FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 26th day of August, 1999 between
American Enterprise Life Insurance Company a life insurance company organized
under the laws of the State of Indiana ("Insurance Company"), and The Dreyfus
Socially Responsible Growth Fund, Inc. and Dreyfus Variable Investment Fund (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 on which the New York Stock Exchange
is open for trading and on which a Fund calculates net asset value per
Share (as defined below) pursuant to the rules of the Commission and 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 "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates that invest in
Shares (as defined below) of a Participating Fund.
1.10 "Participating Companies" shall mean any insurance company (including
Insurance Company) that offers variable annuity and/or variable life
insurance contracts to the public and that has entered into an
agreement with one or more of the 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 Account" shall mean the separate account established by
Insurance Company in accordance with the laws of the State of Indiana
and specified on Exhibit B, as such Exhibit may be amended from time to
time by agreement of the parties hereto.
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 Insurance Company at no charge.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law; (b)
it has legally and validly established or will establish the Separate
Account pursuant to the insurance laws of the State of Indiana 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 or will register the
Separate Account as a unit investment trust as required 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 as required under the
Securities Act of
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1933, as amended ("1933 Act"); (b) the Contracts will be issued and
sold in compliance in all material respects with all applicable
federal and state laws; and (c) the sale of the Contracts shall comply
in all material respects with state insurance law requirements.
Insurance Company agrees to notify each Participating Fund promptly of
any investment restrictions imposed by state insurance law and
applicable to the Participating Fund of which it becomes aware.
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 and is intended to remain
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 duly organized and
validly existing under applicable state law and 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 intended
to be treated as life insurance policies or annuity contracts,
whichever is appropriate, under applicable provisions of the Code, and
that it will make every effort to maintain such treatment and that it
will notify each Participating Fund and Dreyfus immediately upon having
a reasonable basis for believing that the Contracts have ceased to be
so treated or that they might not be so treated in the future.
Insurance Company agrees that any prospectus offering a Contract that
is a "modified endowment contract," as that term is defined in Section
7702A of the Code, will identify such Contract as a modified endowment
contract (or policy).
2.7 Each Participating Fund agrees that its assets shall be managed and
invested in a manner that complies with the requirements of Section
817(h) of the Code and Treasury Regulation 1.817-5, as amended from
time to time. In the event of a
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breach of this representation and warranty by the Participating Fund,
it and/or its investment adviser will take all reasonable steps to
notify the Company of such breach and to adequately diversify the
Participating Fund so as to achieve compliance within the grace period
afforded by Treasury Regulation 1.817-5.
2.8 Insurance Company agrees that each Participating Fund shall be
permitted (subject to the other terms of this Agreement) to make its
shares available to other Participating Companies and Contractholders.
2.9 Each Participating Fund represents and warrants that all 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 or related provisions as may be promulgated
from time to time. The aforesaid Bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding
company.
2.10 Insurance Company represents and warrants that all of its employees and
agents who deal with the money and/or securities of each Participating
Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the
coverage required to be maintained by the Participating Fund as stated
in Section 2.9. 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.
2.12 Each Participating Fund represents and warrants that its investment
objective, policies and restrictions comply with applicable state
securities laws as they may apply to such Participating Fund.
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
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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. Shares of a Participating Fund will be ordered in such
quantities and at such times as determined by Insurance Company to be
necessary to meet the requirements of the Contracts.
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 make the net asset value per share for
each Participating Fund available to Insurance Company on a daily basis
as soon as reasonably practical after the net asset value per share is
calculated and use its best efforts to provide closing net asset value,
dividend and capital gain information on a per Share basis to Insurance
Company by 6:30 p.m. Eastern time on each Business Day, but no later
than 7:00 p.m. Eastern Time on each Business Day. Each Participating
Fund will notify Insurance Company as soon as possible if it is
determined that the net asset value per share will be available after
7:00 p.m. Eastern Time on any Business Day, and such Participating Fund
and Insurance Company will mutually agree upon a final deadline for
timely receipt of the net asset value on such 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. If Insurance Company is provided with materially
incorrect net asset value information, Insurance Company will be
entitled to an adjustment to the number of shares purchased or redeemed
to reflect the correct net asset value per share. Non-material errors
will be corrected in the next Business Day's net asset value per Share.
