See All of This Company's Exhibits
EX-99.8.27 PART AGRE
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lazard-rvslifeny_pa.txt
COPY OF PARTICIPATION AGREEMENT DATED JAN. 1, 2007, BY AND AMONG RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK, RIVERSOURCE DISTRIBUTORS, INC. AND LAZARD ASSET MANAGEMENT SECURITIES LLC AND LAZARD RETIREMENT SERIES, INC.
FUND PARTICIPATION AGREEMENT
This Fund Participation Agreement ("Agreement") is entered into this 1st
day of January, 2007 by and among the following parties:
o RIVERSOURCE LIFE INSURANCE CO. OF NEW YORK ("Insurance Company"),
organized under the laws of the State of New York, on its own
behalf and on behalf of each segregated asset account named in
Schedule 1 to this Agreement, as may be amended from time to time
(each account referred to as a "Separate Account" as defined
below);
o RIVERSOURCE DISTRIBUTORS, INC. ("Contract Distributor"), a
Delaware corporation;
o LAZARD ASSET MANAGEMENT SECURITIES LLC ("LAM"), a Delaware limited
liability company; and,
o LAZARD RETIREMENT SERIES, INC. ("Fund"), a Maryland corporation,
with respect to the Fund's Portfolios named on Schedule 1, as it
may be amended from time to time (each a "Portfolio")
(collectively, the "Parties"). This Agreement supersedes and replaces in its
entirety the Amended and Restated Fund Participation Agreement dated October
16, 2006 by and among IDS Life Insurance Company of New York, Ameriprise
Financial Services, Inc., LAM and the Fund.
ARTICLE I.
DEFINITIONS
The following terms used in this Agreement shall have the meanings set
forth below:
1.1 "1933 Act" shall mean the Securities Act of 1933, as amended.
1.2 "1940 Act" shall mean the Investment Company Act of 1940, as amended.
1.3 "Board" shall mean Fund's Board of Directors.
1.4 "Business Day" shall mean any day for which the Portfolios calculate net
asset value per share as described in the Portfolio Prospectuses.
1.5 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.6 "Commission" shall mean the Securities and Exchange Commission.
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1.7 "Contract" shall mean a variable annuity or variable life insurance
contract that uses a Portfolio as an underlying investment medium and is
named on Schedule 1.
1.8 "Contract Portfolios" shall mean investment companies, other than the
Portfolios, used by a Contract as an underlying investment medium.
1.9 "Contract Prospectus" shall mean the currently effective prospectus and
statement of additional information or other offering documents with
respect to a Contract (such as a written description of a Contract not
registered under the 1933 Act), including any supplements or amendments
thereto.
1.10 "Contractholder" shall mean any person that is a party to a Contract
with a Participating Company.
1.11 "Disinterested Board Members" shall mean those members of the Board that
are not deemed to be "interested persons" of Fund, as defined in the
1940 Act.
1.12 "General Account" shall mean the general account of Insurance Company.
1.13 "IRS" shall mean the Internal Revenue Service.
1.14 "NASD" shall mean the National Association of Securities Dealers, Inc.
1.15 "Notice" shall mean the notice related to the Order.
1.16 "Order" shall mean Fund's mixed and shared funding exemptive order of
the Commission pursuant to Section 6(c) of the 1940 Act.
1.17 "Participants" shall mean individuals who participate under a group
Contract.
1.18 "Participating Company" shall mean any insurance company, including
Insurance Company, that offers variable annuity and/or variable life
insurance contracts and that has entered into an agreement with Fund for
the purpose of making Portfolio shares available to serve as the
underlying investment medium for Contracts.
1.19 "Parties" shall mean Insurance Company, Contract Distributor, LAM and
Fund, collectively.
1.20 "Portfolio Prospectus" shall mean the currently effective prospectus and
statement of additional information with respect to a Portfolio,
including any supplements or amendments thereto.
1.21 "Separate Account" shall mean a separate account duly established by
Insurance Company that invests in a Portfolio and is named on Schedule
1.
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ARTICLE II.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
2.1 Insurance Company represents, warrants and covenants that:
(a) it is and shall remain an insurance company duly organized and in
good standing under applicable law;
(b) it has legally and validly established and shall maintain each
Separate Account pursuant to applicable insurance laws and
regulations;
(c) it has registered and shall maintain the registration of each
Separate Account as a unit investment trust under the 1940 Act to
serve as a segregated investment account for the Contracts, or,
alternatively, it has not so registered the Separate Accounts in
proper reliance upon an exclusion from such registration (which
exclusion shall be communicated to Fund);
(d) each Separate Account is and at all times shall be eligible to
invest in shares of a Portfolio without such investment
disqualifying Fund as an investment medium for insurance company
separate accounts supporting variable annuity and/or variable life
insurance contracts;
(e) each Separate Account is and at all times shall be a "segregated
asset account" and interests in each Separate Account that are
offered to the public shall be issued exclusively through the
purchase of a Contract that is and at all times shall be a
"variable contract," in each case within the meaning of such terms
under Section 817 of the Code and the regulations thereunder;
Insurance Company agrees to notify Fund and LAM immediately upon
having a reasonable basis for believing that such requirements
have ceased to be met or that they might not be met in the future;
(f) the Contracts are intended to be treated as life insurance,
endowment or annuity contracts under applicable provisions of the
Code, it shall make every effort to maintain such treatment and it
shall notify Fund 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; and
(g) all of its employees and agents who deal with money and/or
securities of Fund are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage, which
shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company, in an amount not less than
that required to be maintained by Fund; Insurance Company agrees
to hold for the benefit of Fund and to pay to Fund any amounts
lost from larceny, embezzlement or other events covered by said
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bond to the extent such amounts properly belong to Fund pursuant
to the terms of this Agreement.
