September 1, 2004
Dreyfus Service Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We wish to enter into an Agreement with you with respect to our providing
distribution, advertising and marketing assistance and shareholder services
relating to the Service shares of each series of the management investment
companies (each a "Fund") set forth on Schedule A hereto, as such Schedule may
be revised from time to time, or if no series are set forth on such Schedule,
the Fund, for which you are the principal underwriter as defined in the
Investment Company Act of 1940, as amended (the "Act"), and the exclusive agent
for the continuous distribution of shares of the Funds pursuant to the terms of
a Distribution Agreement between you and the Fund.
The terms and conditions of this Agreement are as follows:
1. We agree to provide distribution, advertising and marketing assistance
relating to the Service shares of the Funds and shareholder services for
the benefit of owners of variable annuity contracts and variable life
insurance policies (together, "variable insurance products") we issue
through our separate accounts that invest in the Service shares of the
Funds ("owners"), which separate accounts are set forth on Schedule B
hereto, as such Schedule may be revised from time to time. Such services
may include, without limitation: answering owner inquiries about the Funds;
establishing information interfaces and websites and internal systems for
Service shares; providing assistance and support with regard to the
training of owner relationship personnel and sales agents; providing
statements and/or reports showing tax, performance, owner account and other
information relating to Service shares; providing portfolio manager
commentaries to owners and other interested parties; and providing such
other information and services as you reasonably may request, to the extent
we are permitted by applicable statute, rule or regulation. If we are
restricted or unable to provide the services contemplated above, we agree
not to perform such services and not to accept fees thereafter. Our
acceptance of any fees hereunder shall constitute our representation (which
shall survive any payment of such fees and any termination of this
Agreement and shall be reaffirmed each time we accept a fee hereunder) that
our receipt of such fee is lawful.
2. We shall provide such office space and equipment, telephone facilities and
personnel as is necessary or beneficial for providing the services
described in Paragraph 1 of this Agreement.
3. We agree that neither we nor any of our employees or agents are authorized
to make any representation concerning any Fund, except those contained in
the then current
Prospectus furnished to us by you or the Fund, or in such supplemental
literature or advertising materials as may be authorized by you in writing.
4. We acknowledge that this Agreement is an agreement entered into pursuant to
the Fund's Distribution Plan adopted pursuant to Rule 12b-1 under the Act,
and shall become effective for a Fund only when approved by a vote of a
majority of (i) the Fund's Board of Directors or Trustees, as the case may
be (collectively "Directors," individually "Director"), and (ii) Directors
who are not "interested persons" (as defined in the Act) of the Fund and
have no direct or indirect financial interest in this Agreement, cast in
person at a meeting called for the purpose of voting on such approval.
5. As to each Fund, this Agreement shall continue until the last day of the
calendar year next following the date of execution, and thereafter shall
continue automatically for successive annual periods ending on the last day
of each calendar year, providing such continuance is approved specifically
at least annually by a vote of a majority of (i) the Fund's Directors and
(ii) Directors who are not "interested persons" (as defined in the Act) of
the Fund and have no direct or indirect financial interest in this
Agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval.
6. (a) As to each Fund, this Agreement is terminable without penalty, at any
time, by vote of a majority of the Fund's Directors who are not "interested
persons" (as defined in the Act) and have no direct or indirect financial
interest in this Agreement or, upon not more than 60 days' written notice,
by vote of holders of a majority of the Fund's outstanding Service shares.
As to each Fund, this Agreement is terminable without penalty upon 15 days'
notice by either party. In addition, you may terminate this Agreement as to
any or all Funds immediately, without penalty, if the present investment
adviser of such Fund(s) ceases to serve the Fund(s) in such capacity, or if
you cease to act as distributor of such Fund(s). Notwithstanding anything
contained herein, if the Distribution Plan adopted by the Fund is
terminated by the Fund's Board, or the Distribution Plan, or any part
thereof, is found invalid or is ordered terminated by any regulatory or
judicial authority, or we fail to perform the distribution, advertising,
marketing and shareholder servicing functions contemplated herein as to any
or all of the Funds, this Agreement shall be terminable effective upon
receipt of notice thereof by us. This Agreement also shall terminate
automatically, as to the relevant Fund, in the event of its assignment (as
defined in the Act).
(b) This Agreement shall become effective only when accepted and signed by
you and when the conditions in Paragraph 4 of this Agreement are satisfied.
This Agreement may be amended by you upon 15 days' prior notice to us, and
such amendment shall be deemed accepted by us upon the acceptance of a fee
payable under this Agreement after the effective date of any such
amendment. This Agreement constitutes the entire agreement and
understanding between the parties hereto relating to the subject matter
hereof and supersedes any and all prior agreements between the parties
hereto relating to the subject matter hereof.
