance contractowners of one or more Participating
Insurance Companies) that votes in favor of such segregation,
or offering to the affected contractowners the option of
making such a change; and (b) establishing a new registered
management investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contractowner voting
instructions, and the Company's judgment represents a
minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw
the affected subaccount of the Account's investment in the
Fund and terminate this Agreement with respect to such
subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the
foregoing irreconcilable material conflict as determined by a
majority of the disinterested trustees of the Fund Board. No
charge or penalty will be imposed as a result of such
withdrawal.
7.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to
the Company conflicts with the majority of other state
insurance regulators, then the Company will withdraw the
affected subaccount of the Account's investment in the Fund
and terminate this Agreement with respect to such subaccount;
provided, however, that such withdrawal and termination will
be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority
of the disinterested trustees of the Fund Board. No charge
or penalty will be imposed as a result of such withdrawal.
PAGE 13
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Fund Board will
determine whether any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the
Fund or the Adviser (or any other investment adviser to the
Fund) be required to establish a new funding medium for the
Contracts. The Company will not be required by Section 7.3
to establish a new funding medium for the Contracts if an
offer to do so has been declined by vote of a majority of
contractowners materially affected by the irreconcilable
material conflict.
7.7. The Company will at least annually submit to the Fund Board such
reports, materials or data as the Fund Board may reasonably request so
that the Fund Board may fully carry out the duties imposed upon it as
delineated in the Mixed and Shared Funding Exemptive Order, and said
reports, materials and data will be submitted more frequently if deemed
appropriate by the Fund Board.
7.8. 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 Mixed and Shared Funding Exemptive Order) on
terms and conditions materially different from those
contained in the Mixed and Shared Funding Exemptive Order,
then: (a) the Fund and/or the Participating Insurance
Companies, as appropriate, will take such steps as may be
necessary to comply with Rules 6e-2 and 6e-3(T), as amended,
and Rule 6e-3, as adopted, to the extent such rules are
applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4,
and 7.5 of this Agreement will continue in effect only to the
extent that terms and conditions substantially identical to
such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the
Fund, the Adviser, CSI, and each person, if any, who
controls or is associated with the Fund, the Adviser or
CSI within the meaning of such terms under the federal
securities laws and any director, trustee, officer,
partner, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes
of this Section 8.1) against any and all losses,
claims, expenses, damages, liabilities (including
amounts paid in settlement with the written consent of
the Company) or litigation (including reasonable legal
and other expenses), to which the Indemnified Parties
may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements:
PAGE 14
(1) 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 Contracts or contained in the
Contracts or sales literature or other
promotional material for the Contracts (or any
amendment or supplement to any of the foregoing),
or arise out of or are based upon the omission or
the alleged omission to state therein a material
fact required to be stated or necessary to make
such statements not misleading in light of the
circumstances in which they were made; provided
that this agreement to indemnify will not apply
as to any Indemnified Party if such statement or
omission or such alleged statement or omission
was made in reliance upon and in conformity with
written information furnished to the Company by
the Fund, the Adviser or CSI for use in the
registration statement, prospectus or statement
of additional information for the Contracts or in
the Contracts or sales literature (or any
amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund
shares; or
(2) arise out of or as a result of statements or
representations by or on behalf of the Company or
wrongful conduct of the Company or persons under its
control, with respect to the sale or distribution of
the Contracts or Fund shares; or
(3) arise out of any untrue statement or alleged
untrue statement of a material fact contained in
the Fund registration statement, prospectus,
statement of additional information or sales
literature or other promotional material of the
Fund (or amendment or supplement) or the omission
or alleged omission to state therein a material
fact required to be stated therein or necessary
to make such statements not misleading in light
of the circumstances in which they were made, if
such a statement or omission was made in reliance
upon and in conformity with information furnished
to the Fund by or on behalf of the Company or
persons under its control; or
(4) arise as a result of any failure by the Company
to provide the services and furnish the materials
under the terms of this Agreement; or
(5) arise out of any material breach of any
representation and/or warranty made by the Company in
this Agreement or arise out of or result from any
other material breach by the Company of this
Agreement;
PAGE 15
except to the extent provided in Sections 8.1(b) and
8.3 hereof. This indemnification will be in addition
to any liability that the Company otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.1(a) to the extent such loss, claim, damage,
liability or litigation is due to the willful
misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this
Agreement, or by reason of such party's reckless
disregard of its obligations or duties under this
Agreement by the party seeking indemnification.
