FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 15th day of February, 2007, between
Genworth Life and Annuity Insurance Company, a life insurance company organized
under the laws of the Commonwealth of Virginia ("Insurance Company"), on behalf
of itself and on behalf of the separate accounts set forth on Exhibit A, and
Dreyfus Service Corporation, a corporation organized under the laws of the
State of New York ("Dreyfus"), and each Participating Fund (as defined below).
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Directors or Trustees, as the case may
be, of a Participating Fund, which has the responsibility for management
and control of the Participating Fund.
1.3 "Business Day" shall mean any day for which a Participating Fund
calculates net asset value per Share (as defined below) as described in
the Participating Fund's Prospectus.
1.4 "Commission" shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity or variable life insurance
contract that uses any Participating Fund as an underlying investment
medium. Individuals who participate under a group Contract are
"Participants."
1.6 "Contractholder" shall mean any entity that is a party to a Contract
(including any Participants thereunder) with a Participating Company (as
defined below).
1.7 "Disinterested Board Members" shall mean those members of the Board of a
Participating Fund that are not deemed to be "interested persons" of the
Participating Fund, as defined by the Act.
1.8 "Dreyfus" shall mean The Dreyfus Corporation and its affiliates,
including Dreyfus Service Corporation.
1.9 "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates that invest in Shares
of a Participating Fund.
1.10 "Participating Companies" shall mean any insurance company (including
Insurance Company) that offers variable annuity and/or variable life
insurance contracts to the public and that has entered into an agreement
with one or more of the Participating Funds for the purpose of making
Participating Fund Shares available to serve as the underlying
investment medium for the aforesaid Contacts.
1.11 "Participating Fund" shall mean each investment company, including, as
applicable, any series thereof, specified in Exhibit B, as such Exhibit
may be amended from time to time by agreement of the parties hereto, the
Shares of which are available to serve as the underlying investment
medium for the aforesaid Contracts.
1.12 "Prospectus" shall mean the current prospectus and statement of
additional information of a Participating Fund, relating to its Shares,
as most recently filed with the Commission.
1.13 "Separate Account" shall mean a separate account established by
Insurance Company in accordance with the laws of the Commonwealth of
Virginia and set forth on Exhibit A, as such Exhibit may be revised from
time to time.
1.14 "Shares" shall mean (i) each class of shares of a Participating Fund set
forth on Exhibit A next to the name of such Participating Fund, as such
Exhibit may be revised from time to time, or (ii) if no class of shares
is set forth on Exhibit B next to the name of such Participating Fund,
the shares of the Participating Fund.
1.15 "Software Program" shall mean the software program used by a
Participating Fund for providing Fund and account balance information
including net asset value per Share. Such Program may include the Lion
System. In situations where the Lion System or any other Software
Program used by a Participating Fund is not available, such information
may be provided by telephone. 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 each Separate Account pursuant to
the insurance laws of the Commonwealth of Virginia and the regulations
thereunder for the purpose of offering to the public certain individual
and group variable annuity and variable life insurance contracts; (c) it
has, to the extent required under applicable law, registered each
Separate Account as a unit investment trust under the Act to serve as
the segregated investment account for it's Contracts; and (d) each
Separate Account is eligible to invest in Shares of each Participating
Fund without such
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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) to the extent
required under applicable law, its Contracts will be described in a
registration statement filed under the Securities Act of 1933, as
amended ("1933 Act"); (b) its Contracts will be issued and sold in
compliance in all material respects with all applicable federal and
state laws; and (c) the sale of its Contracts shall comply in all
material respects with state insurance law requirements. Insurance
Company agrees to notify each Participating Fund promptly of any
investment restrictions imposed by state insurance law and applicable to
the Participating Fund.
