FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 1st day of May, 2002, between Modern
Woodmen of America, a fraternal benefit society organized under the laws of
the State of Illinois (the "Society"), and each of Dreyfus Variable
Investment Fund and The Dreyfus Socially Responsible Growth Fund, Inc. (the
"Fund").
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Directors 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 defined below) 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 variable 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 The "Society's General Account(s)" shall mean the general account(s) of the
Society and its affiliates that invest in Shares (as defined below) of a
Participating Fund.
1.10 "Participating Companies" shall mean any insurance company (including the
Society) 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.
1.11 "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 time by agreement of the parties hereto, the Shares (as defined
below) 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 Fund, relating to its Shares (as defined below), as most
recently filed with the Commission.
1.13 "Separate Accounts" shall mean Modern Woodmen of America Variable Account
and Modern Woodmen of America Variable Annuity Account, separate accounts
established by the Society in accordance with the laws of the State of
Illinois.
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 A 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 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 the Society at no charge.
ARTICLE II
REPRESENTATIONS
2.1 The Society represents and warrants that (a) it is a fraternal benefit
society duly organized and in good standing under applicable law; (b)
it has legally and validly established the Separate Accounts pursuant
to the insurance laws of the State of Illinois 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 registered each Separate Account as a unit investment trust
under the Act to serve as the segregated investment account for the
Contracts; and (d) the Separate Accounts are 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 The Society 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. The Society
agrees to notify each Participating Fund promptly of any investment
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restrictions imposed by state insurance law and applicable to the
Participating Fund.
2.3 The Society represents and warrants that the income, gains and losses,
whether or not realized, from assets allocated to the Separate Accounts
are, in accordance with the applicable Contracts, to be credited to or
charged against such Separate Accounts without regard to other income,
gains or losses from assets allocated to any other accounts of the
Society. The Society represents and warrants that the assets of the
Separate Accounts are and will be kept separate from the Society's
General Account and any other separate accounts the Society may have,
and will not be charged with liabilities from any business that the
Society may conduct or the liabilities of any companies affiliated with
the Society.
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 the Society
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 The Society represents and agrees that the Contracts are currently, and
at the time of issuance will be, treated as life insurance contracts 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. The Society 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 .
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.
2.8 The Society 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.
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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 The Society 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 The Society 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.
2.12 The Society represents and warrants that it meets the available
definitions of an insurance company for the purposes of Section 817(h)
of the Code and the regulations thereunder, and nothing in the
definitions precludes that status simply because Society is not taxed
as an insurance company by virtue of its fraternal activities and lodge
system of organization.
ARTICLE III
FUND SHARES
3.1 The Contracts funded through the Separate Accounts 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 the
Society and the Separate Accounts 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.
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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 the Society 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 the Society. 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, the Society will use the information
described in Sections 3.2 and 3.4 to calculate the unit values of the
Separate Accounts for the day. Using this unit value, the Society 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 the
Society by 11:00 a.m. Eastern time on the Business Day next following
the Society's receipt of that information. Subject to Sections 3.6 and
3.8, all purchase and redemption orders for the Society'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 the Society as its agent for the
limited purpose of accepting orders for the purchase and redemption of
Shares of the Participating Fund for the Separate Accounts. 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 the Society 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. The Society represents and warrants that
all orders submitted by the Society 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.
3.7 The Society will make its best efforts to notify each applicable
Participating Fund in advance of any unusually large purchase or
redemption orders.
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3.8 If the Society's order requests the purchase of Shares of a
Participating Fund, the Society 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. The Society 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, the Society 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 the Society'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 the
Society 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.
3.10 Each Participating Fund will confirm each purchase or redemption order
made by the Society. Transfers of Shares of a Participating Fund will
be by book entry only. No share certificates will be issued to the
Society. The Society will record Shares ordered from a Participating
Fund in an appropriate title for the corresponding account.
3.11 Each Participating Fund shall credit the Society 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 the Society the amount of dividend and capital
gain, if any, per Share. All dividends and capital gains shall be
automatically reinvested in additional Shares of the applicable
Participating Fund at the net asset value per Share on the ex-dividend
date. 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 the Society of the number of Shares so issued.
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ARTICLE IV
STATEMENTS AND REPORTS
4.1 Each Participating Fund shall provide monthly statements of account as of
the end of each month for all of the Society's accounts by the fifteenth
(15th) Business Day of the following month.
