EXHIBIT 8a
Participation Agreements:
(a) Dreyfus Investment Portfolios
Novation to Fund Participation Agreement
WHEREAS, on October 1, 2002, a Fund Participation Agreement (the "Agreement")
was entered into by and among Ameritas Variable Life Insurance Company ("AVLIC")
and Dreyfus Life and Annuity Index Fund (d/b/a Stock Index Fund) (the "Fund")
whereby AVLIC issues certain individual variable life and/or variable annuity
contracts (the "Contracts"), and the Fund acts as the underlying investment
vehicle of such contracts. A copy of the Agreement is attached hereto and made a
part hereof The Agreement, by its terms, provides for amendment upon the written
agreement of all parties; and WHEREAS, the closing of the merger of AVLIC with
and into Ameritas Life Insurance Corp. ("Ameritas"), with Ameritas as the
surviving company (the "Merger") is currently scheduled to occur after the close
of business on April 30, 2007; It is therefore agreed:
1. Substitution of Party - The Agreement is amended to provide for Ameritas to
act as the issuer of the Contracts in substitution of AVLIC.
2. Change of Name - The Agreement is amended to reflect the change of the
names of the following Separate Accounts from "Ameritas Variable Life
Insurance Co Separate Account VA-2" and "Ameritas Variable Life Insurance
Co Separate Account V" to "Ameritas Variable Separate Account VA-2" and
"Ameritas Variable Separate Account V."
3. Performance of Duties - Ameritas hereby assumes and agrees to perform the
duties previously performed by AVLIC under the Agreement.
4. Assumption. of Rights - Ameritas hereby assumes the rights previously held
by AVLIC under the Agreement.
5. Effective Date - This Novation shall take effect as of the actual closing
date of the Merger, and such effectiveness is conditioned upon the closing
of the Merger. Ameritas will notify the other parties hereto of any change
in the scheduled closing date and of the actual closing date.
In witness whereof the parties have signed this instrument.
Executed this 20th day of March, 2007.
Dreyfus Stock Index Fund, Inc.
AMERITAS VARIABLE LIFE (f/k/a DREYFUS LIFE AND ANNUITY
INSURANCE COMPANY INDEX FUND, INC. (d/b/a/ DREYFUS STOCK
INDEX FUND) )
By: /S/ Xxxxxx X. Xxxxx By: /S/ Xxxxxxx X. Xxxxxxxxx
Print: Xxxxxx X. Xxxxx Print: Xxxxxxx X. Xxxxxxxxx
Title: Vice President Title: Secretary
Date: March 7. 2007 Date: March 7. 2007
AMERITAS LIFE INSURANCE CORP.
By: /S/ Xxxxxx X. Xxxxx
Print: Xxxxxx X. Xxxxx
Title: Sr. Vice President
Date: March 7, 2007
*Now known as "Dreyfus Stock Index Fund, Inc."
AMENDMENT NO. 1
The Fund Participation Agreement ("Agreement") entered into October 1, 2002
among Ameritas Variable Life Insurance Company, on behalf of itself and its
Separate Accounts, and Dreyfus Life and Annuity Index Fund (d/b/a Stock Index
Fund) ("Dreyfus") is amended as follows:
1. Article 1.13 is deleted and replaced with the following:
"Separate Accounts" shall mean Ameritas Variable Life Insurance Co
Separate Account V, Ameritas Variable Life Insurance Co Separate
Account VA-2, Ameritas Variable Separate Account VA, and Ameritas
Variable Separate Account VL
All other provisions of the Agreement shall remain the same.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative.
AMERITAS VARIABLE LIFE INSURANCE COMPANY
By: /S/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
Date: Xxxxx 0, 0000
XXXXXXX STOCK INDEX FUND, INC. (formerly known as
DREYFUS LIFE AND ANNUITY INDEX FUND
(d/b/a Stock Index Fund) )
By: /S/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
Date: March 12, 2007
FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 15` day of October, 2002, between
Ameritas Variable Life Insurance Company, a life insurance company organized
under the laws of the State of Nebraska ("Insurance Company"), and Dreyfus Life
and Annuity Index Fund (d/b/a Stock Index Fund), a Corporation organized under
the laws of the State of Maryland (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 "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 Accounts" shall mean Ameritas Variable Annuity Separate
Account and Ameritas Variable Life Separate Account (collectively
"Separate Accounts"), a separate account established by Insurance
Company in accordance with the laws of the State of Nebraska.
