Exhibit 1.A.9.N
FUND PARTICIPATION AGREEMENT
This Agreement is effective as of the 1st day of May, 1995, between CONSECO
VARIABLE INSURANCE COMPANY, a life insurance company organized under the laws of
the State of Texas ("Insurance Company"), and each of DREYFUS VARIABLE
INVESTMENT FUND; THE DREYFUS SOCIALLY RESPONSIBLE GROWTH FUND, INC.; DREYFUS
LIFE AND ANNUITY INDEX FUND, INC. (d/b/a DREYFUS STOCK INDEX FUND); AND DREYFUS
INVESTMENT PORTFOLIOS (each a "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 or Trustees, as the case may
be, of a Fund, which has the responsibility for management and control
of the Fund.
1.3 "Business Day" shall mean any day for which a 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 or life insurance contract
that uses any Participating Fund (as defined below) 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 (as defined below).
1.7 "Disinterested Board Members" shall mean those members of the Board of
a Fund 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) 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 Funds.
1.10 "Participating Fund" shall mean each Fund, including, as applicable,
any series thereof, specified in Exhibit A, as such Exhibit may be
amended from time to
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time by agreement of the parties hereto the shares of which are
available to serve as the underlying investment medium for the
aforesaid Contracts.
1.11 "Prospectus" shall mean the current prospectus and statement of
additional information of a Fund. as most recently filed with the
Commission.
1.12 "Separate Account" shall mean Conseco Variable Annuity Accounts C, E,
F, G and H and Conseco Variable Life Account A, separate accounts
established by Insurance Company in accordance with the laws of the
State of Texas.
1.13 "Software Program" shall mean the software program used by a 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 Fund is not available, such information may be provided by
telephone. The Lion System shall be provided to Insurance Company at
no charge.
1.14 "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates that invest in a
Fund.
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 Texas Insurance Code for the purpose of offering to the public
certain individual and group variable annuity and life insurance
contracts; (c) it has registered the Separate Account as a unit
investment trust under the Act to serve as the segregated investment
account for the Contracts; and (d) the Separate Account is eligible to
invest in shares of each Participating Fund without such investment
disqualifying any Participating 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 notify each Participating Fund promptly of
any investment restrictions imposed by state insurance law and
applicable to the Participating 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
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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 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
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).
2.7 Each Participating Fund agrees that its assets shall be managed and
invested in a manner that complies with the requirements of Section
817(h) of the Code and the Regulations thereunder. In the event a
Participating Fund becomes aware that it has failed to so comply, it
will take all reasonable steps (a) to notify Insurance Company of such
failure and (b) to adequately diversify the Fund so as to achieve
compliance.
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
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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.
The aforesaid Bond shall include coverage for larceny and 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 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.
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. Non-material errors will be
corrected in the next Business Day's net asset value per share.
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If the Participating Fund provides the Insurance Company with
materially incorrect share net asset value information, the Separate
Account(s) shall be entitled to an adjustment to the number of shares
purchased or redeemed to reflect the correct share net asset value.
Any material error in the calculation of the net asset value per
share, dividend or capital gain information shall be reported promptly
upon discovery to the Insurance Company. Furthermore, the
Participating Fund shall be liable for the reasonable administrative
costs incurred by the Insurance Company in relation to the correction
of any material error, provided such error is attributable to the
Participating Fund. Administrative costs shall include reasonable
allocation of staff time, costs of outside service providers, printing
and postage.
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 each Participating Fund's shares 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 Participating Fund shares 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
Participating 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 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 Contractholders prior to
the close of trading on the New York Stock Exchange on the effective
trade date.
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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 a Participating
Fund's shares, Insurance Company will pay for such purchases by
wiring Federal Funds to the 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 noon
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 Participating Fund's
shares valued at or greater than $1 million dollars, the Participating
Fund will wire such amount to Insurance Company within seven days of
the order.
3.9 Each Participating Fund has the obligation to ensure that its shares
are registered with applicable federal agencies at all times. Each
Participating Fund will register and qualify its shares in accordance
with the laws of the applicable states as may be required by law.
3.10 Each Participating Fund will confirm each purchase or redemption order
made by Insurance Company. Transfer of Participating Fund shares 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
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ex-dividend date. 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.
