FUND PARTICIPATION AGREEMENT
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THIS AGREEMENT is made and entered into this 1st day of May, 2006 by and
among the following parties:
o AMERICAN CENTURION LIFE ASSURANCE COMPANY ("American Centurion
Life"), a New York corporation, on its own behalf and on behalf
the separate accounts set forth on Exhibit A hereto as may be
amended from time to time (each such account referred to as a "
Separate Account" as defined below);
o IDS LIFE INSURANCE COMPANY OF NEW YORK ("IDS Life of New York"), a
New York corporation, on its own behalf and on behalf of the
separate accounts set forth on Exhibit B hereto as may be amended
from time to time (each such account referred to as a "Separate
Account" as defined below);
(Each of American Centurion Life Assurance Company and IDS Life
Insurance Company of New York, are also hereinafter referred to as an
"Insurance Company")
o THE DREYFUS CORPORATION, a New York corporation, (hereinafter
"Dreyfus" as defined below);
o DREYFUS VARIABLE INVESTMENT FUND; and,
o DREYFUS INVESTMENT PORTFOLIOS.
Each of DREYFUS VARIABLE INVESTMENT FUND and DREYFUS INVESTMENT
PORTFOLIOS are a "Participating Fund" as defined below.
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Directors or Trustees, as the case may
be, of a Participating Fund, which has the responsibility for management
and control of the Participating Fund.
1.3 "Business Day" shall mean any day for which a Participating Fund
calculates net asset value per Share (as defined below) as described in
the Participating Fund's Prospectus.
1.4 "Commission" shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity or variable life insurance
contract that uses any Participating Fund as an underlying investment
medium. Individuals who participate under a group Contract are
"Participants."
1.6 "Contractholder" shall mean any entity that is a party to a Contract
(including any Participants thereunder) with a Participating Company (as
defined below).
1.7 "Disinterested Board Members" shall mean those members of the Board of a
Participating Fund that are not deemed to be "interested persons" of the
Participating Fund, as defined by the Act.
1.8 "Dreyfus" shall mean The Dreyfus Corporation and its affiliates,
including Dreyfus Service Corporation.
1.9 "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates that invest in Shares
of a Participating Fund.
1.10 "Participating Companies" shall mean any insurance company (including
Insurance Company) that offers variable annuity and/or variable life
insurance contracts to the public and that has entered into an agreement
with one or more of the Participating Funds for the purpose of making
Participating Fund Shares available to serve as the underlying
investment medium for the aforesaid Contacts.
1.11 "Participating Fund" shall mean each investment company, including, as
applicable, any series thereof, specified in Exhibit B, as such Exhibit
may be amended from time to time by agreement of the parties hereto, the
Shares of which are available to serve as the underlying investment
medium for the aforesaid Contracts.
1.12 "Prospectus" shall mean the current prospectus and statement of
additional information of a Participating Fund, relating to its Shares,
as most recently filed with the Commission.
1.13 "Separate Account" shall mean a separate account established by
Insurance Company in accordance with the applicable state law as set
forth on Exhibit A, as such Exhibit may be revised from time to time.
1.14 "Shares" shall mean (i) each class of shares of a Participating Fund set
forth on Exhibit A next to the name of such Participating Fund, as such
Exhibit may be revised from time to time, or (ii) if no class of shares
is set forth on Exhibit B next to the name of such Participating Fund,
the shares of the Participating Fund.
1.15 "Software Program" shall mean the software program used by a
Participating Fund for providing Fund and account balance information
including net asset value per Share. Such Program may include the Lion
System. In situations where the Lion System or any other Software
Program used by a Participating Fund is not available, such information
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may be provided by telephone. The Lion System shall be provided to
Insurance Company at no charge.
ARTICLE 1A. AMENDMENT AND RESTATEMENT; FORM OF AGREEMENT
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1A.1 Dreyfus and the Participating Funds acknowledge the planned merger of
American Centurion Life with and into IDS Life of New York (the
"Merger") and the "intact transfer" ("Transfer") of the Separate
Accounts of American Centurion Life to IDS Life of New York by operation
of law and incident to the Merger, on December 31, 2006 at 10:59:59 p.m.
Central Time ("Effective Time"), subject to all necessary regulatory
approvals being obtained in connection with the Merger and the Transfer,
and the re-naming of IDS Life of New York to RiverSource Life Insurance
Company of New York simultaneously with the Merger. On and after the
Effective Time, all references in this Agreement and its Exhibits to
American Centurion Life and IDS Life Insurance Company of New York shall
mean and refer to RiverSource Life Insurance Co. of New York. Dreyfus
and the Participating Funds consent to the transfer of the rights and
obligations of American Centurion Life under this Agreement to IDS Life
of New York at the Effective Time of the Merger.
1A.2 This agreement shall amend and supersede the Participation Agreement
dated as of September 14, 2004, as amended April 30, 2004, among
American Centurion Life, Dreyfus and the Participating Funds with
respect to all investments by American Centurion Life or its Separate
Accounts in such Participating Funds prior to the date of this
Agreement. In addition, the foregoing parties hereby amend and restate
their agreements as set forth herein to include among other agreements,
the addition of IDS Life of New York as a party to this agreement in
respect of its Separate Accounts as set forth on Exhibit A to this
Agreement, and in contemplation of the Transfer of the Separate Accounts
of American Centurion Life to IDS Life of New York on December 31, 2006,
incident to the Merger. Although the parties have executed this
Agreement in this form for administrative convenience, this Agreement
shall create a separate participation agreement with each Insurance
Company until the Effective Time of the Merger.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law; (b) it
has legally and validly established each Separate Account pursuant to
the applicable insurance laws and the regulations thereunder for the
purpose of offering to the public certain individual and group variable
annuity and variable life insurance contracts; (c) it has, to the extent
required under applicable law, registered each Separate Account as a
unit investment trust under the Act to serve as the segregated
investment account for it's Contracts; and (d) each Separate Account is
eligible to invest in Shares of each Participating Fund without such
investment disqualifying any Participating Fund as an investment medium
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for insurance company separate accounts supporting variable annuity
contracts or variable life insurance contracts.
