EXHIBIT (8)(c)
FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 21st day of November, 1995,
between Annuity Investors Life Insurance Company ("Insurance Company"), a
life insurance company organized under the laws of the State of Ohio, and
THE DREYFUS SOCIALLY RESPONSIBLE GROWTH FUND, INC., a corporation
organized under the laws of the State of Maryland (the "Fund").
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 of the Fund having the
responsibility for management and control of the Fund.
1.3 "Business Day" shall mean any day for which the Fund calculates
net asset value per share as described in the Fund's Prospectus.
1.4 "Commission" shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity contract that uses the
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 with a Participating Company.
1.7 "Disinterested Board Members" shall mean those members of the
Board that are not deemed to be "interested persons" of the Fund,
as defined by the Act.
1.8 "Dreyfus" shall mean The Dreyfus Corporation and its affiliates,
including Dreyfus Service Corporation.
1.9 "Participating Companies" shall mean any insurance company
(including Insurance Company), which offers variable annuity
and/or variable life insurance contracts to the public and which
has entered into an agreement with the Fund for the purpose of
making Fund shares available to serve as an underlying investment
medium for the aforesaid Contracts.
1.10 "Prospectus" shall mean the Fund's current prospectus and
statement of additional information, as most recently filed with
the Commission.
1.11 "Separate Account" shall mean Annuity Investors Variable Account
A, a separate account established by Insurance Company in
accordance with the laws of the State of Ohio.
1.12 "Software Program" shall mean the software program used by the
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 the Fund is not available, such
information may be provided by telephone and confirmed by
facsimiles. The Lion System shall be provided to Insurance
Company at no charge.
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 the
Separate Account pursuant to the laws of the State of Ohio for
the purpose of offering to the public certain individual and
group variable annuity contracts; (c) it has registered or will
register the Separate Account as a unit investment trust under
the Act to serve as the segregated investment account for the
Contracts; and (d) each Separate Account is eligible to invest in
shares of the Fund without such investment disqualifying the Fund
as an investment medium for insurance company separate accounts
supporting variable annuity contracts or variable life insurance
contracts.
2.2 Insurance Company represents and warrants that (a) the Contracts
will be described in a registration statement filed under the
Securities Act of 1933, as amended ("1933 Act"); (b) the
Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws; and (c) the
sale of the Contracts shall comply in all material respects with
state insurance law requirements. Insurance Company agrees to
inform the Fund promptly of any investment restrictions imposed
by state insurance law and applicable to the Fund.
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 Fund represents that it is registered with the Commission under
- 2 -
the Act as an open-end, diversified management investment company
and possesses, and shall maintain, all legal and regulatory
licenses, approvals, consents and/or exemptions required for Fund
to operate and offer its shares as an underlying investment
medium for Participating Companies.
2.5 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 the 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).
2.7 Fund agrees that the Fund's assets shall be managed and invested
in a manner that complies with the requirements of Section 817(h)
of the Code.
2.8 Insurance Company agrees that the Fund shall be permitted
(subject to the other terms of this Agreement) to make Fund
shares available to other Participating Companies and
contractholders.
2.9 Fund represents and warrants that any of its directors, officers,
employees, investment advisers, and other individuals/entities
who deal with the money and/or securities of the Fund are and
shall continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund in an amount
not less than 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
the 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 Fund. The
aforesaid Bond shall include coverage for larceny and
- 3 -
embezzlement and shall be issued by a reputable bonding company.
2.11 Insurance Company agrees that Dreyfus shall be deemed a third
party beneficiary under this Agreement and may enforce any and
all rights conferred by virtue of this Agreement.
ARTICLE III
FUND SHARES
3.1 The Contracts funded through the Separate Account will provide
for the investment of certain amounts in shares of the Fund.
3.2 Fund agrees to make its shares available for purchase at the then
applicable net asset value per share by the Separate Account on
each Business Day pursuant to rules of the Commission.
Notwithstanding the foregoing, the 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
the 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 Fund's shareholders.
3.3 Fund agrees that shares of the Fund will be sold only to
Participating Companies and their separate accounts and to the
general accounts of those Participating Companies and their
affiliates. No shares will be sold to the general public.
3.4 Fund shall use its best efforts to provide closing net asset
value, dividend and capital gain (loss) information on a per-
share and Fund 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 (loss)
information shall be reported immediately upon discovery to
Insurance Company. 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
Separate Account unit values 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 Fund shares which 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 the Fund by Insurance Company by 11:00 a.m. Eastern Time on
the Business Day next following Insurance Company's receipt of
that information.
3.6 Fund appoints Insurance Company as its agent for the limited
- 4 -
purpose of accepting orders for the purchase and redemption of
Fund shares for the Separate Account. 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 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 Fund shares, the conditions
specified in Section 3.8, as applicable, are satisfied. A
redemption or purchase request that does not satisfy the
conditions specified in this Section 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 Business
Day upon which such conditions have been satisfied in accordance
with the requirements of this Section and Section 3.8.