3.5 At the end of each Business Day, Insurance Company will use the
information described in Sections 3.2 and 3.4 to calculate the unit
values of the Separate Account for the day. Using this unit value,
Insurance Company will process the day's Separate Account transactions
received by it by the close of trading on the floor of the New York
Stock Exchange (currently 4:00 p.m. Eastern time) to determine the net
dollar amount of the Shares of each Participating Fund that will be
purchased or redeemed at that day's closing net asset value per Share.
The net purchase or redemption orders will be transmitted to each
Participating Fund by Insurance Company by 11:00 a.m. Eastern time on
the Business Day next following Insurance Company's receipt of that
information. Subject to Sections 3.6 and 3.8, all purchase and
redemption orders for Insurance Company's General Accounts shall be
effected at the net asset value per Share of each Participating Fund
next calculated after receipt of the order by the Participating Fund or
its Transfer Agent.
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3.6 Each Participating Fund appoints Insurance Company as its agent for the
limited purpose of accepting orders for the purchase and redemption of
Shares of the Participating Fund for the Separate Account. Receipt by
Insurance Company will constitute receipt by Participating Fund. Each
Participating Fund will execute orders at the applicable net asset
value per Share determined as of the close of trading on the day of
receipt of such orders by Insurance Company acting as agent ("effective
trade date"), provided that the Participating Fund receives notice of
such orders by 11:00 a.m. Eastern time on the next following Business
Day and, if such orders request the purchase of Shares of the
Participating Fund, the conditions specified in Section 3.8, as
applicable, are satisfied. A redemption or purchase request that does
not satisfy the conditions specified above and in Section 3.8, as
applicable, will be effected at the net asset value per Share computed
on the Business Day immediately preceding the next following Business
Day upon which such conditions have been satisfied in accordance with
the requirements of this Section and Section 3.8. Insurance Company
represents and warrants that all orders submitted by the Insurance
Company for execution on 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 Shares of a
Participating Fund, Insurance Company will pay for such purchases by
wiring Federal Funds to the Participating Fund or its designated
custodial account on the day the order is transmitted. Insurance
Company shall make all reasonable efforts to initiate the transmission
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 midnight Eastern time on
such Business Day, Insurance Company shall promptly, upon each
applicable Participating Fund's request, reimburse the respective
Participating Fund for any charges, costs, fees, interest or other
expenses incurred by the Participating Fund in connection with any
advances to, or borrowings or overdrafts by, the Participating Fund, or
any similar expenses incurred by the Participating Fund, as a result of
portfolio transactions effected by the Participating Fund based upon
such purchase request. If Insurance Company's order requests the
redemption of any Shares of a Participating Fund valued at or greater
than $1 million dollars, the Participating Fund will wire such amount
to Insurance Company within five days of the order.
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3.9 Each Participating Fund has the obligation to ensure that its Shares
are registered with applicable federal agencies and duly authorized for
issuance in accordance with applicable at all times.
3.10 Each Participating Fund will confirm in writing each purchase or
redemption order made by Insurance Company. Issuance and transfers of
Shares of a Participating Fund will be by book entry only. No share
certificates will be issued to Insurance Company or any account.
Insurance Company will record Shares ordered and redeemed 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 (by wire or telephone, followed
by written confirmation) 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; provided,
however, Insurance Company reserves the right to receive all such
dividends and distributions in cash. 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 the holders of its Shares) in quantities
as Insurance Company may reasonably request for distribution to each
Contractholder and Participant. Insurance Company may elect to print
the Participating Fund's prospectus and/or its statement of additional
information in combination with other fund companies' prospectuses and
statements of additional information, which are also offered in
Insurance Company's insurance product at its own cost. At Insurance
Company's request, the Participating Fund will provide, in lieu of
printed documents, camera-ready copy or diskette of prospectuses,
annual and semi-annual reports for printing by the Insurance Company.
