FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 21st day of October, 1998, between
Business Men's Assurance Company of America, a life insurance company organized
under the laws of the State of Missouri ("Insurance Company"), and each of
DREYFUS VARIABLE INVESTMENT FUND; THE DREYFUS SOCIALL Y RESPONSIBLE GROWTH FUND,
INC.; DREYFUS LIFE AND ANNUITY INDEX FUND, INC. (d/b/a DREYFUS STOCK INDEX
FUND); AND DREYFUS INVESTMENT PORTFOLIOS (each a "Fund").
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Directors or Trustees, as the case may be,
of a Fund, which has the responsibility for management and control of the Fund.
1.3 "Business Day" shall mean any day for which a Fund calculates net asset
value per share as described in the Fund's Prospectus.
1.4 "Commission" shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity or life insurance contract that
uses any Participating Fund (as defined below) as an underlying investment
medium. Individuals who participate under a group Contract are "Participants."
1.6 "Contractholder" shall mean any entity that is a party to a Contract with a
Participating Company (as defined below).
1.7 "Disinterested Board Members" shall mean those members of the Board of a
Fund that are not deemed to be "interested persons" of the Fund, as defined by
the Act.
1.8 "Dreyfus" shall mean The Dreyfus Corporation and its affiliates, including
Dreyfus Service Corporation.
1.9 "Participating Companies" shall mean any insurance company (including
Insurance Company) that offers variable annuity and/or variable life insurance
contracts to the public and that has entered into an agreement with one or more
of the Funds.
1.10 "Participating Fund" shall mean each Fund, including, as applicable, any
series thereof, specified in Exhibit A, as such Exhibit may be amended from time
to time by agreement of the parties hereto, the shares of which are available to
serve as the underlying investment medium for the aforesaid Contracts.
1.11 "Prospectus" shall mean the current prospectus and statement of additional
information of a Fund, as most recently filed with the Commission.
1.12 "Separate Account" shall mean each of BMA Variable Annuity Account A and
BMA Variable Life Account A, separate accounts established by Insurance Company
in accordance with the laws of the State of Missouri.
1.13 "Software Program" shall mean the software program used by a Fund for
providing Fund and account balance information including net asset value per
share. Such Program may include the Lion System. In situations where the Lion
System or any other Software Program used by a Fund is not available, such
information may be provided by telephone. The Lion System shall be provided to
Insurance Company at no charge.
1.14 "Insurance Company's General Account(s)" shall mean the general account(s)
of Insurance Company and its affiliates that invest in a Fund.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law; (b) it has
legally and validly established the Separate Account pursuant to the Missouri
Insurance Code for the purpose of offering to the public certain individual and
group variable annuity and life insurance contracts; (c) it has registered the
Separate Account as a unit investment trust under the Act to serve as the
segregated investment account for the Contracts; and (d) the Separate Account is
eligible to invest in shares of each Participating Fund without such investment
disqualifying any Participating Fund as an investment medium for insurance
company separate accounts supporting variable annuity contracts or variable life
insurance contracts.
2.2 Insurance Company represents and warrants that (a) the Contracts will be
described in a registration statement filed under the Securities Act of 1933, as
amended ("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 Account are, in
accordance with the applicable Contracts, to be credited to or charged against
such Separate Account without regard to other income, gains or losses from
assets allocated to any other accounts of Insurance Company. Insurance Company
represents and warrants that the assets of the Separate Account are and will be
kept separate from Insurance Company's General Account and any other separate
accounts Insurance Company may have, and will not be charged with liabilities
from any business that Insurance Company may conduct or the liabilities of any
companies affiliated with Insurance Company.
2.4 Each Participating Fund represents that it is registered with the Commission
under the Act as an open-end, management investment company and possesses, and
shall maintain, all legal and regulatory licenses, approvals, consents and/or
exemptions required for the Participating' Fund to operate and offer its shares
as an underlying investment medium for Participating Companies.