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 the Separate Accounts pursuant
to the insurance laws of the State of Nebraska 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 the Separate Accounts 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 Insurance Company represents and warrants that (a) the Contracts will
be described in a registration statement filed under the Securities
Act of 1933, as amended ("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.
2.3 Insurance Company 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 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 Accounts are and will be kept
separate from Insurance Company's General Account and any other
separate accounts Insurance Company may have, and will not be charged
with liabilities from any business that Insurance Company may conduct
or the liabilities of any companies affiliated with Insurance Company.
2.4 Each Participating Fund represents that it is registered with the
Commission under the Act as an open-end, management investment company
and possesses, and shall maintain, all legal and regulatory licenses,
approvals, consents and/or exemptions required for the Participating
Fund to operate and offer its Shares as an underlying investment
medium for Participating Companies.
2.5 Each Participating Fund represents that it is currently qualified as a
regulated investment company under Subchapter M of the Internal
Revenue Code of 1986, as amended (the "Code"), and that it will make
every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify Insurance
Company immediately upon having a reasonable basis for believing that
it has ceased to so qualify or that it might not so qualify in the
future.
2.6 Insurance Company represents and agrees that the Contracts are
currently, and at the time of issuance will be, treated as life
insurance policies or annuity contracts, whichever is appropriate,
under applicable provisions of the Code, and that it will make every
effort to maintain such treatment and that it will notify each
Participating Fund and Dreyfus immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or
that they might not be so treated in the future. Insurance Company
agrees that any prospectus offering a Contract that is a "modified
endowment contract," as that term is defined in 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. In the event of a breach of this Article by the
Participating Fund, it will take all reasonable steps (a) to notify
the Insurance Company of such breach and (b) to
adequately diversity the Fund so as to achieve compliance with the
grace period afforded by Treasury Regulation 1.817.5. The
Participating Fund shall provide the Company information reasonably
requested in relation to Section 817(h) diversification requirements,
including quarterly reports and annual certifications, as requested by
Insurance Company.
2.8 Insurance Company agrees that each Participating Fund shall be
permitted (subject to the other terms of this Agreement) to make its
shares available to other Participating Companies and Contractholders.
2.9 Each Participating Fund represents and warrants that any of its
directors, trustees, officers, employees, investment advisers, and
other individuals/entities who deal with the money and/or securities
of the Participating Fund are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit
of the Participating Fund in an amount not less than that required by
Rule 17g-1 under the Act. The aforesaid Bond shall include coverage
for larceny and embezzlement and shall be issued by a reputable
bonding company.
2.10 Insurance Company represents and warrants that all of its employees
and agents who deal with the money and/or securities of each
Participating Fund are and shall continue to be at all times covered
by a blanket fidelity bond or similar coverage in an amount not less
than the coverage required to be maintained by the Participating Fund.
The aforesaid Bond shall include coverage for larceny and embezzlement
and shall be issued by a reputable bonding company.
2.11 Insurance Company 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 Insurance
Company and the Separate Account on each Business Day pursuant to
rules of the Commission. Notwithstanding the foregoing, each
Participating Fund may refuse to sell its Shares to any person, or
suspend or terminate the offering of its Shares, if such action is
required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of its Board, acting in good faith and in
light of its fiduciary duties under federal and any applicable state
laws, necessary and in the best interests of the Participating Fund's
shareholders.
3.3 Each Participating Fund agrees that shares of the Participating Fund
will be sold only to (a) Participating Companies and their separate
accounts or (b) "qualified pension or retirement plans" as determined
under Section 817(h)(4) of the Code. Except as otherwise set forth in
this Section 3.3, no shares of any Participating Fund will be sold to
the general public.