2.3 Insurance Company represents and warrants that the income, gains and
losses, whether or not realized, from assets allocated to the Separate
Account are, in accordance with the applicable Contracts, to be credited
to or charged against such Separate Account without regard to other
income, gains or losses from assets allocated to any other accounts of
Insurance Company. Insurance Company represents and warrants that the
assets of the Separate Account are and will be kept separate from
Insurance Company's General Account and any other separate accounts
Insurance Company may have, and will not be charged with liabilities
from any business that Insurance Company may conduct or the liabilities
of any companies affiliated with Insurance Company.
2.4 Each Participating Fund represents that it is registered with the
Commission under the Act as an open-end, management investment company
and possesses, and shall maintain, all legal and regulatory licenses,
approvals, consents and/or exemptions required for the Participating
Fund to operate and offer its Shares as an underlying investment medium
for Participating Companies.
2.5 Each Participating Fund represents that it is currently qualified as a
regulated investment company under Subchapter M of the Internal Revenue
Code of 1986, as amended (the "Code"), and that it will make every
effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify Insurance
Company immediately upon having a reasonable basis for believing that it
has ceased to so qualify or that it might not so qualify in the future.
2.6 Insurance Company represents and agrees that the Contracts are
currently, and at the time of issuance will be, treated as life
insurance policies or annuity contracts, whichever is appropriate, under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment and that it will notify each Participating Fund
and Dreyfus immediately upon having a reasonable basis for believing
that the Contracts have ceased to be so treated or that they might not
be so treated in the future. Insurance Company agrees that any
prospectus offering a Contract that is a "modified endowment contract,"
as that term is defined in
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Section 7702A of the Code, will identify such Contract as a modified
endowment contract (or policy).
2.7 Each Participating Fund represents that it will maintain its assets such
that, at the close of each calendar quarter (or within 30 days
thereafter), it will be "adequately diversified" within the naming of
Section 817(h) of the Code and Treasury Regulation 1.817-5.
2.8 Insurance Company agrees that each Participating Fund shall be permitted
(subject to the other terms of this Agreement) to make its shares
available to other Participating Companies and Contractholders.
2.9 Each Participating Fund represents and warrants that any of its
directors, trustees, officers, employees, investment advisers, and other
individuals/entities who deal with the money and/or securities of the
Participating Fund are and shall continue to be at all times covered by
a blanket fidelity bond or similar coverage for the benefit of the
Participating Fund in an amount not less than that required by Rule
17g-1 under the Act. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding
company.
2.10 Insurance Company represents and warrants that all of its employees and
agents who deal with the money and/or securities of each Participating
Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the
coverage required to be maintained by the Participating Fund. The
aforesaid bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.11 Insurance Company represents and warrants that it has reviewed each
Participating Fund's policy regarding market timing and frequent trading
of shares, and none of its Contractholders is or will be permitted to
engage in trading activity which would violate such policy.
ARTICLE III
PARTICIPATING FUND SHARES
3.1 The Contracts funded through the Separate Account will provide for the
investment of certain amounts in Shares of each Participating Fund.
3.2 Each Participating Fund agrees to make its Shares available for purchase
at the then applicable net asset value per Share by Insurance Company
and the Separate Account on each Business Day pursuant to rules of the
Commission. Notwithstanding the foregoing, each Participating Fund may
refuse to sell its Shares to any person, or suspend or terminate the
offering of its Shares, if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole discretion
of its Board, acting in good faith and in light of its fiduciary
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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.
3.5 At the end of each Business Day, Insurance Company will use the
information described in Sections 3.2 and 3.4 to calculate the unit
values of the Separate Account for the day. Using this unit value,
Insurance Company will process the day's Separate Account transactions
received by it by the close of trading on the floor of the New York
Stock Exchange (currently 4:00 p.m. Eastern time) to determine the net
dollar amount of the Shares of each Participating Fund that will be
purchased or redeemed at that day's closing net asset value per Share.