2.5 Each Participating Fund represents that it is currently qualified as a
regulated investment company under Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code"), and that it will 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
and the Regulations thereunder. In the event a Participating fund becomes aware
that it has failed to so comply, it will take all reasonable steps (a) to notify
Insurance Company of such failure and (b) to adequately diversify the Fund so as
to achieve compliance.
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 17 g-l 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 or appropriate
for purposes of its operations under applicable law. The aforesaid bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
2.11 Insurance Company agrees that Dreyfus shall be deemed a third party
beneficiary under this Agreement and may enforce any and all rights conferred by
virtue of this Agreement.
ARTICLE III
FUND SHARES
3.1 The Contracts funded through the Separate Account will provide for the
investment of certain amounts in shares of each Participating Fund.
3.2 Each Participating Fund agrees to make its shares available for purchase at
the then applicable net asset value per share by Insurance Company and the
Separate Account on each Business Day pursuant to rules of the Commission.
Notwithstanding the foregoing, each Participating Fund may refuse to sell its
shares to any person, or suspend or terminate the offering of its shares, if
such action is required by law or by regulatory authorities having jurisdiction
or is, in the sole discretion of its Board, acting in good faith and in light of
its fiduciary duties under federal and any applicable state laws, necessary and
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. In the event of a material error in the net asset value per share,
the Fund shall take the following steps. Any such error shall be reported
promptly upon discovery to the Insurance Company. Notification can be made
orally or by direct or indirect systems access but must be confirmed in writing.
The letter must state for each day for which an error occurred the incorrect
price, the correct price, and the reason for the price change. If an adjustment
is necessary to correct an error which has caused the Separate Account to
receive less than that to which it is entitled, the Fund shall make all
necessary adjustments to the number of shares owned in the Separate Account and
distribute to the Insurance Company any and all amounts of the underpayment. The
Insurance Company will credit the appropriate amount of such payment to the
Separate Account. No adjustment for an error shall be taken in any Separate
Account until such time as the parties hereto have agreed to a resolution of the
error, but the parties shall use all reasonable efforts to reach such agreement
within two business days after discovery of the error.
3.5 At the end of each Business Day, Insurance Company will use the information
described in Sections 3.2 and 3.4 to calculate the unit values of the Separate
Account for the day. Using this unit value, Insurance Company will process the
day's Separate Account transactions received by it by the close of trading on
the floor of the New York Stock Exchange (currently 4:00 p.m. Eastern time) to
determine the net dollar amount of each Participating Fund's shares that will be
purchased or redeemed at that day's closing net asset value per share. The net
purchase or redemption orders will be transmitted to each Participating Fund by
Insurance Company by 11 :00 a.m. Eastern time on the Business Day next following
Insurance Company's receipt of that information. Subject to Sections 3.6 and
3.8, all purchase and redemption orders for Insurance Company's General Accounts
shall be effected at the net asset value per share of each Participating Fund
next calculated after receipt of the order by the Participating Fund or its
Transfer Agent.
3.6 Each Participating Fund appoints Insurance Company as its agent for the
limited purpose of accepting orders for the purchase and redemption of
Participating Fund shares for the Separate Account. Each Participating Fund will
execute orders at the applicable net asset value per share determined as of the
close of trading on the day of receipt of such orders by Insurance Company
acting as agent ("effective trade date"), provided that the Participating Fund
receives notice of such orders by 11 :00 a.m. Eastern time on the next following
Business Day and, if such orders request the purchase of Participating Fund
shares, the conditions specified in Section 3.8, as applicable, are satisfied. A
redemption or purchase request that does not satisfy the conditions specified
above and in Section 3.8, as applicable, will be effected at the net asset value
per share computed on the Business Day immediately preceding the next following
Business Day upon which such conditions have been satisfied in accordance with
the requirements of this Section and Section 3.8. Insurance Company represents
and warrants that all orders submitted by the Insurance Company for execution on
the effective trade date shall represent purchase or redemption orders received
from Contractholders prior to the close of trading on the New York Stock
Exchange on the effective trade date.
3.7 Insurance Company will make its best efforts to notify each applicable
Participating Fund in advance of any unusually large purchase or redemption
orders.