3.4 Each Participating Fund shall use its best efforts to provide closing
net asset value, dividend and capital gain information on a per Share
basis to Insurance Company by 6:00 p.m. Eastern time on each Business
Day. Any material errors in the calculation of net asset value,
dividend and capital gain information shall be reported immediately
upon discovery to Insurance Company. Non-material errors will be
corrected in the next Business Day's net asset value per Share. Any
such notice will state for each day for which an error occurred, the
incorrect price, the correct price and the reason for the price
change. The Participating Fund shall make the Insurance Company whole
for any payments or adjustments to the number of shares in the
Separate Accounts that are demonstrated to be required as a result of
pricing errors.
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 Accounts for the day. Using this unit value,
Insurance Company will process the day's Separate Accounts
transactions received by it by the close of trading on the floor of
the New York Stock Exchange (currently 4:00 p.m. Eastern time) to
determine the net dollar amount of the Shares of each Participating
Fund that will be purchased or redeemed at that day's closing net
asset value per Share. The net purchase or redemption orders will be
transmitted to each Participating Fund by Insurance Company by 11:00
a.m. Eastern time on the Business Day next following Insurance
Company's receipt of that information. Subject to Sections 3.6 and
3.8, all purchase and redemption orders for Insurance Company's
General Accounts shall be effected at the net asset value per Share of
each Participating Fund next calculated after receipt of the order by
the Participating Fund or its Transfer Agent.
3.6 Each Participating Fund appoints Insurance Company as its agent for
the limited purpose of accepting orders for the purchase and
redemption of Shares of the Participating Fund for the Separate
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 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 transmit to the
applicable Participating Fund payment in Federal Funds by 12:00 noon
Eastern time on the Business Day the Participating Fund receives the
notice of the order pursuant to Section 3.5. Each applicable
Participating Fund will execute such orders at the applicable net
asset value per Share determined as of the close of trading on the
effective trade date if the Participating Fund receives payment in
Federal Funds by 12:00 midnight Eastern time on the Business Day the
Participating Fund receives the notice of the order pursuant to
Section 3.5. If payment in Federal Funds for any purchase is not
received or is received by a Participating Fund after 12:00 noon
Eastern time on such Business Day, Insurance Company shall promptly,
upon each applicable Participating Fund's request, reimburse the
respective Participating Fund for any charges, costs, fees, interest
or other expenses incurred by the Participating Fund in connection
with any advances to, or borrowings or overdrafts by, the
Participating Fund, or any similar expenses incurred by the
Participating Fund, as a result of portfolio transactions effected by
the Participating Fund based upon such purchase request. If Insurance
Company's order requests the redemption of any Shares of a
Participating Fund valued at or greater than $1 million dollars, the
Participating Fund will wire such amount to Insurance Company within
seven days of the order.
3.9 Each Participating Fund has the obligation to ensure that its Shares
are registered with applicable federal agencies at all times.
3.10 Each Participating Fund will confirm each purchase or redemption order
made by Insurance Company. Transfers of Shares of a Participating Fund
will be by book entry only. No share certificates will be issued to
Insurance Company. Insurance Company will record Shares ordered from a
Participating Fund in an appropriate title for the corresponding
account.
3.11 Each Participating Fund shall credit Insurance Company with the
appropriate number of Shares.
3.12 On each ex-dividend date of a Participating Fund or, if not a Business
Day, on the first Business Day thereafter, each Participating Fund
shall communicate to Insurance Company the amount of dividend and
capital gain, if any, per Share. All dividends and capital gains shall
be automatically reinvested in additional Shares of the applicable
Participating Fund at the net asset value per Share on the ex-dividend
date. Each Participating Fund shall, on the day after the ex-dividend
date or, if not a Business Day, on the first Business Day thereafter,
notify Insurance Company of the number of Shares so issued.
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.
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 Accounts, 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. This tabulation will be sent
to Participating Funds in the form of a letter signed by a duly
authorized officer of the Insurance Company attesting to the accuracy
of the information contained in the letter.