2.2 Insurance Company represents and warrants that (a) to the extent
required under applicable law, its Contracts will be described in a
registration statement filed under the Securities Act of 1933, as
amended ("1933 Act"); (b) its Contracts will be issued and sold in
compliance in all material respects with all applicable federal and
state laws; and (c) the sale of its Contracts shall comply in all
material respects with state insurance law requirements. Insurance
Company agrees to notify each Participating Fund promptly of any
investment restrictions imposed by state insurance law and applicable to
the Participating Fund of which it becomes aware.
2.3 Insurance Company represents and warrants that the income, gains and
losses, whether or not realized, from assets allocated to the Separate
Account are, in accordance with the applicable Contracts, to be credited
to or charged against such Separate Account without regard to other
income, gains or losses from assets allocated to any other accounts of
Insurance Company. Insurance Company represents and warrants that the
assets of the Separate Account are and will be kept separate from
Insurance Company's General Account and any other separate accounts
Insurance Company may have, and will not be charged with liabilities
from any business that Insurance Company may conduct or the liabilities
of any companies affiliated with Insurance Company.
2.4 Each Participating Fund represents that it is and is intended to remain
registered with the Commission under the Act as an open-end, management
investment company and possesses, and shall maintain, all legal and
regulatory licenses, approvals, consents and/or exemptions required for
the Participating Fund to operate and offer its Shares as an underlying
investment medium for Participating Companies.
2.5 Each Participating Fund represents that it is currently qualified as a
regulated investment company under Subchapter M of the Internal Revenue
Code of 1986, as amended (the "Code"), and that it will make every
effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify Insurance
Company immediately upon having a reasonable basis for believing that it
has ceased to so qualify or that it might not so qualify in the future.
2.6 Insurance Company represents and agrees that the Contracts are
currently, and at the time of issuance will be, treated as life
insurance policies or annuity contracts, whichever is appropriate, under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment and that it will notify each Participating Fund
and Dreyfus 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. Insurance Company agrees that any
prospectus offering a Contract that is a "modified endowment contract,"
as that term is defined in Section 7702A of the Code, will identify such
Contract as a modified endowment contract (or policy).
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2.7 Each Participating Fund represents and agrees that it will maintain its
assets such that, at the close of each calendar quarter (or within 30
days thereafter), it will be "adequately diversified" within the naming
of Section 817(h) of the Code and Treasury Regulation 1.817-5. In the
event of a breach of this representation and warranty by the
Participating Fund, it and/or its investment adviser will take all
reasonable steps to notify the Company of such breach and to adequately
diversify the Participating Fund so as to achieve compliance within the
grace period afforded by Treasury Regulation 1.817-5.
2.8 Insurance Company agrees that each Participating Fund shall be permitted
(subject to the other terms of this Agreement) to make its shares
available to other Participating Companies and Contractholders.
2.9 Each Participating Fund represents and warrants that any of its
directors, trustees, officers, employees, investment advisers, and other
individuals/entities who deal with the money and/or securities of the
Participating Fund are and shall continue to be at all times covered by
a blanket fidelity bond or similar coverage for the benefit of the
Participating Fund in an amount not less than that required by Rule
17g-1 under the Act. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding
company.
2.10 Insurance Company represents and warrants that all of its employees and
agents who deal with the money and/or securities of each Participating
Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the
coverage required to be maintained by the Participating Fund as stated
in Section 2.9. The aforesaid bond shall include coverage for larceny
and embezzlement and shall be issued by a reputable bonding company.
2.11 The Insurance Company acknowledges that each Participating Fund has
adopted policies and procedures reasonably designed to prevent frequent
or excessive purchases, exchanges and redemptions of the Shares of the
Participating Fund in quantities great enough to disrupt orderly
management of the corresponding Participating Fund's investment
portfolio. These policies are disclosed in the current prospectus for
the Participating Fund.
The Participating Fund acknowledges that the Insurance Company, on
behalf of its Separate Account, has adopted policies and procedures
reasonably designed to detect and deter frequent transfers of Contract
value among the subaccounts of the Separate Account including those
investing in the Participating Fund which are available as investment
options under the Contracts. These policies and procedures are described
in the current prospectuses of the Separate Account through which the
Contracts are offered.
Dreyfus and the Participating Fund may consider the Insurance Company's
policies and procedures pertaining to frequent transfers of Contract
value among the subaccounts of its Separate Account, including those
investing in the Participating Fund, when the Participating Fund
periodically reviews or amends its disruptive trading policies and
procedures. Dreyfus and the Participating Fund may invite comment from
and confer
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with the Insurance Company regarding any proposed policy and procedure
of the Participating 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 the Participating Fund which is 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 Participating Fund's
proposed policy or procedure.
The Insurance Company will cooperate with Dreyfus and the Participating
Fund's reasonable requests in taking steps to deter and detect such
transfers by Contractholders. Subject to applicable law and the terms of
each Contract, the Company will furnish other information the
Participating Fund, directly or through its agent, reasonably requests
regarding frequent transfers by Contractholders among the subaccounts
investing in the Participating Fund which is available under the
Contracts.
2.12 The parties to this Agreement represent and warrant that they 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 each other 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
PARTICIPATING FUND SHARES
3.1 The Contracts funded through the Separate Account will provide for the
investment of certain amounts in Shares of each Participating Fund.
3.2 Each Participating Fund agrees to make its Shares available for purchase
at the then applicable net asset value per Share by Insurance Company
and the Separate Account on each Business Day pursuant to rules of the
Commission. Notwithstanding the foregoing, each Participating Fund may
refuse to sell its Shares to any person, or suspend or terminate the
offering of its Shares, if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole discretion
of its Board, acting in good faith and in light of its fiduciary duties
under federal and any applicable state laws, necessary and in the best
interests of the Participating Fund's shareholders.
3.3 Each Participating Fund agrees that Shares of the Participating Fund
will be sold only to (a) Participating Companies and their separate
accounts or (b) "qualified pension or retirement plans" as determined
under Section 817(h)(4) of the Code. Except as otherwise set forth in
this Section 3.3, no shares of any Participating Fund will be sold to
the general public.
