AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT made the 1st day of January 2005,
by and between Xxxxxxxxxxx Variable Account Funds (the "Trust"), and
OppenheimerFunds, Inc. ("OFI").
WHEREAS, the Trust is an open-end, diversified series management
investment company registered as such with the Securities and Exchange
Commission (the "Commission") pursuant to the Investment Company Act of 1940
(the "Investment Company Act"), and OFI is a registered investment adviser; and
WHEREAS, Xxxxxxxxxxx Main Street Fund/VA (the "Fund") is a series of
the Trust having a separate portfolio, investment policies and investment
restrictions; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, it is agreed by and between the parties, as follows:
1. General Provision.
a. The Trust hereby employs OFI and OFI hereby undertakes to act as the
investment adviser of the Fund and to perform for the Fund such other duties and
functions as are hereinafter set forth. OFI shall, in all matters, give to the
Fund and the Trust's Board of Trustees the benefit of its best judgment, effort,
advice and recommendations and shall, at all times conform to, and use its best
efforts to enable the Fund to conform to: (i) the provisions of the Investment
Company Act and any rules or regulations thereunder; (ii) any other applicable
provisions of state or Federal law; (iii) the provisions of the Declaration of
Trust and By-Laws of the Trust as amended from time to time; (iv) policies and
determinations of the Board of Trustees of the Trust; (v) the fundamental
policies and investment restrictions of the Fund as reflected in the Trust's
registration statement under the Investment Company Act or as such policies may,
from time to time, be amended by the Fund's shareholders; and (vi) the
Prospectus and Statement of Additional Information of the Trust in effect from
time to time. The appropriate officers and employees of OFI shall be available
upon reasonable notice for consultation with any of the trustees and officers of
the Trust with respect to any matters dealing with the business and affairs of
the Trust including the valuation of portfolio securities of the Fund which
securities are either not registered for public sale or not traded on any
securities market.
2. Investment Management.
a. OFI shall, subject to the direction and control by the Trust's Board
of Trustees: (i) regularly provide investment advice and recommendations to the
Fund with respect to its investments, investment policies and the purchase and
sale of securities; (ii) supervise continuously the investment program of the
Fund and the composition of its portfolio and determine what securities shall be
purchased or sold by the Fund; and (iii) arrange, subject to the provisions of
paragraph 7 hereof, for the purchase of securities and other investments for the
Fund and the sale of securities and other investments held in the portfolio of
the Fund.
b. Provided that the Trust shall not be required to pay any
compensation other than as provided by the terms of this Agreement and subject
to the provisions of paragraph 7 hereof, OFI may obtain investment information,
research or assistance from any other person, firm or corporation to supplement,
update or otherwise improve its investment management services.
c. OFI shall not be liable for any loss sustained by the Trust and/or
the Fund in connection with matters to which this Agreement relates, except a
loss resulting by reason of OFI's willful misfeasance, bad faith or gross
negligence in the performance of its duties; or by reason of its reckless
disregard of its obligations and duties under this Agreement.
d. Nothing in this Agreement shall prevent OFI or any officer thereof
from acting as investment adviser for any other person, firm or corporation and
shall not in any way limit or restrict OFI or any of its directors, officers,
stockholders or employees from buying, selling or trading any securities for its
or their own account or for the account of others for whom it or they may be
acting, provided that such activities will not adversely affect or otherwise
impair the performance by OFI of its duties and obligations under this
Agreement.
3. Other Duties of OFI.
OFI shall, at its own expense, provide and supervise the activities of
all administrative and clerical personnel as shall be required to provide
effective administration for the Fund, including the compilation and maintenance
of such records with respect to its operations as may reasonably be required;
the preparation and filing of such reports with respect thereto as shall be
required by the Commission; composition of periodic reports with respect to
operations of the Fund for its shareholders; composition of proxy materials for
meetings of the Fund's shareholders, and the composition of such registration
statements as may be required by Federal securities laws for continuous public
sale of shares of the Fund. OFI shall, at its own cost and expense, also provide
the Trust with adequate office space, facilities and equipment. OFI shall, at
its own expense, provide such officers for the Fund as the Fund's Board may
request.