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4.3 Each Participating Fund will provide to Insurance Company at least one
complete copy of all registration statements, Prospectuses, reports,
proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Participating Fund
or its Shares (except for such materials that are designed only for a
class of shares of a Participating Fund not offered to the Insurance
Company pursuant to this Agreement), contemporaneously with the filing
of such document with the Commission or other regulatory authorities.
4.4 Insurance Company will provide to each Participating Fund at least one
copy of all registration statements, Prospectuses, reports, proxy
statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Contracts or the
Separate Account, contemporaneously with the filing of such document
with the Commission.
4.5 Insurance Company will provide Participating Funds on a semi-annual
basis, or more frequently as reasonably requested by the Participating
Funds, with a current tabulation of the number of existing Variable
Contract owners of Insurance Company whose Variable Contract values are
invested in the Participating Funds.
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, 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.
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A Participating Fund's principal underwriter may pay Insurance Company,
or the broker-dealer acting as principal underwriter for the Insurance
Company's Contracts, for distribution and other services related to the
Shares of the Participating Fund pursuant to any distribution plan
adopted by the Participating Fund in accordance with Rule 12b-1 under
the Act, subject to the terms and conditions of an agreement between
the Participating Fund's principal underwriter and Insurance Company or
the principal underwriter for the Insurance Company's Contracts, as
applicable, related to such plan.
Except as provided herein, all other expenses of each Participating
Fund shall not be borne by Insurance Company. Participating Fund 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, annual reports and
semi-annual reports for existing Insurance Company
Contractholders and Participants as Dreyfus and Insurance
Company shall agree from time to time;
(b) distribution expenses of any Participating Fund materials
for existing Insurance Company Contractholders and
Participants;
(c) text composition and printing of proxy statements and voting
instruction solicitation materials to Contractholders with
respect to proxies related to the Fund; and
(d) mailing, distributing, and tabulation of proxy statements
and voting instruction solicitation materials to
Contactholders with respect to proxies related to the Fund.
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ARTICLE VI
EXEMPTIVE RELIEF
6.1 Insurance Company has reviewed a copy of the order dated February 5,
1998 of the Commission under Section 6(c) of the Act with respect to
Dreyfus Investment Portfolios, and, in particular, has reviewed the
conditions to the relief set forth in the Notice. send As set forth
therein, if Dreyfus Investment Portfolios is a Participating Fund,
Insurance Company agrees, as applicable, to report any potential or
existing conflicts of which it becomes aware promptly to the Board of
Dreyfus Investment Portfolios, 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 as delineated in such order. Insurance Company agrees
to carry out such responsibilities with a view to the interests of
existing Contractholders.
6.2 The Board will monitor Fund for existence of any irreconcilable
material conflict among the interests of the Contractholders of all
Separate Accounts and of participants of Qualified Plans investing in
such fund and determines which action, if any, should be taken in
response to such conflicts. investing in the Fund. 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 of the affected subaccount that are
allocable to the Separate Account from the Participating Fund,
terminating this Agreement with regard to such subaccount and
reinvesting such assets in another Participating Fund (if
applicable) or a different investment medium, or submitting the
question of whether such segregation should be implemented to a
vote of all affected Contractholders; and/or
b. Establishing a new registered management investment company.
6.3 If a material irreconcilable conflict arises as a result of a decision
by Insurance Company to disregard Contractholder voting instructions
and such disregard of voting instructions could conflict with the
majority of 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,
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Insurance Company may be required, at the Board's election, to
withdraw the investments affected subaccount of the Separate Account
in that Participating Fund and terminate this Agreement with regard to
such subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
Disinterested Board Members. No charge or penalty will be imposed as a
result of such withdrawal. Subject to Board Members fiduciary
responsibility, any such withdrawal and termination must take place
within six (6) months after the Participating Fund gives written
notice to Insurance Company that this provision is being implemented.
Until the end of such six-month period the investment adviser of the
Participating Fund and the Participating Fund will, to the extent
permitted by law and any exemptive relief previously granted to the
Participating Fund, continue to accept and implement orders by
Insurance Company for the purchase (and redemption) of shares of the
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.