ARTICLE V
EXPENSES
5.1 The charge to each Participating Fund for all expenses and costs of
the Participating Fund, including but not limited to management fees,
Rule 12b-1 fees, if any, administrative expenses and legal and
regulatory costs, will be included in the determination of the
Participating Fund's daily net asset value per Share.
5.2 Except as 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 in employer sponsored
plans, as applicable, as Dreyfus and Insurance Company shall
agree from time to time.
b. Distribution expenses of any Participating Fund materials or
marketing materials for prospective Insurance Company
Contractholders and Participants.
c. Distribution expenses of any Participating Fund materials or
marketing materials for Insurance Company Contractholders and
Participants.
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.
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. As set forth
therein, if Dreyfus Investment Portfolios is a Participating Fund,
Insurance Company agrees, as applicable, to report any potential or
existing conflicts 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 under such
application. Insurance Company agrees to carry out such
responsibilities with a view to the interests of existing
Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict exists
with regard to Contractholder investments in a Participating Fund, the
Board shall give prompt notice to all Participating Companies and any
other Participating Fund. If the Board determines that Insurance
Company is responsible for causing or creating said conflict,
Insurance Company shall at its sole cost and expense, and to the
extent reasonably practicable (as determined by a majority of the
Disinterested Board Members), take such action as is necessary to
remedy or eliminate the irreconcilable material conflict. Such
necessary action may include, but shall not be limited to:
a. Withdrawing the assets allocable to the Separate 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 Insurance Company to disregard Contractholder voting instructions
and said decision represents a minority position or would preclude a
majority vote by all Contractholders having an interest in a
Participating Fund, Insurance Company
may be required, at the Board's election, to withdraw the investments
of the Separate 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. 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 Accounts or any Participating Fund taken or omitted as a
result of any act or failure to act by Insurance Company pursuant to
this Article VI, shall relieve Insurance Company of its obligations
under, or otherwise affect the operation of, Article V.
ARTICLE VII
VOTING SHARES OF PARTICIPATING FUND
7.1 Each Participating Fund shall provide Insurance Company with copies,
at no cost to Insurance Company, of the Participating Fund's proxy
materials, reports to shareholders and other communications to
shareholders (except for such materials that are designed only for a
class of shares of a Participating Fund not offered to the Insurance
Company pursuant to this Agreement) in such quantity as Insurance
Company shall reasonably require for distributing to Contractholders
or Participants.
Insurance Company shall:
(a) solicit voting instructions from Contractholders or Participants
on a timely basis and in accordance with applicable law;
(b) vote the 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.
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
Accounts 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 (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
Insurance Company may reasonably request:
a. Current Prospectus and any supplements thereto; and
b. Other marketing materials.
Expenses for the production of such documents shall be borne by
Insurance Company in accordance with Section 5.2 of this Agreement.
8.2 Insurance Company shall designate certain persons or entities that
shall have the requisite licenses to solicit applications for the sale
of Contracts. No representation is made as to the number or amount of
Contracts that are to be sold by Insurance Company. Insurance Company
shall make reasonable efforts to market the Contracts and shall comply
with all applicable federal and state laws in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to
each applicable Participating Fund or its designee, each piece of
sales literature or other promotional material in which the
Participating Fund, its investment adviser or the administrator is
named, at least fifteen Business Days prior to its use. No such
material shall be used unless the Participating Fund or its designee
approves such material. Such approval (if given) must be in writing
and shall be presumed not given if not received within ten Business
Days after receipt of such material. Each applicable Participating
Fund or its designee, as the case may be, shall use all reasonable
efforts to respond within ten days of receipt.
8.4 Insurance Company shall not give any information or make any
representations or statements on behalf of a Participating Fund or
concerning a Participating Fund in connection with the sale of the
Contracts other than the information or representations contained in
the registration statement or Prospectus of, as may be amended or
supplemented from time to time, or in reports or proxy statements for,
the applicable Participating Fund, or in sales literature or other
promotional material approved by the applicable Participating Fund.