3.8 If Insurance Company's order requests the purchase of a Participating Fund's
shares, Insurance Company will pay for such purchases by wiring Federal Funds to
the Participating Fund or its designated custodial account on the day the order
is transmitted. Insurance Company shall make all reasonable efforts to transmit
to the applicable Participating Fund payment in Federal Funds by 12:00 noon
Eastern time on the Business Day the Participating Fund receives the notice of
the order pursuant to Section 3.5. Each applicable Participating Fund will
execute such orders at the applicable net asset value per share determined as of
the close of trading on the effective trade date if the Participating Fund
receives payment in Federal Funds by 12:00 midnight Eastern time on the Business
Day the Participating Fund receives the notice of the order pursuant to Section
3.5. If payment in Federal Funds for any purchase is not received or is received
by a Participating Fund after 12:00 noon Eastern time on such Business Day,
Insurance Company shall promptly, upon each applicable Participating Fund's
request, reimburse the respective Participating Fund for any charges, costs,
fees, interest or other expenses incurred by the Participating Fund in
connection with any advances to, or borrowings or overdrafts by, the
Participating Fund, or any similar expenses incurred by the Participating Fund,
as a result of portfolio transactions effected by the Participating Fund based
upon such purchase request. If Insurance Company's order requests the redemption
of any Participating Fund's shares valued at or greater than $1 million dollars,
the Participating Fund will wire such amount to Insurance Company within seven
days of the order.
3.9 Each Participating Fund has the obligation to ensure that its shares are
registered with applicable federal agencies at all times. Fund will register and
qualify its shares for sale in accordance with the laws of the applicable states
as may be required by law.
3.10 Each Participating Fund will confirm each purchase or redemption order made
by Insurance Company. Transfer of Participating Fund shares will be by book
entry only. No 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 its shareholders) in quantities as Insurance Company may reasonably request
for distribution to each Contractholder and Participant. If requested by
Insurance Company, the Participating Fund will provide documentation (including
a final copy of the Participating Fund's prospectus as set in type or in
camera-ready copy) and other assistance as is reasonably necessary in order for
Insurance Company to print together in one document the current prospectus for
the Contracts, and the current prospectus for the Participating Fund and the
current prospectuses of other funds in which the assets of the Contracts are
invested. In such case the Participating Fund will bear its portion of the
reasonable expense allocable to the fund portion of the combined printed
prospectus. Insurance Company shall submit the bills for such printing to the
Participating Fund and shall monitor such costs and use reasonable efforts to
control such costs.
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, contemporaneously
with the filing of such document with the Commission or other regulatory
authorities.
4.4 Insurance Company will provide to each Participating Fund at least one copy
of all registration statements, Prospectuses, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Contracts or the Separate Account, contemporaneously with the
filing of such document with the Commission.
ARTICLE V
EXPENSES
5.1 The charge to each Participating Fund for all expenses and costs of the
Participating Fund, including but not limited to management fees, administrative
expenses and legal and regulatory costs, will be included in the determination
of the Participating Fund's daily net asset value per share.
5.2 Except as provided in this Article V and, in particular in the next
sentence, Insurance Company shall not be required to pay directly any expenses
of any Participating Fund or expenses relating to the distribution of its
shares. Insurance Company shall pay the following expenses or costs:
a. Such amount of the production expenses of any Participating Fund materials,
including the cost of printing a Participating Fund's Prospectus, or marketing
materials for prospective Insurance Company Contractholders and Participants as
Dreyfus and Insurance Company shall agree from time to time.
b. Distribution expenses of any Participating Fund materials or marketing
materials for prospective Insurance Company Contractholders and Participants.
c. Distribution expenses of any Participating Fund materials or marketing
materials for Insurance Company Contractholders and Participants.
