TRANSFER AGENCY AND SERVICING AGREEMENT
AMENDED AND RESTATED
This Transfer Agency and Servicing Agreement ("Agreement"), dated as of November
8, 2007, amended and restated May 8, 2009, is by and between RiverSource Service
Corporation ("Transfer Agent"), a Minnesota corporation, and RiverSource
Variable Series Trust, a Massachusetts business trust and Xxxxxxxx Portfolios,
Inc., a Maryland corporation, ("Registrant" or "Registrants") on behalf of the
underlying series listed in Schedule A (each a "Fund" and collectively the
"Funds"). The terms "Fund" or "Funds" are used to refer to either the Registrant
or the underlying series as context requires. The Fund and the Transfer Agent
are collectively referred to as the "parties."
In consideration of the mutual promises set forth below, the Fund and the
Transfer Agent agree as follows:
1. Appointment of the Transfer Agent. The Fund hereby appoints the Transfer
Agent, as transfer agent for its shares ("shares") of the Fund, and the
Transfer Agent accepts such appointment and agrees to perform the duties
set forth below. It is understood that all shares will be owned by
insurance companies ("Insurance Companies") and held in accounts for the
benefit of owners of variable life insurance policies or annuity contracts
and that these insurance companies will be solely responsible for the
administration and servicing of these policies and contracts.
2. Compensation.
(a) The Fund will compensate the Transfer Agent for the performance of
its obligations under this Agreement a fee, accrued daily and
payable monthly, which shall be equal to 0.06% (6 basis points) of
the average daily net assets of the Fund. The fee provided for
hereunder shall be paid in cash by the Fund to the Transfer Agent
within five (5) business days after the last day of each period. The
fee does not include out-of-pocket disbursements of the Transfer
Agent for which the Transfer Agent shall be entitled to xxxx the
Fund separately.
(b) Any compensation jointly agreed to hereunder may be adjusted from
time to time by written agreement of the parties.
(c) Out-of-pocket disbursements shall include, but shall not be limited
to, the items specified in Schedule B. Reimbursement by the Fund for
expenses incurred by the Transfer Agent in any month shall be made
as soon as practicable after the receipt of an itemized xxxx from
the Transfer Agent.
(d) Subcontractors. The Fund agrees that the Transfer Agent may
subcontract for services described under this Agreement with the
understanding that there shall be no diminution in the quality or
level of the services as determined by the Fund and that the
Transfer Agent remains fully responsible for the services. Except
for out-of-pocket expenses identified in Schedule B, the Transfer
Agent shall bear the cost of subcontracting such services, unless
otherwise agreed by the parties. The Fund agrees that the Transfer
Agent may use revenues from the Agreement to pay subcontractors for
the services they provide.
3. Documents. The Fund will furnish from time to time such certificates,
documents or
Page 2
opinions as the Transfer Agent deems to be appropriate or necessary for
the proper performance of its duties.
4. Representations of the Fund and the Transfer Agent.
(a) The Fund represents to the Transfer Agent that all outstanding
shares are validly issued, fully paid and non-assessable by the
Fund. When shares are hereafter issued in accordance with the terms
of the Fund's organizational documents, such shares shall be validly
issued, fully paid and non-assessable by the Fund.
(b) The Transfer Agent represents that it is registered under Section
17A(c) of the Securities Exchange Act of 1934. The Transfer Agent
agrees to maintain the necessary facilities, equipment and personnel
to perform its duties and obligations under this Agreement and to
comply with all applicable laws.
5. Duties of the Transfer Agent. The Transfer Agent shall be responsible for
providing or ensuring that the following services are provided:
(a) Sale and Redemption of Fund Shares. On receipt of investment
payments or redemption instructions from Insurance Companies, the
Transfer Agent will process the payment or redemption, confirm all
transactions, and prepare and maintain all reports and records to
assure the safekeeping of the Fund's assets. All shares shall be
held in book entry form, and no certificate shall be issued except
as has been previously issued.
(b) Right to Seek Assurance for Redemption of Fund Shares. The Transfer
Agent may refuse to redeem shares of the Fund until it is satisfied
that the requested transaction or action is legally authorized or
until it is satisfied that there is no basis for any claims adverse
to the transaction or action. It may rely on the provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers
or the Uniform Commercial Code. The Fund shall indemnify the
Transfer Agent for any act done or omitted to be done in reliance on
such laws or for refusing to transfer, exchange or redeem shares or
taking any requested action if it acts on a good faith belief that
the transaction or action is illegal or unauthorized.
(c) Required Records. The Transfer Agent shall maintain all accounts,
which shall contain all required tax, legally imposed and regulatory
information; shall provide and file with federal and state agencies,
all required tax and other reports; and shall create and maintain
all records in accordance with all applicable laws, rules and
regulations, including, but not limited to, the records required by
Section 31(a) of the Investment Company Act of 1940, as amended.
