FORM OF
PARTICIPATION AGREEMENT
Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
OPPENHEIMERFUNDS, INC.
and
LIFE INSURANCE COMPANY
THIS AGREEMENT (the "Agreement"), made and entered into as of the
____ day of ____________, 200__ by and among ______________________ Life
Insurance Company (hereinafter the "Company"), on its own behalf and on
behalf of each separate account of the Company named in Schedule 1 to this
Agreement, as may be amended from time to time by mutual consent (hereinafter
collectively the "Accounts"), Xxxxxxxxxxx Variable Account Funds (hereinafter
the "Fund") and OppenheimerFunds, Inc. (hereinafter the "Adviser").
WHEREAS, the Fund is an open-end management investment company
and is available to act as the investment vehicle for separate accounts now
in existence or to be established at any date hereafter for variable life
insurance policies, variable annuity contracts and other tax-deferred
products (collectively, the "Variable Insurance Products") offered by life
insurance companies (hereinafter "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into
several series of shares, each designated a "Portfolio", and each
representing the interests in a particular managed pool of securities and
other assets;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC"), dated July 16, 1986 (File No. 812-6324)
granting Participating Insurance Companies and variable annuity and variable
life insurance separate accounts exemptions from the provisions of sections
9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as
amended, (hereinafter the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Fund to be sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance
companies (hereinafter the "Mixed and Shared Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and each class of shares of the
Portfolios of the Fund is registered under the Securities Act of 1933, as
amended (hereinafter the "1933 Act");
WHEREAS, the Adviser is duly registered as an investment adviser
under the federal Investment Advisers Act of 1940;
WHEREAS, the Company has registered or will register certain
variable annuity and/or life insurance contracts under the 1933 Act
(hereinafter "Contracts") (unless an exemption from registration is
available);
WHEREAS, the Accounts are or will be duly organized, validly
existing segregated asset accounts under applicable insurance law,
established by resolution of the Board of Directors of the Company, to set
aside and invest assets attributable to the aforesaid variable contracts (the
Separate Account(s) covered by the Agreement are specified in Schedule 1
attached hereto, as may be modified by mutual consent from time to time);
WHEREAS, the Company has registered or will register the Accounts
as unit investment trusts under the 1940 Act (unless an exclusion from
registration is available);
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios (the
Portfolios covered by this Agreement are specified in Schedule 2 attached
hereto as may be modified by mutual consent from time to time), on behalf of
the Accounts to fund the Contracts, and the Fund is authorized to sell such
shares to unit investment trusts such as the Accounts at net asset value; and
NOW, THEREFORE, in consideration of their mutual promises, the
Fund, the Adviser and the Company agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares
1.1. The Fund agrees to make available to the Company for purchase on behalf
of the Accounts those shares of a Portfolio of the Fund which the Company
orders on behalf of the Accounts, executing such orders on a daily basis at
the net asset value next computed after receipt by the Fund or its designee
of the order for such shares, as established in accordance with the
provisions of the then current prospectus of the Fund.
1.2. The Fund will not sell shares of any Portfolio to any other
Participating Insurance Company separate account unless an agreement
containing provisions similar in substance to Sections 2.1 and 2.2 of Article
II, Sections 3.7 and 3.8 (other than the provision requiring the Fund to
provide voting standards) of Article III and Article V of this Agreement is
in effect to govern such sales, it being agreed and understood by Company and
the Fund that this provision is not intended to prevent the Fund from selling
its shares to any potential investor whose purchase of shares does not render
the shares of the Fund or any Portfolio ineligible for continued or
additional investment by the Company and its Account(s), and it being further
understood and agreed by the Company and the Fund that this provision shall
apply prospectively to participation agreements that the Fund enters into on
or after the date hereof.
1.3. The Company shall be the designee of the Fund for receipt of purchase
orders and requests for redemptions or exchanges of shares of a Portfolio
("Instructions"). The Business Day on which such Instructions are received
in proper form by the Company and time stamped by the Company by the close of
trading will be the date and time as of which Portfolio shares shall be
deemed purchased, exchanged or redeemed as a result of such Instructions;
provided that the Fund receives such Instructions by 9:30 a.m. Eastern Time
on the next following business day. Instructions received in proper form by
the Company and time stamped after the close of trading on any given Business
Day or received by the Fund after 9:30 a.m. Eastern Time on the next
following business day shall be treated as if received on the next following
Business Day. The Company warrants that all orders transmitted to the Fund
by 9:30 a.m. Eastern Time on a Business Day were received by the Company in
proper form and time stamped prior to the close of trading on the prior
Business Day. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its net asset
value pursuant to the rules of the SEC and its current prospectus.
The Fund shall calculate the net asset value per share of each
Portfolio on each Business Day, and shall communicate these net asset values
to the Company or its designee on a daily basis as soon as reasonably
practicable after the calculation is completed (normally by 6:30 p.m. Eastern
time). If the Fund is unable to meet the 6:30 p.m. time stated herein, the
Fund shall provide additional time equal to the additional time it takes the
Fund to make the net asset value available to the Company for the Company to
place orders for the purchase and redemption of shares and make any
applicable purchase payments.
The Company shall submit payment for the purchase of shares of a
Portfolio in federal funds transmitted by wire to the Fund or to its
designated custodian, which must receive such wires no later than the close
of the Federal Reserve Bank of New York, which is 6:00 p.m. Eastern time, on
the Business Day following the Business Day for which such purchase orders
have been placed.