4.2 Each Participating Fund shall distribute to the Society copies of the
Participating Fund's Prospectuses, proxy materials, notices, periodic
reports and other printed materials (which the Participating Fund
customarily provides to the holders of its Shares) in quantities as the
Society may reasonably request for distribution to each Contractholder
and Participant. The Society 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 the Society's insurance product at
its own cost. At the Society'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 Society.
4.3 Each Participating Fund will provide to the Society 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 Society pursuant to
this Agreement), contemporaneously with the filing of such document with
the Commission or other regulatory authorities.
4.4 The Society 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 Accounts,
contemporaneously with the filing of such document with the Commission.
4.5 The Society 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 the Society 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
Society 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, 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 provided in Article IV and V, in particular in the next
sentence, the Society shall not be required to pay directly any expenses
of any Participating Fund or expenses relating to the distribution of its
Shares. The Society 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 Society
Contractholders and Participants as Dreyfus and the Society shall
agree from time to time.
b. Distribution expenses of any Participating Fund materials
or marketing materials for prospective Society Contractholders and
Participants.
c. Distribution expenses of any Participating Fund materials
or marketing materials for Society Contractholders and
Participants.
A Participating Fund's principal underwriter may pay the Society, or the
broker-dealer acting as principal underwriter for the Society'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 the Society or the principal underwriter
for the Society's Contracts, as applicable, related to such plan.
Except as provided herein, all other expenses of each Participating Fund
shall not be borne by the Society.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 The Society has reviewed a copy of the order dated February 5, 1998 of
the Commission under Section 6(c) of the Act with respect to Dreyfus
Variable Investment Fund and The Socially Responsible Growth Fund, Inc.,
and, in particular, has reviewed the conditions to the relief set forth
in the Notice. As set forth therein, if Dreyfus Variable Investment Fund
or The Dreyfus Socially
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Responsible Growth Fund, Inc. is a Participating Fund, the Society
agrees, as applicable, to report any potential or existing conflicts
promptly to the Board of Dreyfus Variable Investment Fund or The Dreyfus
Socially Responsible Growth Fund, Inc., 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. The Society 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 the Society is responsible for causing
or creating said conflict, the Society 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 Accounts
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
the Society 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, the
Society may be required, at the Board's election, to withdraw the
investments of the Separate Accounts 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. The Society 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 the Society taken or omitted, and no action by the Separate
Accounts or any Participating Fund taken or omitted as a result of any
act or
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failure to act by the Society pursuant to this Article VI, shall relieve
the Society 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 the Society with copies, at no cost
to the Society, 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 Society pursuant to this Agreement) in such
quantity as the Society shall reasonably require for distributing to
Contractholders or Participants.
The Society shall:
(a) solicit voting instructions from Contractholders or
Participants on a timely basis and in accordance with applicable
law;
(b) vote the Shares of the Participating Fund in accordance
with instructions received from Contractholders or Participants;
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.
The Society agrees at all times to vote Shares held by the Society's
General Account in the same proportion as Shares of the Participating
Fund for which instructions have been received from Contractholders or
Participants. The Society further agrees to be responsible for assuring
that voting the Shares of the Participating Fund for the Separate
Accounts is conducted in a manner consistent with other Participating
Companies.
7.2 The Society 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
8.1 Each Participating Fund or its principal underwriter shall periodically
furnish the Society with the following documents relating to the Shares
of the Participating Fund, in quantities as the Society may reasonably
request:
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a. Current Prospectus and any supplements thereto; and
b. Other marketing materials.
Expenses for the production of such documents shall be borne by the
Society in accordance with Section 5.2 of this Agreement.
8.2 The Society 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 the Society. The Society shall make reasonable efforts
to market the Contracts and shall comply with all applicable federal and
state laws in connection therewith.
8.3 The Society 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 The Society 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
the Society, each piece of the Participating Fund's sales literature or
other promotional material in which the Society or the Separate Accounts
are named, at least fifteen Business Days prior to its use. No such
material shall be used unless the Society approves such material. Such
approval (if given) must be in writing and shall be presumed not given if
not received within ten Business Days after receipt of such material. The
Society shall use all reasonable efforts to respond within ten days of
receipt.
8.6 Each Participating Fund shall not, in connection with the sale of Shares
of the Participating Fund, give any information or make any
representations on behalf of the Society or concerning the Society, the
Separate Accounts, 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
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time, or in published reports for the Separate Accounts that are in the
public domain or approved by the Society for distribution to
Contractholders or Participants, or in sales literature or other
promotional material approved by the Society.