The net purchase or redemption orders will be transmitted to each
Participating Fund by Insurance Company by 11:00 a.m. Eastern time on
the Business Day next following Insurance Company's receipt of that
information. Subject to Sections 3.6 and 3.8, all purchase and
redemption orders for Insurance Company's General Accounts shall be
effected at the net asset value per Share of each Participating Fund
next calculated after receipt of the order by the Participating Fund or
its Transfer Agent.
3.6 Each Participating Fund appoints Insurance Company as its agent for the
limited purpose of accepting orders for the purchase and redemption of
Shares of the Participating Fund for the Separate Account. Each
Participating Fund will execute orders at the applicable net asset value
per Share determined as of the close of trading on the day of receipt of
such orders by Insurance Company acting as agent ("effective trade
date"), provided that the Participating Fund receives notice of such
orders by 11:00 a.m. Eastern time on the next following Business Day
and, if such orders request the purchase of Shares of the Participating
Fund, the conditions specified in Section 3.8, as applicable, are
satisfied. A redemption or purchase request that does not satisfy the
conditions specified above and in Section 3.8, as applicable, will be
effected at the net asset value per Share computed on the Business Day
immediately preceding the next following Business Day upon which such
conditions have been satisfied in accordance with the requirements of
this Section and Section 3.8. Insurance Company represents and warrants
that all orders submitted by the Insurance Company for execution on
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the effective trade date shall represent purchase or redemption orders
received from its Contractholders prior to the close of trading on the
New York Stock Exchange on the effective trade date.
3.7 Insurance Company will make its best efforts to notify each applicable
Participating Fund in advance of any unusually large purchase or
redemption orders.
3.8 If Insurance Company's order requests the purchase of Shares of a
Participating Fund, Insurance Company will pay for such purchases by
wiring Federal Funds to the 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 Shares of a Participating
Fund 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 the Commission at all times.
3.10 Each Participating Fund will confirm each purchase or redemption order
made by Insurance Company. Transfers of Shares of a Participating Fund
will be by book entry only. No share certificates will be issued to
Insurance Company. Insurance Company will record Shares ordered from a
Participating Fund in an appropriate title for the corresponding account.
3.11 Each Participating Fund shall credit Insurance Company with the
appropriate number of Shares.
3.12 On each ex-dividend date of a Participating Fund or, if not a Business
Day, on the first Business Day thereafter, each Participating Fund shall
communicate to Insurance Company the amount of dividend and capital
gain, if any, per Share.
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All dividends and capital gains shall be automatically reinvested in
additional Shares of the applicable Participating Fund at the net asset
value per Share on the ex-dividend date. Each Participating Fund shall,
on the day after the ex-dividend date or, if not a Business Day, on the
first Business Day thereafter, notify Insurance Company of the number of
Shares so issued.
3.13 To the extent that a Separate Account is properly exempt from
registration under the Act, at least once annually, at the request of a
Participating Fund, or its designee, Insurance Company will certify the
amount of purchases and redemptions of Shares from such Separate Account
for the Participating Fund's most recent fiscal year end.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 Each Participating Fund shall provide monthly statements of account as
of the end of each month for all of Insurance Company's Participating
Fund accounts by the fifteenth (15th) Business Day of the following
month.
4.2 Each Participating Fund shall distribute to Insurance Company copies of
the Participating Fund's Prospectus, proxy materials, notices, periodic
reports and other printed materials (which the Participating Fund
customarily provides to the holders of its Shares) in quantities as
Insurance Company may reasonably request for distribution to each of its
Contractholders. Insurance Company may elect to print the Participating
Fund's prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and statements of
additional information, which are also offered in Insurance Company's
insurance product at its own cost. At Insurance Company's request, the
Participating Fund will provide, in lieu of printed documents,
camera-ready copy or diskette of its prospectuses, annual and
semi-annual reports for printing by the Insurance Company.
4.3 Each Participating Fund will provide to Insurance Company at least one
complete copy of all registration statements, Prospectuses, reports,
proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Participating Fund or
its Shares (except for such materials that are designed only for a class
of shares of a Participating Fund not offered to the Insurance Company
pursuant to this Agreement), contemporaneously with the filing of such
document with the Commission or other regulatory authorities.