Issuance and transfer of the Portfolio shares will be by book entry
only. Stock certificates will not be issued to the Company or the Accounts.
Portfolio shares purchased from the Fund will be recorded in the name of the
appropriate Account or the appropriate subaccount of each Account.
The Fund shall furnish, on or before the ex-dividend date, notice to
the Company of any income dividends or capital gain distributions payable on
the shares of any Portfolio. The Company hereby elects to receive all such
income dividends and capital gain distributions as are payable on shares of a
Portfolio in additional shares of that Portfolio, and the Company reserves
the right to change this election in the future. The Fund will notify the
Company of the number of shares so issued as payment of such dividends and
distributions.
Each party to this Agreement agrees that, in the event of a material
error resulting from incorrect information or confirmations, the parties will
seek to comply in all material respects with the provisions of applicable
federal securities laws.
1.4. The Fund agrees to make Portfolio shares available for purchase by the
Company for their separate Accounts listed in Schedule 1 on those days on
which a Portfolio calculates its net asset value pursuant to rules of the
SEC; provided, however, that the Board of Trustees of the Fund (hereinafter
the "Trustees") may refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of shares of any Portfolio if such action
is required by law or by regulatory authorities having jurisdiction or is, in
the sole discretion of the Trustees, acting in good faith and in light of
their fiduciary duties under federal and any applicable state laws, in the
best interests of the shareholders of any Portfolio (including without
limitation purchase orders that individually or together with other
contemporaneous orders represent large transactions in shares of any
Portfolio held for a relatively brief period of time). Such shares shall be
purchased at the applicable net asset value per share, increased by any
initial sales charge, if the Fund's prospectus then in effect imposes such a
charge on such purchases. Without limiting the foregoing, the Fund and the
Fund's transfer agent may take such other action (including, without
limitation, rejecting specific purchase orders) as they deem necessary to
reduce, discourage or eliminate market timing activity. The Company agrees
to follow and adhere to the Fund's market timing procedures and to cooperate
with the Fund and the Adviser to assist in the implementation of the Fund's
restrictions on purchase, redemption and exchange activity that follows a
market timing pattern, including but not limited to providing information on
Contract owner transactions, holdings and other information as may reasonably
be requested by the Fund, the Adviser or their duly authorized
representatives.
1.5. The Fund agrees to [redeem] or exchange, upon the Company's request,
any full or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after receipt
by the Fund or its designee of the request for redemption, reduced by any
redemption fee or deferred sales charge, if the Fund's prospectus in effect
as of the date of such redemption imposes such a fee or charge on such
redemptions. For purposes of this Section 1.4, the Company shall be the
designee of the Fund for receipt of requests for redemption and receipt by
such designee shall constitute receipt by the Fund; provided that the Fund
receives written (or facsimile) notice of such request for redemption by 9:30
a.m. Eastern Time on the next following Business Day; however the Company
undertakes to use its best efforts to provide such notice to the Fund by no
later than 9:00 A.M. Eastern time on the next following Business Day.
Payment shall be made within the time period specified in the Fund's
prospectus or statement of additional information ("SAI"), provided, however,
that in no event shall payment be delayed for a greater period than is
permitted by the 1940 Act. In the event the Fund does not pay for the Fund
shares that are redeemed on the next Business Day after a request to redeem
shares is made, then the Fund shall apply any such delay in redemptions
uniformly to all records holders of shares of that Portfolio. Payment shall
be in federal funds transmitted by wire to the Company's bank accounts as
designated by the Company in writing from time to time. The Company further
agrees to furnish, or cause to be furnished, to the Fund, the Adviser and
their duly appointed agents a copy of the Company's SAS 70 reports prepared
by the Company's independent auditor within a reasonable time such report is
completed and to submit to an inspection by the Fund, the Adviser or their
duly authorized agents of its books and records upon reasonable notice.
1.6. The Company agrees to purchase and redeem the shares of the Portfolios
named in Schedule 2 offered by the then current prospectus and SAI of the
Fund in accordance with the provisions of such prospectus and SAI. The
Company shall not permit any person other than a Contract owner to give
instructions to the Company which would require the Company to purchase,
redeem or exchange shares of the Fund.
1.7 The Fund offers share classes which impose redemption fees
in certain circumstances ("Redemption Fee Funds") and, with respect to such
Redemption Fee Funds, the Company agrees to monitor holding periods of
Contract owners and to track such holding periods for purposes of the Fund's
assessment of redemption fees in conjunction with those transactions
specifically subject to such fees, subject to any reasonable exceptions as
set forth in the Redemption Fee Funds prospectuses. The Company shall
maintain records supporting its calculations of redemption fees payable to
each Fund and shall provide the Fund with access, to or copies of, such
records upon the reasonable request of the Fund. Company shall calculate the
amount of redemption fees payable to each Fund on a daily basis and such
amount shall be netted against the redemption proceeds payable by the Company.
Nothing herein shall be construed to require actions on the part of
Company that would, in the best judgment of the Company, constitute the
violation or breach of any duty the Company owes to Contract owners whose
Contracts were purchased prior to the creation of the Redemption Fee Fund
shares.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the securities deemed to be
issued by the Accounts under the Contracts are or, prior to any issuance or
sale will be, registered under the 1933 Act (unless an exemption from
registration is available) and, that the Contracts will be issued, offered
and sold in compliance in all material respects with all applicable federal
and state laws and regulations, including without limitation state insurance
suitability requirements and National Association of Securities Dealers, Inc.