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 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 Prospectuses, proxy materials, notices,
periodic reports and other printed materials (which the Participating
Fund customarily provides to its shareholders) in quantities as
Insurance Company may reasonably request for distribution to each
Contractholder and Participant. 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 Companies insurance product at their own cost. At Insurance
Company's request, the Participating Fund will provide, in lieu of
printed documents, camera-ready copy or diskette of 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, contemporaneously with the filing of such document with
the Commission or other regulatory authorities.
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 the Contracts or the
Separate Account, contemporaneously with the filing of such document
with the Commission.
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 of the number of existing Variable
Contract owners of Insurance Company whose Variable 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.
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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,
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 provided in Article IV and V, 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 and
Participants as Dreyfus and Insurance Company shall agree
from time to time. Such materials shall not include
Participating Fund proxy solicitation materials.
b. Distribution expenses of any Participating Fund materials or
marketing materials for prospective Insurance Company
Contractholders and Participants.
c. Distribution expenses of any Participating Fund materials or
marketing materials for Insurance Company Contractholders
and Participants. Such materials shall not include
Participating Fund proxy solicitation materials.
Except as provided herein, Insurance Company shall not be responsible
for any other Participating Fund expenses.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 Insurance Company has reviewed a copy of (i) the amended order dated
December 31, 1997 of the Securities and Exchange Commission under
Section 6(c) of the Act with respect to Dreyfus Variable Investment
Fund and Dreyfus Life and Annuity Index Fund, Inc.; and (ii) the order
dated February 5, 1998 of the Securities and Exchange Commission under
Section 6(c) of the Act with respect to The Dreyfus Socially
Responsible Growth Fund, Inc. and Dreyfus Investment Portfolios, and,
in particular, has reviewed the conditions to the relief
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set forth in each related Notice. As set forth therein, if Dreyfus
Variable Investment Fund, Dreyfus Life and Annuity Index Fund, Inc.,
The Dreyfus Socially Responsible Growth Fund, Inc. or Dreyfus
Investment Portfolios is a Participating Fund, Insurance Company
agrees, as applicable, to report any potential or existing conflicts
promptly to the respective Board of Dreyfus Variable Investment Fund,
Dreyfus Life and Annuity Index Fund, Inc., The Dreyfus Socially
Responsible Growth Fund Inc. and/or Dreyfus Investment Portfolios,
and, in particular, whenever contract voting instructions are
disregarded, and recognizes that it will be responsible for assisting
each applicable 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 Separate Account in that
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
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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.
ARTICLE VII
VOTING OF PARTICIPATING FUND SHARES
7.1 Each Participating Fund shall provide Insurance Company with copies,
at no cost to Insurance Company, of the Participating Fund's proxy
material, 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 the Participating Fund shares in accordance with
instructions received from Contractholders or Participants;
and
(c) vote the Participating Fund shares for which no instructions
have been received in the same proportion as Participating
Fund shares for which instructions have been received.
Insurance Company agrees at all times to vote its General Account
shares in the same proportion as the Participating Fund shares for
which instructions have been received from Contractholders or
Participants. Insurance Company further agrees to be responsible for
assuring that voting the Participating Fund shares for the Separate
Account is conducted in a manner consistent with other Participating
Companies.
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 (a) change or supplement the
Participating Fund's current investment adviser or (b) change, modify,
substitute, add to or delete from the current investment media for the
Contracts.
ARTICLE VIII
MARKETING AND REPRESENTATIONS
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8.1 Each Participating 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 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 is
named, at least fifteen 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 ten 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 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.
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8.6 Each Participating Fund shall not, in connection with the sale of
Participating 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
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, safes 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 subinvestment 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 "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 respective Participating
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
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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 respective Participating
Fund) of Insurance Company or its agents, with respect to the sale and
distribution of Contracts for which the respective Participating
Fund's shares are an underlying investment; (iii) arise out of the
wrongful conduct of Insurance Company or persons under its control
with respect to the sale or distribution of the Contracts or the
respective Participating Fund's 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 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 severally 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)
(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) (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 respective
Participating 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 respective Participating 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 respective Participating Fund; or (4)
arise out of any breach by a Participating Fund of a material term of
this Agreement or as a result of any failure by a Participating Fund
to provide the services and
13
furnish the material or to make any payments provided to in the
Agreement; and the respective Participating 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 respective
Participating 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
respective Participating Fund by Insurance Company specifically for
use therein. This indemnity agreement will be in addition to any
liability which the respective Participating Fund may otherwise have.