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3.4 Each Participating Fund shall use its best efforts to provide closing
net asset value, dividend and capital gain information on a per Share
basis to Insurance Company by 6:00 p.m. Eastern time on each Business
Day. Any material errors in the calculation of net asset value, dividend
and capital gain information shall be reported immediately upon
discovery to Insurance Company. If Insurance Company is provided with
materially incorrect net asset value information, Insurance Company will
be entitled to an adjustment to the number of Shares purchased or
redeemed to reflect the correct net asset value per share. Non-material
errors will be corrected in the next Business Day's net asset value per
Share.
3.5 At the end of each Business Day, Insurance Company will use the
information described in Sections 3.2 and 3.4 to calculate the unit
values of the Separate Account for the day. Using this unit value,
Insurance Company will process the day's Separate Account transactions
received by it by the close of trading on the floor of the New York
Stock Exchange (currently 4:00 p.m. Eastern time) to determine the net
dollar amount of the Shares of each Participating Fund that will be
purchased or redeemed at that day's closing net asset value per Share.
The net purchase or redemption orders will be transmitted to each
Participating Fund by Insurance Company by 11:00 a.m. Eastern time on
the Business Day next following Insurance Company's receipt of that
information. Subject to Sections 3.6 and 3.8, all purchase and
redemption orders for Insurance Company's General Accounts shall be
effected at the net asset value per Share of each Participating Fund
next calculated after receipt of the order by the Participating Fund or
its Transfer Agent.
3.6 Each Participating Fund appoints Insurance Company as its agent for the
limited purpose of accepting orders for the purchase and redemption of
Shares of the Participating Fund for the Separate Account. Each
Participating Fund will execute orders at the applicable net asset value
per Share determined as of the close of trading on the day of receipt of
such orders by Insurance Company acting as agent ("effective trade
date"), provided that the Participating Fund receives notice of such
orders by 11:00 a.m. Eastern time on the next following Business Day
and, if such orders request the purchase of Shares of the Participating
Fund, the conditions specified in Section 3.8, as applicable, are
satisfied. A redemption or purchase request that does not satisfy the
conditions specified above and in Section 3.8, as applicable, will be
effected at the net asset value per Share computed on the Business Day
immediately preceding the next following Business Day upon which such
conditions have been satisfied in accordance with the requirements of
this Section and Section 3.8. Insurance Company represents and warrants
that all orders submitted by the Insurance Company for execution on the
effective trade date shall represent purchase or redemption orders
received from its Contractholders prior to the close of trading on the
New York Stock Exchange on the effective trade date.
3.7 Insurance Company will make its best efforts to notify each applicable
Participating Fund in advance of any unusually large purchase or
redemption orders.
3.8 If Insurance Company's order requests the purchase of Shares of a
Participating Fund, Insurance Company will pay for such purchases by
wiring Federal Funds to the
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Participating Fund or its designated custodial account on the day the
order is transmitted. Insurance Company shall make all reasonable
efforts to transmit to the applicable Participating Fund payment in
Federal Funds by 12:00 noon Eastern Time on the Business Day the
Participating Fund receives the notice of the order pursuant to Section
3.5. Each applicable Participating Fund will execute such orders at the
applicable net asset value per Share determined as of the close of
trading on the effective trade date if the Participating Fund receives
payment in Federal Funds by 12:00 midnight Eastern time on the Business
Day the Participating Fund receives the notice of the order pursuant to
Section 3.5. If payment in Federal Funds for any purchase is not
received or is received by a Participating Fund after 12:00 midnight
Eastern time on such Business Day, Insurance Company shall promptly,
upon each applicable Participating Fund's request, reimburse the
respective Participating Fund for any charges, costs, fees, interest or
other expenses incurred by the Participating Fund in connection with any
advances to, or borrowings or overdrafts by, the Participating Fund, or
any similar expenses incurred by the Participating Fund, as a result of
portfolio transactions effected by the Participating Fund based upon
such purchase request. If Insurance Company's order requests the
redemption of any Shares of a Participating Fund valued at or greater
than $1 million dollars, the Participating Fund will wire such amount to
Insurance Company within five days of the order.
3.9 Each Participating Fund has the obligation to ensure that its Shares are
registered with the Commission at all times.
3.10 Each Participating Fund will confirm each purchase or redemption order
made by Insurance Company. Transfers of Shares of a Participating Fund
will be by book entry only. No share certificates will be issued to
Insurance Company. Insurance Company will record Shares ordered from a
Participating Fund in an appropriate title for the corresponding
account.
3.11 Each Participating Fund shall credit Insurance Company with the
appropriate number of Shares.
3.12 On each ex-dividend date of a Participating Fund or, if not a Business
Day, on the first Business Day thereafter, each Participating Fund shall
communicate to Insurance Company the amount of dividend and capital
gain, if any, per Share. All dividends and capital gains shall be
automatically reinvested in additional Shares of the applicable
Participating Fund at the net asset value per Share on the ex-dividend
date; provided, however, Insurance Company reserves the right to receive
all such dividends and distributions in cash. Each Participating Fund
shall, on the day after the ex-dividend date or, if not a Business Day,
on the first Business Day thereafter, notify Insurance Company of the
number of Shares so issued.
3.13 To the extent that a Separate Account is properly exempt from
registration under the Act, at least once annually, at the request of a
Participating Fund, or its designee, Insurance Company will certify the
amount of purchases and redemptions of Shares from such Separate Account
for the Participating Fund's most recent fiscal year end.
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ARTICLE IV
STATEMENTS AND REPORTS
4.1 Each Participating Fund shall provide monthly statements of account as
of the end of each month for all of Insurance Company's Participating
Fund accounts by the fifteenth (15th) Business Day of the following
month.
4.2 Each Participating Fund shall distribute to Insurance Company copies of
the Participating Fund's Prospectus, proxy materials, notices, periodic
reports and other printed materials (which the Participating Fund
customarily provides to the holders of its Shares) in quantities as
Insurance Company may reasonably request for distribution to each of its
Contractholders. Insurance Company may elect to print the Participating
Fund's prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and statements of
additional information, which are also offered in Insurance Company's
insurance product at its own cost. At Insurance Company's request, the
Participating Fund will provide, in lieu of printed documents,
camera-ready copy or diskette of its prospectuses, annual and
semi-annual reports for printing by the Insurance Company.