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 The Society agrees to indemnify and hold harmless each Participating
Fund, Dreyfus, each respective Participating Fund's investment adviser
and sub-investment adviser (if applicable), each respective Participating
Fund's distributor, and their respective affiliates, and each of their
directors, trustees, officers, employees, agents and each person, if any,
who controls or is associated with any of the foregoing entities or
persons within the meaning of the 1933 Act (collectively, the
"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 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 the Society
for use in the registration statement or Prospectus or sales literature
or advertisements of the respective Participating Fund or with respect to
the Separate Accounts or Contracts, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading; (ii) arise out of or as a result of conduct, statements
or representations (other than statements or representations contained in
the Prospectus and sales literature or advertisements of the respective
Participating Fund) of the Society or its agents, with respect to
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the sale and distribution of Contracts for which the Shares of the
respective Participating Fund are an underlying investment; (iii) arise
out of the wrongful conduct of the Society or persons under its control
with respect to the sale or distribution of the Contracts or the Shares
of the respective Participating Fund; (iv) arise out of the Society's
incorrect calculation and/or untimely reporting of net purchase or
redemption orders; or (v) arise out of any breach by the Society of a
material term of this Agreement or as a result of any failure by the
Society to provide the services and furnish the materials or to make any
payments provided for in this Agreement. The Society 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 The Society 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 the Society by the respective Participating Fund
specifically for use therein. This indemnity agreement will be in
addition to any liability which the Society may otherwise have.
9.2 Each Participating Fund and The Dreyfus Corporation severally agree to
indemnify and hold harmless the Society and each of its directors,
officers, employees, agents and each person, if any, who controls the
Society within the meaning of the 1933 Act against any losses, claims,
damages or liabilities to which the Society 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) (i) 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; (ii)
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
(iii) 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 Accounts or the Contracts and such statements
were based on information provided to the Society by the respective
Participating Fund; and the respective Participating Fund will reimburse
any legal or other expenses reasonably incurred by the Society 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 the Society specifically for use therein.
13
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 the Society
harmless against any and all liability, loss, damages, costs or expenses
which the Society 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 the Society if the incorrect calculation or
incorrect or untimely reporting was the result of incorrect information
furnished by the Society or information furnished untimely by the Society
or otherwise as a result of or relating to a breach of this Agreement by
the Society.
9.4 Promptly after receipt by an indemnified party under this Article of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Article, notify the indemnifying party of the commencement
thereof. The omission to so notify the indemnifying party will not
relieve the indemnifying party from any liability under this Article IX,
except to the extent that the omission results in a failure of actual
notice to the indemnifying party and such indemnifying party is damaged
solely as a result of the failure to give such notice. In case any such
action is brought against any indemnified party, and it notified the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, assume the defense thereof, with counsel satisfactory to such
indemnified party, and to the extent that the indemnifying party has
given notice to such effect to the indemnified party and is performing
its obligations under this Article, the indemnifying party shall not be
liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, other than
reasonable costs of investigation. Notwithstanding the foregoing, in any
such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. The indemnifying party shall not be liable for any
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.
14
9.5 The Society 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 the
Society's General Account(s) or the account of its affiliates.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions
herein.
10.2 This Agreement shall terminate without penalty:
a. As to any Participating Fund, at the option of the Society 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 the Society;
b. As to any Participating Fund, at the option of the Society, if
Shares of that Participating Fund are not reasonably available to
meet the requirements of the Contracts as determined by the
Society. Prompt notice of election to terminate shall be furnished
by the Society, said termination to be effective ten days after
receipt of notice unless the Participating Fund makes available a
sufficient number of Shares to meet the requirements of the
Contracts within said ten-day period;
c. As to a Participating Fund, at the option of the Society, 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 the Society'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 the Society 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 the
Society 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 the Society's
ability to meet and perform the Society's obligations and duties
hereunder. Prompt notice of election to terminate
15
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 the Society 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 the Society in writing of such determination and its intent
to terminate this Agreement, and after considering the actions
taken by the Society 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 the Society, if the
Society shall determine, in its sole judgment reasonably exercised
in good faith that the Participating Fund, its Investment Adviser
or Distributor 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 the Society or its Separate
Accounts, the Society shall notify the Participating Fund in
writing of such determination and its intent to terminate this
Agreement, and after considering the actions taken by the
Participating Fund, its Investment Adviser or Distributor and any
other changes in circumstances since the giving of such notice,
such determination of the Society 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 the Society specifically approves the
selection of a new Participating Fund investment adviser. Such
Participating Fund shall promptly furnish notice of such
termination to the Society;
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 the Society. Termination shall
be effective immediately as to that Participating Fund only upon
such occurrence without notice;
16
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 the Society of such termination;
j. At the option of a Participating Fund if the Contracts cease to
qualify as annuity contracts or life insurance contracts, as
applicable, under the Code, or if such Participating Fund
reasonably believes that the Contracts may fail to so qualify;
k. At the option of any party to this Agreement, upon another party's
breach of any material provision of this Agreement;
l. At the option of a Participating Fund, if the Contracts are not
registered, issued or sold in accordance with applicable federal
and/or state law; or
m. Upon assignment of this Agreement, unless made with the written
consent of every other non-assigning party.