Except as provided herein, all other expenses of each Participating Fund shall
not be borne by Insurance Company.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 Insurance Company has reviewed a copy of (i) the amended order dated
December 31, 1997 of the Securities and Exchange Commission under Section 6(c)
of the Act with respect to Dreyfus Variable Investment Fund and Dreyfus Life and
Annuity Index Fund, Inc.; and (ii) the order dated February 5, 1998 of the
Securities and Exchange Commission under Section 6( c) of the Act with respect
to The Dreyfus Socially Responsible Growth Fund, Inc. and Dreyfus Investment
Portfolios, and, in particular, has reviewed the conditions to the relief set
forth in each related Notice. As set forth therein, if Dreyfus Variable
Investment Fund, Dreyfus Life and Annuity Index Fund, Inc., The Dreyfus Socially
Responsible Growth Fund, Inc. or Dreyfus Investment Portfolios is a
Participating Fund, Insurance Company agrees, as applicable, to report any
potential or existing conflicts promptly to the respective Board of Dreyfus
Variable Investment Fund, Dreyfus Life and Annuity Index Fund, Inc., The Dreyfus
Socially Responsible Growth Fund, Inc. and/or Dreyfus Investment Portfolios,
and, in particular, whenever contract voting instructions are disregarded, and
recognizes that it will be responsible for assisting each applicable Board in
carrying out its responsibilities under such application. Insurance Company
agrees to carry out such responsibilities with a view to the interests of
existing Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board Members,
determines that a material irreconcilable conflict exists with regard to
Contractholder investments in a Participating Fund, the Board shall give prompt
notice to all Participating Companies and any other Participating Fund. If the
Board determines that Insurance Company is responsible for causing or creating
said conflict, Insurance Company shall at its sole cost and expense, and to the
extent reasonably practicable (as determined by a majority of the Disinterested
Board Members), take such action as is necessary to remedy or eliminate the
irreconcilable material conflict. Such necessary action may include, but shall
not be limited to:
a. Withdrawing the assets allocable to the Separate Account from the
Participating Fund and reinvesting such assets in another Participating Fund (if
applicable) or a different investment medium, or submitting the question of
whether such segregation should be implemented to a vote of all affected
Contractholders; and/or
b. Establishing a new registered management investment company.
6.3 If a material irreconcilable conflict arises as a result of a decision by
Insurance Company to disregard Contractholder voting instructions and said
decision represents a minority position or would preclude a majority vote by all
Contractholders having an interest in a Participating Fund, Insurance Company
may be required, at the Board's election, to withdraw the investments of the
Separate Account in that Participating Fund.
6.4 For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether or not any proposed action adequately remedies
any irreconcilable material conflict, but in no event will any Participating
Fund be required to bear the expense of establishing a new funding medium for
any Contract. Insurance Company shall not be required by this Article to
establish a new funding medium for any Contract if an offer to do so has been
declined by vote of a majority of the Contractholders materially adversely
affected by the irreconcilable material conflict.
6.5 No action by Insurance Company taken or omitted, and no action by the
Separate Account or any Participating Fund taken or omitted as a result of any
act or failure to act by Insurance Company pursuant to this Article VI, shall
relieve Insurance Company of its obligations under, or otherwise affect the
operation of, Article v.
ARTICLE VII
VOTING OF PARTICIPATING FUND SHARES
7.1 Each Participating Fund shall provide Insurance Company with copies, at no
cost to Insurance Company, of the Participating Fund's proxy material, reports
to shareholders and other communications to shareholders in such quantity as
Insurance Company shall reasonably require for distributing to Contractholders
or Participants.
Insurance Company shall:
(a) solicit voting instructions from Contractholders or Participants on a timely
basis and in accordance with applicable law;
(b) vote the Participating Fund shares in accordance with instructions received
from Contractholders or Participants; and
(c) vote the Participating Fund shares for which no instructions have been
received in the same proportion as Participating Fund shares for which
instructions have been received.
Insurance Company agrees at all times to vote its General Account shares in the
same proportion as the Participating Fund shares for which instructions have
been received from Contractholders or Participants. Insurance Company further
agrees to be responsible for assuring that voting the Participating Fund shares
for the Separate Account is conducted in a manner consistent with other
Participating Companies.