("NASD") conduct rules. The Company further represents and warrants that it
is an insurance company duly organized and in good standing under applicable
state law and that it has legally and validly established the Accounts prior
to the issuance or sale of units thereof as a segregated asset account under
applicable insurance law and has registered the Accounts as unit investment
trusts in accordance with the provisions of the 1940 Act (unless an exclusion
from registration is available) to serve as segregated investment accounts
for the Contracts, and that it will maintain such registration for so long as
any Contracts are outstanding or until registration is no longer required
under federal and state securities laws. The Company shall amend the
registration statement under the 1933 Act for the Contracts and the
registration statement under the 1940 Act for the Accounts from time to time
as required in order to effect the continuous offering of the Contracts or as
may otherwise be required by applicable law. The Company shall register and
qualify the Contracts for sale in accordance with the securities laws of the
various states only if and to the extent deemed necessary by the Company.
2.2. The Company represents and warrants that the Contracts are currently
and at the time of issuance will be treated as life insurance or annuity
contracts under applicable provisions of the Internal Revenue Code of 1986,
as amended (the "Code") and the regulations issued thereunder, and that it
will make every effort to maintain such treatment and that it will notify the
Fund and the Adviser 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. In addition, the Company represents and warrants that
the Accounts are a "segregated asset accounts" and that interests in the
Accounts are offered exclusively through the purchase of or transfer into a
"variable contract" within the meaning of such terms under Section 817 of the
Code and the regulations issued thereunder and any amendments or other
modifications to such section or such regulations (and any revenue rulings,
revenue procedures, notices and other published announcements of the Internal
Revenue Service interpreting these provisions). The Company shall continue to
meet such definitional requirements, and it will notify the Fund and the
Adviser immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they might not be met in the
future. The Company represents and warrants that it will not purchase Fund
shares with assets derived from tax-qualified retirement plans except
indirectly, through Contracts purchased in connection with such plans.
2.3. The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act and duly authorized for
issuance and sold in accordance with applicable state and federal law and
that the Fund is and shall remain registered under the 1940 Act for as long
as the Fund shares are sold. The Fund shall amend the registration statement
for its shares under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of its shares. The Fund
shall register and qualify the shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Fund.
2.4. The Fund will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable contracts
under the Code and the regulations issued thereunder. Without limiting the
scope of the foregoing, the Fund represents and warrants that each Portfolio
of the Fund will comply with Section 817(h) of the Code and Treasury
Regulation 1.817-5, relating to the diversification requirements for variable
annuity, endowment, or life insurance contracts and any amendments or other
modifications to such Section or Regulations (and any revenue rulings,
revenue procedures, notices, and other published announcements of the
Internal Revenue Service interpreting these provisions). In the event the
Fund should fail to so qualify, it will take all reasonable steps (a) to
notify the Company of such breach and (b) to resume compliance with such
diversification requirement within the grace period afforded by Treasury
Regulation 1.817.5. The Fund and Adviser represent that each Portfolio is
qualified as a Regulated Investment Company under Subchapter M of the Code
and that it will maintain such qualification (under Subchapter M or any
successor provision), and that it will notify the 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.
2.5. If the Contracts purchase shares of a series and class of the Fund that
have adopted a plan under Rule 12b-1 under the 1940 Act to finance
distribution expenses (a "12b-1 Plan"), the Company agrees to provide the
Trustees any information as may be reasonably necessary for the Trustees to
review the Fund's 12b-1 Plan or Plans.
2.6. The Fund represents that it is lawfully organized and validly existing
under the laws of the Commonwealth of Massachusetts and that it does and will
comply with applicable provisions of the 0000 Xxx.
2.7. The Adviser represents and warrants that it is and will remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for the Fund in compliance with any applicable
state and federal securities laws.
2.8. The Fund and Adviser each represent and warrant that all of its
respective directors, trustees, officers, employees, investment advisers, and
transfer agent of the Fund are and shall continue to be at all times covered
by a blanket fidelity bond (which may, at the Fund's election, be in the form
of a joint insured bond) or similar coverage for the benefit of the Fund in
an amount not less than the minimal coverage as required currently by Section
17(g) and Rule 17g-1 under the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid Bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable insurance
company. The Adviser agrees to make all reasonable efforts to see that this
bond or another bond containing these provisions is always in effect, and
agrees to notify the Company in the event that such coverage no longer
applies.
2.9. The Company represents and warrants that all of its directors,
officers, employees, agents, investment advisers, and other individuals and
entities dealing with the money and/or securities of the Fund are covered by
a blanket fidelity bond or similar coverage in an amount not less than the
equivalent of U.S. $10 million. The aforesaid bond shall include coverage
for larceny and embezzlement and shall be issued by a reputable insurance
company. The Company agrees that any amount received under such bond in
connection with claims that derive from arrangements described in this
Agreement will be paid by the Company for the benefit of the Fund. The
Company agrees to make all reasonable efforts to see that this bond or
another bond containing these provisions is always in effect, and agrees to
notify the Fund and the Adviser in the event that such coverage no longer
applies.