3.7 Insurance Company will use its best efforts to notify Fund in
advance of any unusually large purchase or redemption orders.
3.8 If Insurance Company's order requests the purchase of Fund
shares, Insurance Company will pay for such purchases by wiring
Federal Funds to Fund or its designated custodial account on the
day the order is transmitted. Insurance Company shall make all
reasonable efforts to transmit to the Fund payment in Federal
Funds by 12:00 noon Eastern Time on the Business Day the Fund
receives the notice of the order pursuant to Section 3.5. 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 Fund receives payment in Federal Funds by 12:00
midnight Eastern Time on the Business Day the 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
the Fund after 12:00 noon Eastern Time on such Business Day,
Insurance Company shall promptly upon the Fund's request,
reimburse the Fund for any charges, costs, fees, interest or
other expenses incurred by the Fund in connection with any
advances to, or borrowings or overdrafts by, the Fund, or any
similar expenses incurred by the Fund, as a result of portfolio
transactions effected by the Fund based upon such purchase
request. Payment for shares redeemed by the Separate Account or
the Insurance Company shall be made in Federal Funds transmitted
by wire to the Insurance Company or any other designated person
on the next Business Day after the Fund is properly notified of
the redemption order of shares, except that the Fund reserves the
right to delay payment of redemption proceeds to the extent
permitted under Section 22(e) of the 0000 Xxx. The Fund shall
not bear any responsibility whatsoever for the proper
disbursement or crediting of redemption proceeds by the Insurance
Company; the Insurance Company alone shall be responsible for
such action.
3.9 Fund has the obligation to ensure that Fund shares are registered
- 5 -
with applicable federal agencies at all times.
3.10 Fund will confirm each purchase or redemption order made by
Insurance Company. Transfer of Fund shares will be by book entry
only. No share certificates will be issued to Insurance Company.
Insurance Company will record shares ordered from Fund in an
appropriate title for the corresponding account.
3.11 Fund shall credit Insurance Company with the appropriate number
of shares.
3.12 On each ex-dividend date of the Fund or, if not a Business Day,
on the first Business Day thereafter, 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 Fund at the
net asset value per share on the ex-dividend date. 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 This Agreement does not cover the sale of any Fund shares to the
Insurance Company general account.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 Fund shall provide monthly statements of account as of the end of
each month for all of Insurance Company's accounts by the
fifteenth (15th) Business Day of the following month.
4.2 Fund shall distribute to Insurance Company copies of the Fund's
Prospectuses, proxy materials, notices, periodic reports and
other printed materials (which the Fund customarily provides to
its shareholders) in quantities as Insurance Company may
reasonably request for distribution to each Contractholder and
Participant.
4.3 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 Fund or
its shares, contemporaneously with the filing of such document
with the Commission or other regulatory authorities.
4.4 Insurance Company will provide to the 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 the Contracts
- 6 -
or the Separate Account, contemporaneously with the filing of
such document with the Commission.
ARTICLE V
EXPENSES
5.1 The charge to the Fund for all expenses and costs of the Fund,
including but not limited to management fees, administrative
expenses and legal and regulatory costs, will be made in the
determination of the Fund's daily net asset value per share so as
to accumulate to an annual charge at the rate set forth in the
Fund's Prospectus. Excluded from the expense limitation
described herein shall be brokerage commissions and transaction
fees and extraordinary expenses.
5.2 Except as provided in this Article V and, in particular in the
next sentence, Insurance Company shall not be required to pay
directly any expenses of the 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 Fund
materials including the cost of printing the Fund's
Prospectus, or marketing materials for prospective
Insurance Company Contractholders and Participants as
Dreyfus and Insurance Company shall agree from time to
time.
b. Distribution expenses of any Fund materials or marketing
materials for prospective Insurance Company
Contractholders and Participants.
c. Distribution expenses of Fund materials or marketing
materials for Insurance Company Contractholders and
Participants.
Except as provided herein, all other Fund expenses shall not be
borne by Insurance Company.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 The Fund shall furnish Insurance Company with a copy of its
application for an order of the Securities and Exchange
Commission under Section 6(c) of the Act for mixed and shared
funding relief, and the notice of filing of such application and
order when issued by the SEC. Insurance Company agrees to comply
with the conditions on which such order is issued, including
reporting any potential or existing conflicts promptly to the
Board, and in particular whenever Contractholder voting
- 7 -
instructions are disregarded, to the extent that such conditions
are not materially different from the conditions of the mixed and
shared funding relief obtained by Dreyfus Variable Investment
Fund and Dreyfus Life and Annuity Index Fund, Inc., respectively;
and recognizes that it shall be responsible for assisting the
Board in carrying out its responsibilities in connection with
such order. Insurance Company agrees to carry out such
responsibilities with a view to the interests of existing
Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict
exists with regard to Contractholder investments in the Fund, the
Board shall give prompt notice to all Participating Companies.