6.6 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to Insurance Company
conflicts with the majority of other state insurance regulators, then
Insurance Company will withdraw the affected subaccount of the Separate
Account's investment in the Participating Fund and terminate this
Agreement with respect to such subaccount; provided, however, that such
withdrawal and termination will be limited to the extent required by
the foregoing irreconcilable material conflict as determined by a
majority of the Disinterested Board Members. No charge or penalty will
be imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the
Participating Fund gives written notice to Insurance Company that this
provision is being implemented. Until the end of such six-month period
the investment adviser of the Participating Fund and the Participating
Fund will, to the extent permitted by law and any exemptive relief
previously granted to the Participating Fund, continue to accept and
implement orders by Insurance Company for the purchase (and redemption)
of shares of the Participating Fund.
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ARTICLE VII
VOTING SHARES OF PARTICIPATING FUND
7.1 Each Participating Fund shall provide Insurance Company with copies, at
no cost to Insurance Company, of the Participating Fund's proxy
materials, reports to shareholders and other communications to
shareholders (except for such materials that are designed only for a
class of shares of a Participating Fund not offered to the Insurance
Company pursuant to this Agreement) in such quantity as Insurance
Company shall reasonably require for distributing to Contractholders or
Participants.
If and to the extent required by law, Insurance Company 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;
so long as and to the extent that the Commission continues to interpret
the Act to require pass-through voting privileges for variable contract
owners.
Insurance Company agrees at all times to vote Shares held by Insurance
Company's General Account in the same proportion as Shares of the
Participating Fund for which instructions have been received from
Contractholders or Participants. Insurance Company further agrees to be
responsible for assuring that voting the Shares of the Participating
Fund for the Separate Account is conducted in a manner consistent with
other Participating Companies.
7.2 Insurance Company agrees that it shall not, without the prior written
consent of each applicable Participating Fund and Dreyfus, solicit,
induce or encourage Contractholders to change or supplement the
Participating Fund's current investment adviser.
7.3 Each Participating Fund will comply with all provisions of the Act
requiring voting by shareholders, and in particular, the Participating
Fund either will provide for annual meetings (except insofar as the
Commission may interpret Section 16 of the Act not to require such
meetings) or, as the Participating Fund currently intends, to comply
with Section 16(c) of the Act (although Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a)
and, if and when applicable, 16(b). Further, the Participating Fund
will act
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in accordance with the Commission's interpretation of the requirements
of Section 16(a) with respect to periodic elections of directors and
with whatever rules the Commission may promulgate with respect
thereto.
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ARTICLE VIII
MARKETING AND REPRESENTATIONS
8.1 Each Participating Fund or its principal underwriter shall periodically
furnish Insurance Company with the following documents relating to the
Shares of the Participating Fund, in quantities as Insurance Company
may reasonably request:
a. Current Prospectus and any supplements thereto; and
b. Other marketing materials.
Expenses for the production of such documents shall be borne by
Insurance Company in accordance with Section 5.2 of this Agreement.