2.10. The Fund and the Adviser represent that they will make a good faith
effort to furnish information to the Company about the Fund not otherwise
available to the Company which is required by state insurance law to enable
the Company to obtain the authority needed to issue the Contracts in any
applicable state.
The Company undertakes and agrees to comply, and to take full
responsibility in complying with any and all laws, regulations, protocols and
other requirements relating to money laundering, both United States and
foreign, including, without limitation, the International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001 (Title III of the USA
Patriot Act), hereinafter, collectively with the rules, regulations and
orders promulgated thereunder (the "Patriot Act") and any requirements and/or
requests in connection therewith, made by regulatory authorities, the Fund or
their duly appointed agents, either generally or in respect of a specific
transaction, and/or in the context of a "primary money laundering concern" as
defined in the Patriot Act. The Company agrees as a condition precedent to
any transaction taking or continuing to be in effect under this Agreement, to
comply with any and all anti-money laundering laws, regulations, orders or
requirements, and without prejudice to the generality of the above, to
provide regulatory authorities, the Fund or its duly appointed agents, with
all necessary reports and information for the Fund or its agents to fulfill
their obligations, if any, under the Patriot Act for the purposes of the Fund
or other third parties complying with any and all anti-money laundering
requirements imposed by the Patriot Act, including, without limitation,
enhanced due diligence obligations, the filing of Currency Transaction
Reports and/or of Suspicious Activity Reports obligations, and/or the sharing
of information requirements. In the event reports and information deemed
satisfactory by the Fund are not received within a reasonable time period
from the date of the request, the Fund reserve the right to reject any
transaction and/or cease to transact with the Company and/or the Accounts.
Further, the Company represent that the Company has not received notice
of, and to the Company's knowledge, there is no basis for, any claim, action,
suit, investigation or proceeding that might result in a finding that the
Company is not or has not been in compliance with the Patriot Act, and the
rules and regulations promulgated thereunder.
2.11. The Company, the Fund and the Advisor each agree to notify the others
immediately upon having a reasonable basis for believing that any of these
representations and warranties are no longer true or accurate to a material
extent.
2.12 The Company shall maintain and enforce policies and
procedures reasonably designed to ensure that Portfolio share orders
transmitted to the Fund are segregated by time of receipt in order to prevent
Share orders from being executed at a price based on a previously determined
net asset value.
2.13 The Company shall facilitate and cooperate with third-party
audits arranged by the Fund or the Adviser to evaluate the effectiveness of
its compliance controls.
2.14 The Company shall provide the Fund's chief compliance
officer with direct access to its compliance personnel.
2.15 The Company shall provide the Fund's chief compliance
officer with periodic reports and shall promptly provide the Fund's chief
compliance officer with special reports in the event of any compliance
problems that arise.
ARTICLE III. Sales Material, Prospectuses and Other Reports
3.1. The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material
in which the Fund or the Adviser is named, at least ten Business Days prior
to its use. No such material shall be used if the Fund or its designee
reasonably object to such use within ten Business Days after receipt of such
material.
3.2. The Company shall not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus for the Fund shares, as
such registration statement and prospectus may be amended or supplemented
from time to time, or in reports or proxy statements for the Fund, or in
sales literature or other promotional material approved by the Fund or its
designee, except with the permission of the Fund.
3.3. For purposes of this Article III, the phrase "sales literature or other
promotional material" includes, but is not limited to, portions of the
following that use any logo or other trademark related to the Fund or its
affiliates, and any of the following that refer to the Fund or an affiliate
of the Fund: 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 billboard or electronic
media), and sales literature (i.e., any written communication distributed or
made generally available to customers or the public, including brochures,
circulars, market letters and form letters, seminar texts, reprints or
excerpts from any advertisement, sales literature or published article),
educational training materials or other communications distributed or made
generally available to some or all agents or employees, and registration
statements, prospectuses, SAIs, shareholder reports, and any other
communications distributed or made generally available with regard to the
Fund.
3.4. The Fund shall provide to the Company a copy of its current prospectus
within a reasonable period of its filing date, and provide other assistance
as is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus for the Fund is supplemented or amended) to have
the prospectus for the Contracts and the Fund's prospectus printed together
in one document. The Adviser shall be permitted to review and approve the
typeset form of the Fund's Prospectus prior to such printing.
3.5. The Fund or the Adviser shall provide the Company with either: (i) a
copy of the Fund's proxy material, reports to shareholders, other information
relating to the Fund necessary to prepare financial reports, and other
communications to shareholders for printing and distribution to Contract
owners, or (ii) camera ready, electronic file and/or printed copies, if
appropriate, of such material for distribution to Contract owners at the
Company' expense, within a reasonable period of the filing date for
definitive copies of such material. The Adviser shall be permitted to review
and approve the typeset form of such proxy material, shareholder reports and
communications prior to such printing.
3.6. The Company assumes sole responsibility for ensuring that the Fund's
prospectus, shareholder reports and communications, and proxy materials are
delivered to Contract owners in accordance with applicable federal and state
securities laws.
3.7. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote Fund shares in accordance with instructions
received from Contract owners; and
(iii) vote Fund shares for which no instructions have been
received in the same proportion as Fund shares of
such Portfolio(s) for which instructions have
been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act
to require pass-through voting privileges for variable contract owners or to
the extent otherwise required by law. The Company will vote Fund shares held
in any segregated asset account, as well as shares owned by the Company, in
the same proportion as Fund shares of such Portfolio for which voting
instructions have been received from Contract owners, to the extent permitted
by law.
