GENERAL DISTRIBUTOR'S AGREEMENT
WITH
OPPENHEIMERFUNDS DISTRIBUTOR, INC. AND
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
FOR CLASS 2 SHARES OF
XXXXXXXXXXX SMALL CAP GROWTH FUND
Date: May 1, 1998
OPPENHEIMERFUNDS DISTRIBUTOR, INC.
Two World Trade Center, Suite 0000
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS (the "Trust"), a Massachusetts
business trust, is registered as an investment company under the Investment
Company Act of 1940 (the "1940 Act") consisting of one or more series
("Series") and an indefinite number of one or more classes of its shares of
beneficial interest for each Series have been registered under the
Securities Act of 1933 (the "1933 Act") to be offered for sale to the
public in a continuous public offering in accordance with the terms and
conditions set forth in the Prospectus and Statement of Additional
Information ("SAI") included in the Trust's Registration Statement as it
may be amended from time to time (the "Current Prospectus and/or SAI").
In this connection, the Trust desires that your firm (the "General
Distributor") act in a principal capacity as General Distributor for the sale
and distribution of Class 2 shares of beneficial interest ("Shares") of
Xxxxxxxxxxx Small Cap Growth Fund (the "Fund"), a series of the Trust, which
have been registered as described above and of any additional Class 2 and
subsequent Classes of Shares which may become registered during the term of this
Agreement. You have advised the Fund that you are willing to act as such General
Distributor, and it is accordingly agreed by and between us as follows:
1. Appointment of the Distributor. The Trust hereby appoints you as
the sole General Distributor of the Fund for sale of its Shares, pursuant
to the aforesaid continuous public offering of its Shares and the Trust
further agrees from and after the date of this Agreement that it will not,
without your consent, sell or agree to sell any Shares otherwise than
through you, except (a) the Trust may issue Shares in connection with a
merger, consolidation or acquisition of assets on such basis as may be
authorized or permitted under the 1940 Act; (b) the Trust may issue Shares
for the
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reinvestment of dividends and other distributions of the Fund or of any other
fund if permitted by the current Prospectus and/or SAI; and (d) the Trust may
issue Shares as underlying securities of a unit investment trust if such unit
investment trust has elected to use Shares as an underlying investment; provided
that in no event as to any of the foregoing exceptions shall Shares be issued
and sold at less than the then-existing net asset value.
2. Sale of Shares. You hereby accept such appointment and agree to use
your best efforts to sell Shares, provided, however, that when requested by the
Trust at any time because of market or other economic considerations or abnormal
circumstances of any kind, or when agreed to by mutual consent of the Trust and
the General Distributor, you will suspend such efforts. The Trust may also
withdraw the offering of Shares at any time when required by the provisions of
any statute, order, rule or regulation of any governmental body having
jurisdiction. It is understood that you do not undertake to sell all or any
specific number of Shares of the Fund.
3. Purchase of Shares.
(a) As General Distributor, you shall have the right to accept or
reject orders for the purchase of Shares at your discretion, provided,
however, that you agree not to exercise that discretion in a manner
inconsistent with the Trust's obligations under any participation agreement
to which the Trust is a party and to which the Shares are subject. Any
consideration which you may receive in connection with a rejected purchase
order will be returned promptly. Shares of the Fund may be sold by you only
at net asset value without sales charge upon receipt of Federal Funds for
the purchase of any Shares sold by you pursuant to provisions hereof.
(b) You agree promptly to issue or to cause the duly appointed
transfer or shareholder servicing agent of the Fund to issue as your agent
confirmations of all accepted purchase orders and to transmit a copy of
such confirmations to the Trust. The net asset value of all Shares which
are the subject of such confirmations, computed in accordance with the
applicable rules under the 1940 Act, shall be a liability of the General
Distributor to the Trust to be paid promptly after receipt of payment from
the authorized insurance company, dealer or broker (collectively, the
authorized "insurance company") and not later than eleven business days
after such confirmation even if you have not actually received payment from
the authorized insurance company or investor. In no event shall the General
Distributor make payment to the Trust later than permitted by applicable
rules of the National Association of Securities Dealers, Inc.
Notwithstanding the provisions of part (a) of this Section 3 of this
Agreement, purchase orders received from an authorized insurance company
after the latest determination of the Fund's net asset value on a regular
business day will receive that latest net asset value if the request to the
authorized insurance company by its customer to arrange such purchase prior
to the latest determination of the Fund's net asset value that
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day complies with the requirements governing such requests as stated in the
current Prospectus and/or SAI.