(c) The Indemnified Parties promptly will notify the Company of
the commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection
with the issuance or sale of the Fund shares or the Contracts
or the operation of the Fund.
8.2. Indemnification By The Adviser, the Fund and CSI
(a) The Adviser, the Fund and CSI, in each case solely to
the extent relating to such party's responsibilities
hereunder, agree to indemnify and hold harmless the
Company and each person, if any, who controls or is
associated with the Company within the meaning of such
terms under the federal securities laws and any
director, trustee, officer, partner, employee or agent
of the foregoing (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any
and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written
consent of the Adviser) or litigation (including
reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or
settlements:
(1) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the registration
statement, prospectus or statement of additional
information for the Fund or sales literature or
other promotional material of the Fund (or any
amendment or supplement to any of the foregoing),
or arise out of or are based upon the omission or
the alleged omission to state therein a material
fact required to be stated or necessary to make
such statements not misleading in light of the
circumstances in which they were made (in each
case substantially as transmitted to you by the
Fund or CSI); provided that this agreement to
indemnify will not apply as to any Indemnified
Party if such statement or omission or such
alleged statement or omission was made in
PAGE 16
reliance upon and in conformity with information
furnished to the Adviser, CSI or the Fund by or on
behalf of the Company for use in the registration
statement, prospectus or statement of additional
information for the Fund or in sales literature of
the Fund (or any amendment or supplement thereto) or
otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(2) arise out of or as a result of statements or
representations or wrongful conduct of the Adviser,
the Fund or CSI or persons under the control of the
Adviser, the Fund or CSI respectively, with respect
to the sale of the Fund shares; or
(3) arise out of any untrue statement or alleged
untrue statement of a material fact contained in
a registration statement, prospectus, statement
of additional information or sales literature or
other promotional material covering the Contracts
(or any amendment or supplement thereto), or the
omission or alleged omission to state therein a
material fact required to be stated or necessary
to make such statement or statements not
misleading in light of the circumstances in which
they were made, if such statement or omission was
made in reliance upon and in conformity with
written information furnished to the Company by
the Adviser, the Fund or CSI or persons under the
control of the Adviser, the Fund or CSI; or
(4) arise as a result of any failure by the Fund, the
Adviser or CSI to provide the services and
furnish the materials under the terms of this
Agreement (including a failure, whether
unintentional or in good faith or otherwise, to
comply with the diversification requirements and
procedures related thereto specified in Article
VI of this Agreement); or
(5) arise out of or result from any material breach of
any representation and/or warranty made by the
Adviser, the Fund or CSI in this Agreement, or arise
out of or result from any other material breach of
this Agreement by the Adviser, the Fund or CSI;
except to the extent provided in Sections 8.2(b)
and 8.3 hereof.
(b) No party will be entitled to indemnification under Section
8.2(a) to the extent such loss, claim, damage, liability or
litigation is due to the willful misfeasance, bad faith, or
gross negligence in the performance of such party's duties
under this Agreement, or by reason of such party's reckless
PAGE 17
disregard of its obligations or duties under this
Agreement by the party seeking indemnification.
(c) The Indemnified Parties will promptly notify the Adviser, the
Fund and CSI of the commencement of any litigation,
proceedings, complaints or actions by regulatory authorities
against them in connection with the issuance or sale of the
Contracts or the operation of the Account.
