EXHIBIT (8)(l) FUND PARTICIPATION AGREEMENT
EXHIBIT (8)(l)
This Agreement is entered into as of the day of
1998, between SUN LIFE OF CANADA (U.S.), DELAWARE, a life
insurance company organized under the laws of the State of
Delaware ("Insurance Company"), and each of DREYFUS VARIABLE
INVESTMENT FUND, THE DREYFUS SOCIALLY RESPONSIBLE GROWTH FUND,
INC. and DREYFUS LIFE AND ANNUITY INDEX FUND, INC. (d/b/a DREYFUS
STOCK INDEX FUND) (each a "Fund").
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as
amended.
1.2 "Board" shall mean the Board of Directors.or Trustees, as the case
may be, of a Fund, which has the responsibility for management and
control of the Fund.
1.3 "Business Day" shall mean any day for which a Fund calculates
net asset value per share as described in the Fund's
Prospectus.
1.4 "Commission" shall mean the Securities and Exchange
Commission.
1.5 "Contract" shall mean a variable annuity or life insurance contract
that uses any Participating Fund (as defined below) as an
underlying investment medium. Individuals who participate under a
group Contract are "Participants."
1.6 "Contractholder" shall mean any entity that is a party to a
Contract with a Participating Company (as defined below).
1.7 "Disinterested Board Members" shall mean those members of the
Board of a Fund that are not deemed to be "interested persons"
of the Fund, as defined by the Act.
1.8 "Dreyfus" shall mean The Dreyfus Corporation and its
affiliates, including Dreyfus Service Corporation.
1.9 "Participating Companies" shall mean any insurance company
(including Insurance Company) that offers variable annuity and/or
variable life insurance contracts to the public and that has
entered into an agreement with one or more of the Funds.
1.10 "Participating Fund" shall mean each Fund, including, as
applicable, any series thereof, specified in Exhibit A, as such
Exhibit may be amended from time to time by agreement of the
parties hereto, the shares of which are available to
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serve as the underlying investment medium for the aforesaid
Contracts.
1.11 "Prospectus" shall mean the current prospectus and statement of
additional information of a Fund, as most recently filed with the
Commission.
1.12 "Separate Account" shall mean Separate Account G, a separate
account established by Insurance Company in accordance with the
laws of the State of Delaware.
1.13 "Software Program" shall mean the software program used by a Fund
for providing Fund and account balance information including net
asset value per share. Such Program may include the Lion System. In
situations where the Lion System or any other Software Program used
by a Fund is not available, such information may be provided by
telephone. The Lion System shall be provided to Insurance Company
at no charge.
1.14 "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates that invest in
a Fund.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an
insurance company duly organized and in good standing under
applicable law; (b) it has legally and validly established the
Separate Account pursuant to the Delaware Insurance Code for the
purpose of offering to the public certain individual and group
variable annuity and life insurance contracts; (c) it has
registered the Separate Account as a unit investment trust under
the Act to serve as the segregated investment account for the
Contracts; and (d) the Separate Account is eligible to invest in
shares of each Participating Fund without such investment
disqualifying any Participating Fund as an investment medium for
insurance company separate accounts supporting variable annuity
contracts or variable life insurance contracts.
2.2 Insurance Company represents and warrants that (a) the Contracts
will be described in a registration statement filed under the
Securities Act of 1933, as amended (111933 Act"); (b) the
Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws; and (c) the
sale of the Contracts shall comply in all material respects with
state insurance law requirements. Insurance Company agrees to
notify each Participating Fund promptly of any investment
restrictions imposed by state insurance law and applicable to the
Participating Fund.
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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 he so treated in the future.
Insurance Company agrees that any prospectus offering a Contract
that is a 11modified endowment contract," as that term is defined
in Section 7702A of the Code, will identify such Contract as a
modified endowment contract (or policy).
2.7 Each Participating Fund agrees that its assets shall be managed
and invested in a manner that complies with the requirements of
Section 817(h) of the Code. Each Participating Fund agrees to
notify Insurance Company promptly upon having a reasonable basis
for believing that the Participating Fund has ceased to so comply,
or that the Participating Fund might not so comply in the future.
