PARTICIPATION AGREEMENT
By and Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
PROTECTIVE LIFE INSURANCE COMPANY
and
OPPENHEIMERFUNDS, INC.
THIS AGREEMENT, made and entered into as of the 1st day of
May, 1997 by and among Protective Life Insurance Company, a Tennessee
corporation (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 (each account referred to as the
"Account"), Xxxxxxxxxxx Variable Account Funds, an open-end diversified
management investment company organized under the laws of the State of
Massachusetts (hereinafter the "Fund") and OppenheimerFunds, Inc., a Colorado
Corporation (hereinafter the "Adviser").
WHEREAS, the Fund engages in business as an open-end
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance policies and variable annuity contracts to be offered by insurance
companies (hereinafter "Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Fund are divided into
several series of shares, each representing the interest in a particular managed
portfolio (collectively the "Portfolios") of securities and other assets (the
Portfolios covered by this Agreement are specified in Schedule 2 attached hereto
as may be amended from time to time by mutual consent); and
WHEREAS, the Fund has obtained an order from the
Securities and Exchange Commission (alternatively referred to as the "SEC" or
the "Commission"), dated July 16, 1986 (File No. 812-6234), 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"); and
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and its shares are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Adviser is registered as an investment
adviser under the Investment Advisers Act of 1940 and serves as the investment
adviser to the Fund;
WHEREAS, the Company has registered or will register
certain variable annuity and/or life insurance contracts (hereinafter
"Contracts") under the 1933 Act (unless an exemption from registration is
available); and
WHEREAS, the Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors of
the Company under the insurance laws of the State of Tennessee, to set aside and
invest assets attributable to the Contracts. (The Contract(s) and the
Account(s) covered by the Agreement are specified in Schedule 2 attached hereto,
as may be amended from time to time by mutual consent); and
WHEREAS, the Company has registered the Account as a unit
investment trust under the 1940 Act (unless an exemption from registration is
available); and
WHEREAS, to the extent permitted by applicable insurance
laws and regulations, the Company intends to purchase shares in the Portfolios
named in Schedule 2 on behalf of the Account to fund the Contracts named in
Schedule 3 and the Fund is authorized to sell such shares to unit investment
trusts such as the Account at net asset value;
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NOW, THEREFORE, in consideration of their mutual promises,
the Fund, the Adviser and the Company agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Fund agrees to sell to the Company those shares
of the Fund which the Company orders on behalf of the Account, 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 the shares of the Fund. For purposes
of this Section 1.1, the Company shall be the designee of the Fund for receipt
of such orders from each Account and receipt by such designee shall constitute
receipt by the Fund; provided that the Fund receives written (or facsimile)
notice of such order on the next following Business Day by no later than 10:00
A.M. New York time; however, the Company undertakes to use its best efforts to
provide such notice to the Fund by no later than 9:30 A.M. New York time.
"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.
1.2. The Company shall pay for Fund shares on the next
Business Day after an order to purchase Fund shares is made in accordance with
Section 1.1 hereof. Payment shall be in federal funds transmitted by wire
pursuant to instructions of the Fund's Treasurer or by a credit for any shares
redeemed.
1.3. The Fund agrees to make an indefinite number of Fund
shares available for purchase at the applicable net asset value per share by the
Company for their separate Accounts listed in Schedule 2, on those days on which
the Fund 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.
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1.4. The Fund agrees that shares of the Fund will be sold
only to Participating Insurance Companies and their separate accounts, qualified
pension and retirement plans or such other persons as are permitted under
applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Internal Revenue Code"), and regulations promulgated thereunder, the sale of
which will not impair the tax treatment currently afforded the contracts.
1.5. The Fund shall not sell Fund shares to any insurance
company or separate account unless a contractual obligation is in effect with
respect to such sales to abide by the conditions of the Mixed and Shared Funding
Exemptive Order that are addressed in Section 3.4 and Article VII of this
Agreement.
1.6. The Fund agrees to redeem for cash, 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. For purposes of this Section 1.6, 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 on the next following
Business Day by no later than 10:00 A.M. New York time; however the Company
undertakes to use its best efforts to provide such notice to the Fund by no
later than 9:30 A.M. New York time.
