AMENDED AND RESTATED
DISTRIBUTION AND
SERVICE PLAN AND AGREEMENT
WITH
OPPENHEIMERFUNDS DISTRIBUTOR, INC. AND
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
FOR SERVICE SHARES OF
XXXXXXXXXXX CAPITAL APPRECIATION FUND/VA
AMENDED AND RESTATED DISTRIBUTION AND SERVICE PLAN AND AGREEMENT (the "Plan")
dated the 29th day of February, 2000, by and between XXXXXXXXXXX VARIABLE
ACCOUNT FUNDS (the "Trust") for the account of its XXXXXXXXXXX CAPITAL
APPRECIATION FUND/VA (the "Fund") and OPPENHEIMERFUNDS DISTRIBUTOR, INC. (the
"Distributor").
1. The Plan. This Plan is the Fund's written distribution and service plan for
its Service Shares described in the Fund's registration statement as of the date
this Plan takes effect, contemplated by and to comply with Rule 2830 of the
Conduct Rules of the National Association of Securities Dealers, Inc., pursuant
to which the Fund will compensate the Distributor for its services in connection
with the distribution of Shares, and the personal service and maintenance of
shareholder accounts ("Accounts") that hold Service Shares (the "Shares") of the
Fund. The Fund may be deemed to be acting as distributor of securities of which
it is the issuer, pursuant to Rule 12b-1 under the Investment Company Act of
1940 (the "1940 Act"), according to the terms of this Plan. The Distributor is
authorized under the Plan to pay "Insurance Company Recipients," as hereinafter
defined, for rendering services and for the maintenance of Accounts and for
distributing Service Shares. Such Insurance Company Recipients are intended to
have certain rights as third-party beneficiaries under this Plan.
2. Definitions. As used in this Plan, the following terms shall have the
following meanings:
(a) "Insurance Company Recipient" shall mean any insurance company or
affiliate thereof or other person or entity which: (i) has rendered
assistance (whether direct, administrative, or both) in the distribution
of Shares and/or has rendered services in connection with the personal
service and maintenance of Accounts; (ii) shall furnish the Distributor
(on behalf of the Fund) with such information as the Distributor shall
reasonably request to answer such questions as may arise concerning such
service and/or the sale of Shares; and (iii) has been selected by the
Distributor to receive payments under the Plan. Notwithstanding the
foregoing, a majority of the Trust's Board of Trustees (the "Board") who
are not "interested persons" (as defined in the 1940 Act) and who have no
direct or indirect financial interest in the operation of this Plan or in
any agreements relating to this Plan (the "Independent Trustees") may
remove any institution as a Insurance Company Recipient, whereupon such
entity's rights as a third-party beneficiary hereof shall terminate.
4
(b) "Qualified Holdings" shall mean, as to any Insurance Company
Recipient, all Shares owned beneficially or of record by: (i) such
Insurance Company Recipient, (ii) such clients of such Insurance Company
Recipient and/or accounts as to which such Insurance Company Recipient
provides administrative services and/or is a fiduciary or custodian or
co-fiduciary or co-custodian (collectively, the "Customers"), or (iii)
separate accounts created or sponsored by such Insurance Company Recipient
or its affiliate, but in no event shall any such Shares be deemed owned by
more than one Insurance Company Recipient for purposes of this Plan. In
the event that two entities would otherwise qualify as Insurance Company
Recipients as to the same Shares, the Distributor shall determine which
Insurance Company Recipient shall be deemed the Insurance Company
Recipient as to such Shares for purposes of this Plan.