4.3 Each Participating Fund will provide to Insurance Company at least one
complete copy of all registration statements, Prospectuses, reports,
proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Participating Fund or
its Shares (except for such materials that are designed only for a class
of shares of a Participating Fund not offered to the Insurance Company
pursuant to this Agreement), contemporaneously with the filing of such
document with the Commission or other regulatory authorities. Upon
request of Insurance Company, each Participating Fund will provide
written instruction to Participating Companies each time the
Participating Fund amends or supplements a Participating Fund's 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 Contract owners who have Contract value
allocated to a Participating Fund or (b) is to be held and combined with
another Participating Fund or Contract related mailing as permitted by
applicable federal securities laws. Each Participating Fund agrees that
the instruction it gives the Insurance Company in each instance will be
identical to the instruction it provides other Participating Companies.
4.4 Insurance Company will provide to each Participating Fund at least one
copy of all registration statements, prospectuses, reports, proxy
statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to its Contracts or the
Separate Account, contemporaneously with the filing of such document
with the Commission or other regulatory authorities.
4.5 Insurance Company will provide Participating Funds on a semi-annual
basis, or more frequently as reasonably requested by the Participating
Funds, with a current tabulation
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of the number its existing Contractholders whose Contract values are
invested in the Participating Funds. This tabulation will be sent to
Participating Funds in the form of a letter signed by a duly authorized
officer of the Insurance Company attesting to the accuracy of the
information contained in the letter.
ARTICLE V
EXPENSES
5.1 The charge to each Participating Fund for all expenses and costs of the
Participating Fund, including but not limited to management fees, Rule
12b-1 fees, if any, administrative expenses and legal and regulatory
costs, will be included in the determination of the Participating Fund's
daily net asset value per Share.
5.2 Except as otherwise provided in this Agreement and, in particular in the
next sentence, Insurance Company shall not be required to pay directly
any expenses of any Participating Fund or expenses relating to the
distribution of its Shares. Insurance Company shall pay the following
expenses or costs:
a. Such amount of the production expenses of any Participating Fund
materials, including the cost of printing a Participating Fund's
Prospectus, or marketing materials for prospective Insurance
Company Contractholders as Dreyfus and Insurance Company shall
agree from time to time.
b. Distribution expenses of any Participating Fund materials or
marketing materials for prospective Insurance Company
Contractholders.
A Participating Fund's principal underwriter may pay Insurance Company,
or the broker-dealer acting as principal underwriter for the Insurance
Company's Contracts, for distribution and other services related to the
Shares of the Participating Fund pursuant to any distribution plan
adopted by the Participating Fund in accordance with Rule 12b-1 under
the Act, subject to the terms and conditions of an agreement between the
Participating Fund's principal underwriter and Insurance Company or the
principal underwriter for the Insurance Company's Contracts, as
applicable, related to such plan.
Except as provided herein, all other expenses of each Participating Fund
shall not be borne by Insurance Company. Participating Fund shall pay
the following expenses or costs:
(a) Such amount of the production expenses of any Participating Fund
materials, including the cost of printing a Participating Fund's
Prospectus, annual reports and semi-annual reports for existing
Insurance Company Contractholders and Participants as Dreyfus and
Insurance Company shall agree from time to time;
(b) distribution expenses of any Participating Fund materials for
existing Insurance Company Contractholders and Participants;
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(c) text composition and printing of proxy statements and voting
instruction solicitation materials to Contractholders with respect
to proxies related to the Fund; and
(d) mailing, distributing, and tabulation of proxy statements and
voting instruction solicitation materials to Contractholders with
respect to proxies related to the Fund.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 Insurance Company has reviewed a copy of the Order dated February 5,
1998 of the Commission under Section 6(c) of the Act with respect to the
Participating Funds and, in particular, has reviewed the conditions to
the relief set forth in the Notice of Application for agenda order. As
set forth therein, Insurance Company agrees, as applicable, to report
any potential or existing conflicts promptly to the Board and, in
particular, whenever contract voting instructions are disregarded, and
recognizes that it will be responsible for assisting the Board in
carrying out its responsibilities under such application. 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 a Participating Fund, the Board
shall give prompt notice to all Participating Companies and any other
Participating Fund. If the Board determines that Insurance Company is
responsible for causing or creating said conflict, 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 the Separate Account from the
Participating Fund and reinvesting such assets in another
Participating Fund (if applicable) or a different investment
medium, or submitting the question of whether such segregation
should be implemented to a vote of all affected Contractholders;
and/or
b. Establishing a new registered management investment company.
6.3 If a material irreconcilable conflict arises as a result of a decision
by Insurance Company to disregard Contractholder voting instructions and
said decision represents a minority position or would preclude a
majority vote by all Contractholders having an interest in a
Participating Fund, Insurance Company may be required, at the Board's
election, to withdraw the investments of the affected subaccount of the
Separate Account in that Participating Fund and terminate this Agreement
with regard to such subaccount;
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provided, however, that such withdrawal and termination will be limited
to the extent required by the foregoing irreconcilable material conflict
as determined by a majority of the Disinterested Board Members. No
charge or penalty will be imposed as a result of such withdrawal.
Subject to Board Members fiduciary responsibility, any such withdrawal
and termination must take place within six (6) months after the
Participating Fund gives written notice to Insurance Company that this
provision is being implemented. Until the end of such six-month period
the investment adviser of the Participating Fund and the Participating
Fund will, to the extent permitted by law and any exemptive relief
previously granted to the Participating Fund, continue to accept and
implement orders by Insurance Company for the purchase (and redemption)
of shares of the Participating Fund.
6.4 For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will any
Participating 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 adversely affected by the irreconcilable
material conflict.
6.5 No action by Insurance Company taken or omitted, and no action by the
Separate Account or any Participating 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 operation of, Article V.
6.6 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to Insurance Company conflicts
with the majority of other state insurance regulators, then Insurance
Company will withdraw the affected subaccount of the Separate Account's
investment in the Participating Fund and terminate this Agreement with
respect to such subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
Disinterested Board Members. No charge or penalty will be imposed as a
result of such withdrawal. Any such withdrawal and termination must take
place within six (6) months after the Participating Fund gives written
notice to Insurance Company that this provision is being implemented.