4.4 Insurance Company will provide to each Participating Fund at least one
copy of all registration statements, prospectuses, reports, proxy
statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to its
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Contracts or the Separate Account, contemporaneously with the filing of
such document with the Commission or other regulatory authorities.
4.5 Insurance Company will provide Participating Funds on a semi-annual
basis, or more frequently as reasonably requested by the Participating
Funds, with a current tabulation of the number its existing
Contractholders whose Contract values are invested in the Participating
Funds. This tabulation will be sent to Participating Funds in the form
of a letter signed by a duly authorized officer of the Insurance Company
attesting to the accuracy of the information contained in the letter.
ARTICLE V
EXPENSES
5.1 The charge to each Participating Fund for all expenses and costs of the
Participating Fund, including but not limited to management fees, Rule
12b-1 fees, if any, administrative expenses and legal and regulatory
costs, will be included in the determination of the Participating Fund's
daily net asset value per Share.
5.2 Except as otherwise provided in this Agreement and, in particular in the
next sentence, Insurance Company shall not be required to pay directly
any expenses of any Participating Fund or expenses relating to the
distribution of its Shares. Insurance Company shall pay the following
expenses or costs:
a. Such amount of the production expenses of any Participating Fund
materials, including the cost of printing a Participating Fund's
Prospectus, or marketing materials for prospective Insurance Company
Contractholders as Dreyfus and Insurance Company shall agree from
time to time.
b. Distribution expenses of any Participating Fund materials or
marketing materials for prospective Insurance Company Contractholders.
c. Distribution expenses of any Participating Fund materials or
marketing materials for Insurance Company Contractholders.
A Participating Fund's principal underwriter may pay Insurance Company,
or the broker-dealer acting as principal underwriter for the Insurance
Company's Contracts, for distribution and other services related to the
Shares of the Participating Fund pursuant to any distribution plan
adopted by the Participating Fund in accordance with Rule 12b-1 under
the Act, subject to the terms and conditions of an agreement between the
Participating Fund's principal underwriter and Insurance Company or the
principal underwriter for the Insurance Company's Contracts, as
applicable, related to such plan.
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Except as provided herein, all other expenses of each Participating Fund
shall not be borne by Insurance Company.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 Insurance Company has reviewed a copy of the Order dated February 5,
1998 of the Commission under Section 6(c) of the Act with respect to the
Participating Funds and, in particular, has reviewed the conditions to
the relief set forth in the Notice of Application for agenda order. As
set forth therein, Insurance Company agrees, as applicable, to report
any potential or existing conflicts promptly to the Board and, in
particular, whenever contract voting instructions are disregarded, and
recognizes that it will be responsible for assisting the Board in
carrying out its responsibilities under such application. Insurance
Company agrees to carry out such responsibilities with a view to the
interests of existing Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict exists with
regard to Contractholder investments in a Participating Fund, the Board
shall give prompt notice to all Participating Companies and any other
Participating Fund. If the Board determines that Insurance Company is
responsible for causing or creating said conflict, Insurance Company
shall at its sole cost and expense, and to the extent reasonably
practicable (as determined by a majority of the Disinterested Board
Members), take such action as is necessary to remedy or eliminate the
irreconcilable material conflict. Such necessary action may include, but
shall not be limited to:
a. Withdrawing the assets allocable to the Separate Account from the
Participating Fund and reinvesting such assets in another
Participating Fund (if applicable) or a different investment medium,
or submitting the question of whether such segregation should be
implemented to a vote of all affected Contractholders; and/or
b. Establishing a new registered management investment company.
