Exhibit (8)(f)
AGREEMENT BETWEEN XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
OPPENHEIMERFUNDS, INC.
AND GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
AGREEMENT DATED as of August 1, 2000 between XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
(the "Fund"), OPPENHEIMERFUNDS, INC. ("OFI"), and GE CAPITAL LIFE ASSURANCE
COMPANY OF NEW YORK ("GE").
WHEREAS, the Fund represents and warrants that it is and will remain an open-end
diversified investment company registered as such under the Investment Company
Act of 1940 whose shares are registered under the Securities Act of 1933;
WHEREAS, the Fund represents and warrants that its shares are offered only for
purchase to certain 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, and
regulations permitted thereunder (collectively, "participating insurance
companies");
WHEREAS, the Fund and OFI represent and warrant that shares of the Fund shall be
sold only to participating insurance companies and/or for policies or accounts
sponsored by participating insurance companies;
WHEREAS, GE desires to utilize shares of the Fund as one of the funding media
separate accounts established by GE to support variable life insurance and
variable annuity policies (the "policies") to be issued by GE, hereinafter
individually and/or collectively referred to as the "Account" or the "Accounts";
WHEREAS, GE represents and warrants that it has or will register the Policies
under the Securities Act of 1933 (unless an exemption from registration is
available);
WHEREAS, GE represents and warrants that it has or will register the Accounts as
unit investment trust(s) under the Investment Company Act of 1940 (unless an
exemption from registration is available);
WHEREAS, the Fund represents and warrants that it has obtained an order from the
Securities and Exchange Commission granting participating insurance companies
and variable life insurance and variable annuity 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, 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 separate accounts of both
affiliated and unaffiliated life insurance companies (the "Order");
Now, therefore, in consideration of the premises and the mutual promises and
covenants hereinafter set forth, the Fund, OFI and GE agree as follows:
1. The Fund shall make shares of the series identified on Schedule A hereto (as
may be modified by mutual consent from time to time) available for purchase at
net asset value by one or more of the separate accounts of GE identified on
Schedule B hereto (as may be modified by mutual consent from time to time) to
support policies to be issued by GE. Requests for such shares shall be executed
on a daily basis at the net asset value next computed after receipt by the Fund
or its agent of the order for shares of the Fund. For purposes of this Section
1, GE shall be an agent of the Fund for receipt of such orders and receipt by
such agent shall constitute receipt by the Fund; provided that such order is
received by GE by 4:00 P.M. New York time on a Business Day and the Fund
receives written (or a facsimile) notice of such order by 9:30 A.M. New York
time on the next following Business Day. "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 Securities and
Exchange Commission.
2. The Fund agrees to redeem for cash, on GE's request, any full or fractional
shares of the Fund held by GE, executing such requests on a daily basis at the
net asset value next computed after receipt by the Fund or its agent of the
request for redemption. For purposes of this Section 2, GE shall be the agent of
the Fund for receipt of requests for redemption, and receipt by such agent shall
constitute receipt by the Fund; provided that such request is received by GE by
4:00 P.M. New York time on a Business Day and the Fund receives notice of such
request for redemption by 9:30 A.M. New York time on the next following Business
Day.
3. GE shall pay for Fund shares on the next Business Day after an order to
purchase Fund shares is made in accordance with the provisions of Section 1.
4. The Fund shall furnish same day notice by telecopier to GE of any income
dividends or capital gains distributions payable on the Fund's shares. GE will
receive all such income dividends or capital gains distributions payable with
respect to a series in additional shares attributable to that series. The Fund
shall notify GE of the number of shares issued as payment of such income
dividends or capital gains distributions.
5. The Fund shall make the net asset value per share of each series available to
GE on a daily basis as soon as reasonably possible after the net asset value per
share is calculated and shall use its best efforts to make such net asset value
per share available to GE by 5:30 pm New York time.