4. Allocation of Expenses.
All other costs and expenses of the Fund not expressly assumed by OFI
under this Agreement, shall be paid by the Trust, including, but not limited to:
(i) interest and taxes; (ii) brokerage commissions; (iii) insurance premiums for
fidelity and other coverage requisite to its operations; (iv) compensation and
expenses of its trustees other than those associated or affiliated with OFI; (v)
legal and audit expenses; (vi) custodian and transfer agent fees and expenses;
(vii) expenses incident to the redemption of its shares; (viii) expenses
incident to the issuance of its shares against payment therefor by or on behalf
of the subscribers thereto; (ix) fees and expenses, other than as hereinabove
provided, incident to the registration under Federal securities laws of shares
of the Fund for public sale; (x) expenses of printing and mailing reports,
notices and proxy materials to shareholders of the Fund; (xi) except as noted
above, all other expenses incidental to holding meetings of the Fund's
shareholders; and (xii) such extraordinary non-recurring expenses as may arise,
including litigation, affecting the Fund and any legal obligation which the
Trust may have on behalf of the Fund to indemnify its officers and trustees with
respect thereto. Any officers or employees of OFI or any entity controlling,
controlled by or under common control with OFI, who may also serve as officers,
trustees or employees of the Trust shall not receive any compensation from the
Trust for their services. The expenses with respect to any two or more series of
the Trust shall be allocated in proportion to the net assets of the respective
series except where allocations of direct expenses can be made.
5. Compensation of OFI.
The Trust agrees to pay OFI on behalf of the Fund and OFI agrees to
accept as full compensation for the performance of all functions and duties on
its part to be performed pursuant to the provisions hereof, a fee computed on
the aggregate net asset value of the Fund as of the close of each business day
and payable monthly at the annual rate of: .75% of the first $200 million of
average annual net assets; .72% of the next $200 million; .69% of the next $200
million; .66% of the next $200 million; and .60% of average annual net assets in
excess of $800 million.
6. Use of Name "Xxxxxxxxxxx".
OFI hereby grants to the Trust a royalty-free, non-exclusive license to
use the name "Xxxxxxxxxxx" in the name of the Trust and the Fund for the
duration of this Agreement and any extensions or renewals thereof. To the extent
necessary to protect OFI's rights to the name "Xxxxxxxxxxx" under applicable
law, such license shall allow OFI to inspect, and subject to control by the
Trust's Board, control the name and quality of services offered by the Fund
under such name. Such license may, upon termination of this Agreement, be
terminated by OFI, in which event the Trust shall promptly take whatever action
may be necessary to change its name and the name of the Fund and discontinue any
further use of the name "Xxxxxxxxxxx" in the name of the Trust or the Fund or
otherwise. The name "Xxxxxxxxxxx" may be used or licensed by OFI in connection
with any of its activities, or licensed by OFI to any other party.
7. Portfolio Transactions and Brokerage.
a. OFI is authorized, in arranging the purchase and sale of the Fund's
portfolio securities, to employ or deal with such members of securities or
commodities exchanges, brokers or dealers (hereinafter "broker-dealers"),
including "affiliated" broker-dealers (as that term is defined in the Investment
Company Act), as may, in its best judgment, implement the policy of the Fund to
obtain, at reasonable expense, the "best execution" (prompt and reliable
execution at the most favorable security price obtainable) of the Fund's
portfolio transactions as well as to obtain, consistent with the provisions of
subparagraph (c) of this paragraph 7, the benefit of such investment information
or research as will be of significant assistance to the performance by OFI of
its investment management functions.
b. OFI shall select broker-dealers to effect the Fund's portfolio
transactions on the basis of its estimate of their ability to obtain best
execution of particular and related portfolio transactions. The abilities of a
broker-dealer to obtain best execution of particular portfolio transaction(s)
will be judged by OFI on the basis of all relevant factors and considerations
including, insofar as feasible, the execution capabilities required by the
transaction or transactions; the ability and willingness of the broker-dealer to
facilitate the Fund's portfolio transactions by participating therein for its
own account; the importance to the Fund of speed, efficiency or confidentiality;
the broker-dealer's apparent familiarity with sources from or to whom particular
securities might be purchased or sold; as well as any other matters relevant to
the selection of a broker-dealer for particular and related transactions of the
Fund.