(c) If the authorized insurance company shall fail to make timely
settlement of its purchase order in accordance with applicable rules of the
National Association of Securities Dealers, Inc., or if any purchaser shall
fail to make good payment for Shares in a timely manner, you shall have the
right to cancel such purchase order and, at your account and risk, to hold
responsible the authorized insurance company or investor. You agree
promptly to reimburse the Trust for losses suffered by it that are
attributable to any such cancellation, or to errors on your part in
relation to the effective date of accepted purchase orders, limited to the
amount that such losses exceed contemporaneous gains realized by the Trust
for either of such reasons with respect to other purchase orders.
(d) In the case of a canceled purchase for the account of a directly
purchasing shareholder, the Trust agrees that if such investor fails to
make you whole for any loss you pay to the Trust on such canceled purchase
order, the Trust will reimburse you for such loss to the extent of the
aggregate redemption proceeds of any other Shares of the Fund owned by such
investor, on your demand that the Trust exercise its right to claim such
redemption proceeds. The Trust shall register or cause to be registered all
Shares sold to you pursuant to the provisions hereof in such names and
amounts as you may request from time to time and the Trust shall issue or
cause to be issued certificates evidencing such Shares for delivery to you
or pursuant to your direction if and to the extent that the shareholder
account in question contemplates the issuance of such certificates. All
Shares when so issued and paid for, shall be fully paid and non-assessable
by the Trust to the extent set forth in the current Prospectus and/or SAI.
4. Repurchase of Shares.
(a) In connection with the repurchase of Shares, you are appointed and
shall act as Agent of the Trust. You are authorized, for so long as you act
as General Distributor of the Fund, to repurchase, from authorized
insurance companies, certificated or uncertificated shares of the Fund
("Shares") on the basis of orders received from each authorized insurance
company with which you have a participation agreement for the sale of
Shares and permitting resales of Shares to you, provided that such
authorized insurance company, at the time of placing such resale order,
shall represent (i) if such Shares are represented by certificate(s), that
certificate(s) for the Shares to be repurchased have been delivered to it
by the indirect shareholder(s) with a request for the redemption of such
Shares executed in the manner and with the signature guarantee required by
the then current effective prospectus and/or SAI, or (ii) if such Shares
are uncertificated, that the indirect
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shareholder(s) has delivered to the authorized insurance
company a request for the redemption of such Shares executed
in the manner and with the signature guarantee required by the
then current policies and procedures of the Transfer Agent of
the Fund.
(b) You shall (a) have the right in your discretion to accept or
reject orders for the repurchase of Shares; (b) promptly transmit
confirmations of accepted repurchase orders (which may be netted against
corresponding redemption orders); and (c) transmit a copy of such
confirmation to the Trust, or, if so directed, to any duly appointed
transfer or shareholder servicing agent of the Trust. In your discretion,
you may accept repurchase requests made by a financially responsible
authorized insurance company which provides you with indemnification in
form satisfactory to you in consideration of your acceptance of such
request in lieu of the written redemption request of the owner of the
account; you agree that the Trust shall be a third party beneficiary of
such indemnification.
(c) Upon receipt by the Trust or its duly appointed transfer or
shareholder servicing agent of any certificate(s) (if any has been issued)
for repurchased Shares and a written redemption request of the indirect
shareholder(s) of such Shares executed in the manner and bearing the
signature guarantee required by the then current policies and procedures of
the Transfer Agent of the Fund, the Trust will pay or cause its duly
appointed transfer or shareholder servicing agent promptly to pay to the
authorized insurance company the redemption price of the repurchased Shares
(other than repurchased Shares subject to the provisions of part (d) of
Section 4 of this Agreement) next determined after your receipt of the
authorized insurance company's repurchase order.
(d) Notwithstanding the provisions of part (c) of Section 4 of this
Agreement, repurchase orders received from an authorized insurance company
after the latest determination of the Fund's redemption price on a regular
business day will receive that day's latest redemption price if the request
to the authorized insurance company by its customer to arrange such
repurchase prior to the latest determination of the Fund's redemption price
that day complies with the requirements governing such requests as stated
in the current Prospectus and/or SAI.
(e) You will make every reasonable effort and take all reasonably
available measures to assure the accurate performance of all services to be
performed by you hereunder within the requirements of any statute, rule or
regulation pertaining to the redemption of shares of a regulated investment
company and any requirements set forth in the then current Prospectus
and/or SAI of the Trust. You shall correct any error or omission made by
you in the performance of your duties hereunder of which you shall have
received notice
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in writing and any necessary substantiating data; and you shall hold a Fund
harmless from the effect of any errors or omissions which might cause an over-
or under-redemption of a Fund's Shares and/or an excess or non-payment of
dividends, capital gains distributions, or other distributions.