8.2 Insurance Company shall designate certain persons or entities that
shall have the requisite licenses to solicit applications for the sale
of Contracts. No representation is made as to the number or amount of
Contracts that are to be sold by Insurance Company. Insurance Company
shall make reasonable efforts to market the Contracts and shall comply
with all applicable federal and state laws in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to
each applicable Participating Fund or its designee, each piece of sales
literature or other promotional material in which the Participating
Fund, its investment adviser or the administrator is named, at least
ten Business Days prior to its use. Such material shall be not used
unless the Participating Fund or its designee reasonably objects to
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 five 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, Prospectus or statement of additional
information of, as either 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. Nothing in this Section 8.4 will be
construed as preventing Insurance Company or its employees or agents
from giving advice on investment in a 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 ten Business Days prior to its
use. Such material shall not be used
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unless Insurance Company reasonably objects to such material. Such
rejection (if given) must be in writing and shall be given within five
Business Days after receipt of such material. Insurance Company shall
use all reasonable efforts to respond within five 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 or statements 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, e.g., online networks such as
the internet or other electronic messages), sales literature (such as
any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, or reprints or
excerpts of any other advertisement, sales literature, or published
article), educational or training materials or other communications
distributed or made generally available to some or all agents or
employees, registration statements, prospectuses, statements of
additional information, shareholder reports and proxy materials, and
any other material constituting sales literature or advertising under
National Association of Securities Dealers, Inc. rules, the Act or the
1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless each
Participating Fund, Dreyfus, each respective Participating Fund's
investment adviser and sub-investment adviser (if applicable), each
respective Participating Fund's distributor, and their respective
affiliates, and each of their directors, trustees, officers,
partners,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
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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 Insurance Company for use in the
registration statement or Prospectus or sales literature or
advertisements or any supplement or amendment to the foregoing 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, if such statement or omission was made in reliance on and
in conformity with information furnished to the Participating Fund in
writing by Insurance Company; or (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 Shares of the respective Participating Fund
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 Shares of the respective
Participating Fund; (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 material breach by Insurance Company
of a material term of this Agreement or as a result of any failure by
Insurance Company to provide the services and furnish the materials or
to make any payments provided for in this Agreement. Insurance Company
will reimburse any Indemnified Party in connection with reasonable
costs directly related to investigating or defending any such loss,
claim, damage, liability or action; provided, however, that with
respect to clauses (i) and (ii) above Insurance Company will not be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue
statement or omission or alleged omission made in such registration
statement, prospectus, sales literature, or advertisement in
conformity with written information furnished to Insurance Company by
the respective Participating Fund specifically for use therein and
provided, further, that Insurance Company shall not be liable for
special, consequential, indirect, punitive, exemplary or incidental
damages. This indemnity agreement will be in addition to any liability
which Insurance Company may otherwise have.
9.2 Each Participating Fund and The Dreyfus Corporation severally agree to
indemnify and hold harmless Insurance Company and each of its
directors, trustees, officers, partners, employees, agents and each
person, if any, who controls or is associated with Insurance Company
within the meaning of the 1933 Act against any losses, claims, damages
or liabilities (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) to
which Insurance Company or any such director, trustee, officer,
partner, employee, agent or controlling or associated 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
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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 or any amendment
or supplement to the foregoing; (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, or any amendment or supplement to the foregoing, any material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they
were made; (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 Account or the Contracts
and such statements were based on information provided to Insurance
Company by the respective Participating Fund; if such statement or
omission was made in reliance on and in conformity with information
furnished to Insurance Company by the Participating Fund (iv) arise
out of or are based on any wrongful conduct of, or violation of
applicable federal and state law by, the investment adviser of a
Participating Fund or a Participating Fund or persons under their
respective control or subject to their authorization with respect to
the sale of shares in the Participating Fund; or (v) arise as a result
of any failure by a Participating Fund, the investment adviser of the
Participating Fund or persons under their respective control or
subject to their authorization to provide the services and furnish the
materials under the terms of this Agreement including, but not limited
to, a failure, whether unintentional or in good faith or otherwise, to
comply with the diversification requirements and procedures related
thereto specified in Section 2.7 of this Agreement; or (vi) arise out
of or result from any material breach of any representation and/or
warranty made by the investment adviser of a Participating Fund or the
Participating Fund in this Agreement, or arise out of or result from
any other material breach of this Agreement by the investment adviser
of a Participating Fund or the Participating Fund or persons under
their respective control or subject to their authorization; and the
respective Participating Fund will reimburse reasonable costs directly
related to any legal or other expenses reasonably incurred by
Insurance Company or any such director, trustee, officer, partner,
employee, agent or controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the respective Participating Fund will not be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or omission or alleged omission made in such registration statement,
Prospectus, sales literature or advertisements in conformity with
written information furnished to the respective Participating Fund by
Insurance Company specifically for use therein; and provided, further,
that the Participating Fund shall not be liable for special,
consequential, indirect, punitive, exemplary or incidental damages.
