GENERAL DISTRIBUTOR'S AGREEMENT
WITH
OPPENHEIMERFUNDS DISTRIBUTOR, INC. AND
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
FOR CLASS 2 SHARES OF
XXXXXXXXXXX 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 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 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