6. GE shall pay for the reasonable costs of printing and mailing all shareholder
reports, notices, proxy materials (or similar materials such as voting
instruction solicitation materials) of the Fund that are required by the federal
securities laws to be sent to owners of policies issued by GE for which the Fund
is serving or is to serve as an investment vehicle. GE shall also pay the
reasonable costs of printing and distributing the Fund's prospectuses and
statements of additional information to owners of policies for which Service
shares of the Fund is serving or is to serve as an investment vehicle. For
service shares of a Fund, so long as that Fund's distribution and service plan
("Plan") adopted by the Fund for the Service shares of a series remains in
effect, the Fund on behalf of that series would pay OFI's subsidiary
OppenheimerFunds Distributor, Inc. ("OFDI") and OFDI may pay either to GE or to
any entity providing services to contract owners holding Service shares under
policies issued by GE, for services rendered with respect to the Service shares
in accordance with the terms and conditions of the Plan and at the annual rate
authorized by the Fund's Board of Trustees. GE shall also pay the reasonable
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costs of printing and distributing the Fund's prospectuses and statements of
additional information to owners of and applicants and prospective investors
applying for policies for which the Fund is serving or is to serve as an
investment vehicle.
7. The Fund shall prepare and be responsible for filing with the Securities and
Exchange Commission and any state securities regulators requiring such filing
all shareholder reports, notices, proxy materials (or similar materials such as
voting instruction solicitation materials), prospectuses and statements of
additional information of the Fund.
8. The Fund agrees that the investment portfolios of each series of the Fund
will comply with the diversification requirements set forth in Section 817(h) of
the Internal Revenue Code of 1986, as amended.
9. In the event this agreement is terminated, the Fund agrees that, as long as
shares of the Fund are available for purchase by separate accounts of any other
insurance companies, it will permit GE to continue to purchase shares of the
Fund for the account of its policyholders then funding policies, in whole or in
part, with shares of the Fund, provided GE continues to pay the costs described
in Section 6 above.
10. GE shall not give any information or make any representations or statements
on behalf of or concerning the Fund or OFI in connection with the sale of the
policies 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 from time to time, or in reports or
proxy statements for the Fund, or in sales literature approved by the Fund or
OFI, except as required by legal process or regulatory authorities or with
permission of the Fund and OFI.
11. The Fund and OFI shall not give any information or make any representation
on behalf of or concerning GE, the separate account(s) of GE, or the policies,
other than the information or representations contained in a registration
statement or prospectus for the policies, as such registration statement and
prospectus may be amended from time to time, or in materials approved by GE for
distribution, including sales literature or promotional materials, except as
required by legal process or regulatory authorities or with permission of GE.
12. The Fund shall bear 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 (including all documents related to the
solicitation of voting instructions from owners of the policies), the
preparation of all statements and notices relating to the Fund that may be
required by any federal or state law, and all taxes to which an issuer is
subject on the issuance and transfer of the Fund's shares.
13.1 The Board of Trustees of the Fund will monitor the Fund for any material
irreconcilable conflicts between the interests of the owners of all policies
whose cash values are held in separate accounts investing in the Fund
("Policyowners") and will promptly inform GE if it determines that a material
irreconcilable conflict exists. GE and OFI, as a matter of ongoing
responsibility, will undertake and shall promptly report to the Fund's Board any
potential or existing material irreconcilable conflict between the Policyowners.
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GE and OFI will assist the Board in carrying out its responsibilities in
monitoring such conflicts, by providing the Board in a timely manner with all
information reasonably necessary for the Board to consider any issues raised,
including information as to a decision by GE to disregard voting instructions of
Policyowners. This includes, but is not limited to, reporting to the Board on
all matters referred to in the Order and in the application for the Order. The
responsibility to report such information and conflicts and to assist the Board
will be carried out with a view only to the interests of policyowners.
13.2 If it is determined by either a majority of the Board of Trustees of the
Fund or a majority of its disinterested trustees, that a material irreconcilable
conflict exists, GE shall, at its expense and to the extent reasonably
practicable (as determined by the majority of the Fund's disinterested trustees)
take whatever steps are necessary to remedy or eliminate the material
irreconcilable conflict, up to and including:
(a) withdrawing the assets allocable to any or all of the Accounts from
the Fund (or any series of the Fund) and reinvesting such assets in a
different investment medium, including another series of the Fund, or
submitting the question whether such segregation should be implemented
to a vote of all affected policyowners and, as appropriate, segregating
the assets of any group voting in favor of segregation, or offering to
affected policyowners the option of making such a change; and
(b) establishing a new registered management investment company
or managed separate account.
These responsibilities will be carried out with a view only to the interest of
Policyowners. No penalty will be imposed by the Fund on GE for withdrawing
assets from the Fund (or any series of the Fund) in the event of a material
irreconcilable conflict.