3.8 Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in a Portfolio
calculates voting privileges as required by the Mixed and Shared Funding
Exemptive Order and consistent with any reasonable standards that the Fund
may adopt and provide in writing.
ARTICLE IV. Fees and Expenses
4.1. The Fund and Adviser shall pay no fee or other compensation to the
Company under this agreement, and the Company shall pay no fee or other
compensation to the Fund or Adviser, except as provided herein.
4.2. All expenses incident to performance by each party of its respective
duties under this Agreement shall be paid by that party. The Fund shall see
to it that all its shares are registered and authorized for issuance in
accordance with applicable federal law and, if and to the extent advisable by
the Fund, in accordance with applicable state laws prior to their sale. The
Fund shall bear the expenses for the cost of registration and qualification
of the Fund's shares, preparation and filing of the Fund's prospectus and
registration statement, proxy materials and reports, and the preparation of
all statements and notices required by any federal or state law.
4.3. The Fund will pay the expenses associated with the following: setting
the prospectus and profiles in type; printing copies of the prospectus and
profiles to be delivered to existing Contract owners investing in the
Portfolios; providing a reasonable number of copies of the SAI to the Company
for itself and for any current owner of a Contract who requests such SAI;
setting in type and printing the proxy materials and reports to shareholders
(including the costs of printing a prospectus that constitutes an annual
report); and the preparation of all statements and notices required by any
federal or state law.
4.4. Unless otherwise agreed, the Company shall bear the expenses of
printing copies of the current prospectus and profiles for the Contracts;
printing copies of the Fund's prospectus and profiles that are used in
connection with offering the Contracts; distributing the Fund's prospectus to
owners of Contracts issued by the Company; and of distributing the Fund's
proxy materials and reports to such Contract owners. If the prospectus for
the Contracts and the Fund's prospectus are printed together in one or more
documents, printing costs shall be allocated to reflect the Fund's share,
pursuant to Section 4.3, of the total costs for printing the Fund's
prospectus(es) to be delivered to existing Contract owners investing in the
Portfolio(s), determined according to the number of pages of the Fund's
respective portions of the documents; provided that the Fund receives
invoices for such expense within 45 days after printing.
4.5. In the event the Fund adds one or more additional Portfolios and the
parties desire to make such Portfolios available to the respective Contract
owners as an underlying investment medium, a new Schedule 2 or an amendment
to this Agreement shall be executed by the parties authorizing the issuance
of shares of the new Portfolios to the particular Accounts. The amendment
may also provide for the sharing of expenses for the establishment of new
Portfolios among Participating Insurance Companies desiring to invest in such
Portfolios and the provision of funds as the initial investment in the new
Portfolios.
ARTICLE V. Potential Conflicts
5.1. The Trustees will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the Contract owners of all
separate accounts investing in the Fund. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are being managed; (e) a
difference in voting instructions given by participating insurance companies
or by variable annuity contract and variable life insurance contract owners;
or (f) a decision by an insurer to disregard the voting instructions of
Contract owners. The Trustees shall promptly inform the Company if it
determines that an irreconcilable material conflict exists and the
implications thereof.
5.2. The Company has reviewed a copy of the Mixed and Shared Funding
Exemptive Order, and in particular, has reviewed the conditions to the
requested relief set forth therein. The Company agrees to be bound by the
responsibilities of a participating insurance company as set forth in the
Mixed and Shared Funding Exemptive Order, including without limitation the
requirement that the Company report any potential or existing conflicts of
which it is aware to the Trustees. The Company will assist the Trustees in
carrying out their responsibilities in monitoring such conflicts under the
Mixed and Shared Funding Exemptive Order, by providing the Trustees in a
timely manner with all information reasonably necessary for the Trustees to
consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Trustees whenever Contract owner
voting instructions are disregarded and by confirming in writing, at the
Fund's request, that the Company are unaware of any such potential or
existing material irreconcilable conflicts.
5.3. If it is determined by a majority of the Trustees, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees), take whatever steps
are necessary to remedy or eliminate the irreconcilable material conflict, up
to and including: (1) withdrawing the assets allocable to some or all of the
separate accounts from the Fund or any Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such segregation
should be implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
contract owners, life insurance contract owners, or variable contract owners
of one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of making
such a change; and (2) establishing a new registered management investment
company or managed separate accounts. The Company's obligations under this
Section 5.3 shall not depend on whether other affected participating
insurance companies fulfill a similar obligation.
5.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
could conflict with the majority of Contract owner instructions, the Company
may be required, at the Fund's election, to withdraw the Accounts' investment
in the Fund and terminate this Agreement; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Any such withdrawal and termination must take place
within six (6) months after the Fund gives written notice that this provision
is being implemented, and until the end of the six month period the Fund
shall continue to accept and implement orders by the Company for the purchase
and redemption of shares of the Fund.
5.5. If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the
Accounts' investment in the Fund and terminate this Agreement within six
months after the Trustees inform the Company in writing that it has
determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested Trustees. Until
the end of the foregoing six month period, the Fund shall continue to accept
and implement orders by the Company for the purchase and redemption of shares
of the Fund, subject to applicable regulatory limitation.