In
40485484.002 -3
the event of a breach of this Section 2.7 by a Participating Fund,
the Participating Fund shall take all reasonable steps to comply
with the diversification requirements of Section 817(h) within the
grace period specified under Section 8i7(h) of the Code.
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 he maintained by the
Participating Fund. The aforesaid Bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding
company.
2.11 Insurance Company agrees that Dreyfus shall be deemed a third party
beneficiary under this Agreement and may enforce any and all rights
conferred by virtue of this Agreement.
ARTICLE III
FUND SHARES
3.1 The Contracts funded through the Separate Account will provide
for the investment of certain amounts in shares of each
Participating Fund.
3.2 Each Participating Fund agrees to make its shares available for
purchase at the then applicable net asset value per share by
Insurance Company and the Separate Account on each Business Day
pursuant to rules of the Commission. Notwithstanding the foregoing,
each Participating Fund may refuse to sell its shares to any
person, or suspend or terminate the offering of its shares, if such
action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of its Board, acting in
good faith and in light of its fiduciary duties under federal and
any applicable state laws, necessary and
40485484.002 4
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 (h) "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 he 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 each Participating Fund's shares
that will be purchased or redeemed at that day's closing net asset
value per share. The net purchase or redemption orders will be
transmitted to each Participating Fund by Insurance Company by
11:00 a.m. Eastern time on the Business Day next following
Insurance Company's receipt of that information. Subject to
Sections 3.6 and 3.8, all purchase and redemption orders for
Insurance Company's General Accounts shall be effected at the net
asset value per share of each Participating Fund next calculated
after receipt of the order by the Participating Fund or its
Transfer Agent.
3.6 Each Participating Fund appoints Insurance Company as its agent for
the limited purpose of accepting orders for the purchase and
redemption of Participating Fund shares for the Separate Account.
Each Participating Fund will execute orders at the applicable net
asset value per share determined as of the close of trading on the
day of receipt of such orders by Insurance Company acting as agent
("effective trade date"), provided that the Participating Fund
receives notice of such orders by 11:00 a.m. Eastern time on the
next following Business Day and, if such orders request the
purchase of Participating Fund shares, the conditions specified in
Section 3.8, as applicable, are satisfied. A redemption or purchase
request that does not satisfy the conditions specified above and in
Section 3.8,
40485484.002 5
as applicable, will be effected at the net asset value per share
computed on the Business Day immediately preceding the next
following Business Day upon which such conditions have been
satisfied in accordance with the requirements of this Section and
Section 3.8. Insurance Company represents and warrants that all orders
submitted by the Insurance Company for execution on the effective
trade date shall represent purchase or redemption orders received
from Contractholders prior to the close of trading on the New York
Stock Exchange on the effective trade date.
3.7 Insurance Company will make its best efforts to notify each
applicable Participating Fund in advance of any unusually large
purchase or redemption orders.
3.8 If Insurance Company's order requests the purchase of a
Participating Fund's shares, Insurance Company will pay for such
purchases by wiring Federal Funds to the Participating Fund or its
designated custodial account on the day the order is transmitted.
Insurance Company shall make all reasonable efforts to transmit to
the applicable Participating Fund payment in Federal Funds by 12:00
noon Eastern time on the Business Day the Participating Fund
receives the notice of the order pursuant to Section 3.5. Each
applicable Participating Fund will execute such orders at the
applicable net asset value per share determined as of the close of
trading on the effective trade date if the Participating Fund
receives payment in Federal Funds by 12:00 midnight Eastern time on
the Business Day the Participating Fund receives the notice of the
order pursuant to Section 3.5. If payment in Federal Funds for any
purchase is not received or is received by a Participating Fund
after 12:00 noon Eastern time on such Business Day, Insurance
Company shall promptly, upon each applicable Participating Fund's
request, reimburse the respective Participating Fund for any
charges, costs, fees, interest or other expenses incurred by the
Participating Fund in connection with any advances to, or
borrowings or overdrafts by, the Participating Fund, or any similar
expenses incurred by the Participating Fund, as a result of
portfolio transactions effected by the Participating Fund based
upon such purchase request. If Insurance Company's order requests
the redemption of any Participating Fund's shares valued at or
greater than $1 million dollars, the Participating Fund will wire
such amount to Insurance Company within seven days of the order.