2.2 Insurance Company and Contract Distributor represent, warrant and
covenant that:
(a) units of interest in each Separate Account available through the
purchase of Contracts are registered under the 1933 Act, or are
not so registered in proper reliance upon an exclusion from such
registration;
(b) the Contracts shall be issued and sold in compliance in all
material respects with all applicable federal and state laws,
including state insurance suitability requirements;
(c) Insurance Company and Contract Distributor will otherwise comply
in all material respects with all applicable federal and state
laws, including state insurance laws and regulations, in the
performance of this Agreement. Insurance Company agrees to inform
Fund promptly of any investment restrictions imposed by state
insurance law and applicable to Fund; and
(d) Insurance Company and Contract Distributor 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 Fund and LAM 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.
2.3 Contract Distributor represents and warrants that it is and at all times
shall be:
(a) registered with the Commission as a broker-dealer;
(b) a member in good standing of the NASD; and
(c) duly organized, validly existing and in good standing under
applicable law, with full power, authority, and legal right to
execute, deliver and perform its duties and comply with its
obligations under this Agreement.
2.4 Fund represents and warrants that:
(a) it is and shall remain registered with the Commission as an
open-end, management investment company under the 1940 Act;
(b) Portfolio shares are registered under the 1933 Act;
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(c) it possesses and shall maintain all legal and regulatory licenses,
approvals, consents and/or exemptions required for it to operate
and offer its shares as an underlying investment medium for the
Contracts;
(d) each Portfolio is or will be qualified as a regulated investment
company under Subchapter M of the Code, it shall make every effort
to maintain such qualification and it shall notify Insurance
Company promptly upon having a reasonable basis for believing that
any Portfolio invested in by a Separate Account has ceased to so
qualify or that it might not so qualify in the future; and
(e) all of its directors, officers, employees, investment advisers,
and other individuals/entities who deal with the money and/or
securities of Fund are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage, which
shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company, for the benefit of Fund in
an amount not less than that required by Rule 17g-I under the 1940
Act.
Fund makes no representation as to whether any aspect of its operations,
including without limitation, investment policies, fees and expenses, complies
with the insurance laws of any state.
2.5 LAM , the distributor for the Fund's shares, represents and warrants
that it is and at all time shall be:
(a) registered with the Commission as a broker-dealer;
(b) a member in good standing of the NASD; and
(c) duly organized, validly existing and in good standing under
applicable law, with full power, authority, and legal right to
execute, deliver and perform its duties and comply with its
obligations under this Agreement.
2.6 Each Portfolio's assets will be managed and invested in a manner that
complies with the requirements of Section 817(h) of the Code and
Treasury Regulation ss. 1.817-5, relating to the diversification
requirements for variable annuity, endowment or life insurance
contracts. If a Portfolio fails to comply with Section 817(h) of the
Code, Fund will take all reasonable steps to adequately diversify the
Portfolio so as to achieve compliance within the grace period afforded
by Treasury Regulation ss. 1.817-5. If Fund does not adequately
diversify the Portfolio during the grace period, it will take reasonable
steps to notify Insurance Company that the Portfolio has failed to so
comply. In the event the IRS asserts in writing in connection with any
governmental audit or review of Insurance Company or, to Insurance
Company's knowledge, of any Contractholder, that any Portfolio has
failed or allegedly failed to comply with the diversification
requirements of Section 817(h) of the Code or the regulations thereunder
or Insurance Company otherwise becomes aware of any facts that could
give rise to any claim against Fund or its affiliates as a result of
such a failure or alleged failure, Insurance Company shall promptly
notify
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Fund and LAM of such assertion or potential claim and shall permit Fund
and LAM and its affiliates and their legal and accounting advisers to
participate in any conferences, discussions or proceedings with the IRS,
any Contractholder or any other claimant regarding such claims.
2.7 Notwithstanding anything to the contrary contained in this Agreement, in
addition to and not in lieu of other provisions in this Agreement:
(a) "Confidential Information" includes but is not limited to all
proprietary and confidential information of Insurance Company,
Distributor and their subsidiaries, affiliates and licensees
(collectively the "Protected Parties" for purposes of this Section
13.5), including without limitation all information regarding the
customers of the Protected Parties; or the accounts, account
numbers, names, addresses, social security numbers or any other
personal identifier of such customers; or any information derived
therefrom.
(b) Fund and LAM may not use or disclose Confidential Information for
any purpose other than (i) to carry out the purpose for which
Confidential Information was provided to Fund or LAM as set forth
in the Agreement (ii) to its affiliates, or (iii) as required by
law, regulation or rule; and Fund and LAM each agree to cause all
its employees, agents and representatives, or any other party to
whom Fund or LAM may provide access to or disclose Confidential
Information to limit the use and disclosure of Confidential
Information to that purpose.
(c) Fund and LAM each agrees to implement appropriate measures
designed to attempt to (i) ensure the security and confidentiality
of Confidential Information, (ii) protect such information against
any anticipated threats or hazards to the security or integrity of
such information, and (iii) protect against unauthorized access
to, or use of, Confidential Information that could result in
substantial harm or inconvenience to any customer of the Protected
Parties; Fund and LAM each further agrees to cause all its
affiliates, agents, representatives or subcontractors of, or any
other party to whom Fund or LAM may provide access to or disclose
Confidential Information to implement appropriate measures
designed to meet the objectives set forth in this Section 2.7.
(d) Fund and LAM acknowledge that any breach of the agreements in this
Section 2.7 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. The provisions
of this Section 2.7 shall survive termination of this Agreement.
2.8 Fund and LAM shall comply with all the applicable laws and regulations
designed to prevent money laundering including without limitation the
International Money
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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 Insurance Company and Contract
Distributor 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 III.
FUND SHARES
3.1 Fund agrees to make the shares of each Portfolio available for purchase
by Insurance Company and each Separate Account at net asset value,
subject to the terms and conditions of this Agreement and the Portfolio
Prospectus. Fund may refuse to sell the shares of any Portfolio to any
person, or suspend or terminate the offering of the shares of any
Portfolio, as permitted by law or by regulatory authorities having
jurisdiction or if, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any
applicable state laws, suspension or termination is necessary and in the
best interests of the shareholders of such Portfolio.