8.3. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.3) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.3) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the
summons or other first legal process giving information of the nature
of the claim will have been served upon such Indemnified Party (or
after such party will have received notice of such service on any
designated agent), but failure to notify the Indemnifying Party of any
such claim will not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of the indemnification provision of
this Article VIII, except to the extent that the failure to notify
results in the failure of actual notice to the Indemnifying Party and
such Indemnifying Party is damaged solely as a result of failure to
give such notice. In case any such action is brought against the
Indemnified Party, the Indemnifying Party will be entitled to
participate, at its own expense, in the defense thereof. The
Indemnifying Party also will be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action. After
notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the
Indemnified Party will bear the fees and expenses of any additional
counsel retained by it, and the Indemnifying Party will not be liable
to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation,
unless: (a) the Indemnifying Party and the Indemnified Party will have
mutually agreed to the retention of such counsel; or (b) the named
parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The Indemnifying Party will not be liable for any settlement of
any proceeding effected without its written consent but if settled with
such consent or if there is a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and
against any loss or liability by reason of such settlement or
PAGE 18
judgment. A successor by law of the parties to this Agreement will be
entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained in this Article
VIII will survive any termination of this Agreement.
ARTICLE IX. Applicable Law
9.1. This Agreement will be construed and the provisions hereof
interpreted under and in accordance with the laws of the
State of Minnesota.
9.2. This Agreement will be subject to the provisions of the 1933 Act, the
1934 Act and the 1940 Act, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the
Mixed and Shared Funding Exemptive Order) and the terms hereof will be
interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, with
respect to some or all of the Designated Portfolios, upon
ninety (90) days' advance written notice to the other parties
or, if later, upon receipt of any required exemptive relief or
orders from the SEC, unless otherwise agreed in a separate
written agreement among the parties; or
(b) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Designated Portfolio if shares of the Designated Portfolio are
not reasonably available to meet the requirements of the
Contracts as determined in good faith by the Company; or
(c) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with
respect to any Designated Portfolio in the event any of
the Designated Portfolio's shares are not registered,
issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of
such shares as the underlying investment media of the
Contracts issued or to be issued by Company; or
(d) at the option of the Fund, upon receipt of the Fund's
written notice by the other parties, upon institution
of formal proceedings against the Company by the NASD,
the SEC, the insurance commission of any state or any
other regulatory body regarding the Company's duties
under this Agreement or related to the sale of the
Contracts, the administration of the Contracts, the
operation of the Account, or the purchase of the Fund
shares, provided that the Fund determines in its sole
PAGE 19
judgment, exercised in good faith, that any such proceeding
would have a material adverse effect on the Company's ability
to perform its obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the
Company's written notice by the other parties, upon
institution of formal proceedings against the Fund or
CSI by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body,
provided that the Company determines in its sole
judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on the
Fund's or CSI's ability to perform its obligations
under this Agreement; or
(f) at the option of the Company, upon receipt of the
Company's written notice by the other parties, if, with
respect to any Designated Portfolio, the Designated
Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M of the Internal Revenue
Code, or under any successor or similar provision, or
if the Company reasonably and in good faith believes
that the Designated Portfolio may fail to so qualify;
or
(g) at the option of the Company, upon receipt of the
Company's written notice by the other parties, if, with
respect to any Designated Portfolio, the Designated
Portfolio fails to meet the diversification
requirements specified in Article VI hereof or if the
Company reasonably and in good faith believes the
Designated Portfolio may fail to meet such
requirements; or
(h) at the option of any party to this Agreement, upon written
notice to the other parties, upon another party's material
breach of any provision of this Agreement; or
(i) at the option of the Company, if the Company determines
in its sole judgment exercised in good faith, that
either the Fund, the Adviser or CSI has suffered a
material adverse change in its business, operations or
financial condition since the date of this Agreement or