7.2 Insurance Company agrees that it shall not, without the prior written
consent of each applicable Participating Fund and Dreyfus, solicit, induce or
encourage 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 underwriter shall periodically furnish
Insurance Company with the following documents, in quantities as Insurance
Company may reasonably request:
a. Current Prospectus and any supplements thereto; and b. Other marketing
materials.
Expenses for the production of such documents shall be borne by Insurance
Company in accordance with Section 5.2 of this Agreement.
8.2 Insurance Company shall designate certain persons or entities that shall
have the requisite licenses to solicit applications for the sale of Contracts.
No representation is made as to the number or amount of Contracts that are to be
sold by Insurance Company. Insurance Company shall make reasonable efforts to
market the Contracts and shall comply with all applicable federal and state laws
in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to each
applicable Participating Fund or its designee, each piece of sales literature or
other promotional material in which the Participating Fund, its investment
adviser or the administrator is named, at least fifteen Business Days prior to
its use. No such material shall be used unless the Participating Fund or its
designee approves such material. Such approval (if given) must be in writing and
shall 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 Account is
named, at least fifteen Business Days prior to its use. No such material shall
be used unless Insurance Company approves such material. Such approval (if
given) must be in writing and shall be presumed not given if not received within
ten Business Days after receipt of such material. Insurance Company shall use
all reasonable efforts to respond within ten days of receipt.
8.6 Each Participating Fund shall not, in connection with the sale of
Participating Fund shares, give any information or make any representations on
behalf of Insurance Company or concerning Insurance Company, the Separate
Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as may be
amended or supplemented from time to time, or in published reports for the
Separate Account that are in the public domain or approved a 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 to thereof) (i) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in information furnished by Insurance Company for use in the
registration statement or Prospectus or sales literature or advertisements of
the respective Participating Fund or with respect to the Separate Account or
Contracts, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) arise out of or as
a result of conduct, statements or representations (other than statements or
representations contained in the Prospectus and sales literature or
advertisements of the respective Participating Fund) of Insurance Company or its
agents, with respect to the sale and distribution of Contracts for which the
respective Participating Fund's shares are an underlying investment; (iii) arise
out of the wrongful conduct of Insurance Company or persons under its control
with respect to the sale or distribution of the Contracts or .the respective
Participating Fund's shares; (iv) arise out of Insurance Company's incorrect
calculation and/or untimely reporting of net purchase or redemption orders; or
(v) arise out of any breach by Insurance Company of a material term of 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 severally agrees to indemnify and hold harmless
Insurance Company and each of its directors, officers, employees, agents and
each person, if any, who controls Insurance Company within the meaning of the
1933 Act against any losses, claims, damages or liabilities (including any
investigative, legal and other expense 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, officer,
employee, agent or controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement or Prospectus or sales literature or advertisements of the respective
Participating Fund; (2) arise out of or are based upon the omission to state in
the registration statement or Prospectus or sales literature or advertisements
of the respective Participating Fund any material fact required to be stated
therein or necessary to make the statements therein not misleading; (3) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or Prospectus or sales
literature or advertisements with respect to the Separate Account or the
Contracts and such statements were based on information provided to Insurance
Company by the respective Participating Fund; or (4) arise out of any breach by
a Participating Fund of a material term of this Agreement or as a result of any
failure by a Participating Fund to provide the services and furnish the material
or to make any payments provided for in this Agreement; 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
and each of its directors, officers, employees, agents, and each person, if any,
who controls Insurance Company within the meaning of the 1933 Act, harmless
against any and all liability, loss, damages, costs or expenses (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) which Insurance Company may incur, suffer or be required to pay
due to the respective Participating Fund's (1) incorrect calculation of the
daily net asset value, dividend rate or capital gain distribution rate; (2)
incorrect reporting of the daily net asset value, dividend rate or capital gain
distribution rate; and (3) untimely reporting of the net asset value, dividend
rate or capital gain distribution rate; provided that the respective
Participating Fund shall have no obligation to indemnify and hold harmless
Insurance Company if the incorrect calculation or incorrect or untimely
reporting was the result of incorrect information furnished by Insurance Company
or information furnished untimely by Insurance Company or otherwise as a result
of or relating to a breach of this Agreement by Insurance Company. This
indemnity agreement will be in addition to any liability which the respective
Participating Fund may otherwise have.