8.5 Each Participating Fund shall furnish, or shall cause to be furnished,
to Insurance Company, each piece of the Participating Fund's sales
literature or other promotional material in which Insurance Company or
the Separate Accounts is named, at least fifteen Business Days prior
to its use. No such material shall be used unless Insurance Company
approves such material. Such approval (if given) must be in writing
and shall be presumed not given if not received within ten
Business Days after receipt of such material. Insurance Company shall
use all reasonable efforts to respond within ten days of receipt.
8.6 Each Participating Fund shall not, in connection with the sale of
Shares of the Participating Fund, give any information or make any
representations on behalf of Insurance Company or concerning Insurance
Company, 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 Insurance Company for
distribution to Contractholders or Participants, or in sales
literature or other promotional material approved by Insurance
Company.
8.7 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designed
for use, in a newspaper, magazine or other periodical, radio,
television, telephone or tape recording, videotape display, signs or
billboards, motion pictures or other public media), sales literature
(such as any written communication distributed or made generally
available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, or
reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other
communications distributed or made generally available to some or all
agents or employees, registration statements, prospectuses, statements
of additional information, shareholder reports and proxy materials,
and any other material constituting sales literature or advertising
under National Association of Securities Dealers, Inc. rules, the Act
or the 1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless each
Participating Fund, Dreyfus, each respective Participating Fund's
investment adviser and sub-investment adviser (if applicable), each
respective Participating Fund's distributor, and their respective
affiliates, and each of their directors, trustees, officers,
employees, agents and each person, if any, who controls 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 Insurance
Company for use in the registration statement or Prospectus or sales
literature or advertisements of the respective Participating Fund or
with respect to the Separate 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 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 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 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. 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, officers, employees, agents and each person, if any, who
controls Insurance Company within the meaning of the 1933 Act against
any losses, claims, damages or liabilities to which Insurance Company
or any such director, officer, employee, agent or controlling person
may become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
(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 Insurance Company by the respective Participating Fund; and the
respective Participating Fund will reimburse any legal or other
expenses
reasonably incurred by Insurance Company or any such director,
officer, employee, agent or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the respective Participating Fund will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or omission or alleged omission made in such registration
statement, Prospectus, sales literature or advertisements in
conformity with written information furnished to the respective
Participating Fund by Insurance Company specifically for use therein.
This indemnity agreement will be in addition to any liability which
the respective Participating Fund may otherwise have.
9.3 Each Participating Fund severally shall indemnify and hold Insurance
Company harmless against any and all liability, loss, damages, costs
or expenses which Insurance Company may incur, suffer or be required
to pay due to the respective Participating Fund's (i) incorrect
calculation of the daily net asset value, dividend rate or capital
gain distribution rate; (ii) incorrect reporting of the daily net
asset value, dividend rate or capital gain distribution rate; and
(iii) untimely reporting of the net asset value, dividend rate or
capital gain distribution rate; provided that the respective
Participating Fund shall have no obligation to indemnify and hold
harmless Insurance Company if the incorrect calculation or incorrect
or untimely reporting was the result of incorrect information
furnished by Insurance Company or information furnished untimely by
Insurance Company or otherwise as a result of or relating to a breach
of this Agreement by Insurance Company.
9.4 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 Insurance Company shall indemnify and hold each respective
Participating Fund, Dreyfus and sub-investment adviser of the
Participating Fund harmless against any tax liability incurred by the
Participating Fund under Section 851 of the Code arising from
purchases or redemptions by Insurance Company's General Account(s) or
the account of its affiliates.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions
herein.
10.2 This Agreement shall terminate without penalty:
a. As to any Participating Fund, at the option of Insurance Company
or the Participating Fund at any time from the date hereof upon
180 days' notice, unless a shorter time is agreed to by the
respective Participating Fund and Insurance Company;
b. As to any Participating Fund, at the option of Insurance Company,
if Shares of that Participating Fund are not reasonably available
to meet the requirements of the Contracts as determined by
Insurance Company. Prompt notice of election to terminate shall
be furnished by Insurance Company, said termination to be
effective ten days after receipt of notice unless the
Participating Fund makes available a sufficient number of Shares
to meet the requirements of the Contracts within said ten-day
period;
c. As to a Participating Fund, at the option of Insurance Company,
upon the institution of formal proceedings against that
Participating Fund by the Commission, National Association of
Securities Dealers or any other regulatory body, the expected or
anticipated ruling, 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
a.