c. OFI shall have discretion, in the interests of the Fund, to allocate
brokerage on the Fund's portfolio transactions to broker-dealers, other than an
affiliated broker-dealer, qualified to obtain best execution of such
transactions who provide brokerage and/or research services (as such services
are defined in Section 28(e)(3) of the Securities Exchange Act of 1934) for the
Fund and/or other accounts for which OFI or its affiliates exercise "investment
discretion" (as that term is defined in Section 3(a)(35) of the Securities
Exchange Act of 1934) and to cause the Trust to pay such broker-dealers a
commission for effecting a portfolio transaction for the Fund that is in excess
of the amount of commission another broker-dealer adequately qualified to effect
such transaction would have charged for effecting that transaction, if OFI
determines, in good faith, that such commission is reasonable in relation to the
value of the brokerage and/or research services provided by such broker-dealer,
viewed in terms of either that particular transaction or the overall
responsibilities of OFI or its affiliates with respect to the accounts as to
which they exercise investment discretion. In reaching such determination, OFI
will not be required to place or attempt to place a specific dollar value on the
brokerage and/or research services provided or being provided by such
broker-dealer. In demonstrating that such determinations were made in good
faith, OFI shall be prepared to show that all commissions were allocated for
purposes contemplated by this Agreement and that the total commissions paid by
the Trust over a representative period selected by the Trust's trustees were
reasonable in relation to the benefits to the Fund.
d. OFI shall have no duty or obligation to seek advance competitive
bidding for the most favorable commission rate applicable to any particular
portfolio transactions or to select any broker-dealer on the basis of its
purported or "posted" commission rate but will, to the best of its ability,
endeavor to be aware of the current level of the charges of eligible
broker-dealers and to minimize the expense incurred by the Fund for effecting
its portfolio transactions to the extent consistent with the interests and
policies of the Fund as established by the determinations of the Board of
Trustees of the Trust and the provisions of this paragraph 7.
e. The Trust recognizes that an affiliated broker-dealer: (i) may act
as one of the Fund's regular brokers so long as it is lawful for it so to act;
(ii) may be a major recipient of brokerage commissions paid by the Trust; and
(iii) may effect portfolio transactions for the Fund only if the commissions,
fees or other remuneration received or to be received by it are determined in
accordance with procedures contemplated by any rule, regulation or order adopted
under the Investment Company Act for determining the permissible level of such
commissions.
8. Duration.
This Agreement will take effect on the date first set forth above. This
Agreement shall remain in effect from year to year, so long as such continuance
shall be approved at least annually by the Trust's Board of Trustees, including
the vote of the majority of the Trustees of the Trust who are not parties to
this Agreement or "interested persons" (as defined in the Investment Company
Act) of any such party, cast in person at a meeting called for the purpose of
voting on such approval, or by the holders of a "majority" (as defined in the
Investment Company Act) of the outstanding voting securities of the Fund and by
such a vote of the Trust's Board of Trustees.
9. Disclaimer of Trustee or Shareholder Liability.
OFI understands and agrees that the obligations of the Trust under this
Agreement are not binding upon any Trustee or shareholder of the Trust or Fund
personally, but bind only the Trust and the Trust's property. OFI represents
that it has notice of the provisions of the Declaration of Trust of the Trust
disclaiming Trustee or shareholder liability for acts or obligations of the
Trust.
10. Termination.
This Agreement may be terminated: (i) by OFI at any time without
penalty upon sixty days' written notice to the Trust (which notice may be waived
by the Trust); or (ii) by the Trust at any time without penalty upon sixty days'
written notice to OFI (which notice may be waived by OFI) provided that such
termination by the Trust shall be directed or approved by the vote of a majority
of all of the trustees of the Trust then in office or by the vote of the holders
of a "majority" of the outstanding voting securities of the Fund (as defined in
the Investment Company Act).
11. Assignment or Amendment.
This Agreement may not be amended or the rights of OFI hereunder sold,
transferred, pledged or otherwise in any manner encumbered without the
affirmative vote or written consent of the holders of the "majority" of the
outstanding voting securities of the Trust. This Agreement shall automatically
and immediately terminate in the event of its "assignment," as defined as stated
below.
12. Definitions.
The terms and provisions of this Agreement shall be interpreted and
defined in a manner consistent with the provisions and definitions of the
Investment Company Act.
Xxxxxxxxxxx Variable Account Funds
for Xxxxxxxxxxx Main Street Fund/VA
By: /s/Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Vice President & Secretary
OppenheimerFunds, Inc.
By: /s/Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Chairman, President, Chief Executive
Officer & Director