3.9 Each Participating Fund has the obligation to ensure that its
shares are registered with applicable federal agencies at all
times.
3.10 Each Participating Fund will confirm each purchase or redemption
order made by Insurance Company. Transfer of Participating Fund
shares will be by book entry only. No
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share certificates will be issued to Insurance Company.
Insurance Company will record shares ordered from a
Participating Fund in an appropriate title for the
corresponding account.
3.11 Each Participating Fund shall credit Insurance Company with the
appropriate number of shares.
3.12 On each ex-dividend date of a Participating Fund or, if not a
Business Day, on the first Business Day thereafter, each
Participating Fund shall communicate to Insurance Company the
amount of dividend and capital gain, if any, per share. All
dividends and capital gains shall he 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.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 Each Participating Fund shall provide monthly statements of
account as of the end of each month for all of Insurance Company's
accounts by the fifteenth (15th) Business Day of the following
month.
4.2 Each Participating Fund shall distribute to Insurance Company
copies of the Participating Fund's Prospectuses, proxy materials,
notices, periodic reports and other printed materials (which the
Participating Fund customarily provides to its shareholders) in
quantities as Insurance Company may reasonably request for
distribution to each Contractholder and Participant. Each
Participating Fund shall provide Insurance Company with as many
printed copies of the Participating Fund's current Prospectus as
Insurance Company may reasonably request. If requested by Insurance
Company, each Participating Fund shall.provide camera-ready film or
a computer diskette containing the Participating Fund's Prospectus
and such other assistance as is reasonably necessary in order for
Insurance Company, as often as is legally required, to have the
Participating Fund's Prospectus printed. All expenses of printing
and distributing each Participating Fund's Prospectus shall be that
of Insurance Company except that the Participating Fund shall bear
the cost of printing copies of its Prospectus to the extent the
Prospectus is updated in compliance with the 1933 Act and the Act.
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
40485484.002 7
exemptions, requests for no-action letters, and all amendments to
any of the above, that relate to the Participating Fund or its
shares, contemporaneously with the filing of such document with the
Commission or other regulatory authorities.
4.4 Insurance Company will provide to each Participating Fund at least
one copy of all registration statements, Prospectuses, reports,
proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and
all amendments to any of the above, that relate to the Contracts or
the Separate Account, contemporaneously with the filing of such
document with the Commission.
ARTICLE V
EXPENSES
5.1 The charge to each Participating Fund for all expenses and costs of
the Participating Fund, including but not limited to management
fees, administrative expenses and legal and regulatory costs, will
be made in the determination of the Participating Fund's daily net
asset value per share so as to accumulate to an annual charge at
the rate set forth in the Participating Fund's Prospectus. Excluded
from the expense limitation described herein shall be brokerage
commissions and transaction fees and extraordinary expenses.
5.2 Except as provided in this Article V and, in particular in the next
sentence, Insurance Company shall not be required to pay directly
any expenses of any Participating Fund or expenses relating to the
distribution of its shares. Insurance Company shall pay the
following expenses or costs:
a. Such amount of the production expenses of any Participating
Fund materials, including the cost of printing a
Participating Fund's Prospectus, or marketing materials for
prospective Insurance Company Contractholders and
Participants as Dreyfus and Insurance Company shall agree
from time to time.
b. Distribution expenses of any Participating Fund materials
or marketing materials for prospective Insurance Company
Contractholders and Participants.
C. Distribution expenses of any Participating Fund materials or
marketing materials for Insurance Company Contractholders and
Participants.
Except as provided herein, all other expenses of each
Participating Fund shall not be borne by Insurance Company.