Any such termination pursuant to Section 10.2a, 10.2d, 10.2e, 10.2f or
10.2k herein shall not affect the operation of Article V of this
Agreement. Any termination of this Agreement shall not affect the
operation of Article IX of this Agreement.
10.3 Notwithstanding any termination of this Agreement pursuant to Section
10.2 hereof, each Participating Fund and Dreyfus may, at the option of
the 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 the Society, 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 the Society 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 the Society may terminate the
Agreement as to that Participating Fund, as so
17
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 the
Society 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 A, shall be made by agreement
in writing between the Society 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:
Society: Modern Woodmen of America
0000 0xx Xxxxxx
Xxxx Xxxxxx, XX 00000
Attn: C. Xxxxxx Xxxxx, General Counsel
and
Modern Woodmen of America
c/o Farm Bureau Life Insurance Company
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Vice President - Investment
Administration
Participating Funds: [Name of Fund]
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
18
with copies to: Stroock & Stroock & Xxxxx LLP
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.
ARTICLE XIII
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.
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 the Society
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.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
MODERN WOODMEN OF AMERICA
LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Its: President
---------------------------
Attest: /s/ X.X. Xxxxxxxxx
-----------------------
DREYFUS VARIABLE INVESTMENT FUND
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Its: Assistant Secretary
----------------------------
Attest: /s/ Xxxxxxxx XxXxxxxxxx
-------------------------
THE DREYFUS SOCIALLY RESPONSIBLE
GROWTH FUND, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Its: Secretary
--------------------------
Attest: /s/ Xxxxxxxx XxXxxxxxxx
-------------------------
20
EXHIBIT A
LIST OF PARTICIPATING FUNDS
FUND NAME SHARE CLASS
--------- -----------
Dreyfus Variable Investment Fund
Appreciation Portfolio Initial Share Class
Disciplined Stock Portfolio Initial Share Class
Growth and Income Portfolio Initial Share Class
Small Cap Portfolio Initial Share Class
International Equity Portfolio Initial Share Class
The Dreyfus Socially Responsible Growth Fund, Inc. Service Share Class
21
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT effective as of the 1st day of May, 2002 by and
between THE DREYFUS CORPORATION ("Dreyfus"), a New York corporation and
MODERN WOODMEN OF AMERICA ("Client"), an Illinois fraternal benefit society.
WITNESSETH:
WHEREAS, each of the investment companies listed on Schedule A hereto, as such
Schedule may be amended from time to time (collectively the "Dreyfus Funds,"
each a "Fund"), are investment companies registered under the Investment Company
Act of 1940, as amended (the "Act"); and
WHEREAS, Client has entered into a Fund Participation Agreement (the
"Participation Agreement") with each of the Dreyfus Funds listed on Schedule A
hereto; and
WHEREAS, Dreyfus provides investment advisory and/or administrative services to
the Dreyfus Funds; and
WHEREAS, Dreyfus Services Corporation ("DSC") is the distributor for the Dreyfus
Funds; and
WHEREAS, the parties hereto have agreed to arrange separately for the
performance of sub-accounting services for those owners of Client's variable
life or variable annuity contracts ("Client Customers") which allocate their
investments to subaccounts that correspond with the Client's purchase of shares
of the Dreyfus Funds; and
WHEREAS, Dreyfus desires Client to perform such services and Client is willing
and able to furnish such services on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, each party hereto severally agrees as follows:
1. Client agrees to perform the administrative services specified in Exhibit A
hereto (the "Administrative Services") for the benefit of the Client Customers
who allocate their investments to subaccounts of variable life and/or annuity
contracts that correspond with the certain Dreyfus Funds. Client will purchase
Dreyfus Fund shares for such subaccounts of the separate accounts that fund
certain variable annuity and/or variable life contracts. The shares will be held
in these separate accounts and each such separate account will be referred to as
a "Master Account."