3. Payments.
(a) Under the Plan, the Fund will make payments to the Distributor, within
forty-five (45) days of the end of each calendar quarter, in the amount of
.0625% (.25% on an annual basis) of the average during the calendar
quarter of the aggregate net asset value of the Shares, computed as of the
close of each business day (the "Service Fee"), provided, however, that
the Distributor may, in its sole discretion, reduce that payment level
from time to time. The Distributor will use such fee received from the
Fund in its entirety for payments to Insurance Company Recipients and for
its other expenditures and costs of the type approved by the Board
incurred in connection with the personal service and maintenance of
Accounts including, but not limited to, the services described in the
following two paragraphs. The Distributor may make Plan payments to any
"affiliated person" (as defined in the 1940 Act) of the Distributor if
such affiliated person qualifies as a Insurance Company Recipient.
The services to be rendered by the Distributor and Insurance Company
Recipients in connection with the personal service and the maintenance of
Accounts may include, but shall not be limited to, the following:
answering routine inquiries from the Insurance Company Recipient's
Customers concerning the Fund, providing such Customers with information
on their investment in Shares, assisting in the establishment and
maintenance of accounts or sub-accounts in the Fund, making the Fund's
investment plans and dividend payment options available, and providing
such other information and Customer liaison services and the maintenance
of Accounts as the Distributor or the Fund may reasonably request. It may
be presumed that an Insurance Company Recipient has provided services
qualifying for compensation under the Plan if it has Qualified Holdings of
Shares to entitle it to payments under the Plan. In the event that either
the Distributor or the Board should have reason to believe that,
notwithstanding the level of Qualified Holdings, an Insurance Company
Recipient may not be rendering appropriate services, then the Distributor,
at the request of the Board, shall require the Insurance Company Recipient
to provide a written report or other information to verify that said
Insurance Company Recipient is providing appropriate services in this
regard. If the Distributor still is not satisfied, it may take appropriate
steps to terminate the Insurance Company Recipient's status as such under
the Plan, whereupon such entity's rights as a third-party beneficiary
hereunder shall terminate.
The distribution assistance services to be rendered by the Distributor in
connection with the Shares may include, but shall not be limited to, the
following: (i) paying sales commissions to any insurance company, broker,
dealer, bank or other person or entity that directly or indirectly sells
Shares; (ii) paying compensation to and expenses of personnel of the
Distributor who support distribution of Shares by Insurance Company
Recipients; (iii) obtaining financing or providing such financing from its
own resources, or from an affiliate, for the interest and other borrowing
costs of the Distributor's unreimbursed expenses incurred in rendering
distribution assistance and administrative support services to the Fund;
and (iv) paying other direct distribution costs, including without
limitation the costs of sales literature, advertising and prospectuses
(other than those prospectuses furnished to current direct and indirect
holders of the Fund's shares ("Shareholders")).
(b) The Distributor shall make payments to any Insurance Company Recipient
quarterly, within forty-five (45) days of the end of each calendar
quarter, at a rate not to exceed .0625% (.25% on an annual basis) of the
average during the calendar quarter of the aggregate net asset value of
the Shares computed as of the close of each business day, of Qualified
Holdings owned beneficially or of record by the Insurance Company
Recipient or by its Customers, provided, however, that the Distributor
may, in its sole discretion, reduce that payment level from time to time.
However, no such payments shall be made to any Insurance Company Recipient
for any such quarter in which its Qualified Holdings do not equal or
exceed, at the end of such quarter, the minimum amount ("Minimum Qualified
Holdings"), if any, to be set from time to time by a majority of the
Independent Trustees. A majority of the Independent Trustees may at any
time or from time to time increase or decrease and thereafter adjust the
rate of fees to be paid to the Distributor or to any Insurance Company
Recipient, but not to exceed the rate set forth above, and/or increase or
decrease the number of shares constituting Minimum Qualified Holdings. The
Distributor shall notify all Insurance Company Recipients of the Minimum
Qualified Holdings and the rate of payments hereunder applicable to
Insurance Company Recipients, and shall provide each Insurance Company
Recipient with written notice within thirty (30) days after any change in
these provisions. Inclusion of such provisions or a change in such
provisions in a revised current prospectus shall constitute sufficient
notice.