6.3 If a material irreconcilable conflict arises as a result of a decision
by Insurance Company to disregard Contractholder voting instructions and
said decision represents a minority position or would preclude a
majority vote by all Contractholders having an interest in a
Participating Fund, Insurance Company may be required, at the Board's
election, to withdraw the investments of the 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
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required to bear the expense of establishing a new funding medium for
any Contract. Insurance Company shall not be required by this Article to
establish a new funding medium for any Contract if an offer to do so has
been declined by vote of a majority of the Contractholders materially
adversely affected by the irreconcilable material conflict.
6.5 No action by Insurance Company taken or omitted, and no action by the
Separate Account or any Participating Fund taken or omitted as a result
of any act or failure to act by Insurance Company pursuant to this
Article VI, shall relieve Insurance Company of its obligations under, or
otherwise affect the operation of, Article V.
ARTICLE VII
VOTING SHARES OF PARTICIPATING FUND
7.1 Each Participating Fund shall provide Insurance Company with copies, at
no cost to Insurance Company, of the Participating Fund's proxy
materials, reports to shareholders and other communications to
shareholders (except for such materials that are designed only for a
class of shares of a Participating Fund not offered to the Insurance
Company pursuant to this Agreement) in such quantity as Insurance
Company shall reasonably require for distributing to its Contractholders.
Insurance Company shall:
(a) Solicit voting instructions from its Contractholders on a timely
basis and in accordance with applicable law;
(b) vote the Shares of the Participating Fund in accordance with
instructions received from its Contractholders; and
(c) vote the Shares of the Participating Fund for which no
instructions have been received in the same proportion as Shares of
the Participating Fund for which instructions have been received.
To the extent required under the federal securities laws or by
Commission rule or regulation, Insurance Company agrees to vote Shares
held by Insurance Company's General Account in the same proportion as
Shares of the Participating Fund for which instructions have been
received from Insurance Company's Contractholders. Insurance Company
further agrees to be responsible for assuring that voting the Shares of
the Participating Fund for the Separate Account is conducted in a manner
consistent with other Participating Companies.
7.2 Insurance Company agrees that it shall not, without the prior written
consent of each applicable Participating Fund and Dreyfus, solicit,
induce or encourage Contractholders to change or supplement the
Participating Fund's current investment adviser.
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ARTICLE VIII
MARKETING AND REPRESENTATIONS
8.1 Each Participating Fund or its principal underwriter shall periodically
furnish Insurance Company with the following documents relating to the
Shares of the Participating Fund, in quantities as Insurance Company may
reasonably request:
a. Current Prospectus and any supplements thereto; and
b. Other marketing materials.
Expenses for the production of such documents shall be borne by
Insurance Company in accordance with Section 5.2 of this Agreement.
8.2 Insurance Company shall designate certain persons or entities that shall
have the requisite licenses to solicit applications for the sale of
Contracts. No representation is made as to the number or amount of
Contracts that are to be sold by Insurance Company. Insurance Company
shall make reasonable efforts to market the Contracts and shall comply
with all applicable federal and state laws in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to each
applicable Participating Fund or its designee, each piece of sales
literature or other promotional material in which the Participating
Fund, its investment adviser or the administrator, or Dreyfus is named,
at least 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
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Business Days after receipt of such material. Insurance Company shall
use all reasonable efforts to respond within ten days of receipt.
8.6 No Participating Fund shall, in connection with the sale of Shares of
the Participating Fund, give any information or make any representations
on behalf of Insurance Company or concerning Insurance Company, the
Separate Account, or the Contracts other than the information or
representations contained in a registration statement or prospectus for
the Contracts, as may be amended or supplemented from time to time, or
in published reports for the Separate Account that are in the public
domain or approved by Insurance Company for distribution to
Contractholders or Participants, or in sales literature or other
promotional material approved by Insurance Company.