2. Client represents and agrees that it will maintain and preserve all records
as required by law to be maintained and preserved in connection with providing
the Administrative Services, and will otherwise comply with all laws, rules and
regulations applicable to the Administrative Services. Upon the request of
Dreyfus or its representatives, Client shall provide copies (at Dreyfus's
expense) of all the historical records relating to transactions by Client
Customers in the subaccounts
which correspond with shares of the Dreyfus Funds purchased through the Master
Account, and written communications regarding the Fund(s) to or from such Client
Customers and other materials, in each case as may reasonably be requested to
enable Dreyfus or its representatives, including without limitation its
auditors, legal counsel or distributor, to monitor and review the Administrative
Services, or to comply with any request of the board of directors, or trustees
or general partners (collectively, the "Directors") of any Fund or of a
governmental body, self-regulatory organization or a shareholder. Client agrees
that it will permit Dreyfus, the Dreyfus Funds or their representatives to have
reasonable access to its personnel and records in order to facilitate the
monitoring of the quality of the services.
3. Client may, with the consent of Dreyfus, contract with or establish
relationships with other parties for the provision of the Administrative
Services or other activities of Client required by the Agreement, provided that
Client shall be fully responsible for the acts and omissions of such other
parties.
4. Client hereby agrees to notify Dreyfus promptly if for any reason it is
unable to perform fully and promptly any of its obligations under this
Agreement.
5. Client represents and warrants that it will only purchase shares of the
Dreyfus Funds for the purpose of funding the subaccounts of its separate
accounts. Client represents and warrants that it will not vote such Dreyfus Fund
shares registered in its name or the name of its separate accounts on its own
behalf (so long as the SEC requires pass-through voting.) Client further
represents that it is not registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended (the "1934 Act") or any applicable state
securities laws nor as a transfer agent under the 1934 Act nor is it required to
be so registered to enter into or perform the Administrative Services
contemplated under this Agreement.
6. The provisions of the Agreement shall in no way limit the authority of
Dreyfus, or any Dreyfus Fund or DSC to take such action as any of such parties
may deem appropriate or advisable in connection with all matters relating to the
operations of any of such Funds and/or sale of its shares.
7. In consideration of the performance of the Administrative Services by Client,
Dreyfus agrees to pay Client a monthly fee at an annual rate which shall equal
the percentage value, as set forth in Exhibit A, of each Fund's average daily
net assets maintained in the Master Account for Client Customers. Payment shall
be made within 30 days following the end of each month.
8. Client shall indemnify and hold harmless the Dreyfus Funds, Dreyfus, DSC, and
each of their respective officers, directors, employees and agents from and
against any and all losses, claims, damages, expenses, or liabilities that any
one or more of them may incur, including without limitation reasonable
attorneys' fees, willful malfeasance or negligence in the performance of the
Client's duties or by reason of the Client's failure to fulfill its obligations
under this Agreement, provided that such failure is not the result of any action
by the Dreyfus Funds, Dreyfus or DSC. Client shall not be liable under this
indemnification provision with respect to any losses incurred or assessed
against Client as such may arise from the Dreyfus Funds, Dreyfus or DSC's
willful malfeasance or negligence.
2
9. This Agreement may be terminated without penalty at any time by Client or by
Dreyfus as to all of the Dreyfus Funds collectively, upon 90 days written notice
to the other party. The provisions of paragraph 2 and paragraph 8 shall continue
in full force and effect after termination of this Agreement. Notwithstanding
the foregoing, this Agreement shall not require Client to preserve any records
(in any medium or format) relating to this Agreement beyond the time periods
otherwise required by the laws to which Client or the Dreyfus Funds are subject
provided that such records shall be offered to the Dreyfus Funds in the event
Client decides to no longer preserve such records following such time periods.
10. After the date of any termination of this Agreement in accordance with
paragraph 9, no fee will be due with respect to any amounts first placed in the
Master Account for Client Customers after the date of such termination. However,
notwithstanding any such termination, Dreyfus will remain obligated to pay
Client the fee specified in paragraph 7 with respect to the value of each Fund's
average daily net assets maintained in the Master Account as of the date of such
termination, for so long as such amounts are held in the Master Account and
Client continues to provide the Administrative Services with respect to such
amounts in conformity with this Agreement. This Agreement, or any provision
hereof, shall survive termination to the extent necessary for each party to
perform its obligations with respect to amounts for which a fee continues to be
due subsequent to such termination.
11. Any notice provided under this agreement shall be sufficiently given when
sent by registered or certified mail to the other party at the address of
that other party set forth below or at such other address as the other
party, may from time to time specify in writing.
If to Dreyfus:
(Name of Fund)
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
With copies to:
Strook, Strook & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx, Esq
Xxxxxx X. Xxxxxxx, Esq.