40485484.002 8
ARTICLE VI
EXEMPTIVE RELIEF
6.1 Insurance Company has reviewed a copy of W the amended order dated
December 31, 1997 of the Securities and Exchange Commission under
Section 6(c) of the Act with respect to Dreyfus Variable Investment
Fund and Dreyfus Life and Annuity Index Fund, Inc.; and (ii) the
order dated February 5, 1998 of the Securities and Exchange
Commission under Section 6(c) of the Act with respect to The
Dreyfus Socially Responsible Growth Fund, Inc., and, in particular,
has reviewed the conditions to the relief set forth in each related
Notice. As set forth therein, if Dreyfus Variable Investment Fund,
Dreyfus Life and Annuity Index Fund, Inc. or The Dreyfus Socially
Responsible Growth Fund, Inc. is a Participating Fund, Insurance
Company agrees, as applicable, to report any potential or existing
conflicts promptly to the respective Board of Dreyfus Variable
Investment Fund, Dreyfus Life and Annuity Index Fund, Inc. and/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 each
applicable Board in carrying out its responsibilities under such
application. Insurance Company agrees to carry out such
responsibilities with a view to the interests of existing
Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict exists
with regard to Contractholder investments in a Participating Fund,
the Board shall give prompt notice to all Participating Companies
and any other Participating Fund. If the Board determines that
Insurance Company is responsible for causing or creating said
conflict, Insurance Company shall at its sole cost and expense, and
to the extent reasonably practicable (as determined by a majority
of the Disinterested Board Members), take such action as is
necessary to remedy or eliminate the irreconcilable material
conflict. Such necessary action may include, but shall not be
limited to:
a. Withdrawing the assets allocable to the Separate Account
from the Participating Fund and reinvesting such assets
in another Participating Fund (if applicable) or a
different investment medium, or submitting the question
of whether such segregation should be implemented to a
vote of all affected Contractholders; and/or
b. Establishing a new registered management investment
company.
40485484.002 9
6.3 If a material irreconcilable conflict arises as a result of a
decision by Insurance Company to disregard Contractholder voting
instructions and said decision represents a minority position or
would preclude a majority vote by all Contractholders having an
interest in a Participating Fund, Insurance Company may be
required, at the Board's election, to withdraw the investments of
the Separate Account in that Participating Fund.
6.4 For the purpose of this Article, a majority of the Disinterested
Board Members shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict, but in no
event will any Participating Fund be required to bear the expense
of establishing a new funding medium for any Contract. Insurance
Company shall not be required by this Article to establish a new
funding medium for any Contract if an offer to do so has been
declined by vote of a majority of the Contractholders materially
adversely affected by the irreconcilable material conflict.
6.5 No action by Insurance Company taken or omitted, and no action by
the Separate Account or any Participating Fund taken or omitted as
a result of any act or failure to act by Insurance Company pursuant
to this Article VI, shall relieve Insurance Company of its
obligations under, or otherwise affect the operation of, Article V.
ARTICLE VII
VOTING OF PARTICIPATING FUND SHARES
7.1 Each Participating Fund shall provide Insurance Company with
copies, at no cost to Insurance Company, of the Participating
Fund's proxy material, reports to shareholders and other
communications to shareholders in such quantity as Insurance
Company shall reasonably require for distributing to
Contractholders or Participants.
Insurance Company shall:
(a) solicit voting instructions from Contractholders or
Participants on a timely basis and in accordance with
applicable law;
(b) vote the Participating Fund shares in accordance with
instructions received from Contractholders or Participants;
and
(c) vote the Participating Fund shares for which no instructions
have been received in the same proportion as Participating
Fund shares for which instructions have been received.
40485484.002 -10-
Insurance Company agrees at all times to vote its General
Account shares in the same proportion as the Participating
Fund shares for which instructions have been received from
Contractholders or Participants. Insurance Company further
agrees to be responsible for assuring that voting the
Participating Fund shares for the Separate Account is
conducted in a manner consistent with other Participating
Companies.
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 Ccntractholders 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 underwriter shall periodically
furnish Insurance Company with the following documents, in
quantities as Insurance Company may reasonably request:
a. Current Prospectus and any supplements thereto; and
b. Other marketing materials.
Expenses for the production of such documents shall be borne by
Insurance Company in accordance with Section 5.2 of this Agreement.
8.2 Insurance Company shall designate certain persons or entities that
shall have the requisite licenses to solicit applications for the
sale of Contracts. No representation is made as to the number or
amount of Contracts that are to be sold by Insurance Company..