Until the end of such six-month period the investment adviser of the
Participating Fund and the Participating Fund will, to the extent
permitted by law and any exemptive relief previously granted to the
Participating Fund, continue to accept and implement orders by Insurance
Company for the purchase (and redemption) of shares of the Participating
Fund.
ARTICLE VII
VOTING SHARES OF PARTICIPATING FUND
7.1 Each Participating Fund shall provide Insurance Company with copies, at
no cost to Insurance Company, of the Participating Fund's proxy
materials, reports to shareholders
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and other communications to shareholders (except for such materials that
are designed only for a class of shares of a Participating Fund not
offered to the Insurance Company pursuant to this Agreement) in such
quantity as Insurance Company shall reasonably require for distributing
to its Contractholders.
If and to the extent required by law, Insurance Company shall:
a. Solicit voting instructions from its Contractholders on a timely
basis and in accordance with applicable law;
b. vote the Shares of the Participating Fund in accordance with
instructions received from its Contractholders; and
c. vote the Shares of the Participating Fund for which no
instructions have been received in the same proportion as Shares
of the Participating Fund for which instructions have been
received;
So long as and to the extent that the Commission continues to interpret
the Act to require pass-through voting privileges for variable contract
owners.
Insurance Company agrees at all times to vote Shares held by Insurance
Company's General Account in the same proportion as Shares of the
Participating Fund for which instructions have been received from
Insurance Company's Contractholders. Insurance Company further agrees to
be responsible for assuring that voting the Shares of the Participating
Fund for the Separate Account is conducted in a manner consistent with
other Participating Companies.
7.2 Insurance Company agrees that it shall not, without the prior written
consent of each applicable Participating Fund and Dreyfus, solicit,
induce or encourage Contractholders to change or supplement the
Participating Fund's current investment adviser.
7.3 Each participating Fund will comply with all provisions of the Act
requiring voting by shareholders, and in particular, the Participating
Fund either will provide for annual meetings (except insofar as the
Commission may interpret Section 16 of the Act not to require such
meetings) or, as the Participating Fund currently intends, to comply
with Section 16(c) of the Act (although Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a)
and, if and when applicable, 16(b). Further, the Participating Fund will
act in accordance with the Commission's interpretation of the
requirements of Section 16(a) with respect to periodic elections of
directors and with whatever rules the Commission may promulgate with
respect thereto.
13
ARTICLE VIII
MARKETING AND REPRESENTATIONS
8.1 Each Participating Fund or its principal underwriter shall periodically
furnish Insurance Company with the following documents relating to the
Shares of the Participating Fund, in quantities as Insurance Company may
reasonably request:
a. Current Prospectus and any supplements thereto; and
b. Other marketing materials.
Expenses for the production of such documents shall be borne by
Insurance Company in accordance with Section 5.2 of this Agreement.
8.2 Insurance Company shall designate certain persons or entities that shall
have the requisite licenses to solicit applications for the sale of
Contracts. No representation is made as to the number or amount of
Contracts that are to be sold by Insurance Company. Insurance Company
shall make reasonable efforts to market the Contracts and shall comply
with all applicable federal and state laws in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to each
applicable Participating Fund or its designee, each piece of sales
literature or other promotional material in which the Participating
Fund, its investment adviser or the administrator, or Dreyfus is named,
at least ten Business Days prior to its use. No such material shall be
used unless the Participating Fund or its designee approves such
material. Such approval (if given) must be in writing and shall be
presumed not given if not received within ten Business Days after
receipt of such material. Each applicable Participating Fund or its
designee, as the case may be, shall use all reasonable efforts to
respond within five days of receipt.
8.4 Insurance Company shall not give any information or make any
representations or statements on behalf of a Participating Fund or
concerning a Participating Fund in connection with the sale of the
Contracts other than the information or representations contained in the
registration statement or Prospectus of, as may be amended or
supplemented from time to time, or in reports or proxy statements for,
the applicable Participating Fund, or in sales literature or other
promotional material approved by the applicable Participating Fund.
8.5 Each Participating Fund shall furnish, or shall cause to be furnished,
to Insurance Company, each piece of the Participating Fund's sales
literature or other promotional material in which Insurance Company or
the Separate Account is named, at least ten Business Days prior to its
use. No such material shall be used unless Insurance Company approves
such material. Such approval (if given) must be in writing and shall be
presumed not given if not received within ten Business Days after
receipt of such material. Insurance Company shall use all reasonable
efforts to respond within five days of receipt.
14
8.6 No Participating Fund shall, in connection with the sale of Shares of
the Participating Fund, give any information or make any representations
on behalf of Insurance Company or concerning Insurance Company, the
Separate Account, or the Contracts other than the information or
representations contained in a registration statement or prospectus for
the Contracts, as may be amended or supplemented from time to time, or
in published reports for the 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, 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, registration statements, prospectuses, statements of
additional information, shareholder reports and proxy materials, and any
other material constituting sales literature or advertising under
National Association of Securities Dealers, Inc. rules, the Act or the
1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless each
Participating Fund, Dreyfus, each respective Participating Fund's
investment adviser and sub-investment adviser (if applicable), each
respective Participating Fund's distributor, and their respective
affiliates, and each of their directors, trustees, officers, employees,
agents and each person, if any, who controls or is associated with any
of the foregoing entities or persons within the meaning of the 1933 Act
(collectively, the "Fund Indemnified Parties"), against any and all
losses, claims, damages or liabilities joint or several (including any
investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action, suit
or proceeding or any claim asserted) for which any such Fund Indemnified
Party may become subject, under the 1933 Act, the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement
or alleged untrue statement of any material fact contained in
information furnished by Insurance Company for use in the registration
statement or Prospectus or sales literature or advertisements of the
respective Participating Fund or with respect to the Separate Account or
Contracts, or the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) any conduct, statement or
representation (other than statements or representations contained in
the Prospectus and sales literature or advertisements of the
15
respective Participating Fund) of Insurance Company or its agents, with
respect to the sale and distribution of Contracts for which the Shares
of the respective Participating Fund are an underlying investment; (iii)
wrongful conduct of Insurance Company or persons under its control with
respect to the sale or distribution of the Contracts or the Shares of
the respective Participating Fund; (iv) arise out of or are based on any
wrongful conduct of, or violation of, applicable federal and state law
by Insurance Company or persons under its control or subject to its
authorization; (v) any incorrect calculation and/or untimely reporting
by Insurance Company of net purchase or redemption orders; or (vi) any
misrepresentation breach by Insurance Company of a material term of this
Agreement or as a result of any failure by Insurance Company to provide
the services and furnish the materials or to make any payments provided
for in this Agreement. Insurance Company will reimburse any Fund
Indemnified Party in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that with
respect to clauses (i) and (ii) above Insurance Company will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any untrue statement or
omission or alleged omission made in such registration statement,
prospectus, sales literature, or advertisement in conformity with
written information furnished to Insurance Company by the respective
Participating Fund specifically for use therein. This indemnity
agreement will be in addition to any liability which Insurance Company
may otherwise have.