3.2 Fund agrees that it shall sell shares of the Portfolios only to
Participating Companies and their separate accounts, the general
accounts of Participating Companies and their affiliates and to
qualified pension and retirement plans. No shares of any Portfolio will
otherwise be sold to the general public.
3.3 Except as noted in this Article III, Fund and Insurance Company agree
that orders and related payments to purchase and redeem Portfolio shares
shall be processed in the manner set out in Schedule 2 hereto.
3.4 Fund shall confirm each purchase or redemption order made by Insurance
Company. Transfer of Portfolio shares shall be by book entry only. No
share certificates shall be issued to Insurance Company. Shares ordered
from Fund shall be recorded in an appropriate title for Insurance
Company, on behalf of each Separate Account or the General Account.
3.5 Fund shall provide same-day notice (followed by written confirmation) to
Insurance Company of the amount of dividend and capital gain, if any,
per share of each Portfolio to which each Separate Account is entitled.
Insurance Company hereby elects to reinvest all dividends and capital
gains of any Portfolio in additional shares of that Portfolio at the
applicable net asset value per share, until Insurance Company otherwise
notifies Fund in writing.
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ARTICLE IV.
STATEMENTS AND REPORTS
4.1 Fund shall provide Insurance Company with quarterly statements of
account for each Separate Accounts Portfolio accounts as of the end of
each quarter by the fifteenth (15th) Business Day of the following
month.
4.2 (a) At least annually, Fund or its designee shall provide Insurance
Company, free of charge, with as many copies of Portfolio
Prospectuses, including supplements or updates thereto, as
Insurance Company may reasonably request for distribution by
Insurance Company to existing Contractholders and Participants
with respect to Separate Accounts invested in the relevant
Portfolios.
(b) Fund or its designee will provide written instruction to all
Participating Companies each time the Fund amends or supplements
its current prospectus or statement of additional information
directing the Participating Companies as to whether the amendment
or supplement is to be provided (a) immediately to Contractholders
who have Contract value allocated to a Portfolio or (b) is to be
held and combined with another Fund or Contract related mailing as
permitted by applicable federal securities laws. Fund agrees that
the instruction it gives the Insurance Company in each instance
will be the same as the instruction it provides other
Participating Companies. Insurance Company agrees to transmit any
such amendment or supplement with the relevant Portfolio's
prospectus and/or statement of additional information to which
such amendment or supplement relates from the time such amendment
or supplement is received by Insurance Company or such later date
as the Fund may specify.
(c) Fund or its designee shall provide Insurance Company, at Insurance
Company's expense, with as many copies of Portfolio Prospectuses
as Insurance Company may reasonably request for distribution by
Insurance Company to prospective purchasers of Contracts.
(d) If reasonable requested by Insurance Company, Fund or its designee
shall provide Portfolio Prospectuses in "camera ready" copy or, at
the request of Insurance Company, in the electronic format sent to
the financial printer and other assistance as is reasonably
necessary in order for the Parties once a year (or more frequently
if the Portfolio Prospectuses are supplemented or updated) to
distribute the Portfolio prospectuses. The reasonable expenses of
such printing, if for existing Contractholders and Participants,
will be borne by Fund. The expenses of such printing, if for
prospective purchasers of Contracts, will be borne by Insurance
Company.
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(e) The form of the Portfolio Prospectuses provided to Insurance
Company shall be the final form of Portfolio Prospectus as filed
with the Commission, which form shall include only those
Portfolios identified on Schedule 1.
(f) In the event the Fund initiates (i) a reorganization as defined by
Section 2 of the 1940 Act, or (ii) changes the Fund's name or the
name of a Portfolio, the Fund or its designee will reimburse the
Insurance Company for its internal and out-of-pocket costs
associated with the aforementioned actions. Insurance Company
agrees to use its best efforts to minimize any costs incurred and
shall provide Fund or its designated agent with acceptable
documentation of any such costs incurred.
4.3 Fund shall provide Insurance Company with at least one complete copy of
all registration statements, periodic reports and proxy statements and
all applications for exemptive orders and requests for no-action letters
that relate to a Separate Account.
4.4 Fund shall provide Insurance Company with copies of each Portfolio's
periodic reports, proxy statements and other printed materials (which
the Portfolio customarily provides to its shareholders) in quantities as
Insurance Company may reasonably request for distribution by Insurance
Company to each Contractholder and Participant with respect to Separate
Accounts invested in that Portfolio. Insurance Company shall distribute,
at Fund's expense, such materials, except proxy materials, to such
Contractholders and Participants. Fund, at its expense, shall:
(a) distribute its proxy materials directly to the appropriate
Contractholder; or
(b) provide a mailing agent of Fund's choosing with copies of Fund's
proxy materials in such quantity as Insurance Company will
reasonably require. Insurance Company will provide for the
distribution of the proxy materials to existing Contractholders.
Fund will bear the cost of distribution and proxy tabulations.
4.5 Insurance Company shall provide Fund with at least one complete copy of
all registration statements, periodic reports, proxy statements,
applications for exemptive orders, requests for no action letters, and
all amendments to any of the above, that are material to a Portfolio
promptly after the filing of such document with the Commission or other
regulatory authorities or, if such materials are not filed,
contemporaneously with first use. Insurance Company shall provide to
Fund and LAM any complaints received from Contractholders pertaining to
Fund or a Portfolio.
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ARTICLE V.
EXPENSES
5.1 Except as otherwise specifically provided herein, each Party will bear
all expenses incident to its performance under this Agreement.
ARTICLE VI.
