Exhibit 10.35


 


 


UNDERWRITING
AGREEMENT


 


THIS AGREEMENT, dated as
of April 15, 2009, is entered into by and between Ivy Funds Variable
Insurance Portfolios (hereinafter the “Trust”), a Delaware statutory trust, and
Waddell & Reed, Inc. (hereinafter “W&R”), a Delaware
corporation.


 


WHEREAS, the Trust
is registered with the Securities and Exchange Commission (“SEC”) as an
open-end management investment company under the Investment Company Act of
1940, as amended (“1940 Act”), and currently consists of the separately managed
series identified on Schedule A (the “Portfolios”); and


 


WHEREAS, the Trust’s
shareholders are and are anticipated to be separate accounts in unit investment
trust form (“Eligible Separate Accounts”) of insurance companies (“Participating
Insurance Companies”); and


 


WHEREAS, such
Participating Insurance Companies issue, among other products, variable life
insurance and annuity products (“Variable Products”) whose net premiums,
contributions or other consideration may be allocated to Eligible Separate
Accounts for investment in the Trust; and


 


WHEREAS, the Trust’s
shares will not be sold except in connection with such Variable Products or
directly to qualified pension and retirement plans (“Qualified Plans”) or to
other eligible investors outside the separate account context (“Eligible
Shareholders”); and


 


WHEREAS, the Trust
has adopted a service plan with respect to certain Portfolios as set forth on
Schedule A pursuant to Rule 12b-1 under the 1940 Act (the “12b-1 Plans”);


 


WHEREAS, the Trust
desires W&R to act as principal underwriter and distributor of the shares
of the Trust; and


 


WHEREAS, W&R
is registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended (“Securities Exchange Act”), and is a member of the Financial Industry
Regulatory Authority, Inc. (“FINRA”); and


 


NOW THEREFORE,
W&R and the Trust, in consideration of the promises and undertakings
described herein, agree as follows:


 


I.           APPOINTMENT


 


The Trust hereby appoints
W&R as principal underwriter and distributor of the shares of the Trust,
and W&R hereby accepts that appointment.


 


 

















 


II.         PARTICIPATION AGREEMENTS


 


The Portfolios are
currently sold to Participating Insurance Companies pursuant to Participation
Agreements between and among the Participating Insurance Companies, the Trust
and W&R. W&R agrees to act in a manner consistent with the
Participation Agreements as currently in effect, as amended or superseded or
entered into after the effective date of this Agreement, so long as W&R
serves as the principal underwriter of the Trust.


 


III.          MARKETING AGREEMENTS


 


W&R may engage
in marketing and other promotional activities intended to result in the inclusion
of shares of the Trust as investment options under Variable Products and the
sale of shares of the Trust in connection with investments made under such
Variable Products. W&R may enter into such agreements as it deems
appropriate in connection with such marketing and promotional activities,
provided, however, W&R may enter into such agreements only with such
broker-dealers and financial intermediaries that are, and whose respective
agents or representatives are, duly and appropriately licensed, registered or
otherwise qualified for the sale of variable products under any applicable
insurance laws and any applicable securities laws of one or more states or
other jurisdictions in which variable products may be lawfully sold. W&R’s
agreement with any such broker-dealer or financial intermediary shall provide,
in substance, that the broker-dealer or financial intermediary shall, when
required by law, be both registered as a broker-dealer under the Securities
Exchange Act and a member of FINRA and shall also agree to comply with all laws
and regulations, whether federal or state, and whether relating to insurance, securities
or other general areas, including but not limited to the recordkeeping and
sales supervision requirements of such laws and regulations.


 


IV.          COMPENSATION


 


For services
rendered as principal underwriter and distributor, W&R shall receive no compensation
from the Trust other than the fees payable by the Trust on behalf of certain Portfolios
to W&R pursuant to the 12b-l Plans. W&R may, but need not, pay or
charge broker-dealers or financial intermediaries pursuant to the marketing
agreements described in Section III hereof.