9.2 Each Participating Fund and Dreyfus severally agree to indemnify and
hold harmless Insurance Company and each of its directors, officers,
employees, agents and each person, if any, who controls Insurance
Company within the meaning of the 1933 Act ("collectively, the Insurance
Company Indemnified Parties"), against any losses, claims, damages or
liabilities to which any such Insurance Company Indemnified Party may
become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the registration statement
or Prospectus or sales literature or advertisements of the respective
Participating Fund; (ii) any omission to state in the registration
statement or Prospectus or sales literature or advertisements of the
respective Participating Fund any material fact required to be stated
therein or necessary to make the statements therein not misleading; or
(iii) any untrue statement or alleged untrue statement of any material
fact contained in the registration statement or Prospectus or sales
literature or advertisements with respect to the Separate Account or the
Contracts and such statements were based on information provided to
Insurance Company by the respective Participating Fund; if such
statement or omission was made in reliance on and in conformity with
information furnished to Insurance Company by the Participating Fund
(iv) any wrongful conduct of, or violation of applicable federal and
state law by, the investment adviser of a Participating Fund or a
Participating Fund or persons under their respective control or subject
to their authorization with respect to the sale of shares in the
Participating Fund; or (v) any failure by a Participating Fund, the
investment adviser of the Participating Fund or persons under their
respective control or subject to their authorization to provide the
services and furnish the materials under the terms of this Agreement
including, but not limited to, a failure, whether unintentional or in
good faith or otherwise, to comply with
16
the diversification requirements and procedures related thereto
specified in Section 2.7 of this Agreement; or (vi) any material breach
of any representation and/or warranty made by the investment adviser of
a Participating Fund or the Participating Fund in this Agreement, or
arise out of or result from any other material breach of this Agreement
by the investment adviser of a Participating Fund or the Participating
Fund or persons under their respective control or subject to their
authorization; and the respective Participating Fund will reimburse
reasonable costs directly related to any legal or other expenses
reasonably incurred by Insurance Company or any such director, trustee,
officer, partner, employee, agent or controlling person in connection
with investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the respective Participating Fund
will not be liable in any such case to the extent that such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or omission or alleged omission made in such registration statement,
Prospectus, sales literature or advertisements in conformity with
written information furnished to the respective Participating Fund by
Insurance Company specifically for use therein; and provided, further,
that the Participating Fund shall not be liable for special,
consequential, indirect, punitive, exemplary or incidental damages. This
indemnity agreement will be in addition to any liability which the
respective Participating Fund may otherwise have. Dreyfus will reimburse
any legal or other expenses reasonably incurred by any Insurance
Indemnified Party in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that
neither Dreyfus nor any Participating Fund will be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or omission or alleged
omission made in such registration statement, Prospectus, sales
literature or advertisements in conformity with written information
furnished to the respective Participating Fund by Insurance Company
specifically for use therein. This indemnity agreement will be in
addition to any liability which Dreyfus may otherwise have.
9.3 Each Participating Fund severally shall indemnify and hold Insurance
Company harmless against any and all liability, loss, damages, costs or
expenses which Insurance Company may incur, suffer or be required to pay
due to the respective Participating Fund's (i) incorrect calculation of
the daily net asset value, dividend rate or capital gain distribution
rate; (ii) incorrect reporting of the daily net asset value, dividend
rate or capital gain distribution rate; and (iii) untimely reporting of
the net asset value, dividend rate or capital gain distribution rate;
provided that the respective Participating Fund shall have no obligation
to indemnify and hold harmless Insurance Company if the incorrect
calculation or incorrect or untimely reporting was the result of
incorrect information furnished by Insurance Company or information
furnished untimely by Insurance Company or otherwise as a result of or
relating to a breach of this Agreement by Insurance Company.
9.4 Insurance Company shall indemnify and hold harmless each Participating
Fund, Dreyfus and any investment adviser of the Participating Fund
against any tax liability incurred by the Participating Fund under
Section 851 of the Code arising from purchases or redemptions by
Insurance Company's General Account(s) or the account of its affiliates.
17
9.5 Promptly after receipt by an indemnified party under this Article of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Article, notify the indemnifying party of the
commencement thereof. The omission to so notify the indemnifying party
will not relieve the indemnifying party from any liability under this
Article IX, except to the extent that the omission results in a failure
of actual notice to the indemnifying party and such indemnifying party
is damaged solely as a result of the failure to give such notice. In
case any such action is brought against any indemnified party, and it
notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, assume the defense thereof, with counsel
satisfactory to such indemnified party, and to the extent that the
indemnifying party has given notice to such effect to the indemnified
party and is performing its obligations under this Article, the
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by such 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 the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX. The
provisions of this Article IX shall survive termination of this
Agreement.
9.6 The indemnity agreements contained in this Article IX shall not protect
any indemnified party against liability to which such party would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of such party's office, as the case may be.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions
herein.