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
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Insurance Company may incur, suffer or be required to pay due to the
respective Participating Fund's, its investment adviser's or persons
or entities under their respective control or subject to their
authorizations (i) incorrect calculation of the daily net asset value,
dividend rate or capital gain distribution rate; (ii) incorrect
reporting of the daily net asset value, dividend rate or capital gain
distribution rate; and (iii) untimely reporting of the net asset
value, dividend rate or capital gain distribution rate; provided that
the respective Participating Fund shall have no obligation to
indemnify and hold harmless Insurance Company if the incorrect
calculation or incorrect or untimely reporting was the result of
incorrect information furnished by Insurance Company or information
furnished untimely by Insurance Company or otherwise as a result of or
relating to a breach of this Agreement by Insurance Company and
provided, further, that the Participating Fund shall not be liable for
special, consequential, indirect, punitive, exemplary or incidental
damages.
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 at its own
expense 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.
9.5 No party will be entitled to indemnification under Article IX if such
loss, claim, damage or liability is due to the willful misfeasance, bad
faith, or gross negligence in the performance of such party's duties
under this Agreement, or by reason of such party's reckless disregard
of its obligations or duties under this
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Agreement by the indemnified party. 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.
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
120180 ays' advance notice, or later, upon receipt of any
required exemptive relief or upon order from the Commission,
unless otherwise agreed to by the parties in writing;
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 upon receipt of notice;
c. As to a Participating Fund or its investment adviser, at the
option of Insurance Company, upon the institution of formal
proceedings against that Participating Fund by the Commission,
National Association of Securities Dealers or any other
regulatory body, the expected or anticipated ruling, judgment or
outcome of which would, in Insurance Company's reasonable
judgment, materially impair that Participating Fund's ability to
meet and perform the Participating Fund's obligations and duties
hereunder. Prompt notice of election to terminate shall be
furnished by Insurance Company with said termination to be
effective upon receipt of notice;
d. As to a Participating Fund, at the option of each Participating
Fund, upon the institution of formal proceedings against
Insurance Company by the Commission, National Association of
Securities Dealers or any other regulatory body, the expected or
anticipated ruling, judgment or outcome of which would, in the
Participating Fund's reasonable judgment, exercised in good
faith, 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
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Participating Fund with said termination to be effective upon
receipt of notice;
e. As to a Participating Fund, at the option of that Participating
Fund, if the Participating Fund shall determine, in its sole
judgment reasonably exercised in good faith, that Insurance
Company has suffered a material adverse change in its business or
financial condition or is the subject of material adverse
publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the
business and operation of that Participating Fund or Dreyfus,
such Participating Fund shall notify Insurance Company in writing
of such determination and its intent to terminate this Agreement,
and after considering the actions taken by Insurance Company and
any other changes in circumstances since the giving of such
notice, such determination of the Participating Fund shall
continue to apply on the sixtieth (60th) day following the giving
of such notice, which sixtieth day shall be the effective date of
termination;
f. As to a Participating Fund, at the option of Insurance Company,
if Insurance Company shall determine, in its sole judgment
reasonably exercised in good faith that the Participating Fund
has suffered a material adverse change in its business or
financial condition or is the subject of material adverse
publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the
business and operations of Insurance Company or its Separate
Account, the Insurance Company shall notify the Participating
Fund in writing of such determination and its intent to terminate
this Agreement, and after considering the actions taken by the
Participating Fund and any other changes in circumstances since
the giving of such notice, such determination of Insurance
Company shall continue to apply to the sixtieth (60th) day
following the giving of such notice, which sixtieth day shall be
the effective date of termination;
g. As to a Participating Fund, upon termination of the Investment
Advisory Agreement between that Participating Fund and Dreyfus or
its successors unless Insurance Company specifically approves the
selection of a new Participating Fund investment adviser. Such
Participating Fund shall promptly furnish notice of such
termination to Insurance Company;
h. As to a Participating Fund, in the event that Shares of the
Participating Fund are not registered, issued or sold in
accordance with applicable federal law, or such law precludes the
use of such Shares as the underlying investment medium of
Contracts issued or to be issued by Insurance Company.