5.6. For purposes of Sections 5.3 through 5.6 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event
will the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 5.3 to establish a
new funding medium for Contracts if an offer to do so has been declined by
vote of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Trustees determine
that any proposed action does not adequately remedy any irreconcilable
material conflict, then the Company will withdraw the particular Accounts'
investment in the Fund and terminate this Agreement within six (6) months
after the Trustees inform the Company in writing of the foregoing
determination, provided, however, that such withdrawal and termination shall
be limited to the extent required by any such material irreconcilable
conflict as determined by a majority of the disinterested Trustees.
ARTICLE VI. Applicable Law
6.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of New York.
6.2. This Agreement shall be subject to the provisions of the 1933 Act, the
Securities Exchange Act of 1934 and the 1940 Act, and the rules and
regulations and rulings thereunder, including such exemption from those
statutes, rules and regulations as the Securities and Exchange Commission may
grant (including, but not limited to, the Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith, provided however that the term "Registration Statement or
Prospectus for the Variable Contracts" and terms of similar import shall
include (i) any offering circular or similar document and sales literature or
other promotional materials used to offer and/or sell the variable Contracts
in compliance with the private offering exemption in the 1933 Act and
applicable federal and state laws and regulations, and (ii) the term
"Registration Statement" and "Prospectus" as defined in the 1933 Act.
ARTICLE VII. Termination
7.1. This Agreement shall terminate:
(a) at the option of any party upon six month's advance written notice to
the other parties;
(b) at the option of the Company to the extent that shares of Portfolios
are not reasonably available to meet the requirements of its Contracts or are
not appropriate funding vehicles for the Contracts, as determined by the
Company reasonably and in good faith. Prompt notice of the election to
terminate for such cause and an explanation of such cause shall be furnished
by the Company;
(c) as provided in Article V;
(d) at the option of the Fund or the Adviser upon institution of formal
proceedings against the Company (or its parent) by the NASD, the SEC, the
insurance commission of any state or any other regulatory body having
jurisdiction over that party, which would have a material adverse effect on
the Company's ability to perform its obligations under this Agreement;
(e) at the option of the Company upon institution of formal proceedings
against the Fund or the Adviser (or its parent) by the NASD, the SEC, or any
state securities or insurance department or any other regulatory body having
jurisdiction over that party, which would have a material adverse effect on
the Adviser's or the Fund's ability to perform its obligations under this
Agreement;
(f) at the option of the Company or the Fund upon receipt of any necessary
regulatory approvals or the vote of the Contract owners having an interest in
the Account (or any subaccount) to substitute the shares of another
investment company for the corresponding Portfolio shares of the Fund in
accordance with the terms of the Contracts for which those Portfolio shares
have been selected to serve as the underlying investment media. The Company
will give 45 days prior written notice to the Fund of the date of any
proposed vote or other action taken to replace the Fund's shares;
(g) at the option of the Company or the Fund upon a determination by a
majority of the Trustees, or a majority of the disinterested Trustees, that
an irreconcilable material conflict exists among the interests of (i) all
Contract owners of variable insurance products of all separate accounts or
(ii) the interests of the Participating Insurance Companies investing in the
Fund as delineated in Article VII of this Agreement;
(h) at the option of the Company if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code, or under any
successor or similar provision, or if the Company reasonably believes that
the Fund may fail to so qualify;
(i) at the option of the Company if the Fund fails to meet the
diversification requirements specified in Section 2.6 hereof or if the
Company reasonably believes that the Fund will fail to meet such requirements;
(j) at the option of any party to this Agreement, upon another party's
failure to cure a material breach of any provision of this Agreement within
thirty days after written notice thereof;
(k) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that either the Fund or the Adviser has
suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material
adverse publicity which is likely to have a material adverse impact upon the
business and operations of the Company;
(l) at the option of the Fund or the Adviser, if the Fund or Adviser
respectively, shall determine in its sole judgment exercised in good faith,
that the Company has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Fund or the Adviser;
(m) subject to the Fund's compliance with Section 2.6 hereof, at the option
of the Fund in the event any of the Contracts are not issued or sold in
accordance with applicable requirements of federal and/or state law; or
(n) at the option of the Fund if (i) the Company breaches any of the
representations and warranties made in this Agreement; or (ii) the Company
notifies the Fund that any of such representations and warranties may no
longer be true or might not be true in the future; or (iii) any of the
Company's representations and warranties were not true on the effective date
of this Agreement, are at any time no longer true, or have not been true
during any time since the effective date of this Agreement.