10.2 This Agreement shall terminate without penalty:
a. As to any Participating Fund, at the option of Insurance Company
or the Participating Fund at any time from the date hereof upon
120 days' notice, unless a shorter time is agreed to by the
respective Participating Fund and Insurance Company;
18
b. As to any Participating Fund or its investment adviser, at the
option of Insurance Company, if Shares of that Participating Fund
are not reasonably available to meet the requirements of the
Contracts as determined by Insurance Company. Prompt notice of
election to terminate shall be furnished by Insurance Company,
said termination to be effective ten days after receipt of notice
unless the Participating Fund makes available a sufficient number
of Shares to meet the requirements of the Contracts within said
ten-day period;
c. As to a Participating Fund, at the option of Insurance Company,
upon the institution of formal proceedings against that
Participating Fund by the Commission, National Association of
Securities Dealers or any other regulatory body, the expected or
anticipated ruling, judgment or outcome of which would, in
Insurance Company's reasonable judgment, materially impair that
Participating Fund's ability to meet and perform the Participating
Fund's obligations and duties hereunder. Prompt notice of election
to terminate shall be furnished by Insurance Company with said
termination to be effective upon receipt of notice;
d. As to a Participating Fund, at the option of each Participating
Fund, upon the institution of formal proceedings against Insurance
Company by the Commission, National Association of Securities
Dealers or any other regulatory body, the expected or anticipated
ruling, judgment or outcome of which would, in the Participating
Fund's reasonable judgment, materially impair Insurance Company's
ability to meet and perform Insurance Company's obligations and
duties hereunder. Prompt notice of election to terminate shall be
furnished by such Participating Fund with said termination to be
effective upon receipt of notice;
e. As to a Participating Fund, at the option of that Participating
Fund, if the Participating Fund shall determine, in its sole
judgment reasonably exercised in good faith, that Insurance
Company has suffered a material adverse change in its business or
financial condition or is the subject of material adverse
publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the
business and operation of that Participating Fund or Dreyfus, such
Participating Fund shall notify Insurance Company in writing of
such determination and its intent to terminate this Agreement, and
after considering the actions taken by Insurance Company and any
other changes in circumstances since the giving of such notice,
such determination of the Participating Fund shall continue to
apply on the sixtieth (60th) day following the giving of such
notice, which sixtieth day shall be the effective date of
termination;
f. As to a Participating Fund, at the option of Insurance Company, if
Insurance Company shall determine, in its sole judgment reasonably
exercised in good faith that the Participating Fund has suffered a
material adverse change in its business or financial condition or
is the subject of material adverse publicity and such material
adverse change or material adverse publicity is likely to have a
material
19
adverse impact upon the business and operations of Insurance
Company or its Separate Account, the Insurance Company shall
notify the Participating Fund in writing of such determination and
its intent to terminate this Agreement, and after considering the
actions taken by the Participating Fund and any other changes in
circumstances since the giving of such notice, such determination
of Insurance Company shall continue to apply to the sixtieth
(60th) day following the giving of such notice, which sixtieth day
shall be the effective date of termination;
g. As to a Participating Fund, upon termination of the Investment
Advisory Agreement between that Participating Fund and Dreyfus or
its successors unless Insurance Company specifically approves the
selection of a new Participating Fund investment adviser. Such
Participating Fund shall promptly furnish notice of such
termination to Insurance Company;
h. As to a Participating Fund, in the event that Shares of the
Participating Fund are not registered, issued or sold in
accordance with applicable federal law, or such law precludes the
use of such Shares as the underlying investment medium of
Contracts issued or to be issued by Insurance Company. Termination
shall be effective immediately as to that Participating Fund only
upon such occurrence without notice;
i. At the option of a Participating Fund upon a determination by its
Board in good faith that it is no longer advisable and in the best
interests of shareholders of that Participating Fund to continue
to operate pursuant to this Agreement. Termination pursuant to
this Subsection (i) shall be effective upon notice by such
Participating Fund to Insurance Company of such termination;
j. At the option of a Participating Fund if the Contracts cease to
qualify as annuity contracts or life insurance policies, as
applicable, under the Code, or if such Participating Fund
reasonably believes that the Contracts may fail to so qualify;
k. At the option of any party to this Agreement, upon another party's
breach of any material provision of this Agreement;
l. At the option of a Participating Fund, if the Contracts are not
registered, issued or sold in accordance with applicable federal
and/or state law; or
m. Upon assignment of this Agreement, unless made with the written
consent of every other non-assigning party.
n. At the option of Insurance Company, upon receipt of Insurance
Company's written notice by a Participating Fund, if the
Participating Fund ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code, or under any successor or
similar provision, or if Insurance Company reasonably and in good
faith believes that the Participating Fund may fail to so qualify;
20
o. At the option of Insurance Company, upon receipt of Insurance
Company's written notice by a Participating Fund, if the
Participating Fund fails to meet the diversification requirements
specified in this Agreement or if Insurance Company reasonably and
in good faith believes the Participating Fund may fail to meet
such requirements;
p. At the option of Insurance Company or a Participating Fund upon
receipt of any necessary regulatory approvals and/or the vote of
the Contract owners having an interest in the Account (or any
subaccount) to substitute the shares of another investment company
for the corresponding shares of the Fund in accordance with the
terms of the Contracts for which those Portfolio shares had been
selected to serve as the underlying investment media. Insurance
Company will give 180 days' prior written notice to the
Participating Fund of the date of any proposed vote or other
action taken to replace the Shares; or
q. At the option of Insurance Company or the Participating Fund upon
a determination by a majority of the Board, or a majority of the
Disinterested Board Members, that an irreconcilable material
conflict exists among the interests of: (i) all Contract owners of
variable insurance products of all separate accounts; or (ii) the
interests of the Insurance Companies investing in the
Participating Fund as set forth in Article IV or this Agreement.
Any such termination pursuant to Section 10.2a, 10.2d, 10.2e, 10.2f or
10.2k herein shall not affect the operation of Article V of this
Agreement. Any termination of this Agreement shall not affect the
operation of Article IX of this Agreement.