(d) The Transfer Agent shall respond to all valid inquiries related to
its duties under this Agreement.
(e) Dividends and Distributions. The Transfer Agent shall prepare and
present the necessary report to the Fund's custodian regarding
processing of income dividends and capital gains distributions.
(f) Confirmations and Statements. The Transfer Agent shall confirm each
Page 3
transaction as may be required.
(g) Reports to Fund. The Transfer Agent will provide reports pertaining
to the services provided under this Agreement as the Fund may
request to ascertain the quality and level of services being
provided or as required by law.
(h) Market Timing. The Transfer Agent will assist other Fund service
providers as necessary in the implementation of the Fund's market
timing policy, as set forth in the Fund's prospectus.
6. Ownership and Confidentiality of Records.
(a) General. The Transfer Agent agrees that all records prepared or
maintained by it relating to the services to be performed by it
under the terms of this Agreement are the property of the Fund and
may be inspected by the Fund or any person retained by the Fund at
reasonable times. The Fund and Transfer Agent agree to protect the
confidentiality of those records.
(b) Regulation S-P.
(1) In accordance with Regulation S-P of the Securities and
Exchange Commission, "Nonpublic Personal Information"
includes: (1) all personally identifiable financial
information; (2) any list, description, or other grouping of
consumers (and publicly available information pertaining to
them) that is derived using any personally identifiable
financial information that is not publicly available
information; and (3) any information derived therefrom.
(2) The Transfer Agent must not use or disclose Nonpublic Personal
Information for any purpose other than to carry out the
purpose for which Nonpublic Personal Information was provided
to the Transfer Agent as set forth in this Agreement, and
agrees to cause the Transfer Agent, and its employees, agents,
representatives, or any other party to whom the Transfer Agent
may provide access to or disclose Nonpublic Personal
Information to limit the use and disclosure of Nonpublic
Personal Information to that purpose.
(3) The Transfer Agent agrees to implement appropriate measures
designed to ensure the security and confidentiality of
Nonpublic Personal 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, Nonpublic Personal
Information that could result in substantial harm or
inconvenience to any customer of the Funds; the Transfer Agent
further agrees to cause all its agents, representatives,
subcontractors, or any other party to whom the Transfer Agent
may provide access to, or disclose, Nonpublic Personal
Information to implement appropriate measures designed to meet
the objectives set forth in this paragraph.
(4) With respect only to the provisions of this Section 6(b), the
Transfer
Page 4
Agent agrees to indemnify and hold harmless the Fund and any
officer or director of the Board of the Fund ("Board member")
against losses, claims, damages, expenses, or liabilities to
which the Fund, or any officer or Board member of the Fund,
may become subject as the result of: (1) a material breach of
the provisions of this section of the Agreement, or (2) any
acts or omissions of the Transfer Agent, or of any of its
officers, directors, employees, or agents, that are not in
substantial accordance with this Agreement, including, but not
limited to, any violation of any federal statute or
regulation. Notwithstanding the foregoing, no party shall be
entitled to indemnification pursuant to this Section 6(b)(4)
if such loss, claim, damage, expense, or liability is due to
the willful misfeasance, bad faith, gross negligence, or
reckless disregard of duty by the party seeking
indemnification.
7. Action by Board and Opinion of Counsel. The Transfer Agent may rely on
resolutions of the Board or the Executive Committee of the Board or on
opinion of counsel for the Fund.
8. Duty of Care. It is understood and agreed that, in furnishing the Fund
with the services as herein provided, neither the Transfer Agent, nor any
officer, director or agent thereof shall be held liable for any loss
arising out of or in connection with their actions under this Agreement so
long as they act in good faith and with due diligence, and are not
negligent or guilty of any willful misconduct. It is further understood
and agreed that the Transfer Agent may rely upon information furnished to
it reasonably believed to be accurate and reliable. In the event the
Transfer Agent is unable to perform its obligations under the terms of
this Agreement because of an act of God, strike or equipment or
transmission failure reasonably beyond its control, the Transfer Agent
shall not be liable for any damages resulting from such failure.
9. Term and Termination. This Agreement shall continue in effect from year to
year as the parties may mutually agree, provided that either party may
terminate this Agreement by giving the other party notice in writing
specifying the date of such termination, which shall be not less than 60
days after the date of receipt of such notice. In the event such notice is
given by the Fund, it shall be accompanied by a vote of the Board,
certified by the Secretary, electing to terminate this Agreement and
designating a successor transfer agent or transfer agents. Upon such
termination and at the expense of the Fund, the Transfer Agent will
deliver to such successor a certified list of shareholders of the Fund
(with name, address and taxpayer identification or Social Security number,
if available (although such records may consist solely of variable
separate accounts of affiliated and unaffiliated insurance companies)), a
historical record of the account of each shareholder and the status
thereof, and all other relevant books, records, correspondence, and other
data established or maintained by the Transfer Agent under this Agreement
in the form reasonably acceptable to the Fund, and will cooperate in the
transfer of such duties and responsibilities, including provisions for
assistance from the Transfer Agent's personnel in the establishment of
books, records and other data by such successor or successors.