7.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 7.1(a) may be exercised for
cause or for no cause.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund and the
Adviser, each member of their Board of Trustees or Board of Directors, each
of their officers, employees and agents, and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company) or litigation
expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, fine, liability or expense and reasonable legal
counsel fees incurred in connection therewith (collectively, "Losses")), to
which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or
the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the
registration statement, prospectus or SAI for
the Contracts or contained in sales literature
or other promotional material for the Contracts
(or any amendment or supplement to any of the
foregoing), 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 in light of the
circumstances which they were made; provided
that this agreement to indemnify shall not
apply as to any Indemnified Party if such
statement or omission or such alleged statement
or omission was made in reliance upon and in
conformity with information furnished to the
Company by or on behalf of the Fund or the
Adviser for use in the registration statement,
prospectus or SAI for the Contracts or sales
literature (or any amendment or supplement) or
otherwise for use in connection with the sale
of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations by or on
behalf of the Company (other than statements or
representations contained in the Fund
registration statement, Fund prospectus or
sales literature or other promotional material
of the Fund not supplied by the Company or
persons under its control) or wrongful conduct
of the Company or persons under its control,
with respect to the sale or disposition of the
Contracts or Fund shares, provided any such
statement or representation or such wrongful
conduct was not made in reliance upon and in
conformity with information furnished in
writing, via fax or via electronic means, to
the Company by or on behalf of the Advisor or
the Fund; or
(iii) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in the
Fund registration statement, Fund prospectus,
SAI or sales literature or other promotional
material of the Fund or any amendment thereof
or supplement thereto or the omission or
alleged omission to state therein a material
fact required to be stated therein or necessary
to make the statements therein not misleading
in light of the circumstances in which they
were made, if such statement or omission was
made in reliance upon information furnished in
writing, via fax or via electronic means, to
the Fund or the Adviser by or on behalf of the
Company or persons under its control;
(iv) arise out of or result from any material breach of this Agreement by
the Company;
(v) arise out of or result from any failure by the Company to provide the
services or furnish the materials required
under the terms of this Agreement; or
(vi) arise out of or result from a Contract failing to be considered a life
insurance policy or an annuity Contract,
whichever is appropriate, under applicable
provisions of the Code thereby depriving the
Fund of its compliance with Section 817(h) of
the Code, unless such failure is due to the
failure of the Fund or any of the other
investment companies currently available as
funding vehicles for the Contracts to invest
the assets of any portfolio in such a manner as
to ensure that the Contracts will be treated as
annuity, endowment, or life insurance
contracts, whichever is appropriate, under the
Code and the regulations issued thereunder (or
any successor provisions).
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation to
which an Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
8.2. Indemnification by Adviser and Fund
(a)(1) The Adviser agrees to indemnify and hold
harmless the Company and each of its directors and officers, employees and
agents, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 8.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Adviser) or litigation expenses (including any Losses) to which the
Indemnified Parties may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the
registration statement, prospectus, SAI or
sales literature of the Fund (or any amendment
or supplement to any of the foregoing), 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 in light of the circumstances in
which they were made; provided that this
agreement to indemnify shall not apply as to
any Indemnified Party if such statement or
omission or such alleged statement or omission
was made in reliance upon and in conformity
with information furnished in writing, via fax
or via electronic means, to the Adviser or the
Fund by or on behalf of the Company for use in
the Fund registration statement, prospectus or
SAI, or sales literature or other promotional
material for the Contracts or of the Fund; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in
the Contracts or in the Contract registration
statement, the Contract prospectus, SAI, or
sales literature or other promotional material
for the Contracts not supplied by the Adviser
or the Fund or persons under the control of the
Adviser or the Fund respectively) or wrongful
conduct of the Adviser or persons under its
control, with respect to the sale or
distribution of the Contracts, provided any
such statement or representation or such
wrongful conduct was not made in reliance upon
and in conformity with information furnished in
writing, via fax or via electronic means, to
the Adviser or the Fund by or on behalf of the
Company; or
(iii) arise out of any untrue statement or allegedly untrue statement of a
material fact contained in a registration
statement, prospectus, SAI or sales literature
covering the Contracts (or any amendment
thereof or supplement thereto), or the omission
or alleged omission to state therein a material
fact required to be stated therein or necessary
to make the statement or statements therein not
misleading in light of the circumstances in
which they were made, if such statement or
omission was made in reliance upon information
furnished in writing, via fax or via electronic
means, to the Company by or on behalf of the
Fund or persons under the control of the
Adviser; or
(iv) arise out of or result from any material breach of this Agreement by
the Adviser.
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Adviser may
otherwise have.
(a)(2) The Fund agrees to indemnify and hold harmless
the Indemnified Parties against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Fund) or litigation expenses (including Losses) to which the Indemnified
Parties may become subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) or settlements are related to the operations
of the Fund or the sale or acquisition of the Fund's shares and:
(i) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any
material fact or (b) the omission or the
alleged omission to state therein a material
fact required to be stated therein or necessary
to make the statements made therein, in light
of the circumstances in which they were made,
not misleading, if such fact, statement or
omission is contained in the registration
statement for the Fund or the Contracts, or in
the prospectus or SAI for the Contracts or the
Fund, or in any amendment to any of the
foregoing, or in sales literature or other
promotional material for the Contracts or of
the Fund, provided, however, that this
agreement to indemnify shall not apply as to
any Indemnified Party if such statement, fact
or omission or such alleged statement, fact or
omission was made in reliance upon and in
conformity with information furnished in
writing, via fax or via electronic means, to
the Adviser or the Fund by or on behalf of the
Indemnified Party; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts or
in the Contract registration statement, the
Contract prospectus, SAI, or sales literature
or other promotional material for the Contracts
not supplied by the Adviser or the Fund or
persons under the control of the Adviser or the
Fund respectively) or wrongful conduct of the
Fund or persons under its control with respect
to the sale or distribution of Contracts,
provided any such statement or representation
or such wrongful conduct was not made in
reliance upon and in conformity with
information furnished in writing, via fax or
via electronic means, to the Adviser or the
Fund by or on behalf of the Company; or
(iii) arise out of or result from any material breach
of this Agreement by the Fund (including a
failure to comply with the diversification
requirements specified in Section 2.6 of this
Agreement).
except to the extent provided in Section 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Fund may
otherwise have.