1.7. The Fund shall pay for the Fund shares that are
redeemed within the time period specified in the Fund's prospectus or statement
of additional information, provided, however, that if 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 holders of shares of that Portfolio. Payment shall be in
federal funds transmitted by wire pursuant to the instructions of the Company or
by a credit toward any shares purchased on the Business Day on which the
redemption payment is made.
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1.8. The Company agrees to purchase and redeem the shares
of the Portfolios named in Schedule 2 offered by the then current prospectus and
statement of additional information of the Fund in accordance with the
provisions of such prospectus and statement of additional information. The
Company shall not permit any person other than a Contract owner to give
instructions to the Company which would require the Company to redeem or
exchange shares of the Fund.
1.9. Issuance and transfer of the Funds' shares will be by
book entry only. Stock certificates will not be issued to the Company or the
Account. Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate subaccount of each
Account.
1.10. The Fund shall furnish notice as soon as
reasonably practicable to the Company of any income, dividends or capital gain
distributions payable on the Portfolio's shares. The Company hereby elects to
receive all such dividends and distributions as are payable on the Portfolio
shares in additional shares of that Portfolio. The Company reserves the right
to revoke this election on 10 business days notice and thereafter to receive all
such dividends and distributions in cash. The Fund shall notify the Company of
the number of shares so issued as payment of such dividends and distributions.
1.11. The Fund shall make the net asset value per
share for each Portfolio available to the Company on a daily basis as soon as
reasonably practical after the net asset value per share is calculated and shall
use its best efforts to make such net asset value per share available by 6:30
p.m. New York time. If the Fund provides materially incorrect share net asset
value information, the Fund shall make an adjustment to the number of shares
purchased or redeemed for the Accounts to reflect the correct net asset value
per share. Any material error in the calculation or reporting of net asset value
per share, dividend or capital gains information shall be reported promptly upon
discovery to the Company.
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ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the
Contracts are or will be registered under the 1933 Act (unless an exemption from
registration is available) and, that the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state laws
and that the sale of the Contracts shall comply in all material respects with
state insurance suitability requirements. 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 registered the Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a
segregated investment account 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 Account 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. Subject to Article VI hereof, the Company represents
that it believes 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 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.
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 in accordance with applicable law and that the Fund is
and shall take all reasonable steps to remain, registered under the 1940
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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 represents that it is currently qualified as
a Regulated Investment Company under Subchapter M of the Internal Revenue Code
and that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) and that it will notify 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 Fund considers the adoption of one or more
plans 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 determine whether to adopt a 12b-1
Plan or Plans. The Fund shall notify the Company upon commencing to finance
distribution expenses pursuant to Rule 12b-1.
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 intends to continue to comply with applicable provisions of the 0000
Xxx.
2.7. The Adviser represents and warrants that it is and
intends to 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
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minimal coverage as required currently by Section 17(g) and Rule 17g-1 of 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.
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 $3 million. The aforesaid includes coverage for larceny and embezzlement
and is 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.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. The Fund or the Adviser, at its expense, shall
provide a typewritten copy of the Fund's current prospectus and 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. Upon request, the Adviser shall be permitted to review and
approve the typeset form of the Fund's prospectus prior to such printing.
3.2. The Fund's prospectus shall state that the statement
of additional information for the Fund is available from the Fund (or its
transfer agent) and shall print and provide such Statement to the Company and to
any owner of a Contract or prospective owner who requests such Statement at the
Fund's expense.
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3.3. The Fund or the Adviser, at its expense, shall
provide the Company with a typewritten copy of the Fund's communications to
shareholders for printing and distributing to Contract owners and with copies of
the Fund's proxy material and semi-annual and annual reports to shareholders (or
may, at the Fund or the Adviser's option, reimburse the Company for the pro rata
cost of printing such reports) in such quantities as the Company shall
reasonably require, for distributing to Contract owners at the Company's
expense. Upon request, the Adviser shall be permitted to review and approve the
typeset form of such proxy material, communications and shareholder reports
prior to such printing.
3.4. If and to the extent required by law (or the Mixed
and Shared Funding Exemptive Order) the Company shall:
(i) solicit voting instructions from Contract
owners;
(ii) vote the Fund shares in accordance with
instructions received from Contract owners
or participants; and
(iii) vote Fund shares for which no instructions
have been received in the same proportion
as Fund shares of such Portfolio for which
instructions have been received from the
Company's Contract owners;
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. The
Company reserves the right to vote Fund shares held in any Account in its own
right, to the extent permitted by law.