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7. In consideration of the services and facilities described herein, we shall
be entitled to receive from you, and you agree to pay us with respect to
each Fund, the fees set forth opposite the Fund's name on Schedule A
hereto. We understand that any payments pursuant to this Agreement shall be
paid only so long as this Agreement, the Plan and the Fund's participation
agreement with us are in effect. We agree that no Director, officer or
shareholder of the Fund shall be liable individually for the performance of
the obligations hereunder or for any such payments.
8. Each party hereby represents and warrants to the other party that: (a) it
is a corporation, partnership or other entity duly organized and validly
existing in good standing under the laws of the jurisdiction in which it
was organized; (b) it will comply with all applicable federal and state
laws, and the rules, regulations, requirements and conditions of all
applicable regulatory and self-regulatory agencies or authorities in the
performance of its duties and responsibilities hereunder; (c) the execution
and delivery of this Agreement and the performance of the transactions
contemplated hereby have been duly authorized by all necessary action, and
all other authorizations and approvals (if any) required for its lawful
execution and delivery of this Agreement and its performance hereunder have
been obtained; and (d) upon execution and delivery by it, and assuming due
and valid execution and delivery by the other party, this Agreement will
constitute a valid and binding agreement, enforceable in accordance with
its terms.
9. We represent and warrant that the services we agree to render under this
Agreement are not services for which we deduct fees and charges under the
variable insurance products investing in the Service shares or for which we
are paid compensation pursuant to another arrangement.
10. We agree to provide to you and each applicable Fund such information
relating to our services hereunder as may be required to be maintained by
you and/or such Fund under applicable federal or state laws, and the rules,
regulations, requirements or conditions of applicable regulatory and
self-regulatory agencies or authorities.
11. (a) We agree to indemnify and hold harmless you and your officers and
directors, and each Fund and its Directors and any person who controls you
and/or the Fund within the meaning of Section 15 of the Securities Act of
1933, as amended, from any and all loss, liability and expense resulting
from our gross negligence or willful wrongful acts under this Agreement,
except to the extent such loss, liability or expense is the result of your
willful misfeasance, bad faith or gross negligence in the performance of
your duties, or by reason of the reckless disregard of your obligations and
duties under this Agreement.
(b) You agree to indemnify and hold us and our officers and directors
harmless from any and all loss, liability and expense resulting from your
gross negligence or willful wrongful acts under this Agreement, except to
the extent such loss, liability or expense is the result of our willful
misfeasance, bad faith or gross negligence in the performance of our
duties, or by reason of our reckless disregard of our obligations and
duties under this Agreement.
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12. Neither this Agreement nor the performance of the services of the
respective parties hereunder shall be considered to constitute an exclusive
arrangement, or to create a partnership, association or joint venture
between you and us. Neither party hereto shall be, act as, or represent
itself as, the agent or representative of the other, nor shall either party
have the right or authority to assume, create or incur any liability, or
any obligation of any kind, express or implied, against or in the name of,
or on behalf of, the other party.
13. All notices required or permitted to be given pursuant to this Agreement
shall be given in writing and delivered by personal delivery or by postage
prepaid, registered or certified United States first class mail, return
receipt requested, or by telecopier, telex, telegram or similar means of
same day delivery (with a confirming copy by mail as provided herein).
Unless otherwise notified in writing, all notices to you shall be given or
sent to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel, and all notices to us shall be given or sent to us at our
address, which shall be furnished to you in writing on or before the
effective date of this Agreement.
14. This Agreement shall be governed and construed in accordance with the
internal laws of the State of New York, without giving effect to the
principles of conflict of laws.
Very truly yours,
ZURICH LIFE INSURANCE COMPANY OF NEW YORK
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxx, XX 00000-0000
Attention: General Counsel
By:
---------------------------------
Title:
Date:
NOTE: Please sign and return both copies of this Agreement to Dreyfus Service
Corporation. Upon acceptance, one countersigned copy will be returned to you for
your files.
Accepted: DREYFUS SERVICE CORPORATION
By:
---------------------------------
Title:
Date:
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SCHEDULE A
Fee at an Annual Rate as a
Percentage of Average Daily Net
Asset Value of Service Shares held
Fund and Portfolio Name on behalf of owners/1/
----------------------- ----------------------------------
The Socially Responsible Growth Fund, Inc. 0. %
--
Dreyfus Investment Portfolios
MidCap Stock Portfolio 0. %
--
Technology Growth Portfolio 0. %
--
Dreyfus Variable Investment Fund
Small Company Stock Portfolio 0. %
--
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/1/ For purposes of determining the fee payable hereunder, the average daily net
asset value of the Fund's Service shares shall be computed in the manner
specified in the Fund's charter documents and then-current Prospectus and
Statement of Additional Information.
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SCHEDULE B
Name of Separate Accounts
ZLICONY Variable Annuity Separate Account
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