EXEMPTIVE RELIEF
6.1 Insurance Company acknowledges that it has reviewed a copy of the Order
and, in particular, has reviewed the conditions to the relief set forth
in the Notice. As required by the conditions set forth in the Notice,
Insurance Company shall report any potential or existing conflicts
promptly to the Board. In addition, Insurance Company shall be
responsible for assisting the Board in carrying out its responsibilities
under the Order by providing the Board with all information necessary
for the Board to consider any issues raised including, without
limitation, information whenever Contract voting instructions are
disregarded. Insurance Company, at least annually (but more frequently
if requested by Fund), shall submit to the Board such reports,
materials, or data as the Board may reasonably request so that the Board
may carry out fully the obligations imposed upon it by the Order.
Insurance Company agrees to carry out such responsibilities with a view
to the interests of existing Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict exists with
regard to Contractholder investments in Fund, the Board shall give
prompt notice to all Participating Companies. If the Board determines
that Insurance Company is a Participating Company for whom the conflict
is relevant, Insurance Company shall at its sole cost and expense, and
to the extent reasonably practicable (as determined by a majority of the
Disinterested Board Members), take such action as is necessary to remedy
or eliminate the irreconcilable material conflict. Such necessary action
may include, but shall not be limited to:
(a) withdrawing the assets allocable to some or all Separate Accounts
from Fund or any Portfolio and reinvesting such assets in a
different investment medium (which may include another Portfolio);
(b) submitting the question of whether such segregation should be
implemented to a vote of all affected Contractholders and, as
appropriate, segregating the assets of any appropriate group (i.e.
variable annuity or variable life insurance Contractholders) that
votes in favor of such segregation; and/or
(c) establishing a new registered management investment company or
managed separate account.
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6.3 If a material irreconcilable conflict arises as a result of a decision
by Insurance Company to disregard Contractholder voting instructions and
that decision represents a minority position or would preclude a
majority vote, Insurance Company may be required, at the Board's
election, to withdraw the investments of its Separate Accounts in Fund.
No charge or penalty shall be imposed as a result of such withdrawal.
6.4 For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether any proposed action adequately remedies
any material irreconcilable conflict, but in no event shall Fund or LAM
or any other investment adviser of Fund be required to bear the expense
of establishing a new funding medium for any Contract. Insurance Company
shall not be required by this Article to establish a new funding medium
for any Contract if an offer to do so has been declined by vote of a
majority of the Contractholders materially and adversely affected by the
material irreconcilable conflict.
6.5 No action by Insurance Company taken or omitted, and no action by a
Separate Account or Fund taken or omitted as a result of any act or
failure to act by Insurance Company pursuant to this Article VI shall
relieve Insurance Company of its obligations under, or otherwise affect
the operations of, this Article VI.
ARTICLE VII.
VOTING OF FUND SHARES
7.1 Insurance Company shall provide pass-through voting privileges to all
Contractholders and Participants so long as and to the extent the
Commission continues to interpret the 1940 Act as requiring pass-through
voting privileges or to the extent otherwise required by law.
Accordingly, Insurance Company, where applicable, shall vote shares of a
Portfolio held in each Separate Account in a manner consistent with
voting instructions timely received from its Contractholders and
Participants. Insurance Company shall be responsible for assuring that
the Separate Account determines voting privileges in a manner consistent
with other Participating Companies. Insurance Company shall vote shares
for which it has not received timely voting instructions, as well as
shares it owns, in the same proportion as it votes those shares for
which it has received voting instructions.
7.2 If and to the extent Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are
amended, or if Rule 6e-3 is adopted, to provide exemptive relief from
any provision of the 1940 Act or the rules thereunder with respect to
mixed and shared funding on terms and conditions materially different
from any exemptions granted in the Order, then Fund, and/or the
Participating Companies, as appropriate, shall take such steps as may be
necessary to comply with Rule 6e-2 and Rule 6e-3(T), as amended, and
Rule 6e-3, as adopted, to the extent such Rules are applicable.
7.3 Insurance Company agrees that it shall not: (a) without the prior
written consent of Fund and LAM, solicit, introduce or encourage
Contractholders or Participants to change or
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supplement Fund's investment adviser or change, modify or substitute a
Portfolio or (b) without prior written notification to Fund and LAM
delete a Portfolio from the current investment options under the
Contracts.
ARTICLE VIII.
MARKETING
8.1 Fund or its designee shall periodically furnish Insurance Company with
sales literature or other promotional materials for each Portfolio, in
quantities as Insurance Company may reasonably request, for distribution
to prospective purchasers of Contracts. Expenses for the printing and
distribution of such documents shall be borne by Insurance Company.
8.2 Insurance Company shall designate certain persons or entities that shall
have the requisite licenses to solicit applications for the sale of
Contracts.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to Fund
each piece of sales literature or other promotional material in which
Fund, LAM or Fund's investment adviser or administrator is named, at
least five (5) Business Days prior to its use. No such material shall be
used unless Fund and LAM or their respective designees approve such
material in writing.
8.4 Fund shall furnish, or shall cause to be furnished, to Insurance Company
each piece of Fund's sales literature or other promotional material in
which Insurance Company or a Separate Account is named, at least five
(5) Business Days prior to its use. No such material shall be used
unless Insurance Company approves such material in writing.
8.5 Insurance Company shall not give any information or make any
representations or statements on behalf of Fund, LAM or concerning Fund
or any Portfolio other than the information or representations contained
in a Portfolio Prospectus, periodic reports, proxy statements or in
sales literature or other promotional material approved by Fund.
8.6 Fund shall not, in connection with the sale of Portfolio shares, give
any information or make any representations on behalf of Insurance
Company or concerning Insurance Company, a Separate Account, or the
Contracts other than the information or representations contained in a
Contract Prospectus, in published reports for each Separate Account that
are in the public domain or approved by insurance Company for
distribution to Contractholders; or Participants, or in sales literature
or other promotional material approved by Insurance Company.