10.3 Notwithstanding any termination of this Agreement pursuant to Section
10.2 hereof, each Participating Fund and Dreyfus may, at the option of
the Insurance Company, continue to make available additional Shares of
that Participating Fund for as long as the Insurance Company desires
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 "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 in that Participating Fund,
redeem investments in that Participating Fund and/or invest in that
Participating Fund upon the making of additional purchase payments under
the Existing Contracts. If such Shares of the Participating Fund
continue to be made available after such termination, the provisions of
this Agreement shall remain in effect and thereafter either of that
Participating Fund or Insurance Company may terminate the Agreement as
to that Participating Fund, as so continued pursuant to this Section
10.3, upon prior written notice to the other party, such notice to be
for a period that is reasonable under the circumstances but, if given by
the Participating Fund, need not be for more than six months; or the
period needed by the Insurance Company, making a good faith effort, to
obtain any necessary approval(s) from the Commission or any state
regulatory authority.
21
10.4 Termination of this Agreement as to any one Participating Fund shall not
be deemed a termination as to any other Participating Fund unless
Insurance Company or such other Participating Fund, as the case may be,
terminates this Agreement as to such other Participating Fund in
accordance with this Article X.
10.5 In the event that a Participating Fund or Dreyfus should initiate the
closure of a Participating Fund, Dreyfus agrees to reimburse the
Insurance Company the reasonable costs the Insurance Company incurs that
are associated with the closing of such Participating Fund. The
Insurance Company, such Participating Fund and Dreyfus shall each use
its best efforts to minimize such costs. The Insurance Company shall
provide Dreyfus with acceptable documentation for all actual costs
related to such closing.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the
addition or deletion of any Participating Fund or class of Shares of a
Participating Fund as specified in Exhibit B, shall be made by agreement
in writing between Insurance Company and each respective Participating
Fund.
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:
American Centurion Life Assurance Company
IDS Life Insurance Company of New York
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President - Annuities
With copies (which shall not constitute notice) to:
IDS Life Insurance Company of New York
50607 Ameriprise Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President and Group Counsel
Participating Funds: Name of Participating Fund
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Telephone: 000-000-0000
Fax: 000-000-0000
22
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement has been executed on behalf of each Participating Fund by
the undersigned officer of the Participating Fund in his capacity as an
officer of the Participating Fund. The obligations of a Participating
Fund under this Agreement shall only be binding upon the assets and
property of such Participating Fund and shall not be binding upon any
director, trustee, officer or shareholder of the Participating Fund
individually. It is agreed that the obligations of the Participating
Funds are several and not joint, that no Participating Fund shall be
liable for any amount owing by another Participating Fund and that the
Participating Funds have executed one instrument for convenience only.
13.2 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 and
its subsidiaries, affiliates and licensees (collectively the
"Protected Parties" for purposes of this Section 13.2), 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) No Participating Fund shall use or disclose Confidential
Information for any purpose other than to carry out the purpose
for which Confidential Information was provided to a Participating
Fund as set forth in the Agreement; and each Participating Fund
agrees to cause all its employees, agents and representatives, or
any other party to whom such Participating Fund may provide access
to or disclose Confidential Information to limit the use and
disclosure of Confidential Information to that purpose.
(c) Each Participating Fund and Insurance Company acknowledge that all
computer programs and procedures or other information developed or
used by the either party to this agreement or any of their
employees or agents in connection with
23
each Participating Fund's or Insurance Company's performance of
its duties under this Agreement are the valuable property of the
Protected Parties.
(d) Each Participating Fund agrees to implement appropriate measures
designed to ensure the security and confidentiality of
Confidential Information, to protect such information against any
anticipated threats or hazard to the security or integrity of such
information, and to 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; each
Participating Fund further agrees to cause all its agents,
representatives or subcontractors, or any other party to whom such
Participating Fund may provide access to or disclose Confidential
Information to implement appropriate measures designed to meet the
objectives set forth in this Section 13.2.
(e) Each Participating Fund and Insurance Company acknowledge that any
breach of the agreements in this Section 13.2 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 affected party 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.
(f) This Section 13.2 shall survive the termination of this Agreement.
13.3 All persons dealing with a Participating Fund must look solely to the
property of the Participating Fund for the enforcement of any claims
against the Participating Fund as neither the directors, trustees,
officers, partners, employees, agents or shareholders assume any
personal liability for obligations entered into on behalf of the
Participating Fund.
13.4 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
13.5 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
13.6 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
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.
24
ARTICLE XV
FOREIGN TAX CREDITS
15.1 Each Participating Fund agrees to consult in advance with Insurance
Company concerning any decision to elect or not to pass through the
benefit of any foreign tax credits to the Participating Fund's
shareholders pursuant to Section 853 of the Code.
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
ATTEST: AMERICAN CENTURION LIFE ASSURANCE COMPANY
IDS LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------- ------------------------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary Title: Vice President - Annuities, American
Centurion Life Assurance Company and
IDS Life of Insurance Company of
New York
ATTEST: DREYFUS VARIABLE INVESTMENT FUND
By: By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------- ------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
ATTEST: DREYFUS INVESTMENT PORTFOLIOS
By: By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------- ------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
ATTEST: THE DREYFUS CORPORATION
By: By: /s/ Xxxx X. Xxxxxx
----------------------- ------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Controller
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EXHIBIT A
Name of American Centurion Life Separate Accounts
-------------------------------------------------
ACL Variable Annuity Account 2, established under New York law on
October 12, 1995.
Name of IDS Life of New York Separate Accounts
----------------------------------------------
IDS Life of New York Account 8, established under New York law on
September 12, 1985.
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EXHIBIT B
LIST OF PARTICIPATING FUNDS
AVAILABLE UNDER AMERICAN CENTURION LIFE SEPARATE ACCOUNTS
FUND NAME SHARE CLASS
--------- -----------
Dreyfus Investment Portfolios
Midcap Stock Portfolio Service Class Share
Technology Growth Portfolio Service Class Share
Dreyfus Variable Investment Fund
Appreciation Portfolio Service Class Xxxxx
Xxxxxxxxxxxxx Value Portfolio Service Class Share
Small Company Stock Portfolio Service Class Share
AVAILABLE UNDER IDS LIFE OF NEW YORK SEPARATE ACCOUNTS
FUND NAME SHARE CLASS
------------------------------------------------------------------------------
Dreyfus Variable Investment Fund
International Equity Portfolio Service Class Share
------------------------------------------------------------------------------
International Value Portfolio Service Class Share
------------------------------------------------------------------------------
28