8.7 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designed for
use, in a newspaper, magazine or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures or other public media), sales literature (such as any
written communication distributed or made generally available to
customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, or reprints or
excerpts of any other advertisement, sales literature, or published
article), educational or training materials or other communications
distributed or made generally available to some or all agents or
employees, registration statements, prospectuses, statements of
additional information, shareholder reports and proxy materials, and any
other material constituting sales literature or advertising under
National Association of Securities Dealers, Inc. rules, the Act or the
1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless each
Participating Fund, Dreyfus, each respective Participating Fund's
investment adviser and sub-investment adviser (if applicable), each
respective Participating Fund's distributor, and their respective
affiliates, and each of their directors, trustees, officers, employees,
agents and each person, if any, who controls any of the foregoing
entities or persons within the meaning of the 1933 Act (collectively,
the "Fund Indemnified Parties"), against any and all losses, claims,
damages or liabilities joint or several (including any investigative,
legal and other expenses reasonably incurred in connection with, and any
amounts paid in settlement of, any action, suit or proceeding or any
claim asserted) for which any such Fund Indemnified Party may become
subject, under the 1933 Act, the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in information furnished
by Insurance Company for use in the registration statement or Prospectus
or sales literature or advertisements
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of the respective Participating Fund or with respect to the Separate
Account or Contracts, or the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; (ii) any conduct, statement
or representation (other than statements or representations contained in
the Prospectus and sales literature or advertisements of the respective
Participating Fund) of Insurance Company or its agents, with respect to
the sale and distribution of Contracts for which the Shares of the
respective Participating Fund are an underlying investment; (iii)
wrongful conduct of Insurance Company or persons under its control with
respect to the sale or distribution of the Contracts or the Shares of
the respective Participating Fund; (iv) any incorrect calculation and/or
untimely reporting by Insurance Company of net purchase or redemption
orders; or (v) 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
Fund Indemnified Party in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
with respect to clauses (i) and (ii) above Insurance Company will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any untrue statement or
omission or alleged omission made in such registration statement,
prospectus, sales literature, or advertisement in conformity with
written information furnished to Insurance Company by Dreyfus, the
respective Participating Fund, or any of their agents specifically for
use therein. This indemnity agreement will be in addition to any
liability which Insurance Company may otherwise have.
9.2 Dreyfus 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
("collectively, the Insurance Company Indemnified Parties"), against any
and all losses, claims, damages or liabilities joint or several
(including any investigative, legal and other expenses reasonably
incurred in connection with, and any amounts paid in settlement of, any
action, suit or proceeding or any claim asserted) for which any such
Insurance Company Indemnified Party may become subject, under the 1933
Act, the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or Prospectus or
sales literature or advertisements of the respective Participating Fund;
(ii) any omission to state in the registration statement or Prospectus
or sales literature or advertisements of the respective Participating
Fund any material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) any untrue statement
or alleged untrue statement of any material fact contained in the
registration statement or Prospectus or sales literature or
advertisements with respect to the Separate Account or the Contracts and
such statements were based on information provided to Insurance Company
by the respective Participating Fund; (iv) any
13
breach by Dreyfus or a Participating Fund of a material term of this
Agreement or as a result of any failure by Dreyfus or a Participating
Fund to provide the services and furnish the materials or to make any
payments provided for in this Agreement; or (v) the failure of a
Participating Fund to comply with the diversification requirements set
forth in Section 817(h) of the Code or to qualify as a "regulated
investment company" under Subchapter M of the Code. Dreyfus will
reimburse any legal or other expenses reasonably incurred by any
Insurance Indemnified Party in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that with respect to clauses (i), (ii) and (iii) above, neither
Dreyfus nor any Participating Fund will be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or omission or alleged omission
made in such registration statement, Prospectus, sales literature or
advertisements in conformity with written information furnished to the
respective Participating Fund by Insurance Company specifically for use
therein. This indemnity agreement will be in addition to any liability
which Dreyfus may otherwise have.