9.3 Each Participating Fund severally shall indemnify and hold 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, harmless against any and all liability, loss,
damages, costs or expenses (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 which Insurance Company may incur, suffer or be required to
pay due to the respective Participating Fund's (1) incorrect
calculation of the daily net asset value, dividend rate or capital
gain distribution rate; (2) incorrect reporting of the daily net asset
value, dividend rate or capital gain distribution rate; and (3)
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 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
14
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.
9.5 Insurance Company shall indemnify and hold each respective
Participating Fund, Dreyfus and sub-investment adviser of the
Participating Fund harmless 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 Accounts but
only if the Participating Fund provides prior written notice to the
Insurance Company that any such purchase or redemption may cause the
Participating Fund to incur tax liability under Section 851.
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 180 days' notice, unless a shorter time is
agreed to by the respective Participating Fund and Insurance
Company;
b. As to any Participating Fund, 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
15
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, 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;
g. As to a Participating Fund, in the event that
Participating Fund's shares are not registered, issued or
sold in accordance with applicable
16
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;
h. 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
(h) shall be effective upon notice by such Participating
Fund to Insurance Company of such termination;
i. 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;
j. At the option of any party to this Agreement, upon
another party's breach of any material provision of this
Agreement;
k. 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
l. Upon assignment of this Agreement, unless made with the
written consent of every other non-assigning party.
Any such termination pursuant to Section 10.2a, 10.2d, 10.2e, 10.2 for
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 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. In the
event of a termination of this Agreement pursuant to Section 10.2
hereof, Insurance Company, as promptly as is practicable under the
circumstances, shall notify Participating Fund and Dreyfus whether
Insurance Company desires to have that Participating Fund's shares
available after such termination. If such Participating Fund shares
continue to be
17
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.
10.4 Termination of this Agreement as to anyone 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.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the
addition or deletion of any Participating Fund as specified in Exhibit
A, 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: Conseco Variable Insurance Company
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Participating Funds: [Name of Fund]
c/o Premier Mutual Fund Services, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
18
Attn: Vice President and Assistant
Secretary
with copies to: [Name of Fund]
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
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.
MISCELLANEOUS
13.1 This Agreement has been executed on behalf of each 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 binding upon the
assets and property of the Fund and shall not be binding upon any
director, trustee, officer or shareholder of the Fund individually. It
is agreed that the obligations of the Funds are several and not joint,
that no Fund shall be liable for any amount owing by another Fund and
that the Funds have executed one instrument for convenience only.
13.2 Each Participating Fund and Insurance Company represents and warrants
that the computer systems which it will use in performing its duties
under this Agreement perform all date related functions in respect of
dates prior to the year 1999 accurately, and will perform all such
functions in respect of dates during and after the year 1999 with the
same accuracy.
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.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
CONSECO VARIABLE INSURANCE
COMPANY
By: /s/
-----------------------------
Its: Senior Vice President &
Director, Variable Annuities
Attest: /s/
-----------------------------
DREYFUS LIFE AND ANNUITY INDEX FUND,
INC. (d/b/a DREYFUS STOCK INDEX FUND)
By: /s/ XXXXXXXXX XXXXXX
-----------------------------
Xxxxxxxxx Xxxxxx
Its: Vice President
Attest:
-----------------------------
THE DREYFUS SOCIALLY RESPONSIBLE
GROWTH FUND, INC.
By: /s/ XXXXXXXXX XXXXXX
-----------------------------
Xxxxxxxxx Xxxxxx
Its: Vice President
Attest:
-----------------------------
20
DREYFUS VARIABLE INVESTMENT FUND
By: /s/ XXXXXXXXX XXXXXX
-----------------------------
Xxxxxxxxx Xxxxxx
Its: Vice President
Attest:
-----------------------------
DREYFUS INVESTMENT PORTFOLIOS
By: /s/ XXXXXXXXX XXXXXX
-----------------------------
Xxxxxxxxx Xxxxxx
Its: Vice President
Attest:
-----------------------------
21
EXHIBIT A
LIST OF PARTICIPATING FUNDS
Dreyfus Socially Responsible Growth Fund, Inc.
Dreyfus Stock Index Fund
Dreyfus Variable Investment Fund
Disciplined Stock Portfolio
International Value Portfolio
22