Insurance Company shall make reasonable efforts to market the
Contracts and shall comply with all applicable federal and state
laws in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to
each applicable Participating Fund or its designee, each piece of
sales literature or other promotional material in which the
Participating Fund, its investment adviser or the administrator is
named, at least fifteen Business Days prior to its use. No such
material shall be used unless the Participating Fund or its
designee approves such material. Such approval (if given) must be
in writing and shall he presumed not given if not received
40485484.002 11
within ten Business Days after receipt of such material. Each
applicable Participating Fund or its designee, as the case may
be, shall use all reasonable efforts to respond within ten days
of receipt.
8.4 Insurance Company shall not give any information or make any
representations or statements on behalf of a Participating Fund or
concerning a Participating Fund in connection with the sale of the
Contracts other than the information or representations contained
in the registration statement or Prospectus of, as may be amended
or supplemented from time to time, or in reports or proxy
statements for, the applicable Participating Fund, or in sales
literature or other promotional material approved by the applicable
Participating Fund.
8.5 Each Participating Fund shall furnish, or shall cause to be
furnished, to Insurance Company, each piece of the Participating
Fund's sales literature or other promotional material in which
Insurance Company or the Separate Account is named, at least
fifteen Business Days prior to its use. No such material shall be
used unless Insurance Company approves such material. Such approval
(if given) must be in writing and shall be presumed not given if
not received within ten Business Days after receipt of such
material. Insurance Company shall use all reasonable efforts to
respond within ten days of receipt.
8.6 Each Participating Fund shall not, in connection with the sale of
Participating Fund shares, give any information or make any
representations on behalf of Insurance Company or concerning
Insurance Company, the Separate Account, or the Contracts other
than the information or representations contained in a registration
statement or prospectus for the Contracts, as may be amended or
supplemented from time to time, or in published reports for the
Separate Account that are in the public domain or approved by
Insurance Company for distribution to Contractholders or
Participants, or in sales literature or other promotional material
approved by Insurance Company.
8.7 For purposes of this Agreement, the phrase "sales literature or
other promotional material" or words of similar import include,
without limitation, advertisements (such as material published, or
designed for use, in a newspaper, magazine or other periodical,
radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures or other public media), sales
literature (such as any written communication distributed or made
generally available to customers or the public, including
brochures, circulars, research reports, market letters, form
letters, seminar texts, or reprints or excerpts of any other
40485484.002 -12
advertisement, sales literature, or published article),
educational or training materials or other communications
distributed or made generally available to some or all agents or
employees, registration statements, prospectuses, statements of
additional information, shareholder reports and proxy materials,
and any other material constituting sales literature or
advertising under National Association of Securities Dealers, Inc.
rules, the Act or the 1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless each
Participating Fund, Dreyfus, each respective Participating Fund's
investment adviser and sub-investment adviser (if applicable), each
respective Participating Fund's distributor, and their respective
affiliates, and each of their directors, trustees, officers,
employees, agents and each person, if any, who controls or is
associated with any of the foregoing entities or persons within the
meaning of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of Section 9.1), against any and all losses, claims, damages
or liabilities joint or several (including any investigative, legal
and other expenses reasonably incurred in connection with, and any
amounts paid in settlement of, any action, suit or proceeding or
any claim asserted) for which the Indemnified Parties may become
subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect to thereof)
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in information
furnished by Insurance Company for use in the registration
statement or Prospectus or sales literature or advertisements of
the respective Participating Fund or with respect to the Separate
Account or Contracts, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (ii) arise out of or as a result of
conduct, statements or representations (other than statements or
representations contained in the Prospectus and sales literature or
advertisements of the respective Participating Fund) of Insurance
Company or its agents, with respect to the sale and distribution of
Contracts for which the respective Participating Fund's shares are
an underlying investment; (iii) arise out of the wrongful conduct
of Insurance Company or persons under its control with respect to
the sale or distribution of the Contracts or the respective
Participating Fund's shares; (iv) arise out of Insurance Company's
incorrect calculation and/or untimely reporting of net purchase or
redemption orders; or (v) arise out of any breach by Insurance
Company of a material term of
40485484.002 -13-
this Agreement or as a result of any failure by Insurance Company
to provide the services and furnish the materials or to make any
payments provided for in this Agreement. Insurance Company will
reimburse any Indemnified Party in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that with respect to clauses W and (ii) above
Insurance Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or omission or alleged omission
made in such registration statement, prospectus, sales literature,
or advertisement in conformity with written information furnished
to Insurance Company by the respective Participating Fund
specifically for use therein. This indemnity agreement will be in
addition to any liability which Insurance Company may otherwise
have.
9.2 Each Participating Fund severally agrees to indemnify and hold
harmless Insurance Company and each of its directors, officers,
employees, agents and each person, if any, who controls Insurance
Company within the meaning of the 1933 Act against any losses,
claims, damages or liabilities to which Insurance Company or any
such director, officer, employee, agent or controlling person may
become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) (1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or Prospectus or sales literature or
advertisements of the respective Participating Fund; (2) arise out
of or are based upon the omission to state in the registration
statement or Prospectus or sales literature or advertisements of
the respective Participating Fund any material fact required to be
stated therein or necessary to make the statements therein not
misleading; or (3) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the registration statement or Prospectus or sales
literature or advertisements with respect to the Separate Account
or the Contracts and such statements were based on information
provided to Insurance Company by the respective Participating Fund;
and the respective Participating Fund will reimburse any legal or
other expenses reasonably incurred by Insurance Company or any such
director, officer, employee, agent or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the respective
Participating Fund will not he 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
40485484.002 - 14 -
advertisements in conformity with written information furnished to
the respective Participating Fund by Insurance Company
specifically for use therein. This indemnity agreement will be in
addition to any liability which the respective Participating Fund
may otherwise have.
9.3 Each Participating Fund severally shall indemnify and hold
Insurance Company 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 (1) incorrect calculation of the daily net asset value,
dividend rate or capital gain distribution rate; (2) incorrect
reporting of the daily net asset value, dividend rate or capital
gain distribution rate; and (3) untimely reporting of the net asset
value, dividend rate or capital gain distribution rate; provided
that the respective Participating Fund shall have no obligation to
indemnify and hold harmless Insurance Company if the incorrect
calculation or incorrect or untimely reporting was the result of
incorrect information furnished by Insurance Company or information
furnished untimely by Insurance Company or otherwise as a result of
or relating to a breach of this Agreement by Insurance Company.
9.4 Promptly after receipt by an indemnified party under this Article
of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party under this Article, notify the indemnifying
party of the commencement thereof. The omission to so notify the
indemnifying party will not relieve the indemnifying party from any
liability under this Article IX, except to the extent that the
omission results in a failure of actual notice to the indemnifying
party and such indemnifying party is damaged solely as a result of
the failure to give such notice. In case any such action is brought
against any indemnified party, and it notified the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may
wish, assume the defense thereof, with counsel satisfactory to such
indemnified party, and to the extent that the indemnifying party
has given notice to such effect to the indemnified party and is
performing its obligations under this Article, the indemnifying
party shall not be 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 he at the expense
of such indemnified party unless W the indemnifying party and the
indemnified party shall have mutually agreed to the
40485484.002 -15-
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 he
entitled to the benefits of the indemnification contained in this
Article IX. The provisions of this Article IX shall survive
termination of this Agreement.
9.5 Insurance Company shall indemnify and hold each respective
Participating Fund, Dreyfus and sub-investment adviser of the
Participating Fund harmless against any tax liability incurred by
the Participating Fund under Section 851 of the Code arising from
purchases or redemptions by Insurance Company's General Accounts 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 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 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,
40485484.002 -16-
judgment or outcome of which would, in Insurance Company's
reasonable judgment, materially impair that Participating
Fund's ability to meet and perform the Participating Fund's
obligations and duties hereunder. Prompt notice of election
to terminate shall be furnished by Insurance Company with
said termination to be effective upon receipt of notice;
d. As to a Participating Fund, at the option of each
Participating Fund, upon the institution of formal proceedings
against Insurance Company by the Commission, National
Association of Securities Dealers or any other regulatory
body, the expected or anticipated ruling, judgment or outcome
of which would, in the Participating Fund's reasonable
judgment, materially impair Insurance Company's ability to
meet and perform Insurance Company's obligations and duties'
hereunder. Prompt notice of election to terminate shall be
furnished by such Participating Fund with said termination to
be effective upon receipt of notice;
e. As to a Participating Fund, at the option of that
Participating Fund, if the Participating Fund shall determine,
in its sole judgment reasonably exercised in good faith, that
Insurance Company has suffered a material adverse change in
its business or financial condition or is the subject of
material adverse publicity and such material adverse change or
material adverse publicity is likely to have a material
adverse impact upon the business and operation of that
Participating Fund or Dreyfus, such Participating Fund shall
notify Insurance Company in writing of such determination and
its intent to terminate this Agreement, and after considering
the actions taken by Insurance Company and any other changes
in circumstances since the giving of such notice, such
determination of the Participating Fund shall continue to
apply on the sixtieth (60th) day following the giving of such
notice, which sixtieth day shall be the effective date of
termination;
f. As to a Participating Fund, upon termination of the Investment
Advisory Agreement between that Participating Fund and Dreyfus
or its successors unless Insurance Company specifically
approves the selection of a new Participating Fund investment
adviser. Such Participating Fund shall promptly furnish notice
of such termination to Insurance Company;
9- As to a Participating Fund, in the event that Participating
Fund's shares are not registered, issued or sold in
accordance with applicable federal law, or
40485484.002 -17
such law precludes the use of such shares as the underlying
investment medium of Contracts issued or to be issued by
Insurance Company. Termination shall be effective
immediately as to that Participating Fund only upon such
occurrence without notice;
h. At the option of a Participating Fund upon a determination -
by its Board in good faith that it is no longer advisable and
in the best interests of shareholders of that Participating
Fund to continue to operate pursuant to this Agreement.
Termination pursuant to this Subsection (h) shall be effective
upon notice by such Participating Fund to Insurance Company of
such termination;
i. At the option of a Participating Fund if the Contracts cease
to qualify as annuity contracts or life insurance policies, as
applicable, under the Code, or if such Participating Fund
reasonably believes that the Contracts may fail to so qualify;
j. At the option of any party to this Agreement, upon
another party's breach of any material provision of this
Agreement;
k. At the option of a Participating Fund, if the Contracts are
not registered, issued or sold in accordance with applicable
federal and/or state law; or
1. 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 Participating Fund shares available, the owners of the
Existing Contracts or Insurance Company, whichever shall have legal
authority to do so, shall be permitted to reallocate investments in
that Participating Fund, redeem
40485484.002 18
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 that Participating Fund's shares
available after such termination. If such Participating
Fund shares 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 as
specified in Exhibit A, shall be made by agreement in
writing between Insurance Company and each respective
Participating Fund.
ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be given by certified
mail, return receipt requested, to the appropriate parties at the
following addresses:
Insurance Company: Sun Life of Canada (U.S.), Delaware
One Sun Life Executive Park
SC-2345
Xxxxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Participating Funds: (Name of Fund]
c/o Premier Mutual Fund Services,
Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 0000X
Attn-. Vice President and Assistant
Secretary
with copies to: [Name of Fund]
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Xxxxxxxx X. Xxxxxxx, Esq.
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
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.
40485484.002 -20-
ARTICLE XIV
LAW
14.1 This Agreement shall be construed in accordance with the
internal laws of the State of New York, without giving effect
to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be duly executed and attested as of the date first above written.
SUN LIFE OF CANADA (U.S.), DELAWARE
By:
Its- For Preside7z/lr Sun -Life of Canada
(U.S.)
Attest:
For Secretary at Sun Life of Canada
(U.S.:
DREYFUS LIFE AND ANNUITY INDEX FUND,
INC. (d/b/a DREYFUS STOCK INDEX FUND)
By:
I s /: TA
Attest:
THE DREYFUS SOCIALLY RESPONSIBLE GROWTH
FUND, INC.
By:
EXHIBIT A
LIST OF PARTICIPATING FUNDS
Dreyfus Variable Investment Fund:
Capital Appreciation Portfolio
Growth and Income Portfolio
Small Cap Portfolio
Quality Bond Portfolio