3.5. The Fund will comply with all applicable provisions
of the 1940 Act requiring voting by shareholders.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. 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
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named, at least fifteen business days prior to its use. No such material shall
be used if the Fund or its designee reasonably objects in writing to such use
within fifteen business days after receipt of such material.
4.2. The Company shall not give any information or make
any representations or statements on behalf of the Fund or the Adviser
concerning either of them 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.
The Fund agrees to respond to any request for approval in a prompt and timely
basis.
4.3. The Adviser or Fund shall furnish or cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material which the Adviser or Fund prepared or caused to be
prepared, in which the Company or its separate account is named, at least
fifteen business days prior to its use. No such material shall be used if the
Company or its designee reasonably objects in writing to such use within fifteen
business days after receipt of such material.
4.4. The Adviser and the Fund shall not give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Contracts, other than information or
representations contained in (i) the registration statement or prospectus for
the Contracts, as such registration statement and prospectus may be amended or
supplemented from time to time, (ii) reports for the Account which are in the
public domain or approved by the Company for distribution to Contract owners or
participants, or (iii) sales literature or other promotional material approved
by the Company or its designee, except with the permission of the Company. The
Company agrees to respond to any request for approval on a prompt and timely
basis.
4.5. The Fund will provide to the Company at least one
complete copy of all registration statements, prospectuses, statements of
additional information, reports, proxy statements, sales
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literature and other promotional materials in which the Company or its separate
account is named, applications for exemptions, requests for no-action letters,
and all amendments to any of the above, that relate to any Portfolio or its
shares, contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
4.6. The Company will provide to the Fund at least one
complete copy of all registration statements, prospectuses, statements of
additional information, reports, solicitations for voting instructions, 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 each Account, contemporaneously with the filing of
such document with the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales
literature or other promotional material" includes, but is not limited to,
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, electronic media, or
other public media), sales literature (I.E., any written communication
distributed or made generally available to customers or the public, including
brochures, circulars, research reports, market letters, form letters, seminar
texts, 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 of
the Adviser, registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials and any other material
constituting sales literature or advertising under NASD rules, the 1940 Act or
the 0000 Xxx.
4.8. The Company agrees and acknowledges that the Adviser
is the sole owner of the OppenheimerFunds, Inc. clasped hands xxxx and that all
use of any designation comprised in whole or part of such xxxx under this
Agreement shall inure to the benefit of the Adviser or the Fund. The Company
shall not use such xxxx on its own behalf or on behalf of each Account in
connection with
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marketing the Contracts without prior written consent of the Adviser, which
consent shall not be unreasonably withheld, delayed or conditioned. Upon
termination of this Agreement for any reason, the Company shall cease all use of
any such xxxx.
ARTICLE V. FEES AND EXPENSES
5.1. 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 or
in any other written agreement.
5.2. 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, the
preparation of all statements and notices required by any federal or state law,
and all applicable taxes on the issuance and transfer of the Fund's shares to
the Company.
5.3. The Company shall bear the expenses of distributing
the Fund's prospectus to Contract owners and prospective Contract owners and of
distributing the Fund's proxy materials, communications and reports to such
Contract owners.
ARTICLE VI. DIVERSIFICATION
6.1. 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 Internal Revenue Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund will comply
with Section 817(h) of the Internal Revenue Code and Treasury Regulation
1.817-5, relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts and any
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amendments or other modifications to such Section or Regulations. In the event
of a breach of this Article VI by the Fund, it will take all reasonable steps
(a) to notify the Company of such breach and (b) to adequately diversify the
Fund so as to achieve compliance within the grace period afforded by Treasury
Regulation 1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
7.1. The Board of Trustees of the Fund (the "Board") 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 Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. 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 Board. The Company agrees to assist the Board in carrying
out its responsibilities in monitoring such conflicts under the Mixed and Shared
Funding Exemptive Order, by providing the Board in a timely manner with all
information
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reasonably necessary for the Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform the
Board whenever Contract owner voting instructions are disregarded and by
confirming in writing, at the Fund's request, that the Company is unaware of any
such potential or existing material irreconcilable conflicts.