is the subject of material adverse publicity which is
likely to have a material adverse impact upon the
business and operations of the Company, such
termination to be effective sixty (60) days' after
receipt by the other parties of written notice of the
election to terminate; or
(j) at the option of the Fund or CSI, if the Fund or CSI
respectively, determines in its sole judgment exercised in
good faith, that the Company has suffered a material adverse
change in its business, operations or financial condition
since the date of this Agreement or is the subject of material
adverse publicity which is likely
PAGE 20
to have a material adverse impact upon the business and
operations of the Fund or the Adviser, such termination to be
effective sixty (60) days' after receipt by the other parties
of written notice of the election to terminate; or
(k) at the option of the Company or the Fund upon receipt
of any necessary regulatory approvals and/or the vote
of the contractowners having an interest in the Account
(or any subaccount) to substitute the shares of another
investment company for the corresponding Designated
Portfolio shares of the Fund in accordance with the
terms of the Contracts for which those Designated
Portfolio shares had been selected to serve as the
underlying investment media. The Company will give
sixty (60) days' prior written notice to the Fund of
the date of any proposed vote or other action taken to
replace the Fund's shares; or
(l) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a
majority of the disinterested Fund Board members, that
an irreconcilable material conflict exists among the
interests of: (1) all contractowners of variable
insurance products of all separate accounts; or (2) the
interests of the Participating Insurance Companies
investing in the Fund as set forth in Article VII of
this Agreement; or
(m) at the option of the Fund in the event any of the Contracts
are not issued or sold in accordance with applicable federal
and/or state law. Termination will be effective immediately
upon such occurrence without notice.
10.2. Notice Requirement
Except as specified in Section 10.1(m), no termination of this
Agreement will be effective unless and until the party terminating this
Agreement gives prior written notice to all other parties of its intent
to terminate, which notice will set forth the basis for the
termination.
10.3. Effect of Termination
In the event of any termination of this Agreement other than pursuant
to subsection (L) of Section 10.1, the Fund and CSI will, at the option
of the Company, continue to make available additional shares of the
Fund pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts
will be permitted to reallocate investments in the Designated
Portfolios (as in effect on such date), redeem investments in the
Designated Portfolios and/or invest in the Designated Portfolios upon
the making of additional purchase payments under the Existing
Contracts.
PAGE 21
10.4. Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive
and not be affected by any termination of this Agreement. In addition,
each party's obligations under Section 12.6 will survive and not be
affected by any termination of this Agreement. Finally, with respect to
Existing Contracts, all provisions of this Agreement also will survive
and not be affected by any termination of this Agreement.
ARTICLE XI. Notices
11.1 Any notice will be deemed duly 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 parties.
If to the Company:
IDS Life Insurance Company of New York
c/o American Express Financial Advisors Inc.
IDS Tower 10
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
With a simultaneous copy to:
IDS Life Insurance Company of New York
c/o American Express Financial Advisors Inc.
IDS Tower 10
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Counsel
If to the Fund, the Adviser and/or CSI:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
ARTICLE XII. Miscellaneous
12.1. The Fund, the Adviser and CSI acknowledge that the identities
of the customers of the Company or any of its affiliates
(collectively the "Company Protected Parties" for purposes of
this Section 12.1), information maintained regarding those
customers, and all computer programs and procedures or other
information developed or used by the Company 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 Company Protected
Parties. The Fund, the Adviser and CSI agree that if they
PAGE 22
come into possession of any list or compilation of the identities of or
other information about the Company Protected Parties' customers, or
any other information or property of the Company Protected Parties,
other than such information as is publicly available or as may be
independently developed or compiled by the Fund, the Adviser or CSI
from information supplied to them by the Company Protected Parties'
customers who also maintain accounts directly with the Fund, the
Adviser or CSI, the Fund, the Adviser and CSI 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 Company acknowledges that the
identities of the customers of the Fund, the Adviser, CSI or any of
their affiliates (collectively the "Adviser Protected Parties" for
purposes of this Section 12.1), information maintained regarding those
customers, and all computer programs and procedures or other
information developed or used by the Adviser Protected Parties or any
of their employees or agents in connection with the Funds', the
Adviser's or CSI's performance of their respective duties under this
Agreement are the valuable property of the Adviser Protected Parties.