9.3 Each Participating Fund severally shall indemnify and hold Insurance
Company harmless against any and all liability, loss, damages, costs or
expenses which Insurance Company may incur, suffer or be required to pay
due to the respective Participating Fund's (i) incorrect calculation of
the daily net asset value, dividend rate or capital gain distribution
rate; (ii) incorrect reporting of the daily net asset value, dividend
rate or capital gain distribution rate; and (iii) untimely reporting of
the net asset value, dividend rate or capital gain distribution rate;
provided that the respective Participating Fund shall have no obligation
to indemnify and hold harmless Insurance Company if the incorrect
calculation or incorrect or untimely reporting was the result of
incorrect information furnished by Insurance Company or information
furnished untimely by Insurance Company or otherwise as a result of or
relating to a breach of this Agreement by Insurance Company.
9.4 Insurance Company shall indemnify and hold harmless each Participating
Fund, Dreyfus and any investment adviser of the Participating Fund
against any tax liability incurred by the Participating Fund under
Section 851 of the Code arising from purchases or redemptions by
Insurance Company's General Account(s).
9.5 Promptly after receipt by an indemnified party under this Article of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Article, notify the indemnifying party of the
commencement thereof. The omission to so notify the indemnifying party
will not relieve the indemnifying party from any liability under this
Article IX, except to the extent that the omission results in a failure
of actual notice to the indemnifying party and such indemnifying party
is damaged solely as a result of the failure to give such notice. In
case any such action is brought against any indemnified party, and it
notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, assume the defense thereof, with
14
counsel satisfactory to such indemnified party, and to the extent that
the indemnifying party has given notice to such effect to the
indemnified party and is performing its obligations under this Article,
the indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof, other than reasonable costs of investigation.
Notwithstanding the foregoing, in any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX. The
provisions of this Article IX shall survive termination of this
Agreement.
9.6 The indemnity agreements contained in this Article IX shall not protect
any indemnified party against liability to which such party would
otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of such party's office, as the case may be.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions
herein.
10.2 This Agreement shall terminate without penalty:
a. As to any Participating Fund, at the option of Insurance Company or
the Participating Fund at any time from the date hereof upon 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, at the option of Insurance Company, if
Insurance Company shall determine, in its sole judgment reasonably
exercised in good faith that the Participating Fund or Dreyfus 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 operations of
Insurance Company or its Separate Account, the Insurance Company
shall notify the Participating Fund in
16
writing of such determination and its intent to terminate this
Agreement, and after considering the actions taken by the
Participating Fund and any other changes in circumstances since the
giving of such notice, such determination of Insurance Company shall
continue to apply to the sixtieth (60th) day following the giving of
such notice, which sixtieth day shall be the effective date of
termination;
g. As to a Participating Fund, upon termination of the Investment
Advisory Agreement between that Participating Fund and Dreyfus or its
successors unless Insurance Company specifically approves the
selection of a new Participating Fund investment adviser. Such
Participating Fund shall promptly furnish notice of such termination
to Insurance Company;
h. As to a Participating Fund, in the event that Shares of the
Participating Fund are not registered, issued or sold in accordance
with applicable federal law, or such law precludes the use of such
Shares as the underlying investment medium of Contracts issued or to
be issued by Insurance Company. Termination shall be effective
immediately as to that Participating Fund only upon such occurrence
without notice;
i. At the option of a Participating Fund upon a determination by its
Board in good faith that it is no longer advisable and in the best
interests of shareholders of that Participating Fund to continue to
operate pursuant to this Agreement. Termination pursuant to this
Subsection (i) shall be effective upon notice by such Participating
Fund to Insurance Company of such termination;
j. At the option of a Participating Fund if the Contracts cease to
qualify as annuity contracts or life insurance policies, as
applicable, under the Code, or if such Participating Fund reasonably
believes that the Contracts may fail to so qualify;
k. As to a Participating Fund, at the option of the Insurance Company if
the Participating Fund fails to comply with the diversification
requirements set forth in Section 817(h) of the Code or to qualify as
a "regulated investment company" under Subchapter M of the Code;
l. At the option of any party to this Agreement, upon another party's
breach of any material provision of this Agreement;
m. 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
n. Upon assignment of this Agreement, unless made with the written
consent of every other non-assigning party.