If to the Society:
Modern Woodmen of America
0000 0xx Xxxxxx
0
Xxxx Xxxxxx, XX 00000
Attn: C. Xxxxxx Xxxxx, General Counsel
and
Modern Woodmen of America
c/o Farm Bureau Life Insurance Company
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Vice President - Investment Administration
12. Dreyfus may add to the Dreyfus Funds any other investment company for which
Dreyfus serves as investment adviser or administrator by giving written notice
to Client that it has elected to do so.
13. Client understands and agrees that the obligations of Dreyfus under this
Agreement are not binding upon any of the Dreyfus Funds, upon any of their Board
members or upon any shareholder of any of the Funds.
14. It is understood and agreed that in performing the services under this
Agreement Client, acting in its capacity described herein, shall at no time be
acting as an agent for Dreyfus or DSC or any of the Dreyfus Funds. Client
agrees, and agrees to cause its agents, not to make any representations
concerning a Fund except those contained in the Fund's then-current prospectus
or in current sales literature furnished by the Fund, Dreyfus or DSC to Client.
15. This Agreement, including the provisions set forth herein in paragraph 7,
may only be amended pursuant to a written instrument signed by the party to be
charged. This Agreement may not be assigned by a party hereto, by operation of
law or otherwise, without the prior, written consent of the other party.
16. This Agreement shall be governed by the laws of the State of New York,
without giving effect to the principles of conflicts of law of such
jurisdiction.
17. This Agreement, including its Exhibit and Schedule, 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.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
MODERN WOODMEN OF AMERICA
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Authorized Signatory
Xxxxx X. Xxxxxxx, President
4
Print or Type Name
THE DREYFUS CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
---------------------------
Authorized Signatory
Xxxxxxx Xxxxxxx, Controller
------------------------------
Print or Type Name
5
SCHEDULE A
FUND NAME FEE AT AN ANNUAL RATE AS A
PERCENTAGE OF THE AVERAGE DAILY
NET ASSET VALUE OF EACH FUND (HELD ON
BEHALF OF CLIENT CUSTOMERS)
Dreyfus Variable Investment Fund
Appreciation Portfolio - Initial Shares *
Disciplined Stock Portfolio - Initial Shares *
International Equity Portfolio - Initial Shares *
Growth and Income Portfolio - Initial Shares *
Small Cap Portfolio - Initial Shares *
* .15% of average daily net assets up to $50 million
* .20% of average daily net assets from $50 million up to $150 million
* .25% of average daily net assets of $150 million and greater
EXHIBIT A
Pursuant to the Agreement by and among the parties hereto, Client shall perform
the following Administrative Services:
1. Maintain separate records for each Client Customer, which records shall
reflect units purchased and redeemed and unit values of the investment divisions
which correspond with shares of the Dreyfus Funds purchased by Client's separate
account. Client shall also maintain records of the Client's separate account
which reflect the total shares purchased and redeemed and the Client's separate
account's share balance. Client shall maintain the Master Account with the
transfer agent of the Fund on behalf of the Client's separate account and such
Master Account shall be in the name of Client or the separate account as the
record owner of the shares.
2. For each Fund, disburse or credit to Client Customers all proceeds of
redemptions of shares of the Fund and all dividends and other distributions not
reinvested in shares of the Funds.
3. Prepare and transmit to Client Customers periodic account statements showing
the total number of units owned by the Customer as of the statement closing
date, purchases and redemptions of Fund shares by the Customer during the period
covered by the statement, and the dividends and other distributions paid to the
Customer during the statement period (whether paid in cash or reinvested in Fund
shares).
4. Transmit to Client Customers proxy materials and reports and other
information received by Client from any of the Funds and required to be sent to
shareholders under the federal securities laws and, upon request of the Fund's
transfer agent, transmit to Client Customers material fund communications deemed
by the Fund, through its Board of Directors or other similar governing body, to
be necessary and proper for receipt by all fund beneficial shareholders.
5. Transmit to the Fund's transfer agent purchase and redemption orders on
behalf of Client Customers.
[MODERN WOODMEN OF AMERICA LETTERHEAD]
April 16, 2002
Dreyfus Service Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We wish to enter into an Agreement with you with respect to our providing
distribution, advertising and marketing assistance and shareholder services
relating to the Service shares of each series of the management investment
companies (each a "Fund") set forth on Schedule A hereto, as such Schedule may
be revised from time to time, or if no series are set forth on such Schedule,
the Fund, for which you are the principal underwriter as defined in the
Investment Company Act of 1940, as amended (the "Act"), and the exclusive agent
for the continuous distribution of shares of the Funds pursuant to the terms of
a Distribution Agreement between you and the Fund.