If the Board determines that Insurance Company is responsible for
causing or creating said conflict, Insurance Company shall at no
cost and expense to the Fund, 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 Fund and reinvesting such assets in a different
investment medium, or submitting the question of whether
such segregation should be implemented to a vote or 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 the Fund, Insurance Company may be required, at the
Board's election, to withdraw the Separate Account's investment
in the 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 the 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 the Fund taken or omitted as a result of
any act or failure to act by Insurance Company pursuant to this
- 8 -
Article VI shall relieve Insurance Company of its obligations
under, or otherwise affect the operation of, Article V.
ARTICLE VII
VOTING OF FUND SHARES
7.1 Fund shall provide Insurance Company with copies at no cost to
Insurance Company, of the Fund's proxy material, annual and semi-
annual reports to shareholders and other communications to
shareholders in such quantity as Insurance Company shall
reasonably require for distributing to Contractholders or
Participants.
Insurance Company shall:
a. solicit voting instructions from Contractholders or
Participants on a timely basis and in accordance with
applicable law;
b. vote Fund shares in accordance with instructions received
from Contractholders or Participants; and
c. vote Fund shares for which no instructions have been
received in the same proportion as Fund shares for which
instructions have been received.
Insurance Company agrees to be responsible for assuring that
voting Fund shares 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 the Fund and Dreyfus, solicit, induce or
encourage Contractholders to (a) change or supplement the Fund's
current investment adviser or (b) change, modify, substitute, add
to or delete the Fund from the current investment media for the
Contracts.
ARTICLE VIII
MARKETING AND REPRESENTATIONS
8.1 The Fund or its underwriter shall periodically furnish Insurance
Company with the following documents, 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
- 9 -
Agreement.
8.2 Insurance Company shall designate certain persons or entities
which 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 the Fund each piece of sales literature or other promotional
material in which the Fund, its investment adviser or the
administrator is named, at least fifteen Business Days prior to
its use. No such material shall be used unless the Fund 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. The Fund shall use all
reasonable efforts to respond within ten days of receipt.
8.4 Insurance Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning
the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration
statement or Prospectus, as may be amended or supplemented from
time to time, or in reports or proxy statements for the Fund, or
in sales literature or other promotional material approved by the
Fund.
8.5 Fund shall furnish, or shall cause to be furnished, to Insurance
Company, each piece of the Fund's sales literature or other
promotional material in which Insurance Company or the Separate
Account is named, at least fifteen 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 ten
days of receipt.
8.6 Fund shall not, in connection with the sale of Fund shares, 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 which 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.
- 10 -
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 the Fund,
Dreyfus, the sub-investment adviser of the Fund, 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
"Indemnified Parties" for purposes of Section 9.1), against any
and all losses, claims, damages or liabilities joint or several
(including any investigative, legal and other expenses reasonably
incurred in connection with, and any amounts paid in settlement
of, any action, suit or proceeding or any claim asserted) for
which the Indemnified Parties may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect to thereof) (i) arise out of
or are based upon 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 Fund or
with respect to the Separate Account or Contracts, or arise out
of or are based upon 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) arise out of or as a result of conduct, statements or
representations (other than statements or representations
contained in the Prospectus and sales literature or
advertisements of the Fund) of Insurance Company or its agents,
with respect to the sale and distribution of Contracts for which
Fund shares are an underlying investment; (iii) arise out of the
wrongful conduct of Insurance Company or persons under its
- 11 -
control with respect to the sale or distribution of the Contracts
or Fund shares; (iv) arise out of Insurance Company's incorrect
calculation and/or untimely reporting of net purchase or
redemption orders; or (v) arise out of any 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 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 Fund specifically for use therein. This
indemnity agreement will be in addition to any liability which
Insurance Company may otherwise have.
9.2 The Fund agrees 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 against any losses, claims, damages or
liabilities to which Insurance Company or any such director,
officer, employee, agent or controlling person may become
subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
(1) arise out of or are based upon 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 Fund; (2) arise out of or are based upon
the omission to state in the registration statement or Prospectus
or sales literature or advertisements of the Fund any material
fact required to be stated therein or necessary to make the
statements therein not misleading; or (3) arise out of or are
based upon 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 Fund;
and the Fund will reimburse any legal or other expenses
reasonably incurred by Insurance Company or any such director,
officer, employee, agent or controlling person in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Fund 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 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 Fund by Insurance Company specifically for use therein.
- 12 -
This indemnity agreement will be in addition to any liability
which the Fund may otherwise have.