8.7 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without
limitation, 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), sales literature (such as any
written communication distributed or made generally available to
customers or the public,
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including brochures, circulars, research reports, market letters, form
letters, seminar texts, or 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, prospectuses, statements
of additional information, shareholder reports and proxy materials, and
any other material constituting sales literature or advertising under
the rules of the NASD, the 1940 Act or the 1933 Act.
ARTICLE IX.
INDEMNIFICATION
9.1 Insurance Company and Contract Distributor each agree to indemnify and
hold harmless Fund, LAM, any investment adviser of a Portfolio, and
their affiliates, and each of their respective directors, trustees,
general members, officers, employees, agents and each person, if any,
who controls any of the foregoing entities or persons within the meaning
of the 1933 Act (collectively, the "Indemnified Parties" for purposes of
this Section 9.1), against any and all losses, claims, damages or
liabilities, joint or several (including any investigative, legal and
other expenses reasonably incurred in connection with or any amounts
paid in settlement of, any action, suit or proceeding or any claim
asserted and any income taxes, penalties or toll charges) (collectively,
"Losses") for which the Indemnified Parties may become subject insofar
as such Losses (or actions in respect thereof):
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any
registration statement, Contract Prospectus, Contract or sales
literature or other promotional material relating to a Separate
Account or the Contracts (collectively, "Account documents") or
arise out of or are based upon the omission or the alleged
omission to state in any Account documents a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made,
not misleading; provided, however, that neither Insurance Company
nor Contract Distributor shall be liable in any such case to the
extent that any such Loss arises out of or is based upon any such
materially untrue statement or material omission made in any
Account document which materially untrue statement or material
omission was made in reliance upon and in conformity with written
information furnished by or on behalf of Fund specifically for use
therein;
(b) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any
registration statement, Portfolio Prospectus or sales literature
or other promotional material relating to Fund or a Portfolio
(collectively, "Portfolio documents") or arise out of or are based
upon the omission or the alleged omission to state in any
Portfolio documents a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, provided
such materially untrue statement or material omission was made in
reliance upon
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and in conformity with information furnished to Fund or LAM by or
on behalf of Insurance Company or Contract Distributor
specifically for use therein;
(c) arise out of or as a result of statements or representations
(other than statements or representations contained in any
Portfolio document on which Insurance Company or Contract
Distributor have reasonably relied) or wrongful conduct of
Insurance Company or Contract Distributor or their respective
agents and persons under their respective control with respect to
the sale and distribution of Contracts or Portfolio shares;
(d) arise out of any material breach of any representation, warranty
and/or covenant made by Insurance Company or Contract Distributor
in this Agreement, or arise out of or result from any other
material breach of this Agreement by Insurance Company or Contract
Distributor;
(e) arise out of Insurance Company's incorrect calculation and/or
incorrect or untimely reporting of net purchase or redemption
orders; or
(f) arise out of or are related to any tax liability under Section 851
of the Code arising from purchases or redemptions by the General
Account.
9.2 Fund and LAM each agree to indemnify and hold harmless Insurance Company
and Contract Distributor, and their affiliates, and each of their
respective directors, trustees, general members, officers, employees,
agents and each person, if any, who controls Insurance Company or
Contract Distributor within the meaning of the 1933 Act (collectively,
the "Indemnified Parties" for purposes of this Section 9.2), against
Losses for which Indemnified Parties may become subject insofar as such
Losses (or actions in respect thereof):
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Portfolio
documents or arise out of or are based upon the omission or the
alleged omission to state in any Portfolio documents a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they
were made, not misleading; provided, however, that neither Fund
nor LAM shall be liable in any such case to the extent that any
such Loss arises out of or is based upon any such materially
untrue statement or material omission made in any Portfolio
document which materially untrue statement or material omission
was made in reliance upon and in conformity with information
furnished by or on behalf of Insurance Company or Contract
Distributor specifically for use therein;
(b) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in Account
documents or arise out of or are based upon the omission or the
alleged omission to state in any Account documents a material fact
required to be stated therein or necessary to make the statements
14
therein, in light of the circumstances in which they were made,
not misleading, provided such materially untrue statement or
material omission was made in reliance upon and in conformity with
written information furnished to Insurance Company or Contract
Distributor by or on behalf of Fund specifically for use therein;
(c) arise out of or as a result of statements or representations
(other than statements or representations contained in any Account
document on which Fund or LAM have reasonably relied) or wrongful
conduct of Fund or LAM or their respective agents and persons
under their respective control with respect to the sale and
distribution of Portfolio shares;
(d) arise out of any material breach of any representation and/or
warranty made by Fund or LAM in this Agreement, or arise out of or
result from any other material breach of this Agreement by Fund or
LAM; or
(e) arise out of any incorrect calculation and/or reporting of the
daily net asset value, dividend rate or capital gain distribution
rate of a Portfolio by the Fund; provided, however, that Fund
shall have no obligation to indemnify and hold harmless the
Indemnified Parties if the incorrect calculation or reporting was
the result of incorrect information furnished by or on behalf of
Insurance Company or Contract Distributor or otherwise as a result
of or relating to Insurance Company's or Contract Distributor's
negligence or breach of this Agreement.
9.3 In no event shall Fund or LAM be liable for any consequential,
incidental, special or indirect damages resulting to Insurance Company
or Contract Distributor or their affiliates hereunder. In no event shall
Insurance Company or Contract Distributor be liable for any
consequential, incidental, special or indirect damages resulting to Fund
or LAM or their affiliates hereunder.
9.4 Notwithstanding anything herein to the contrary, in no event shall Fund
or LAM be liable to any individual or entity including, without
limitation, Insurance Company, Contract Distributor or any
Contractholder or Participant, with respect to any Losses that arise out
of or result from a breach of any representation, warranty, and/or
covenant made by Insurance Company or Contract Distributor hereunder or
under an agreement containing substantially similar representations,
warranties and covenants.