7.3. If it is determined by a majority of the Board, or a
majority of its disinterested Trustees, that a material irreconcilable conflict
exists, the Company and the relevant Participating Insurance Companies shall, at
their 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., variable annuity Contract owners or life
insurance 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 account.
7.4. If the Company's disregard of voting instructions
could conflict with the majority of Contract owners voting instructions, and if
the Company and/or the Fund and the Adviser reasonably determine that a material
irreconcilable conflict (as set forth in the Mixed and Shared Funding Exemptive
Order) may arise as a result, then the Company may be required, at the Fund's
election, to withdraw the Account's investment in the Fund and terminate this
Agreement. Any such withdrawal and termination must take place within six (6)
months after the Fund gives written notice that this provision is being
implemented. Until such withdrawal and termination is implemented, the Fund
shall continue to accept and implement orders by the Company for the purchase
and redemption of shares of the Fund. Such
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withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
7.5. 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 Account's investment in the Fund and terminate this Agreement
within six (6) months after the Fund informs the Company in writing that it has
determined that such decision has created an irreconcilable material conflict.
Until such withdrawal and termination is implemented, 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. 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 members of the Board.
7.6. For purposes of Sections 7.3 through 7.6 of this
Agreement, a majority of the disinterested members of the Board 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 7.3 to
establish a new funding medium for the 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 Board determines
that any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs 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 members of the Board.
7.7. Upon request, the Company shall at least annually
submit to the Board such reports, materials or data as the Board may reasonably
request so that the Board may fully carry out the
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duties imposed upon it as delineated in the Mixed and Shared Funding Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T)
are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the Act or the rules promulgated thereunder with respect to mixed
or shared funding (as defined in the Mixed and Shared Funding Exemptive Order)
on terms and conditions materially different from those contained in the Mixed
and Shared Funding Exemptive Order, the (a) the Fund and/or the Participating
Insurance Companies (including the Company), as appropriate, shall take such
reasonable steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as
amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and
(b) Sections 3.4, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in
effect only to the extent that terms and conditions substantially identical to
such Sections are contained in such Rule(s) as so amended or adopted.
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 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 (including reasonable legal
and other expenses), 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:
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(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
statement of additional information for the
Contracts or contained in the Contracts or
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 statement of
additional information for the Contracts or
in 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 distribution 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 to the Company
by or on behalf of the Advisor or the Fund;
or
(iii) arise out of any untrue statement or
alleged untrue statement of a material fact
contained in the Fund registration
statement, Fund prospectus, statement of
additional information 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 to the Fund or the Adviser by or
on behalf of the Company or persons under
its control; or
-17-
(iv) arise out of or result from any material
breach of any representation and/or
warranty made by the Company in this
Agreement or arise out of or result from
any other material breach of this Agreement
by the Company.
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
8.2(a)(1). The Adviser agrees to indemnify and hold
harmless the Company and each of its directors and officers 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 (including
reasonable legal and other expenses) 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,
statement of additional information 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
-18-
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 Adviser or the Fund by or on behalf of
the Company for use in the Contracts, the
Contract or Fund registration statement,
prospectus or statement of additional
information, 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 or Fund
registration statement, the Contract or
Fund prospectus, statement of additional
information, or sales literature or other
promotional material for the Contracts or
of the Fund 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 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, statement of additional
information 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
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 any representation and/or
warranty made by the Adviser in this
Agreement or arise out of or result from
any other material breach of this Agreement
by the Adviser;
(v) arise out of or result from the materially
incorrect or untimely calculation or
reporting of the daily net asset value per
share or dividend or capital gain
distribution rate;
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.
-19-
8.2(a)(2) The Fund agrees to indemnify and hold harmless
the Indemnified Parties [as defined in Section 8.2(a)(1)] against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Fund) or litigation (including reasonable legal and
other expenses) 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 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 Contracts, or in the
registration statement for the Fund or the
Contracts, or in the prospectus or statement of
additional information 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 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 or Fund registration statement, the
Contract or Fund prospectus, statement of
additional information, or sales literature or
other promotional material for the Contracts or
of the Fund 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 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 any representation and/or warranty
made by the Fund in this Agreement or arise out
of or result from any other material breach of
this Agreement by the Fund (including a
failure, whether unintentional or in good faith
or otherwise, to comply with the
diversification requirements specified in
Article VI of this Agreement);
-20-
(iv) arise out of or result from the materially
incorrect or untimely calculation or reporting
of the daily net asset value per share or
dividend or capital gain distribution rate;
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
-21-
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. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of New
York.