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 counselor
(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.
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 election to terminate shall be furnished by
Insurance Company with said termination to be effective upon receipt of notice;
d. As to a Participating Fund, at the option of each Participating Fund, upon
the institution of formal proceedings against Insurance Company by the
Commission, National Association of Securities Dealers or any other regulatory
body, the expected or anticipated ruling, judgment or outcome of which would, in
the Participating Fund's reasonable judgment, materially impair Insurance
Company's ability to meet and perform Insurance Company's obligations and duties
hereunder Prompt notice of election to terminate shall be furnished by such
Participating Fund with said termination to be effective upon receipt of notice;
e. As to a Participating Fund, at the option of that Participating Fund, if the
Participating Fund shall determine, in its sole judgment reasonably exercised in
good faith, that Insurance Company has suffered a material adverse change in its
business or financial condition or is the subject of material adverse publicity
and such material adverse change or material adverse publicity is likely to have
a material adverse impact upon the business and operation of that Participating
Fund or Dreyfus, such Participating Fund shall notify Insurance Company in
writing of such determination and its intent to terminate this Agreement, and
after considering the actions taken by Insurance Company and any other changes
in circumstances since the giving of such notice, such determination of the
Participating Fund shall continue to apply on the sixtieth (60th) day following
the giving of such notice, which sixtieth day shall be the effective date of
termination;
f. As to a Participating Fund, upon termination of the Investment Advisory
Agreement between that Participating Fund and Dreyfus or its successors unless
Insurance Company specifically approves the selection of a new Participating
Fund investment adviser. Such Participating Fund shall promptly furnish notice
of such termination to Insurance Company;
g. As to a Participating Fund, in the event that Participating Fund's shares are
not registered, issued or sold in accordance with applicable federal law, or
such law precludes the use of such shares as the underlying investment medium of
Contracts issued or to be issued by Insurance Company. Termination shall be
effective immediately as to that Participating Fund only upon such occurrence
without notice;
h. At the option of a Participating Fund upon a determination by its Board in
good faith that it is no longer advisable and in the best interests of
shareholders of that Participating Fund to continue to operate pursuant to this
Agreement. Termination pursuant to this Subsection (h) shall be effective upon
notice by such Participating Fund to Insurance Company of such termination;
i. At the option of a Participating Fund if the Contracts cease to qualify as
annuity contracts or life insurance policies, as applicable, under the Code, or
if such Participating Fund reasonably believes that the Contracts may fail to so
qualify;
j. At the option of any party to this Agreement, upon another party's breach of
any material provision of this Agreement;
k. At the option of a Participating Fund, if the Contracts are not registered,
issued or sold in accordance with applicable federal and/or state law; or
1. Upon assignment of this Agreement, unless made with the written consent of
every other non-assigning party.
m. 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 is the subject of material adverse publicity
and such material adverse publicity is likely to have a material adverse impact
on the sale of the Contracts and/or the operations or business reputation of
Insurance Company, Insurance Company shall notify the Participating Fund in
writing of such determination and its intent to terminate this Agreement, and,
after consideration of the actions taken by the Participating Fund and any other
changes in circumstances since the giving of such notice, the determination of
Insurance Company shall continue to apply on the sixtieth day since the giving
of such notice, which sixtieth (60th) day shall be the effective date of
termination.
Any such termination pursuant to Section 10.2a, 10.2d, 10.2e, 1 0.2f or 1 0.2k
herein shall not affect the operation of Article V of this Agreement. Any
termination of this Agreement shall not affect the operation of Article IX of
this Agreement.