 


V.           OBLIGATIONS


 


A.          Trust agrees:


 


1)  to use its best efforts to register from time
to time under the Securities Act of 1933 (the “Securities Act”) adequate
amounts of its shares for sale to the public through Participating Insurance
Companies or directly to Eligible Shareholders and to qualify or to permit
W&R to qualify such shares for offering to the public through Participating
Insurance Companies or directly to Eligible Shareholders in such states as may
from time to time be agreed upon by the Trust and W&R;


 


 


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2)  to issue its shares subject to the provisions
of its Trust Instrument and By-laws as ordered, as soon as reasonably possible
after receipt of the orders, and against payment of the consideration to be
received by the Trust from W&R;


 


3)  to pay or cause to be paid all expenses
incident to the issuance, transfer, registration and delivery of its shares,
all taxes in connection therewith, costs and expenses incident to preparing and
filing any registration statements and prospectuses and any amendments or
supplements to a registration statement or a prospectus, statutory fees
incidental to the registration of additional shares with the SEC, statutory
fees and expenses incurred in connection with any Blue Sky law qualifications
undertaken by or at the request of W&R, and the fees and expenses of the
Trust’s counsel, accountants or any other experts used in connection with the
foregoing; and


 


4)  not without the consent of W&R to offer
any of its shares for sale directly or to any persons other than W&R,
except only


 


a)  the reinvestment of dividends and/or
distributions or their declaration in shares of the Portfolios, in optional
form or otherwise;


 


b)  the issuance of additional shares to stock
splits or stock dividends;


 


c)  sale of shares to another investment or
securities holding company in the process of purchasing all or a portion of its
assets;


 


d)  in connection with an exchange of shares of
the Portfolios for shares in another investment or securities holding company;


 


e)  Participating Insurance Companies with which
the Trust and W&R have entered into Participation Agreements; or


 


f)   in connection with the exchange of one
Portfolio’s shares for shares of another Portfolio of the Trust.


 


B.          W&R agrees:


 


1)  to remain, during the term of this Agreement,
duly qualified to offer shares of the Trust in all states in which the shares
are currently qualified or otherwise authorized for sale;


 


2)  in offering shares to comply with the
provisions of the Trust Instrument and By-laws of the Trust and with the
provisions stated in the Trust’s then current prospectus and statement of
additional information;


 


3)  to timely inform the Trust of any action or
proceeding to terminate, revoke or suspend W&R’s registration as a
broker-dealer with the SEC, membership in FINRA, or authority with any state
securities commission to offer Trust shares; and


 


 


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4)         to pay the cost of all sales literature, advertising and
other materials which it may at its discretion use in connection with the sale
of shares of the Trust, including the cost of reports to the shareholders of
the Trust in excess of the cost of reports to existing shareholders and the cost
of printing the prospectus(es) furnished to it by the Trust.


 


VI.       ANTI-MONEY LAUNDERING DELEGATION


 


The Bank Secrecy Act, as
amended by the USA PATRIOT ACT, requires the Trust to develop, implement and
institute an anti-money laundering program (“AML Program”), and the Trust has
adopted the AML Program set forth in Schedule 1 hereto; W&R also maintains
an anti-money laundering program (“AMLP”) to satisfy applicable anti-money
laundering requirements relating to broker-dealers, and the Trust wishes to delegate
certain aspects of the implementation and operation of the Trust’s AML Program
to W&R; and W&R desires to accept such delegation.


 


A.    Delegation. The Trust hereby
delegates to W&R, as agent for the Trust, responsibility for the
implementation and operation of the following policies and procedures in
connection with the Trust’s AML Program, as applicable to W&R’s functions
as defined in the Agreement: (i) know-your-customer policies; (ii) monitoring
accounts and identifying high risk accounts; (iii) policies and procedures
for reliance on third parties; (iv) policies and procedures for
correspondent accounts for foreign financial institutions and for private
banking accounts for non-U.S. persons; (v) no cash policy; (vi) detecting
and reporting suspicious activity; and (vii) all related recordkeeping
requirements, and W&R accepts such delegation. W&R further agrees to
cooperate with the Trust’s AML Compliance Officer in the performance of W&R’s
responsibilities under the AML Program.