(f) In the event an authorized authorized insurance company initiating
a repurchase order shall fail to make delivery or otherwise settle such
order in accordance either with the rules of the National Association of
Securities Dealers, Inc. or a participation agreement to which the Trust is
a party and to which the Shares are subject, you shall have the right to
cancel such repurchase order and, at your account and risk, to hold
responsible the authorized insurance company. In the event that any
cancellation of a Share repurchase order or any error in the timing of the
acceptance of a Share repurchase order shall result in a gain or loss to
the Trust, you agree promptly to reimburse the Trust for any amount by
which any loss shall exceed then- existing gains so arising.
5. 1933 Act Registration. The Trust has delivered to you a copy of its
current Prospectus and SAI. The Trust agrees that it will use its best efforts
to continue the effectiveness of the Trust's Registration Statement filed under
the 1933 Act. The Trust further agrees to prepare and file any amendments to its
Registration Statement as may be necessary and any supplemental data in order to
comply with the 1933 Act. The Trust will furnish you at your expense with a
reasonable number of copies of the current Prospectus and SAI and any amendments
thereto for use in connection with the sale of Shares.
6. 1940 Act Registration. The Trust has already registered under the 1940
Act as an investment company, and it will use its best efforts to maintain such
registration and to comply with the requirements of the 1940 Act.
7. Duties of Distributor:
(a) You shall furnish to the Trust any pertinent information required
to be inserted with respect to you as General Distributor within the
purview of the Securities Act of 1933 in any reports or registration
required to be filed with any governmental authority;
(b) You will not make any representations inconsistent with the
information contained in the current Prospectus and/or SAI.
(c) You shall maintain such records as may be reasonably required for
the Trust or its transfer or shareholder servicing agent to respond to
shareholder requests or complaints, and to permit the Trust to maintain
proper accounting records, and you shall make such records available to the
Trust and its transfer agent or shareholder servicing agent upon request;
and
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(d) In performing under this Agreement, you shall comply with all
requirements of the Trust's current Prospectus and/or SAI and all
applicable laws, rules and regulations with respect to the purchase, sale
and distribution of Shares.
8. Allocation of Costs. The Trust shall pay the cost of composition and
printing of sufficient copies of its Prospectus and SAI as shall be required for
periodic distribution to its shareholders and the expense of registering Shares
for sale under federal securities laws. You shall pay the expenses normally
attributable to the sale of Shares, other than as paid under the Fund's Service
Plan(s) under Rule 12b-1 of the 1940 Act, including the cost of printing and
mailing of the Prospectus (other than those furnished to existing direct or
indirect shareholders) and any sales literature used by you in the public sale
of the Shares.
9. Duration. This Agreement shall take effect on the date first written
above, and shall supersede any and all prior General Distributor's Agreements by
and among the Trust and you. Unless earlier terminated pursuant to Section 10
hereof, this Agreement shall remain in effect until September 30, 1999. This
Agreement shall continue in effect from year to year thereafter, provided that
such continuance shall be specifically approved at least annually: (a) by the
Trust's Board of Trustees or by vote of a majority of the voting securities of
the Fund; and (b) by the vote of a majority of the Trustees, who are not parties
to this Agreement or "interested persons" (as defined in the 1940 Act) of any
such person, cast in person at a meeting called for the purpose of voting on
such approval.
10. Termination. This Agreement may be terminated (a) by the General
Distributor at any time without penalty by giving sixty days' written notice
(which notice may be waived by the Trust); (b) by the Trust at any time without
penalty upon sixty days' written notice to the General Distributor( which notice
may be waived by the General Distributor); or (c) by mutual consent of the Trust
and the General Distributor, provided that such termination by the Trust
pursuant to part (b) of this Section 10 shall be directed or approved by the
Board of Trustees of the Trust or by the vote of the holders of a "majority" of
the outstanding voting securities of the Fund.
11. Assignment. This Agreement may not be amended or changed except in
writing and shall be binding upon and shall enure to the benefit of the parties
hereto and their respective successors, however, this Agreement shall not be
assigned by either party and shall automatically terminate upon assignment.
12. Disclaimer of Shareholder Liability. The General Distributor
understands and agrees that the obligations of the Trust under this Agreement
are not binding upon any shareholder or any Trustee of the Trust personally, but
bind only the Trust and the Trust's property; the General Distributor represents
that it has notice of the provisions of the Declaration of Trust of the Trust
disclaiming shareholder and Trustee liability for acts or obligations of the
Trust.
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13. Section Headings. The heading of each section is for descriptive
purposes only, and such headings are not to be construed or interpreted as part
of this Agreement.
If the foregoing is in accordance with your understanding, kindly so
indicate by signing in the space provided below.
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
on behalf of XXXXXXXXXXX SMALL CAP GROWTH
FUND
By: /s/ Xxxxxx X. Xxxx
________________________
Xxxxxx X. Xxxx
Assistant Secretary
Accepted:
OPPENHEIMERFUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxxxxxx X. Xxxx
_______________________
Xxxxxxxxx X. Xxxx
Vice President and Secretary