10.3 Notwithstanding any termination of this Agreement pursuant to Section 10.2
hereof, each Participating Fund and Dreyfus may, at the option of the
Participating Fund, continue to make available additional shares of that
Participating Fund for as long as the Participating Fund desires pursuant to the
terms and conditions of this Agreement as provided below, for all Contracts in
effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, without limitation, if that
Participating Fund and Dreyfus so elect to make additional Participating Fund
shares available, the owners of the Existing Contracts or Insurance Company,
whichever shall have legal authority to do so, shall be permitted to reallocate
investments in that Participating Fund, redeem investments in that Participating
Fund and/or invest in that Participating Fund upon the making of additional
purchase payments under the Existing Contracts. In the event of a termination of
this Agreement pursuant to Section 10.2 hereof, such Participating Fund and
Dreyfus, as promptly as is practicable under the circumstances, shall notify
Insurance Company whether Dreyfus and that Participating Fund will continue to
make that Participating Fund's shares available after such termination. If such
Participating Fund shares continue to be made available after such termination,
the provisions of this Agreement shall remain in effect and thereafter either of
that Participating Fund or Insurance Company may terminate the Agreement as to
that Participating Fund, as so continued pursuant to this. Section. 1 0.3, 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. In determining to elect whether to continue to
make available additional shares, the Participating Fund shall act in good
faith, giving due consideration to the interests of existing shareholders,
including holders of Existing Contracts.
10.4 Termination of this Agreement as to anyone Participating Fund shall not be
deemed a termination as to any other Participating Fund unless Insurance Company
or such other Participating Fund, as the case may be, terminates this Agreement
as to such other Participating Fund in accordance with this Article X.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the addition
or deletion of any Participating Fund as specified in Exhibit A, shall be made
by agreement in writing between Insurance Company and each respective
Participating Fund.
ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be given by certified mail,
return receipt requested, to the appropriate parties at the following addresses:
Insurance Company: Business Men's Assurance Company of America
000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, V .P .
Participating Funds: [Name of Fund]
c/o Premier Mutual Fund Services, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Vice President and Assistant Secretary
with copies to: [Name of Fund]
c/o The Dreyfus Corporation
000 Xxxx X xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the addresses as
evidenced by the return receipt.
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 Each Participating Fund represents and warrants that its investment
adviser, The Dreyfus Corporation ("Dreyfus"), has advised that it has developed
a project plan and is taking appropriate steps to address the risk that, from
and after January 1,2000, the computer systems utilized by the Participating
Fund, or by Dreyfus on the Participating Fund's behalf, and the computer systems
of others with which Dreyfus's computer systems interface may be unable to
process properly and calculate date-related information and data, and may
experience date-logic failures (such risk being the "Year 2000 Problem").
Participating Fund has been advised that Dreyfus shall have performed any
required reprogramming and testing of hardware and software systems to resolve
the Year 2000 Problem on or before June 30, 1999. Participating Fund has been
advised that the effects of the Year 2000 Problem should not have a material
adverse effect on the ability of the Participating Fund to perform its
obligations under this Agreement.
LAW
14.1 This Agreement shall be construed in accordance with the internal laws of
the State of New York, without giving effect to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
BUSINESS MEN'S ASSURANCE COMPANY
OF AMERICA
By:
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Its:
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Attest:
---------------------------------------------
DREYFUS LIFE AND ANNUITY INDEX FUND, INC.
(d/b/a DREYFUS STOCK INDEX FUND)
By:
-----------------------------------------------------
Its:
----------------------------------------------------
Attest:
---------------------------------------------
THE DREYFUS SOCIALLY RESPONSIBLE
GROWTH FUND, INC.
By:
-------------------------------------------------------
Its: -----------------------------------------------------
Attest:
---------------------------------------------
DREYFUS VARIABLE INVESTMENT FUND
By:
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Its:
-------------------------------------------------
Attest:
---------------------------------------------
DREYFUS INVESTMENT PORTFOLIOS
By:
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Its:
-------------------------------------------------
Attest:
---------------------------------------------
EXHIBIT A
LIST OF PARTICIPATING FUNDS
Dreyfus Stock Index Fund
The Dreyfus Socially Responsible Growth Fund, Inc.
Dreyfus Variable Investment Fund
- Disciplined Stock Portfolio
- International Value Portfolio