9.3 The Fund 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 Fund's (1) incorrect calculation of the daily net
asset value, dividend rate or capital gain (loss) distribution
rate; (2) incorrect reporting of the daily net asset value,
dividend rate or capital gain (loss) distribution rate; and (3)
untimely reporting of the net asset value, dividend rate or
capital gain (loss) distribution rate; provided that the 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 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
- 13 -
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.
9.5 Insurance Company shall indemnify and hold the Fund, Dreyfus and
sub-investment adviser harmless against any tax liability
incurred by the Fund under Section 851 of the Code arising from
purchases or redemptions by Insurance Company's General Accounts
or the account of its affiliates.
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. At the option of Insurance Company or the Fund at any
time from the date hereof upon 180 days' notice, unless a
shorter time is agreed to by the parties;
b. At the option of Insurance Company, if shares of the 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 Fund makes
available a sufficient number of shares to meet the
requirements of the Contracts within said ten-day period;
c. At the option of Insurance Company, upon the institution
of formal proceedings against the 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 the
Fund's ability to meet and perform the 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. At the option of the 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,
- 14 -
judgment or outcome of which would, in the 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 the Fund with
said termination to be effective upon receipt of notice;
e. At the option of the Fund, if the 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 the Fund or Dreyfus, the 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 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. Upon termination of the Investment Advisory Agreement
between the Fund and Dreyfus or its successors unless
Insurance Company specifically approves the selection of
a new Fund investment adviser. The Fund shall promptly
furnish notice of such termination to Insurance Company;
g. In the event the Fund's shares 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 upon such occurrence without
notice;
h. At the option of the Fund upon a determination by the
Board in good faith that it is no longer advisable and in
the best interests of shareholders for the Fund to
continue to operate pursuant to this Agreement.
Termination pursuant to this Subsection (h) shall be
effective upon notice by the Fund to Insurance Company of
such termination;
i. At the option of the Fund if the Contracts cease to
qualify as annuity contracts or life insurance policies,
as applicable, under the Code, or if the Fund reasonably
believes that the Contracts may fail to so qualify;
- 15 -
j. At the option of either party to this Agreement, upon the
breach by a party of any material provision of this
Agreement, which breach has not been cured to the
reasonable satisfaction of the other party within 10 days
after written notice of such breach is delivered to such
other party;
k. At the option of the Fund, if the Contracts are not
registered, issued or sold in accordance with applicable
federal and/or state law; or
l. Upon assignment of this Agreement, unless made with the
written consent of the non-assigning party.
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, the Fund and Dreyfus may, at the option of
the Fund, continue to make available additional Fund shares for
so long as the Fund 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, if the Fund or Dreyfus so elects to make
additional Fund shares available, the owners of the Existing
Contracts or Insurance Company, whichever shall have legal
authority to do so, shall be permitted to reallocate investments
in the Fund, redeem investments in the Fund and/or invest in the
Fund upon the making of additional purchase payments under the
Existing Contracts, if permitted by the terms of the Existing
Contracts. In the event of a termination of this Agreement
pursuant to Section 10.2 hereof, the Fund and Dreyfus, as
promptly as is practicable under the circumstances, shall notify
Insurance Company whether Dreyfus and the Fund will continue to
make Fund shares available after such termination. If Fund
shares continue to be made available after such termination, the
provisions of this Agreement shall remain in effect and
thereafter either the Fund or Insurance Company may terminate the
Agreement, 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 Fund, need not be for more than six months.
- 16 -
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement shall be made by
agreement in writing between Insurance Company and 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: Annuity Investors Life Insurance Company
00xx Xxxxx, Xxxxxxxx Xxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Fund: The Dreyfus Socially Responsible
Growth Fund, Inc.
c/o Premier Mutual Fund Services, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
with copies to: The Dreyfus Socially Responsible
Growth Fund, Inc.
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx X. Xxxxxxx, Esq.
Stroock & Stroock & Xxxxx
0 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxxx, 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 the Fund by the
undersigned officer of the Fund in his capacity as an officer of
the Fund. The obligations of this Agreement shall only be
- 17 -
binding upon the assets and property of the Fund and shall not be
binding upon any director, officer or shareholder of the Fund
individually.
ARTICLE XIV
LAW
14.1 This Agreement shall be construed in accordance with the internal
laws of the State of New York, without giving effect to
principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
duly executed and attested as of the date first above written.
ANNUITY INVESTORS LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxx
Its: Senior Vice President
Attest: /s/ Xxxxxxx X. XxXxxxx
Senior Vice President
THE DREYFUS SOCIALLY RESPONSIBLE
GROWTH FUND, INC.
By: /s/ Xxxx Xxxxxxxx
Its: Vice President
Attest: /s/ [Illegible]
- 18 -