Termination shall be effective immediately as to that
Participating Fund only upon such occurrence without notice;
-20-
i. At the option of a Participating Fund upon a determination by its
Board in good faith that it is no longer advisable and in the
best interests of shareholders of that Participating Fund to
continue to operate pursuant to this Agreement. Termination
pursuant to this Subsection (i) shall be effective upon notice by
such Participating Fund to Insurance Company of such termination;
j. At the option of a Participating Fund if the Contracts cease to
qualify as annuity contracts or life insurance policies, as
applicable, under the Code, or if such Participating Fund
reasonably believes that the Contracts may fail to so qualify;
k. At the option of any party to this Agreement, upon another
party's material 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;
m. Upon assignment of this Agreement, unless made with the written
consent of every other non-assigning party;
n. At the option of Insurance Company, upon receipt of Insurance
Company's written notice by a Participating Fund, if the
Participating Fund ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code, or under any successor or
similar provision, or if Insurance Company reasonably and in good
faith believes that the Participating Fund may fail to so
qualify;
o. At the option of Insurance Company, upon receipt of Insurance
Company's written notice by a Participating Fund, if the
Participating Fund fails to meet the diversification requirements
specified in this Agreement or if Insurance Company reasonably
and in good faith believes the Participating Fund may fail to
meet such requirements;
p. At the option of Insurance Company or a Participating Fund upon
receipt of any necessary regulatory approvals and/or the vote of
the Contract owners having an interest in the Account (or any
subaccount) to substitute the shares of another investment
company for the corresponding shares of the Fund in accordance
with the terms of the Contracts for which those Portfolio shares
had been selected to serve as the underlying investment media.
Insurance Company will give sixty 180 days' prior written notice
to the Participating Fund of the date of any proposed vote or
other action taken to replace the Shares; or
q. At the option of Insurance Company or the Participating Fund upon
a determination by a majority of the Board, or a majority of the
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Disinterested Board Members, that an irreconcilable material
conflict exists among the interests of: (i) all Contract owners
of variable insurance products of all separate accounts; or (ii)
the interests of the Insurance Companies investing in the
Participating Fund as set forth in Article IV of this Agreement.
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 Insurance Company, continue to make available additional Shares of
that Participating Fund for as long as the Insurance Company 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, the owners of the
Existing Contracts or Insurance Company, whichever shall have legal
authority to do so, shall be permitted to reallocate investments in
that Participating Fund, redeem investments in that Participating Fund
and/or invest in that Participating Fund upon the making of additional
purchase payments under the Existing Contracts. If such Shares of the
Participating Fund continue to be 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, shall not be
for more than the longer of (i) six months; or the period needed by
the Insurance Company, making a good faith effort, to obtain any
necessary approval(s) from the Commission or any state regulatory
authority.
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.
10.5 In the event that a Participating Fund or Dreyfus should initiate the
closure of a Participating Fund, Dreyfus agrees to reimburse the
Insurance Company the reasonable costs the Insurance Company incurs
that are associated with the closing of such Participating Fund. The
Insurance Company, such Participating Fund and Dreyfus shall each use
its best efforts to minimize such costs. The Insurance Company shall
provide Dreyfus with acceptable documentation for all actual costs
related to such closing.
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ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the
addition or deletion of any Participating Fund or class of Shares of a
Participating Fund as specified in Exhibit A, shall be made by
agreement in writing between Insurance Company and each respective
Participating Fund.
ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be given by certified
overnight mail, return receipt requested and by facsimile, to the
appropriate parties at the following addresses:
Insurance Company: American Enterprise Life Insurance Company
1765 AXP Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Executive Vice President, Annuities
with a copy to:
American Enterprise Life Insurance Company
50607 AXP Financial Center
Xxxxxxxxxxx, XX 00000
Attention: General Counsels Office
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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.