 


B.    The AML Program. W&R hereby
represents and warrants that W&R has received a copy of the Trust’s AML
Program and undertakes to perform all responsibilities imposed on W&R as a “Service
Provider” thereunder. The Trust hereby agrees to provide to W&R any
amendment(s) to the AML Program promptly after adoption of any such
amendment(s) by the Trust.


 


C.    Consent to Examination. W&R
hereby consents to: (a) provide to federal examination authorities
information and records relating to the AML Program maintained by W&R; and (b) the
inspection of W&R by federal examination authorities for purposes of the
AML Program.


 


D.    Anti-Money Laundering Program.
W&R hereby represents and warrants that W&R has implemented and
enforces an AMLP reasonably designed to comply with laws, regulations and
regulatory guidance applicable to the Trust and W&R, and includes, if
applicable:


 


1) know-your-customer
policies;


 


 


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2)    due
diligence policies for correspondent accounts for foreign financial institutions
and for private banking accounts for non-U.S. persons;


 


3)    reasonable
internal procedures and controls to detect and report suspicious activities;


 


4)    monitoring accounts and identifying
high-risk accounts;


 


5)    a
compliance officer or committee with responsibility for the anti-money
laundering program;


 


6)    employee
training, including that: (i) new employees receive AML training upon the
commencement of their employment; and (ii) existing employees receive AML
training at the time such employees assume duties that bring them into contact
with possible money laundering activities;


 


7)    an independent audit function; and


 


8)    recordkeeping requirements.


 


E.        Delivery of Documents. W&R agrees to furnish to
the Trust the following documents:


 


1)   a copy of W&R’s AMLP as in effect on the
date hereof, and any material amendment thereto promptly after the adoption of
any such amendment;


 


2)   a copy of any deficiency letter sent by
federal examination authorities concerning W&R’s AMLP; and


 


3)   no less frequently than annually, a report on
W&R’s AMLP that includes a certification to the Trust concerning W&R’s
implementation of, and ongoing compliance with, its AMLP and a copy of any
audit report prepared with respect to W&R’s AMLP.


 


F.        Reports. 
W&R will provide periodic reports concerning W&R’s compliance
with W&R’s AMLP and/or the Trust’s AML Program at such times as may be
reasonably requested by the Trust’s Board of Trustees or the Anti-Money
Laundering Compliance Officer.


 


VII. INDEMNIFICATION


 


A.          The Trust agrees with W&R for the
benefit of W&R and each person, if any, who controls W&R within the
meaning of Section 15 of the Securities Act and each and all and any of
them, to indemnify and hold harmless W&R and any such controlling person
from and against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, under any other statute, at common law or


 


 


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otherwise, and to
reimburse W&R and such controlling persons, if any, for any legal or other
expenses (including the cost of any investigation and preparation) reasonably
incurred by them or any of them in connection with any litigation whether or
not resulting in any liability, insofar as such losses, claims, damages,
liabilities or litigation arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any registration
statement or any prospectus or any amendment thereof or supplement thereto or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this indemnity
agreement shall not apply to amounts paid in settlement of any such litigation
if such settlement is effected without the consent of the Trust or to any such
losses, claims, damages, liabilities or litigation arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained
in any registration statement or prospectus or any amendment thereof or
supplement thereto, or arising out of or based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which statement or
omission was made in reliance upon information furnished in writing to the
Trust by W&R, or any affiliate, agent or representative of W&R, for
inclusion in any registration statement or any prospectus or any amendment
thereof or supplement thereto. W&R and each such controlling person shall
promptly, after the complaint shall have been served upon W&R or such
controlling person in any litigation against W&R or such controlling person
in respect of which indemnity may be sought from the Trust on account of its
agreement contained in this paragraph, notify the Trust in writing of the
commencement thereof. The omission of W&R or such controlling person so to
notify the Trust of any such litigation shall relieve the Trust from any
liability which it may have to W&R or such controlling person on account of
the indemnity agreement contained in this paragraph but shall not relieve the
Trust from any liability which it may have to W&R or controlling person
otherwise than on account of the indemnity agreement contained in this
paragraph. In case any such litigation shall be brought against W&R or any
such controlling person and W&R or such controlling person shall notify the
Trust of the commencement thereof, the Trust shall be entitled to participate
in (and, to the extent that it shall wish, to direct) the defense thereof at
its own expense but such defense shall be conducted by counsel of good standing
and satisfactory to W&R or such controlling person or persons, defendant or
defendants in the litigation. The indemnity agreement of the Trust contained in
this paragraph shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of W&R or any such controlling
person and shall survive any delivery of shares of the Trust. The Trust agrees
to notify W&R promptly of the commencement of any litigation or proceeding
against it or any of its officers or directors of which it may be advised in connection
with the issue and sale of its shares.