The terms and conditions of this Agreement are as follows:
1. We agree to provide distribution, advertising and marketing assistance
relating to the Service shares of the Funds and shareholder services
for the benefit of owners of variable annuity contracts and variable
life insurance contracts (together, "variable insurance products") we
issue through our separate accounts that invest in the Service shares
of the Funds ("owners"), which separate accounts are set forth on
Schedule B hereto, as such Schedule may be revised from time to time.
Such services may include, without limitation: answering owner
inquiries about the Funds; establishing information interfaces and
websites and internal systems for Service shares; providing assistance
and support with regard to the training of owner relationship personnel
and sales agents; providing statements and/or reports showing tax,
performance, owner account and other information relating to Service
shares; providing portfolio manager commentaries to owners and other
interested parties; and providing such other information and services
as you reasonably may request, to the extent we are permitted by
applicable statute, rule or regulation. If we are restricted or unable
to provide the services contemplated above, we agree not to perform
such services and not to accept fees thereafter. Our acceptance of any
fees hereunder shall constitute our representation (which shall survive
any payment of such fees and any termination of this Agreement and
shall be reaffirmed each time we accept a fee hereunder) that our
receipt of such fee is lawful.
2. We shall provide such office space and equipment, telephone facilities
and personnel as is necessary or beneficial for providing the services
described in Paragraph 1 of this Agreement.
3. We agree that neither we nor any of our employees or agents are
authorized to make any representation concerning any Fund, except those
contained in the then current
Prospectus furnished to us by you or the Fund, or in such supplemental
literature or advertising materials as may be authorized by you in
writing.
4. We acknowledge that this Agreement is an agreement entered into
pursuant to the Fund's Distribution Plan adopted pursuant to Rule 12b-1
under the Act, and shall become effective for a Fund only when approved
by a vote of a majority of (i) the Fund's Board of Directors or
Trustees, as the case may be (collectively "Directors," individually
"Director"), and (ii) Directors who are not "interested persons" (as
defined in the Act) of the Fund and have no direct or indirect
financial interest in this Agreement, cast in person at a meeting
called for the purpose of voting on such approval.
5. As to each Fund, this Agreement shall continue until the last day of
the calendar year next following the date of execution, and thereafter
shall continue automatically for successive annual periods ending on
the last day of each calendar year, providing such continuance is
approved specifically at least annually by a vote of a majority of (i)
the Fund's Directors and (ii) Directors who are not "interested
persons" (as defined in the Act) of the Fund and have no direct or
indirect financial interest in this Agreement, by vote cast in person
at a meeting called for the purpose of voting on such approval.
6. (a) As to each Fund, this Agreement is terminable without penalty, at
any time, by vote of a majority of the Fund's Directors who are not
"interested persons" (as defined in the Act) and have no direct or
indirect financial interest in this Agreement or, upon not more than 60
days' written notice, by vote of holders of a majority of the Fund's
outstanding Service shares. As to each Fund, this Agreement is
terminable without penalty upon 15 days' notice by either party. In
addition, you may terminate this Agreement as to any or all Funds
immediately, without penalty, if the present investment adviser of such
Fund(s) ceases to serve the Fund(s) in such capacity, or if you cease
to act as distributor of such Fund(s). Notwithstanding anything
contained herein, if the Distribution Plan adopted by the Fund is
terminated by the Fund's Board, or the Distribution Plan, or any part
thereof, is found invalid or is ordered terminated by any regulatory or
judicial authority, or we fail to perform the distribution,
advertising, marketing and shareholder servicing functions contemplated
herein as to any or all of the Funds, this Agreement shall be
terminable effective upon receipt of notice thereof by us. This
Agreement also shall terminate automatically, as to the relevant Fund,
in the event of its assignment (as defined in the Act).
(b) This Agreement shall become effective only when accepted and signed
by you and when the conditions in Paragraph 4 of this Agreement are
satisfied. This Agreement may be amended by you upon 15 days' prior
notice to us, and such amendment shall be deemed accepted by us upon
the acceptance of a fee payable under this Agreement after the
effective date of any such amendment. This Agreement constitutes the
entire agreement and understanding between the parties hereto relating
to the subject matter hereof and supersedes any and all prior
agreements between the parties hereto relating to the subject matter
hereof.