10. Amendment. This Agreement may not be amended or modified in any manner
except by a written agreement executed by the parties.
11. Miscellaneous.
Page 5
(a) This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable without the
written consent of the other party.
(b) This Agreement shall be governed by the laws of the State of
Minnesota.
(c) For each Fund that is organized as a Massachusetts Business Trust, a
copy of the Declaration of Trust, together with all amendments, is
on file in the office of the Secretary of State of the Commonwealth
of Massachusetts. The execution and delivery of this Agreement has
been authorized by the Trustees and the Agreement has been signed by
an authorized officer of the Fund. It is expressly agreed that the
obligations of the Fund under this Agreement shall not be binding
upon any of the Trustees, shareholders, nominees, officers, agents
or employees of the Fund, personally, but bind only the assets and
property of the Fund, as provided in the Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers as of the day and year written above.
RIVERSOURCE VARIABLE SERIES TRUST
XXXXXXXX PORTFOLIOS, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxx
President
RIVERSOURCE SERVICE CORPORATION
By: /s/ Xxx Xxxxxxx-Strong
-------------------------------------------
Xxx Xxxxxxx-Strong
President
Page 6
SCHEDULE A
FUNDS
RiverSource Variable Series Trust is a Massachusetts business trust and Xxxxxxxx
Portfolios, Inc. is a Maryland corporation.
The Funds, to which this Agreement applies follow:
RIVERSOURCE VARIABLE SERIES TRUST
Disciplined Asset Allocation Portfolios - Aggressive
Disciplined Asset Allocation Portfolios - Conservative
Disciplined Asset Allocation Portfolios - Moderate
Disciplined Asset Allocation Portfolios - Moderately Aggressive
Disciplined Asset Allocation Portfolios - Moderately Conservative
RiverSource Partners Variable Portfolio - Fundamental Value Fund
RiverSource Partners Variable Portfolio - Select Value Fund
RiverSource Partners Variable Portfolio - Small Cap Value Fund
RiverSource Variable Portfolio - Balanced Fund
RiverSource Variable Portfolio - Cash Management Fund
RiverSource Variable Portfolio - Diversified Bond Fund
RiverSource Variable Portfolio - Diversified Equity Income Fund
RiverSource Variable Portfolio - Dynamic Equity Fund
RiverSource Variable Portfolio - Global Bond Fund
RiverSource Variable Portfolio - Global Inflation Protected Securities Fund
RiverSource Variable Portfolio - High Yield Bond Fund
RiverSource Variable Portfolio - Income Opportunities Fund
RiverSource Variable Portfolio - Mid Cap Growth Fund
RiverSource Variable Portfolio - Mid Cap Value Fund
RiverSource Variable Portfolio - S&P 500 Index Fund
RiverSource Variable Portfolio - Short Duration U.S. Government Fund
Xxxxxxxx Variable Portfolio - Growth Fund
Xxxxxxxx Variable Portfolio - Larger-Cap Value Fund
Xxxxxxxx Variable Portfolio - Smaller-Cap Value Fund
Threadneedle Variable Portfolio - Emerging Markets Fund
Threadneedle Variable Portfolio - International Opportunity Fund
XXXXXXXX PORTFOLIOS, INC.
Xxxxxxxx Capital Portfolio
Xxxxxxxx Cash Management Portfolio
Xxxxxxxx Common Stock Portfolio
Xxxxxxxx Communications and Information Portfolio
Xxxxxxxx Global Technology Portfolio
Xxxxxxxx International Growth Portfolio
Xxxxxxxx Investment Grade Fixed Income Portfolio
Xxxxxxxx Large-Cap Value Portfolio
Xxxxxxxx Smaller-Cap Value Portfolio
Page 7
Transfer Agency & Servicing Agreement - Variable Series Trust and Xxxxxxxx
Portfolios, Inc.
SCHEDULE B
OUT-OF-POCKET EXPENSES
The Fund shall reimburse the Transfer Agent monthly for the following
out-of-pocket expenses (which may be incurred by Insurance Companies):
- typesetting, printing, paper, envelopes, postage and return postage for
proxy soliciting material, and proxy tabulation costs
- printing, paper, envelopes and postage for records of account, purchase
confirmations, exchange confirmations and exchange prospectuses,
redemption confirmations, redemption checks, and any other communication
required to be sent to shareholders and variable account contract owners
and policy holders
- typesetting, printing, paper, envelopes and postage for prospectuses,
annual and semiannual reports, statements of additional information,
supplements for prospectuses and statements of additional information and
other required mailings to shareholders and variable account contract
owners and policy holders
- other expenses incurred at the request or with the consent of the Fund