(b) The Fund and Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason
of such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement.
8.3. Indemnification Procedure
Any person obligated to provide indemnification under this
Article VIII ("indemnifying party" for the purpose of this Section 8.3) shall
not be liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification under
this Article VIII ("indemnified party" for the purpose of this Section 8.3)
unless such indemnified party shall have notified the indemnifying party in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon such indemnified party (or after such party shall have received notice
of such service on any designated agent), but failure to notify the
indemnifying party of any such claim shall not relieve the indemnifying party
from any liability which it may have to the indemnified party against whom
such action is brought under the indemnification provisions of this Article
VIII, except to the extent that the failure to notify results in the failure
of actual notice to the indemnifying party and such indemnifying party is
damaged solely as a result of failure to give such notice. In case any such
action is brought against the indemnified party, the indemnifying party will
be entitled to participate, at its own expense, in the defense thereof. The
indemnifying party also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
indemnifying party to the indemnified party of the indemnifying party's
election to assume the defense thereof, the indemnified party shall bear the
fees and expenses of any additional counsel retained by it, and the
indemnifying party will not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by such party independently
in connection with the defense thereof other than reasonable costs of
investigation, 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 but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this Article
VIII. The indemnification provisions contained in this Article VIII shall
survive any termination of this Agreement.
ARTICLE IX. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify to
the other party.
If to the Fund:
Xxxxxxxxxxx Variable Account Funds
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Adviser:
OppenheimerFunds, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Company:
Attn:
ARTICLE X. Miscellaneous
10.1. The Company represents and warrants that any Contracts eligible to
purchase shares of the Fund and offered and/or sold in private placements
will comply in all material respects with the exemptions from the
registration requirements of the 1933 Act and applicable federal and state
laws and regulations.
10.2. Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
(i) this Agreement and (ii) by Title V, Subtitle A of the Xxxxx-Xxxxx-Xxxxxx
Act and by regulations adopted thereunder by regulators having jurisdiction
over the parties hereto, shall not disclose, disseminate or utilize such
names and addresses and other confidential information without the express
written consent of the affected party until such time as it may come into the
public domain.
10.3. Each party shall treat as confidential all information of the other
party which the parties agree in writing is confidential ("Confidential
Information"). Except as permitted by this Agreement or as required by
appropriate governmental authority (including, without limitation, the SEC,
the NASD, or state securities and insurance regulators) the receiving party
shall not disclose or use Confidential Information of the other party before
it enters the public domain, without the express written consent of the party
providing the Confidential Information.
10.4. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
10.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.6. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
10.7. The parties to this Agreement acknowledge and agree that all
liabilities of the Fund arising, directly or indirectly, under this
Agreement, of any and every nature whatsoever, shall be satisfied solely out
of the assets of the Fund and that no Trustee, director, officer, agent or
holder of shares of beneficial interest of the Fund shall be personally
liable for any such liabilities.
10.8. The parties to this Agreement agree that the assets and liabilities of
each Portfolio of the Fund are separate and distinct from the assets and
liabilities of each other Portfolio. No Portfolio shall be liable or shall
be charged for any debt, obligation or liability of any other Portfolio.
10.9. Each party hereto shall cooperate with, and promptly notify each other
party and all appropriate governmental authorities (including without
limitation the Securities and Exchange Commission, the National Association
of Securities Dealers, Inc. and state insurance regulators) and shall permit
such authorities reasonable access to its books and records in connection
with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
10.10. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
10.11. It is understood by the parties that this Agreement is not an
exclusive arrangement in any respect.
10.12. The Company and the Adviser each understand and agree that the
obligations of the Fund under this Agreement are not binding upon any Trustee
or shareholder of the Fund personally, but bind only the Fund with respect to
the Portfolio and the Portfolio's property; the Company and the Adviser each
represent that it has notice of the provisions of the Declaration of Trust of
the Fund disclaiming Trustee and shareholder liability for acts or
obligations of the Fund.
10.13. This Agreement shall not be assigned by any party hereto without
the prior written consent of all the parties. Notwithstanding the foregoing
or anything to the contrary set forth in this Agreement, the Adviser may
transfer or assign its rights, duties and obligations hereunder or interest
herein to any entity owned, directly or indirectly, by Xxxxxxxxxxx
Acquisition Corp. (the Adviser's parent corporation) or to a successor in
interest pursuant to a merger, reorganization, stock sale, asset sale or
other transaction, without the consent of the Company, as long as (i) that
assignee agrees to assume all the obligations imposed on the Adviser by this
Agreement, and (ii) the Fund consents to that assignment.
10.14. This Agreement sets forth the entire agreement between the
parties and supercedes all prior communications, agreements and
understandings, oral or written, between the parties regarding the subject
matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused its
duly authorized officers to execute this Agreement.
_____________ LIFE INSURANCE COMPANY
By:
Title:
Date:
XXXXXXXXXXX VARIABLE ACCOUNT FUND
By:
Title: Secretary
Date:
OPPENHEIMERFUNDS, INC.
By:
Title: Vice President
Date:
SCHEDULE 1
Separate Accounts Products
SCHEDULE 2
Portfolios of Xxxxxxxxxxx Variable Account Funds shown below do not include
service class shares unless expressly indicated: