FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the ___ day of ___________, 2002, between
Modern Woodman 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 an insurance company
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. Insurance
Company agrees to notify each Participating Fund promptly of any
2
investment 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 policies or
annuity contracts, whichever is appropriate, under applicable
provisions of the Code, and that it will make every effort to maintain
such treatment and that it will notify each Participating Fund and
Dreyfus immediately upon having a reasonable basis for believing that
the Contracts have ceased to be so treated or that they might not be so
treated in the future. 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 (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.
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.
3
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.
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. 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
4
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.
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
5
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.
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
6
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.
Insurance Company may elect to print the Participating Fund's
prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and statements of
additional information, which are also offered in 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 Insurance Company whose Variable Contract values are invested
in the Participating Funds. This tabulation will be sent to
Participating Funds in the form of a letter signed by a duly authorized
officer of the Society attesting to the accuracy of the information
contained in the letter.
ARTICLE V
EXPENSES
5.1 The charge to each Participating Fund for all expenses and costs of the
Participating Fund, including but not limited to management fees, Rule
12b-1 fees, if any, administrative expenses and legal and regulatory
costs, will be included in the determination of the Participating
Fund's daily net asset value per Share.
5.2 Except as 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
7
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 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
8
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 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
9
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 Insurance Company with the following documents relating to the
Shares of the Participating Fund, in quantities as the Society 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 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.
10
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 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
11
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 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
12
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. 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
13
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.
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
14
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 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
15
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 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 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;
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 policies, as
applicable, under the Code, or if such Participating Fund
reasonably believes that the Contracts may fail to so qualify;
16
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 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
17
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: 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
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.
18
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
MODERN WOODMAN OF AMERICA
LIFE INSURANCE COMPANY
By:
-------------------------------
Its:
------------------------------
Attest:_____________________
DREYFUS VARIABLE INVESTMENT FUND
By:
-------------------------------
Its:
------------------------------
Attest:_____________________
THE DREYFUS SOCIALLY RESPONSIBLE
GROWTH FUND, INC.
By:
Its:
Attest:______________________
19
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
20
, 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 policies (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.
2
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.
3
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 WOODMAN OF AMERICA
0000 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
By:
--------------------------------------------
Title:
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:
--------------------------------------------
Title:
Date:
4
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.
5
SCHEDULE B
Name of Separate Account
Modern Woodmen of America Variable Account
Modern Woodmen of America Variable Annuity Account
6
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT effective as of the ___ day of ________________, 2002 by and
between THE DREYFUS CORPORATION ("Dreyfus"), a New York corporation and MODERN
WOODMAN 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:
c/o Farm Bureau Life Insurance Company
0000 Xxxxxxxxxx Xxxxxx
0
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 WOODMAN OF AMERICA
By: ___________________________________________
Authorized Signatory
-------------------------------------------------
Print or Type Name
THE DREYFUS CORPORATION
By: ___________________________________________
Authorized Signatory
-------------------------------------------------
Print or Type Name
4
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*
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.