The Company agrees that if it comes into possession of any list or
compilation of the identities of or other information about the Adviser
Protected Parties' customers, or any other information or property of
the Adviser Protected Parties, other than such information as is
publicly available or as may be independently developed or compiled by
the Company from information supplied to them by the Adviser Protected
Parties' customers who also maintain accounts directly with the
Company, the Company 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 Fund's, the
Adviser's or CSI's prior written consent; or (b) as required by law or
judicial process. Each party acknowledges that any breach of the
agreements in this Section 12.1 would result in immediate and
irreparable harm to the other parties for which there would be no
adequate remedy at law and agree that in the event of such a breach,
the other 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.
12.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
12.4. If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
PAGE 23
12.5. This Agreement will not be assigned by any party hereto
without the prior written consent of all the parties.
12.6. Each party to this Agreement will maintain all records
required by law, including records detailing the services it
provides. Such records will be preserved, maintained and
made available to the extent required by law and in
accordance with the 1940 Act and the rules thereunder. Each
party to this Agreement will cooperate with each other party
and all appropriate governmental authorities (including
without limitation the SEC, the NASD and state insurance
regulators) and will permit each other and such authorities
reasonable access to its books and records in connection with
any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby. Upon request by the
Fund or CSI, the Company agrees to promptly make copies or,
if required, originals of all records pertaining to the
performance of services under this Agreement available to the
Fund or CSI, as the case may be. The Fund agrees that the
Company will have the right to inspect, audit and copy all
records pertaining to the performance of services under this
Agreement pursuant to the requirements of any state insurance
department. Each party also agrees to promptly notify the
other parties if it experiences any difficulty in maintaining
the records in an accurate and complete manner. This
provision will survive termination of this Agreement.
12.7. Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or board action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
12.8. The parties to this Agreement acknowledge and agree that all
liabilities of the Fund arising, directly or indirectly,
under this agreement, will be satisfied solely out of the
assets of the Fund and that no trustee, officer, agent or
holder of shares of beneficial interest of the Fund will be
personally liable for any such liabilities. No Portfolio
will be liable for the obligations or liabilities of any
other Portfolio.
12.9 The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts,
the Accounts or the Designated Portfolios of the Fund or other
applicable terms of this Agreement.
PAGE 24
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the date specified below.
IDS LIFE INSURANCE COMPANY OF NEW YORK
SEAL By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Charirman of the Board and President
ATTEST:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Counsel
WARBURG PINCUS TRUST
SEAL By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Secretary
WARBURG, ▇▇▇▇▇▇ COUNSELLORS, INC.
SEAL By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President & Assistant
Secretary
COUNSELLORS SECURITIES INC.
SEAL By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PAGE 25
Schedule 1
PARTICIPATION AGREEMENT
By and Among
IDS LIFE INSURANCE COMPANY OF NEW YORK
And
WARBURG PINCUS TRUST
And
WARBURG, ▇▇▇▇▇▇ COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
The following separate accounts of IDS Life Insurance Company of New York are
permitted in accordance with the provisions of this Agreement to invest in
Designated Portfolios of the Fund shown in Schedule 2:
IDS Life of New York Flexible Portfolio Annuity Account, established April
17, 1996.
October 7, 1996
PAGE 26
Schedule 2
PARTICIPATION AGREEMENT
By and Among
IDS LIFE INSURANCE COMPANY OF NEW YORK
And
WARBURG PINCUS TRUST
And
WARBURG, ▇▇▇▇▇▇ COUNSELLORS, INC.
And
COUNSELLORS SECURITIES INC.
The Separate Account(s) shown on Schedule 1 may invest in the following
Designated Portfolios of the Warburg Pincus Trust:
Small Company Growth Portfolio
October 7, 1996