9.5 (a) Promptly after receipt by a Party that may be entitled to
indemnification under this Article ("Indemnified Party" for
purposes of this Section) of notice of the commencement of any
action which may result in Losses, such Indemnified Party shall,
if a claim in respect thereof is to be made against the
indemnifying party under this Article ("Indemnifying Party" for
purposes of this Section), notify Indemnifying Party of the
commencement thereof The failure to so notify shall not relieve
Indemnifying Party from any liability under this Article IX,
except to the extent that Indemnifying Party is damaged as a
result of the failure to give
15
such notice. If Indemnified Party notifies Indemnifying Party of
the commencement of any such action, Indemnifying Party shall be
entitled to participate therein and, to the extent that it may
wish, assume the defense thereof, with counsel reasonably
satisfactory to Indemnified Party, and to the extent that
Indemnifying Party has given notice to such effect and is
performing its obligations under this Article, Indemnifying Party
shall not be liable for any legal or other expenses subsequently
incurred by Indemnified Party in connection with the defense
thereof, other than reasonable costs of investigation.
Notwithstanding the foregoing, in any such proceeding, any
Indemnified Party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at its expense
unless (a) Indemnifying Party and Indemnified Party shall have
mutually agreed to the retention of such counsel or (b) the named
parties to any such proceeding (including any impleaded parties)
include both Indemnifying Party and Indemnified Party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent.
(b) No Party shall be liable under any of the foregoing
indemnification provisions with respect to any Losses or
litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance,
bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this
Agreement.
9.6 A successor by law of any Party to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX.
ARTICLE X.
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall continue in force until terminated in accordance
with the provisions herein.
10.2 This Agreement shall terminate without penalty as to one or more
Portfolios:
(a) at any time from the date hereof upon 60 days' written notice by
any party;
(b) at the option of Insurance Company if it determines that shares of
any Portfolio are not reasonably available to meet the
requirements of the Contracts; Insurance Company shall furnish
prompt written notice of election to terminate and termination
shall be effective ten days after receipt of written notice unless
Fund makes available a sufficient number of shares to meet the
requirements of the Contracts within such ten day period;
16
(c) at the option of Insurance Company upon the institution of formal
proceedings against Fund or LAM or their respective affiliates by
the Commission or any other regulatory body, the expected or
anticipated ruling, judgment or outcome of which would, in
Insurance Company's reasonable judgment, materially impair the
other's ability to meet and perform its obligations and duties
hereunder; prompt written notice of election to terminate shall be
furnished with termination to be effective as specified therein;
(d) at the option of Fund upon the institution of formal proceedings
against Insurance Company or Contract Distributor or their
respective affiliates by the Commission, the NASD or any other
regulatory body, the expected or anticipated ruling, judgment or
outcome of which would, in Fund's reasonable judgment, materially
impair the other's ability to meet and perform its obligations and
duties hereunder; prompt written notice of election to terminate
shall be furnished with termination to be effective as specified
therein;
(e) at the option of Insurance Company, if Insurance Company
determines in its sole judgment exercised in good faith, that Fund
or LAM 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
Insurance Company, such termination to be effective sixty (60)
days after receipt by Fund and LAM of written notice of the
election to terminate;
(f) at the option of Fund and LAM, if Fund and LAM determine in their
sole judgment exercised in good faith, that Insurance Company has
suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of Fund
or LAM, such termination to be effective sixty (60) days after
receipt by Insurance Company of written notice of the election to
terminate;
(g) upon termination of the Investment Management Agreement between
Fund, on behalf of its Portfolios, and LAM or its successors
unless Insurance Company specifically approves the selection of a
new investment adviser for the Portfolios;
(h) at the option of Fund upon a determination by the Board in good
faith that it is no longer advisable and in the best interests of
shareholders for Fund to continue to operate pursuant to this
Agreement; termination shall be effective upon notice by Fund to
Insurance Company of such termination;
(i) at the option of any Party, upon another's breach of any material
representation, warranty or other provision of this Agreement; or
17
(j) upon assignment of this Agreement, unless made with the written
consent of the non-assigning Parties.
Any such termination pursuant to this Article X shall not affect the
operation of Articles V or IX of this Agreement. The Parties agree that
any termination pursuant to Article VI shall be governed by that
Article.
10.3 Notwithstanding any termination of this Agreement, Fund and LAM shall
continue to make available additional Portfolio shares pursuant to the
terms and conditions of this Agreement as provided below, for all
Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as the "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts
or Insurance Company, whichever shall have legal authority to do so,
shall be permitted to reallocate investments among the Portfolios,
redeem investments in the Portfolios and/or invest in the Portfolios
upon the making of additional purchase payments under the Existing
Contracts. The provisions of this Agreement shall remain in effect and
thereafter either Fund or Insurance Company may terminate the Agreement,
as so continued pursuant to this Section 10.3, upon prior written notice
to the other Parties, such notice to be for a period that is reasonable
under the circumstances but, if given by Fund, need not be for more than
six months.
10.4 In the event of any termination of this Agreement, the Parties agree to
cooperate and give reasonable assistance to one another in taking all
necessary and appropriate steps for the purpose of ensuring that a
Separate Account owns no shares of a Portfolio beyond six months from
the date of termination. Such steps may include, without limitation,
substituting other investment company shares for those of the affected
Portfolio.
ARTICLE XI.
AMENDMENTS
11.1 Any changes in the terms of this Agreement shall be made by agreement in
writing by the Parties hereto, except as otherwise specified herein.
ARTICLE XII.
NOTICE
12.1 Each notice required by this Agreement shall be given by certified mail,
return receipt requested, to the appropriate Parties at the following
addresses:
Insurance Company:
RiverSource Life Insurance Co. of New York
1765 Ameriprise Financial Center
Minneapolis, Minnesota 55474
Attn: Vice President
18
Contract Distributor:
RiverSource Distributors, Inc.