9.2. This Agreement shall be subject to the provisions of
the 1933, 1934 and 1940 Acts, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and regulations
as the SEC 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.
-22-
ARTICLE X. TERMINATION
10.1 This Agreement shall terminate:
(a) at the option of any party upon six month's
advance written notice to the other parties unless otherwise agreed in a
separate written agreement among the parties; or
(b) at the option of the Company to the extent that
shares of Portfolios are not reasonably available to meet the requirements of
the Contracts as determined by the Company reasonably and in good faith; or
(c) at the option of the Fund or the Adviser upon
institution of formal proceedings against the Company by the NASD, the SEC, the
insurance commission of any state or any other regulatory body regarding the
Company's duties under this Agreement or related to the sale of the Contracts,
the administration of the Contracts, the operation of the Account, or the
purchase of the Fund shares, which would have a material adverse effect on the
Company's ability to perform its obligations under this Agreement; or
(d) at the option of the Company upon institution of
formal proceedings against the Fund or the Adviser by the NASD, the SEC, or any
state securities or insurance department or any other regulatory body, which
would have a material adverse effect on the Adviser's or the Fund's ability to
perform its obligations under this Agreement; or
(e) 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
had 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; or
-23-
(f) at the option of the Company or the Fund upon a
determination by a majority of the Board, or a majority of the disinterested
Board members, that an irreconcilable material conflict exists among the
interests of (i) all Contract owners of variable insurance products of all
separate accounts or (ii) the interests of the Participating Insurance Companies
investing in the Fund as delineated in Article VII of this Agreement; or
(g) at the option of the Company if the Fund ceases
to qualify as a Regulated Investment Company under Subchapter M of the Internal
Revenue Code, or under any successor or similar provision, or if the Company
reasonably believes that the Fund may fail to so qualify; or
(h) at the option of the Company if the Fund fails
to meet the diversification requirements specified in Article VI hereof or if
the Company reasonably believes that the Fund will fail to meet such
requirements; or
(i) at the option of any party to this Agreement,
upon another party's material breach of any provision of this Agreement; or
(j) 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; or
(k) 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; or
-24-
(l) subject to the Fund's compliance with Article VI
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. Termination shall be effective immediately upon notice by the Fund
to terminate the Agreement.
10.2 NOTICE REQUIREMENT.
(a) In the event that any termination of this
Agreement is based upon the provisions of Article VII, such prior written notice
shall be given in advance of the effective date of termination as required by
such provisions.
(b) In the event that any termination of this
Agreement is based upon the provisions of Sections 10.1(b) - (d) or 10.1(g) -
(i), prompt written notice of the election to terminate this Agreement for cause
shall be furnished by the party terminating the Agreement to the non-terminating
parties, with said termination to be effective upon receipt of such notice by
the non-terminating parties.
(c) In the event that any termination of this
Agreement is based upon the provisions of Sections 10.1(j) or 10.1(k), prior
written notice of the election to terminate this Agreement for cause shall be
furnished by the party terminating this Agreement to the non-terminating
parties. Such prior written notice shall be given by the party terminating this
Agreement to the non-terminating parties at least 30 days before the effective
date of termination.
10.3 It is understood and agreed that the right to
terminate this Agreement pursuant to Section 10.1(a) may be exercised for any
reason or for no reason.
10.4. EFFECT OF TERMINATION.
(a) Notwithstanding any termination of this
Agreement pursuant to Section 10.1 of this Agreement and subject to Section 1.3
of this Agreement, the Company may require the Fund to continue to make
available additional shares of the Fund pursuant to the terms and conditions of
this Agreement as provided in paragraph (b) below, for all Contracts in effect
on the effective date of
-25-
termination of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts shall be
permitted to reallocate investments in the Fund, redeem investments in the Fund
and/or invest in the Fund upon the making of additional purchase payments under
the Existing Contracts. The parties agree that this Section 10.4 shall not
apply to any terminations under Article VII and the effect of such Article VII
terminations shall be governed by Article VII of this Agreement.