17
Any such termination pursuant to Section 10.2(a), 10.2(d), 10.2(e),
10.2(f) or 10.2(l) 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 Participating Fund, continue to make available additional Shares of
that Participating Fund for as long as the Participating 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 that Participating Fund and Dreyfus
so elect to make additional Shares of the Participating Fund 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 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, such Participating Fund and Dreyfus, as promptly as is
practicable under the circumstances, shall notify Insurance Company
whether Dreyfus and that Participating Fund will continue to make Shares
of that Participating Fund available after such termination. If such
Shares of the Participating Fund continue to be made available after
such termination, the provisions of this Agreement shall remain in
effect and thereafter either of that Participating Fund or Insurance
Company may terminate the Agreement as to that Participating Fund, as so
continued pursuant to this Section 10.3, upon prior written notice to
the other party, such notice to be for a period that is reasonable under
the circumstances but, if given by the Participating Fund, need not be
for more than six months.
10.4 Termination of this Agreement as to any one Participating Fund shall not
be deemed a termination as to any other Participating Fund unless
Insurance Company or such other Participating Fund, as the case may be,
terminates this Agreement as to such other Participating Fund in
accordance with this Article X.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the
addition or deletion of any Participating Fund or class of Shares of a
Participating Fund as specified in Exhibit B, shall be made by agreement
in writing between Insurance Company and each respective Participating
Fund.
18
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: Genworth Life and Annuity Insurance Company
Attn: General Counsel, Securities
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Participating Funds: Name of Participating Fund
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Telephone: 000-000-0000
Fax: 000-000-0000
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement has been executed on behalf of each Participating Fund by
the undersigned officer of the Participating Fund in his capacity as an
officer of the Participating Fund. The obligations of a Participating
Fund under this Agreement shall only be binding upon the assets and
property of such Participating Fund and shall not be binding upon any
director, trustee, officer or shareholder of the Fund individually. It
is agreed that the obligations of the Participating Funds are several
and not joint, that no Participating Fund shall be liable for any amount
owing by another Participating Fund and that the Participating Funds
have executed one instrument for convenience only. This Agreement,
including its Exhibits, constitutes the entire agreement between the
parties with respect to the matters dealt with herein, and supersedes
any previous agreements and documents with respect to such matters.
19
ARTICLE XIV
LAW
14.1 This Agreement shall be construed in accordance with the internal laws
of the State of New York, without giving effect to principles of
conflict of laws.
ARTICLE XV
FOREIGN TAX CREDITS
15.1 Each Participating Fund agrees to consult in advance with Insurance
Company concerning any decision to elect or not to pass through the
benefit of any foreign tax credits to the Participating Fund's
shareholders pursuant to Section 853 of the Code.
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
GENWORTH LIFE AND ANNUITY INSURANCE
COMPANY
By
----------------------------------
Name: Xxxxxxxx X. Stiff
Its: Senior Vice President
Attest:
--------------------------
EACH PARTICIPATING FUND
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Its: Secretary
Attest:
--------------------------
DREYFUS SERVICE CORPORATION
By:
----------------------------------
Name: Xxxx X. Xxxxxx
Its: Chief Financial Officer
Attest:
--------------------------
21
EXHIBIT A
Name of Separate Accounts
Genworth Life & Annuity VL Separate Account 1
Genworth Life & Annuity VA Separate Account 1
Genworth Life & Annuity VA Separate Account 2
22
EXHIBIT B
LIST OF PARTICIPATING FUNDS
Fund Name Share Class
--------- -----------
Dreyfus Variable Investment Fund - Money Market Portfolio
Dreyfus Investment Portfolios - MidCap Stock Portfolio Initial
The Dreyfus Socially Responsible Growth Fund, Inc. Initial
23