 


B.         Anything herein to the contrary
notwithstanding, the agreement in Section A of this Article VII,
insofar as it constitutes a basis for reimbursement by the Trust for
liabilities (other than payment by the Trust of expenses incurred or paid in
the successful defense of any action, 
suit or proceeding) arising under the Securities Act, shall not extend
to the extent of any interest therein of any person who is an underwriter or a
partner or controlling person of an underwriter within the meaning of Section 15
of the Securities Act or who, at the date of this Agreement, is a director of
the Trust, except to the extent that an interest of such character shall have
been


 


 


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determined by a
court of appropriate jurisdiction the question of whether or not such interest
is against public policy as expressed in the Securities Act.


 


C.    W&R agrees to indemnify and hold
harmless the Trust and its trustees and such officers as shall have signed any
registration statement from and against any and all losses, claims, damages or
liabilities, joint or several, to which the Trust or such directors or officers
may become subject under the Securities Act, under any other statute, at common
law or otherwise, and will reimburse the Trust or such directors or officers
for any legal or other expenses (including the cost of any investigation and
preparation) reasonably incurred by it or them or any of them in connection
with any litigation, whether or not resulting in any liability insofar as such
losses, claims, damages, liabilities or litigation arise out of, or are based
upon, any untrue statement or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which statement or omission was made in reliance upon information
furnished in writing to the Trust by W&R for inclusion in any registration
statement or any prospectus, or any amendment thereof or supplement thereto, or
which statement was made in, or the alleged omission was from, any advertising
or sales literature (including any reports to shareholders used as such) which
relate to the Trust. W&R shall not be liable for amounts paid in settlement
of any such litigation if such settlement was effected without its consent. The
Trust and its trustees and such officers, defendant or defendants, in any such
litigation shall, promptly after the complaint shall have been served upon the
Trust or any such trustee or officer in any litigation against the Trust or any
such trustee or officer in respect of which indemnity may be sought from
W&R on account of its agreement contained in this paragraph, notify W&R
in writing of the commencement thereof. The omission of the Trust or such
trustee or officer to notify W&R of any such litigation shall relieve
W&R from any liability which it may have to the Trust or such trustee or
officer on account of the indemnity agreement contained in this paragraph, but
shall not relieve W&R from any liability which it may have to the Trust or
such trustee or officer otherwise than on account of the indemnity agreement
contained in this paragraph. In case any such litigation shall be brought
against the Trust or any such officer or trustee and notice of the commencement
thereof shall have been so given to W&R, W&R shall be entitled to
participate in (and, to the extent that it shall wish, to direct) the defense
thereof at its own expense, but such defense shall be conducted by counsel of
good standing and satisfactory to the Trust. The indemnity agreement of W&R
contained in this paragraph shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Trust and shall
survive any delivery of shares of the Trust. W&R agrees to notify the Trust
promptly of the commencement of any litigation or proceeding against it or any
of its officers or trustees or against any such controlling person of which it
may be advised, in connection with the issue and sale of the Trust’s shares.


 


D.    Notwithstanding any
provision contained in this Agreement, no party hereto and no person or persons
in control of any party hereto shall be protected against any liability to the
Trust or its security holders to which they would otherwise be subject by
reason of willful misfeasance, bad faith, or gross negligence in the
performance of their duties or by reason of their reckless disregard of their
obligations and duties under this Agreement.


 


 


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VIII.     OTHER TERMS


 


 


A.    This Agreement shall not be deemed to limit
W&R from acting as underwriter, distributor and/or dealer for any other
mutual fund, from engaging in any other aspects of the securities business,
whether or not such may be deemed in competition with the sale of shares of the
Trust, and to carry on any other lawful business whatsoever.