1765 Ameriprise Financial Center
Minneapolis, Minnesota 55474
Attn: President
with a copy to: Chief Counsel
50607 Ameriprise Financial Center
Minneapolis, Minnesota 55474
Fund: Lazard Retirement Series, Inc.
30 Rockefeller Plaza
New York, New York 10112
Attention: Charles Burgdorf
LAM: Lazard Asset Management Securities LLC
30 Rockefeller Plaza
New York, New York 10112
Attention: Nathen A. Paul, Esq.
with a copy to: Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Attention: Janna Manes, Esq.
Notice shall be deem ed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
ARTICLE XIII.
MISCELLANEOUS
13.1 If any provision of this Agreement is held or made invalid by a court
decision, statute, rule, or otherwise, the remainder of this Agreement
will not be affected thereby.
13.2 The rights, remedies, indemnities and obligations contained in this
Agreement are cumulative and are in addition to any and all rights,
remedies, indemnities and obligations, at law or in equity, to which the
Parties are entitled.
13.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the
same instrument.
19
ARTICLE XIV.
LAW
14.1 This Agreement shall be construed in accordance with the internal laws
of the State of New York, without giving effect to principles of
conflict of laws.
IN WITNESS WHEREOF, this Agreement has been executed and attested on behalf of
the Parties as of the date first above written.
Attest: RIVERSOURCE LIFE INSURANCE CO. OF
NEW YORK
By: /s/ Patrick H. Carey III
-----------------------------
By: /s/ Betsy Hannum Name: Patrick H. Carey III
------------------------- Title: Vice President
Name: Betsy Hannum
Title: Assistant Secretary
Attest: RIVERSOURCE DISTRIBUTORS, INC.
By: /s/ Kasey L. Ross By: /s/ Patrick H. Carey III
------------------------- -----------------------------
Name: Kasey L. Ross Name: Patrick H. Carey III
Title: Assistant Secretary Title: Vice President
Attest: LAZARD RETIREMENT SERIES, INC.
By: /s/ John T. McSharry By: /s/ Charles L. Carroll
------------------------- -----------------------------
Name: John T. McSharry Name: Charles L .Carroll
Title: Vice President Title: Deputy Chairman
Attest: LAZARD ASSET MANAGEMENT
SECURITIES LLC
By: /s/ John T. McSharry By: /s/ Charles L. Carroll
------------------------- -----------------------------
Name: John T. McSharry Name: Charles L. Carroll
Title: Vice President Title: Deputy Chairman
20
SCHEDULE 1
Name of Portfolio: Lazard Retirement International Equity Portfolio-Service
Shares
-------------------------------------------------------------------------------------------------
CONTRACT SEPARATE ACCOUNT CONTRACT FORM NUMBERS
-------------------------------------------------------------------------------------------------
RiverSource Retirement 31053A
Advisor Advantage Plus(SM) RiverSource of New York
Variable Annuity Variable Annuity Account
-------------------------------------------------------------------------------------------------
RiverSource Retirement 31053, 31054, 31055-SEP,
Advisor Advantage(R) Variable RiverSource of New York 31056-IRA
Annuity Variable Annuity Account
-------------------------------------------------------------------------------------------------
RiverSource Retirement 31053, 31054, 31055-SEP,
Advisor Advantage(R) Variable RiverSource of New York 31056-IRA
Annuity - Band 3 Variable Annuity Account
-------------------------------------------------------------------------------------------------
RiverSource Retirement RiverSource of New York 139035A
Advisor Select Plus(SM) Variable Annuity Account
Variable Annuity
-------------------------------------------------------------------------------------------------
RiverSource Retirement RiverSource of New York 139035, 139036, 139037 and
Advisor Select(R) Variable Variable Annuity Account 139038
Annuity
-------------------------------------------------------------------------------------------------
RiverSource Retirement RiverSource of New York 31053, 31054, 31055-SEP,
Advisor Variable Annuity(R) Variable Annuity Account 31056-IRA
-------------------------------------------------------------------------------------------------
RiverSource Retirement RiverSource of New York 31053, 31054, 31055-SEP,
Advisor Variable Annuity(R) - Variable Annuity Account 31056-IRA
Band 3
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
RiverSource Succession RiverSource of New York 39090C
Select(SM) Variable Life Account 8
Insurance
-------------------------------------------------------------------------------------------------
RiverSource Variable Second- RiverSource of New York 39090
To-Die Life Insurance(SM) Account 8
-------------------------------------------------------------------------------------------------
RiverSource Variable RiverSource of NewYork 39061
Universal Life Insurance III(SM) Account 8
-------------------------------------------------------------------------------------------------
RiverSource Variable RiverSourceof New York 39060
Universal Life Insurance(SM) Account 8
-------------------------------------------------------------------------------------------------
RiverSource(R) Variable RiverSource of New York 39061C
Universal Life IV Account 8
-------------------------------------------------------------------------------------------------
RiverSource(R) Variable RiverSource of New York 39061C
Universal Life IV - Estate Account 8
Series
-------------------------------------------------------------------------------------------------
21
SCHEDULE 2
PORTFOLIO SHARE ORDER PROCESSING
PRICING
1. Each Business Day, Fund shall use its best efforts to make each
Portfolio's closing net asset value per share ("NAV") available to
Insurance Company by 6:30 p.m. Eastern time.
2. At the end of each Business Day, Insurance Company shall calculate each
Separate Account's unit values. Using this unit value, Insurance Company
shall process that Business Day's Contract and Separate Account
transactions to determine the net dollar amount of each Portfolio's
shares to be purchased or redeemed.
3. Fund hereby appoints Insurance Company as its agent for the limited
purpose of receiving orders for the purchase and redemption of Portfolio
shares for the Separate Accounts. Fund will execute orders at the
applicable net asset value per share determined as of the close of
trading on the New York Stock Exchange (the "close of trading") on the
day of receipt of such orders by Insurance Company acting as agent
("effective trade date"), provided that Fund receives both the notice of
the order and any related purchase payments in accordance with this
Schedule. With each communication of orders, Insurance Company
represents and warrants that orders submitted by Insurance Company for
execution on the effective trade date represent purchase or redemption
orders received from Contractholders prior to the close of trading on
the effective trade date.