(b) If shares of the Fund continue to be made
available after termination of this Agreement pursuant to this Section 10.4, the
provisions of this Agreement shall remain in effect except for Section 10.1(a)
and thereafter the Fund, the Adviser, or the Company may terminate the
Agreement, as so continued pursuant to this Section 10.4, upon written notice to
the other party, such notice to be for a period that is reasonable under the
circumstances but need not be for more than 90 days.
10.5 Except as necessary to implement Contract owner
initiated or approved transactions, or as required by state insurance laws or
regulations, the Company shall not redeem Fund shares attributable to the
Contracts (as opposed to Fund shares attributable to the Company's assets held
in the Account), and the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts, until 90 days after the Company shall have notified the Fund or the
Adviser of its intention to do so.
ARTICLE XI. NOTICES
Any notice shall be deemed duly given only if sent by
hand, evidenced by written receipt or by certified mail, return receipt
requested, 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 in writing to the
other party. All notices shall be deemed given on the date received or rejected
by the addressee.
If to the Fund:
Xxxxxxxxxxx Variable Account Funds
-26-
0000 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, Vice President, Secretary &
Treasurer
If to the Adviser:
OppenheimerFunds, Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Executive Vice President and General Counsel
If to the Company:
Protective Life Insurance Company
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
With a copy to:
Xxxxxxxxxx, Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
ARTICLE XII. MISCELLANEOUS
12.1. The Company and the Adviser each understand and
agree that the obligations of the Fund under this Agreement are not binding upon
any shareholder or Trustee of the Fund personally, but bind only the Fund and
the Fund'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
shareholder and Trustee liability for acts or obligations of the Fund.
12.2. Subject to the requirements of legal process and
regulatory authority, each party hereto shall treat as confidential and all
information reasonably identified as confidential in writing by any other party
hereto (including without limitation the names and addresses of the owners of
the Contracts) and, except as contemplated by this Agreement, shall not
disclose, disseminate or utilize such confidential
-27-
information until such time as it may come into the public domain without the
express written consent of the affected party .
12.3. 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.
12.4. This Agreement may be executed simultaneously in
two or more counterparts, each of which taken together shall constitute one and
the same instrument.
12.5. 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.
12.6. This Agreement shall not be assigned by any
party hereto without the prior written consent of all the parties.
12.7. Each party hereto shall cooperate with each
other party and all appropriate governmental authorities (including without
limitation the SEC, the NASD 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.
12.8. Each party represents that the execution and
delivery of this Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary corporate or trust action, as
applicable, by such party and when so executed and delivered this Agreement will
be the valid and binding obligation of such party enforceable in accordance with
its terms.
12.9. Except as may otherwise be required under
Article VII, 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.
12.10. It is understood by the parties that this
Agreement is not an exclusive arrangement in any respect.
-28-
12.11. The foregoing constitutes the entire Agreement
between the parties hereto, and shall not be modified, amended or assigned
except by an Agreement in writing signed by an authorized representative of each
such party.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed as of the date specified
below.
PROTECTIVE LIFE INSURANCE COMPANY
By its authorized officer,
By: /s/ XXXXXXX XXXX
-----------------------------------
Title: Senior Vice President
--------------------------------
Date: April 28, 1997
---------------------------------
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
By its authorized officer,
By: XXXXXX X. XXXXXXX
----------------------------------
Title: Secretary
-------------------------------
Date: April 24, 1997
--------------------------------
OPPENHEIMERFUNDS, INC.
By its authorized officer,
By: XXXXXX X. XXXXXXX
----------------------------------
Title: Executive Vice President
-------------------------------
Date: April 24, 1997
--------------------------------
-29-
SCHEDULE 1
Protective Variable Annuity Separate Account
Protective Variable Life Separate Account
-30-
SCHEDULE 2
Portfolios of Xxxxxxxxxxx Variable Account Funds:
Xxxxxxxxxxx Capital Appreciation Fund
Xxxxxxxxxxx Growth Fund
Xxxxxxxxxxx Growth & Income Fund
Xxxxxxxxxxx Strategic Bond Fund
-31-
SCHEDULE 3
Individual flexible premium deferred variable and fixed annuity contract
Individual flexible premium variable and fixed life insurance policy contract
legag\protect.2
-32-