(c) Under the Plan, payments may be made to Insurance Company Recipients:
(i) by OppenheimerFunds, Inc. ("OFI") from its own resources (which may
include profits derived from the advisory fee it receives from the Fund),
or (ii) by the Distributor (a subsidiary of OFI), from its own resources.
4. Selection and Nomination of Trustees. While this Plan is in effect, the
selection or replacement of Independent Trustees and the nomination of those
persons to be Trustees of the Trust who are not "interested persons" of the Fund
or the Trust shall be committed to the discretion of the Independent Trustees.
Nothing herein shall prevent the Independent Trustees from soliciting the views
or the involvement of others in such selection or nomination if the final
decision on any such selection and nomination is approved by a majority of the
incumbent Independent Trustees.
5. Reports. While this Plan is in effect, the Treasurer of the Trust shall
provide at least quarterly a written report to the Trust's Board for its review,
detailing the amount of all payments made under this Plan, and the purposes for
which the payments were made. The reports shall be provided quarterly, and shall
state whether all provisions of Section 3 of this Plan have been complied with.
6. Related Agreements. Any agreement related to this Plan shall be in writing
and shall provide that: (i) such agreement may be terminated at any time,
without payment of any penalty, by vote of a majority of the Independent
Trustees or by a vote of the holders of a "majority" (as defined in the 1940
Act) of the Fund's outstanding voting securities of the Shares, on not more than
sixty days written notice to any other party to the agreement; (ii) such
agreement shall automatically terminate in the event of its "assignment" (as
defined in the 1940 Act); (iii) it shall go into effect when approved by a vote
of the Board and its Independent Trustees cast in person at a meeting called for
the purpose of voting on such agreement; and (iv) it shall, unless terminated as
herein provided, continue in effect from year to year only so long as such
continuance is specifically approved at least annually by the Board and its
Independent Trustees cast in person at a meeting called for the purpose of
voting on such continuance.
7. Effectiveness, Continuation, Termination and Amendment. This Plan has been
approved by a vote of the Independent Trustees cast in person at a meeting
called on February 29, 2000 for the purpose of voting on this Plan, and shall
take effect on the later of (i) the date that Shares are first issued to
OppenheimerFunds, Inc. or any other person, or (ii) May 1, 2000. When this Plan
takes effect, the Fund's Service Plan and Agreement dated May 1, 1998, by and
between the Trust and OFI, shall be terminated. Unless terminated as hereinafter
provided, it shall continue in effect until October 31, 2000 and from year to
year thereafter or as the Board may otherwise determine only so long as such
continuance is specifically approved at least annually by the Board and its
Independent Trustees by a vote cast in person at a meeting called for the
purpose of voting on such continuance. This Plan may be terminated at any time
by vote of a majority of the Independent Trustees or by the vote of the holders
of a "majority" (as defined in the 1940 Act) of the Fund's outstanding voting
Service shares. In the event of such termination, the Board and its Independent
Trustees shall determine whether the Distributor shall be entitled to payment
from the Fund of all or a portion of the Service Fee in respect of Shares sold
prior to the effective date of such termination. This Plan may not be amended to
increase materially the amount of payments to be made without approval of the
Service Shareholders, in the manner described above, and all material amendments
must be approved by a vote of the Board and of the Independent Trustees.
8. Disclaimer of Shareholder and Trustee Liability. The Distributor understands
that the obligations of the Trust under this Plan are not binding upon any
Trustee or shareholder of the Fund personally, but bind only the Fund and the
Fund's property. The Distributor represents 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 Trust and the Fund.
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
on behalf of XXXXXXXXXXX CAPITAL APPRECIATION FUND/VA
By: /s/ Xxxxxx X. Xxxx
_________________
Xxxxxx X. Xxxx
Assistant Secretary
OPPENHEIMERFUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxxxxxx X. Xxxx
_________________
Xxxxxxxxx X. Xxxx
Vice President and Secretary
OFMI\61012b38