13.2 Notwithstanding anything to the contrary contained in this Agreement,
in addition to and not in lieu of other provisions in this Agreement:
(a) "Confidential Information" includes but is not limited to all
proprietary and confidential information of Insurance Company and
its subsidiaries, affiliates and licensees (collectively the
"Protected Parties" for purposes of this Section 13.2), including
without limitation all information regarding the customers of the
Protected Parties; or the accounts, account numbers, names,
addresses, social security numbers or any other personal
identifier of such customers; or any information derived
therefrom.
(b) No Participating Fund shall not use or disclose Confidential
Information for any purpose other than to carry out the purpose
for which Confidential Information was provided to a
Participating Fund as set forth in the Agreement; and each
Participating Fund agrees to cause all its employees, agents and
representatives, or any other party to whom such Participating
Fund may provide access to or disclose Confidential Information
to limit the use and disclosure of Confidential Information to
that purpose.
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(c) Each Participating Fund and Insurance Companyacknowledge that all
computer programs and procedures or other information developed
or used by the either party to this agreement or any of their
employees or agents in connection with each Participating Fund's
or Insurance Company's performance of its duties under this
Agreement are the valuable property of the Protected Parties.
(d) Each Participating Fund agrees to implement appropriate measures
designed to ensure the security and confidentiality of
Confidential Information, to protect such information against any
anticipated threats or hazards to the security or integrity of
such information, and to protect against unauthorized access to,
or use of, Confidential Information that could result in
substantial harm or inconvenience to any customer of the
Protected Parties; each Participating Fund further agrees to
cause all its agents, representatives or subcontractors of, or
any other party to whom such Participating Fund may provide
access to or disclose Confidential Information to implement
appropriate measures designed to meet the objectives set forth in
this Section 13.2.
(e) Each Participating Fund and Insurance Company acknowledge that
any breach of the agreements in this Section 13.2 would result in
immediate and irreparable harm to the Protected Parties for which
there would be no adequate remedy at law and agree that in the
event of such a breach, the affected party will be entitled to
equitable relief by way of temporary and permanent injunctions,
as well as such other relief as any court of competent
jurisdiction deems appropriate.
(f) This Section 13.2 shall survive the termination of this
Agreement.
13.3 All persons dealing with a Participating Fund must look solely to the
property of the Participating Fund for the enforcement of any claims
against the Participating Fund as neither the directors, trustees,
officers, partners, employees, agents or shareholders assume any
personal liability for obligations entered into on behalf of the
Participating Fund.
13.4 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
13.5 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
13.6 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
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13.7 This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties.
13.9 Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including without limitation
the Commission, the National Association of Securities Dealers, Inc.
and state insurance regulators) and will permit each other and such
authorities reasonable access to its books and records in connection
with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
13.10 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or Board action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
ARTICLE XIV
LAW
14.1 This Agreement shall be construed in accordance with the internal laws
of the State of New York, without giving effect to principles of
conflict of laws.
ARTICLE XV
FOREIGN TAX CREDITS
15.1 Each Participating Fund agrees to consult in advance with Insurance
Company concerning any decision to elect or not to pass through the
benefit of any foreign tax credits to the Participating Fund's
shareholders pursuant to Section 853 of the Code.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
Attest: /s/ Xxxx Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------- -----------------------
Xxxx Xxxxx Xxxxxxx Name: Xxxxx X. Xxxxxx
Assistant Secretary Its: Executive Vice President, Annuities
THE DREYFUS SOCIALLY RESPONSIBLE
GROWTH FUND, INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
Attest:_____________________
DREYFUS VARIABLE INVESTMENT FUND
By: ______________________________
Name: ______________________________
Title: ______________________________
Attest:_____________________
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EXHIBIT A
LIST OF PARTICIPATING FUNDS
Fund Name Share Class
The Dreyfus Socially Responsible Growth Service Class Shares
Fund, Inc.
The Dreyfus Socially Responsible Growth Initial Class Shares
Fund, Inc.
Dreyfus Variable Investment Fund
Disciplined Stock Portfolio Service Class Shares
Small Company Stock Portfolio Service Class Shares
Dreyfus Variable Investment Fund
Disciplined Stock Portfolio Initial Class Shares
Small Company Stock Portfolio Initial Class Shares
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