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7. In consideration of the services and facilities described herein, we
shall be entitled to receive from you, and you agree to pay us with
respect to each Fund, the fees set forth opposite the Fund's name on
Schedule A hereto. We understand that any payments pursuant to this
Agreement shall be paid only so long as this Agreement, the Plan and
the Fund's participation agreement with us are in effect. We agree that
no Director, officer or shareholder of the Fund shall be liable
individually for the performance of the obligations hereunder or for
any such payments.
8. Each party hereby represents and warrants to the other party that: (a)
it is a corporation, partnership or other entity duly organized and
validly existing in good standing under the laws of the jurisdiction in
which it was organized; (b) it will comply with all applicable federal
and state laws, and the rules, regulations, requirements and conditions
of all applicable regulatory and self-regulatory agencies or
authorities in the performance of its duties and responsibilities
hereunder; (c) the execution and delivery of this Agreement and the
performance of the transactions contemplated hereby have been duly
authorized by all necessary action, and all other authorizations and
approvals (if any) required for its lawful execution and delivery of
this Agreement and its performance hereunder have been obtained; and
(d) upon execution and delivery by it, and assuming due and valid
execution and delivery by the other party, this Agreement will
constitute a valid and binding agreement, enforceable in accordance
with its terms.
9. We represent and warrant that the services we agree to render under
this Agreement are not services for which we deduct fees and charges
under the variable insurance products investing in the Service shares
or for which we are paid compensation pursuant to another arrangement.
10. We agree to provide to you and each applicable Fund such information
relating to our services hereunder as may be required to be maintained
by you and/or such Fund under applicable federal or state laws, and the
rules, regulations, requirements or conditions of applicable regulatory
and self-regulatory agencies or authorities.
11. (a) We agree to indemnify and hold harmless you and your officers and
directors, and each Fund and its Directors and any person who controls
you and/or the Fund within the meaning of Section 15 of the Securities
Act of 1933, as amended, from any and all loss, liability and expense
resulting from our gross negligence or willful wrongful acts under this
Agreement, except to the extent such loss, liability or expense is the
result of your willful misfeasance, bad faith or gross negligence in
the performance of your duties, or by reason of the reckless disregard
of your obligations and duties under this Agreement.
(b) You agree to indemnify and hold us and our officers and directors
harmless from any and all loss, liability and expense resulting from
your gross negligence or willful wrongful acts under this Agreement,
except to the extent such loss, liability or expense is the result of
our willful misfeasance, bad faith or gross negligence in the
performance of our duties, or by reason of our reckless disregard of
our obligations and duties under this Agreement.
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12. Neither this Agreement nor the performance of the services of the
respective parties hereunder shall be considered to constitute an
exclusive arrangement, or to create a partnership, association or joint
venture between you and us. Neither party hereto shall be, act as, or
represent itself as, the agent or representative of the other, nor
shall either party have the right or authority to assume, create or
incur any liability, or any obligation of any kind, express or implied,
against or in the name of, or on behalf of, the other party.
13. All notices required or permitted to be given pursuant to this
Agreement shall be given in writing and delivered by personal delivery
or by postage prepaid, registered or certified United States first
class mail, return receipt requested, or by telecopier, telex, telegram
or similar means of same day delivery (with a confirming copy by mail
as provided herein). Unless otherwise notified in writing, all notices
to you shall be given or sent to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: General Counsel, and all notices to us shall be
given or sent to us at our address, which shall be furnished to you in
writing on or before the effective date of this Agreement.
14. This Agreement shall be governed and construed in accordance with the
internal laws of the State of New York, without giving effect to the
principles of conflict of laws.
Very truly yours,
MODERN WOODMEN OF AMERICA
0000 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Title: Xxxxx X. Xxxxxxx
President
Date:
NOTE: Please sign and return both copies of this Agreement to Dreyfus Service
Corporation. Upon acceptance, one countersigned copy will be returned to you for
your files.
Accepted: DREYFUS SERVICE CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Date:
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SCHEDULE A
FEE AT AN ANNUAL RATE AS A
PERCENTAGE OF AVERAGE DAILY NET
ASSET VALUE OF SERVICE SHARES HELD
FUND AND PORTFOLIO NAME ON BEHALF OF OWNERS(1)
----------------------- -------------------------
The Dreyfus Socially Responsible Growth .25%
Fund, Inc.
--------
(1) For purposes of determining the fee payable hereunder, the average daily net
asset value of the Fund's Service shares shall be computed in the manner
specified in the Fund's charter documents and then-current Prospectus and
Statement of Additional Information.
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SCHEDULE B
Name of Separate Account
Modern Woodmen of America Variable Account
Modern Woodmen of America Variable Annuity Account
6