4. Insurance Company shall use its best efforts to transmit net purchase or
redemption orders to Fund or its designee by 9:30, a.m. Eastern time on
the Business Day next following the effective trade date, but no later
than 10:00 a.m., provided that the Insurance Company shall notify the
Fund or its designee if such transmission will be after 9:45 a.m. For
informational purposes only, Insurance Company shall separately describe
the amount of shares of each Portfolio that are being purchased,
redeemed, or exchanged from one Portfolio to the other. In addition,
Insurance Company shall use its best efforts to notify Fund in advance
of any unusually large purchase or redemption orders.
5. Fund shall execute purchase and redemption orders for a Portfolio's
shares that relate to Insurance Company's General Account, or that do
not relate to Contract transactions, at that Portfolio's NAV next
determined after Fund (not Insurance Company) receives the order and any
related purchase payments in accordance with this Schedule.
6. Fund shall execute purchase and redemption orders for a Portfolio's
shares that relate to Contracts funded by Separate Accounts either
registered under the 1940 Act or not so registered in the same manner,
but only to the extent that Insurance Company represents and warrants
that it is legally or contractually obligated to treat such orders in
the same manner. Each order for Portfolio shares placed by Insurance
Company that is
attributable, in whole or in part, to Contracts funded by an
unregistered Separate Account shall be deemed to constitute such
representation and warranty by Insurance Company unless the order
specifically states to the contrary. Otherwise, Fund shall treat orders
attributable to unregistered Separate Account Contracts in the same
manner as orders for the General Account.
7. Fund shall execute purchase or redemption orders for a Portfolio's
shares that do not satisfy the conditions specified in this Schedule at
the Portfolio's NAV next determined after such conditions have been
satisfied.
8. If Fund provides Insurance Company with materially incorrect net asset
value per share information through no fault of Insurance Company,
Insurance Company, on behalf of the Separate Account, may be entitled to
an adjustment to the number of shares purchased or redeemed to reflect
the correct net asset value per share in accordance with Fund's current
policies for correcting pricing errors. An incorrect net asset value per
share information will be deemed "material" based on Fund's
interpretation of the SEC's position and policy with regard to
materiality, as it may be modified from time to time. Any material error
in the calculation of net asset value per share, dividend rate or
capital gain distribution rate information shall be reported promptly
upon discovery to Insurance Company.
PAYMENT
9. Insurance Company shall pay for any net purchase order by wiring Federal
Funds to Fund or its designated custodial account by 4:00 p.m. Eastern
time on the same Business Day it transmits the order to Fund. If Fund
does not receive such payment by 4:00 p.m., Insurance Company shall
promptly, upon Fund's request, reimburse Fund for any charges, costs,
fees, interest or other expenses incurred by Fund in connection with any
advances to, or borrowings or overdrafts by, Fund, or any similar
expenses incurred by Fund, as a result of portfolio transactions
effected by Fund based upon such purchase request.
10. Fund shall pay for any net redemption order by wiring the redemption
proceeds to Insurance Company, except as provided below, within two
Business Days after Insurance Company transmits such order to Fund or,
upon notice to Insurance Company, such longer period as permitted by the
1940 Act or the rules, orders or regulations thereunder. In the case of
any net redemption order valued at or greater than $1 million, Fund
shall wire such amount to Insurance Company within six days of the
order. In the case of any net redemption order requesting the
application of proceeds from the redemption of one Portfolio's shares to
the purchase of another Portfolio's shares, Fund shall so apply such
proceeds the same Business Day that Insurance Company transmits such
order to Fund.
FREQUENT TRANSFERS
11. Insurance Company understands the Fund has adopted policies and
procedures reasonably designed to prevent frequent or excessive
purchases, exchanges and redemptions of the shares of Portfolios
("disruptive trading"). These policies are disclosed in the Fund's
prospectus.
The Fund understands that the Insurance Company on behalf of its
Separate Accounts has adopted policies and procedures reasonably
designed to detect and deter frequent transfers of Contract value among
the subaccounts of the Separate 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
Separate Accounts through which the Contracts are offered.
The Fund may consider the Insurance Company's policies and procedures
pertaining to frequent transfers of Contract value among the subaccounts
of the Separate Account(s) including those investing in Portfolios when
the Fund periodically reviews or amends the Fund's disruptive trading
policies and procedures from time to time. The Fund may invite comment
from and confer with Insurance Company regarding any proposed policy and
procedure of the Fund pertaining to disruptive trading to determine
prior to adopting such proposed policy or procedure the Insurance
Company's then-present ability to apply such proposed policy or
procedure to Contractholders who allocate Contract value to subaccounts
investing in Portfolios available under the Contracts, including without
limitation whether the Insurance 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 Fund's proposed policy or procedure.
The Company will cooperate with the Fund's reasonable requests in taking
steps to deter and detect such transfers by any Contractholder. The
Insurance Company will provide promptly upon written request by the
Fund, directly or through its designee:
o the Taxpayer Identification Number of all Contractholders that
purchased, redeemed, transferred, or exchanged units of a
subaccount investing in shares of a Portfolio held under a
Contract; and,
o the amount and dates of such Contractholders purchases,
redemptions, transfers and exchanges in subaccounts available
under the Contract which invest in shares of any Portfolio.
The Insurance Company will execute any instructions from the Fund,
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 by any Contractholder
who has been identified by the Fund, or its designee, as having engaged
in
transactions that violate policies established by the Fund for the
purpose of eliminating or reducing any dilution of the value of the
outstanding securities issued by any Portfolio.
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, or any amendments to Rule 22c-2, as any Party
may wish to address.