election to terminate shall be furnished by Insurance Company
with said termination to be effective upon receipt of notice;
d. As to a Participating Fund, at the option of each Participating
Fund, upon the institution of formal proceedings against
Insurance Company by the Commission, National Association of
Securities Dealers or any other regulatory body, the expected or
anticipated ruling, judgment or outcome of which would, in the
Participating Fund's reasonable judgment, materially impair
Insurance Company's ability to meet and perform Insurance
Company's obligations and duties hereunder. Prompt notice of
election to terminate shall be furnished by such Participating
Fund with said termination to be effective upon receipt of
notice;
e. As to a Participating Fund, at the option of that Participating
Fund, if the Participating Fund shall determine, in its sole
judgment reasonably exercised in good faith, that Insurance
Company has suffered a material adverse change in its business or
financial condition or is the subject of material adverse
publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the
business and operation of that Participating Fund or Dreyfus,
such Participating Fund shall notify Insurance Company in writing
of such determination and its intent to terminate this Agreement,
and after considering the actions taken by Insurance Company and
any other changes in circumstances since the giving of such
notice, such determination of the Participating Fund shall
continue to apply on the sixtieth (60th) day following the giving
of such notice, which sixtieth day shall be the effective date of
termination;
f. As to a Participating Fund, at the option of Insurance Company,
if Insurance Company shall determine, in its sole judgment
reasonably exercised in good faith that the Participating Fund
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
Accounts, 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;
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 breach of any material provision of this Agreement;
1. 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
Insurance Company, whichever shall have legal authority to do so,
shall be permitted to reallocate investments in
that Participating Fund, redeem investments in that Participating Fund
and/or invest in that Participating Fund upon the making of additional
purchase payments under the Existing Contracts. In the event of a
termination of this Agreement pursuant to Section 10.2 hereof, such
Participating Fund and Dreyfus, as promptly as is practicable under
the circumstances, shall notify Insurance Company whether Dreyfus and
that Participating Fund will continue to make Shares of that
Participating Fund available after such termination. If such Shares of
the Participating Fund continue to be made available after such
termination, the provisions of this Agreement shall remain in effect
and thereafter either of that Participating Fund or Insurance Company
may terminate the Agreement as to that Participating Fund, as so
continued pursuant to this Section 10.3, upon prior written notice to
the other party, such notice to be for a period that is reasonable
under the circumstances but, if given by the Participating Fund, need
not be for more than six months.
10.4 Termination of this Agreement as to any one Participating Fund shall
not be deemed a termination as to any other Participating Fund unless
Insurance Company or such other Participating Fund, as the case may
be, terminates this Agreement as to such other Participating Fund in
accordance with this Article X.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the
addition or deletion of any Participating Fund or class of Shares of a
Participating Fund as specified in Exhibit A, shall be made by
agreement in writing between Insurance Company and each respective
Participating Fund.
ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be given by certified
mail, return receipt requested, to the appropriate parties at the
following addresses:
Insurance Company: Ameritas Variable Life Insurance Company
0000 "0" Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
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.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
AMERITAS VARIABLE LIFE INSURANCE COMPANY
By: /S/ Xxxxxx X. X'Xxxxx
Its: Assistant Vice President
Attest: /S/ Xxxxxxx X. Xxxxxxx
DREYFUS LIFE AND ANNUITY INDEX FUND, INC.
(d/b/a/ DREYFUS STOCK INDEX FUND)
By: /S/ Xxxxxx X. Xxxxxx
Its: Assistant Secretary
Attest: /S/ Xxxxxxxx [indecipherable]
EXHIBIT A
LIST OF PARTICIPATING FUNDS
Fund Name Share Class
Dreyfus Life and Annuity Index Fund Initial Class Shares
(d/b/a Dreyfus Stock Index Fund)
MidCap Stock Portfolio Service Class Shares