 


B.    Except as expressly provided in Article VII
and hereinabove, the agreements herein set forth have been made and are made
solely for the benefit of the Trust and W&R, and the persons expressly
provided for in Article VII, their respective heirs and successors,
personal representatives and assigns, and except as so provided, nothing
expressed or mentioned herein is intended or shall be construed to give any
person, firm or corporation other than the Trust, W&R and the persons
expressly provided for in Article VII any legal or equitable right, remedy
or claim under or in respect of this Agreement or any representation, warranty
or agreement herein contained. Except as so provided, the term “heirs,
successors, personal representatives and assigns” shall not include any
purchaser of shares merely because of such purchase.


 


C.    This Agreement shall become effective on April 30,
2009 and shall continue in effect, unless terminated as hereinafter provided,
for a period of one (1) year and thereafter only if such continuance is
specifically approved at least annually by the Board of Trustees, including the
vote of a majority of the trustees who are not parties to the Agreement or “interested
persons” (as defined in the 1940 Act) or any such party and who have no direct
or indirect financial interest in the operation of any 12b-1 Plan or any
agreement relating to that 12b-1 Plan, cast in person at a meeting called for
the purpose of voting on such approval. This Agreement may be terminated as to
a Portfolio by W&R at any time without penalty upon giving the Trust sixty
(60) days’ written notice (which notice may be waived by the Trust) and may be
terminated as to a Portfolio by the Trust at any time without penalty upon
giving W&R sixty (60) days’ written notice (which notice may be waived by
W&R), provided that such termination by the Trust shall be directed or
approved by the vote of a majority of the trustees that are not interested
persons, or by the vote of a majority of the outstanding voting securities (as
defined in the 1940 Act) of the Portfolio. This Agreement shall automatically
terminate in the event of its assignment, the term “assignment” for this
purpose having the meaning defined in Section 2(a)(4) of the 1940
Act.


 


D.    This Agreement shall be governed and
construed in accordance with the laws of Kansas.


 


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their respective
duly authorized officers and their corporate seals to be affixed as of the day
and year first above written.


 


	
   

  	
   

  	
  IVY FUNDS VARIABLE
  INSURANCE

  
	
   

  	
   

  	
  PORTFOLIOS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Henry J. Herrmann

  	
   

  
	
   

  	
   

  	
   

  	
  Henry J. Herrmann,
  President

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Mara D.
  Herrington

  	
   

  	
   

  	
   

  
	
   

  	
  Mara D. Herrington,
  Secretary

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WADDELL &
  REED, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Thomas Butch

  	
   

  
	
   

  	
   

  	
   

  	
  Thomas Butch, President

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Wendy J.
  Hills

  	
   

  	
   

  	
   

  
	
   

  	
  Wendy J. Hills,
  Secretary

  	
   

  	
   

  
								



 


 


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SCHEDULE A*


 


 


Ivy Funds VIP
Asset Strategy

Ivy Funds VIP Balanced


Ivy Funds VIP Bond


Ivy Funds VIP Core Equity


Ivy Funds VIP Dividend Opportunities

Ivy Funds VIP Energy


Ivy Funds VIP Global Natural Resources

Ivy Funds VIP Growth


Ivy Funds VIP High Income

Ivy Funds VIP International Growth

Ivy Funds VIP International Value

Ivy Funds VIP Micro Cap Growth

Ivy Funds VIP Mid Cap Growth

Ivy Funds VIP Money Market

Ivy Funds VIP Mortgage Securities

Ivy Funds VIP Real Estate Securities

Ivy Funds VIP Science and Technology

Ivy Funds VIP Small Cap Growth

Ivy Funds VIP Small Cap Value

Ivy Funds VIP Value


Ivy Funds VIP
Pathfinder Aggressive

Ivy Funds VIP Pathfinder Moderately Aggressive

Ivy Funds VIP Pathfinder Moderate

Ivy Funds VIP Pathfinder Moderately Conservative

Ivy Funds VIP Pathfinder Conservative


 


 


*The Trust has adopted a
service plan pursuant to Rule 12b-1 under the 1940 Act for each Portfolio
with the exception of the Money Market Portfolio.


 


 


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