For purposes of this Section 13.2 a majority of the disinterested trustees shall
determine whether any proposed action adequately remedies any material
irreconcilable conflict, but in no event will the Fund or OFI be required to
establish a new funding medium for any variable contract. GE shall not be
required by this Section 13.2 to establish a new funding medium for any variable
contract if an offer to do so has been declined by vote of a majority of the
Policyowners materially adversely affected by the material irreconcilable
conflict. GE will recommend to its Policyowners that they decline an offer to
establish a new funding medium only if the company believes it in the best
interest of the Policyowners.
13.3 So long as, and to the extent that the Securities and Exchange Commission
interprets the Investment Company Act of 1940 to require pass-through voting
privileges for variable policyowners, GE will provide pass-through voting
privileges to owners of policies whose cash values are invested, through the
Accounts, in shares of the Fund. GE shall be responsible for assuring that the
Accounts calculate voting privileges in a manner consistent with all other
separate accounts investing in the Fund. With respect to each Account, GE will
vote shares of the Fund held by the Account and for which no timely voting
instructions from policyowners are received as well as shares it owns that are
held by that Account, in the same proportion as those shares for which voting
instructions are received.
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13.4 The Fund and GE shall comply with Rule 6e-2, 6e-3(T) or, if adopted, 6e-3
of the Securities and Exchange Commission, if and to the extent they are amended
to provide exemptive relief with respect to mixed or shared funding.
13.5 OFI and GE shall at least annually submit to the Fund's Board of Trustees
such reports, materials or data as the Trustees may reasonably request so that
the Trustees may fully carry out the obligations imposed upon them by the Order,
and said reports, materials and data shall be submitted more frequently if
deemed appropriate by the Trustees.
13.6 The Fund hereby represents and warrants that it has not and will not sell
Fund shares to any insurance company or separate account unless an agreement
containing provisions substantially the same as Sections 13.1 through 13.5 of
this agreement is in effect to govern such sales.
13.7 Each of the undertakings in this Section 13 will survive termination of
this Agreement and will remain in effect for as long as shares of the Fund are
held by GE for the account of its Policyowners.
14. GE agrees to indemnify and hold harmless the Fund and OFI, each member of
their Board of Trustees or Board of Directors, each of their officers, and each
person who controls the Fund within the meaning of Section 15 of The Securities
Act of 1933 against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of GE), or any expenses of
litigation (including court costs and reasonable attorney's fees), to which the
indemnified parties may become subject under any statute or regulation or 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 and;
(a) arise out of any untrue or allegedly untrue statements of any
material fact contained in the registration statement or prospectus for
the policies, in the policies themselves or in sales literature created
or approved by GE for the policies, or arise out of or are based upon
the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that such statements or omissions were
not made in reliance upon and in conformity with information furnished
by GE by or on behalf of the Fund or OFI; or
(b) arise out of or as a result of statements or representations or
wrongful conduct of GE or persons under its control, with respect to
sale or distribution of the policies, provided any such statement or
representation or wrongful conduct was not made in reliance upon and in
conformity with information furnished to GE by or on behalf of the Fund
or OFI; or
(c) arise out of any untrue or allegedly untrue statement of a material
fact contained in the Fund's registration statement, prospectus or
sales literature 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 if such statement or omission was
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made in reliance upon information furnished to the Fund or OFI by GE;
or
(d) arise as a result of a breach of this agreement or a breach of any
misrepresentation and/or warranty made by GE in this agreement.
15.1. The Fund agrees to indemnify and hold harmless GE, each member of its
Board of Directors, each of its officers, and any person that controls GE within
the meaning of Section 15 of The Securities Act of 1933 against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Fund), or expenses of litigation (including court
costs and reasonable attorney's fees) to which the indemnified parties may
become subject under any statute or regulation or 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 policies and;
(a) arise out of any untrue or allegedly untrue statement of any
material fact contained in the registration statement or prospectus or
sales literature for the Fund, or arise out of or are based upon 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, provided that such statements or omissions were not made in
reliance upon and in conformity with information furnished to the Fund
by or on behalf of GE; or
(b) arise out of or as a result of statements or representations or
wrongful conduct of the Fund, or persons under the control of the Fund,
with respect to sale or distribution of the policies, provided any such
statement or representation or wrongful conduct was not made in
reliance upon and in conformity with information furnished to the Fund
by or on behalf of GE; or
(c) arise out of any untrue or allegedly untrue statement of any
material fact contained in the registration statement or prospectus for
the policies, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement therein not misleading if such statement or omission was made
in reliance upon information furnished to GE by the Fund; or
(d) arise as a result of a breach of this agreement or a breach of any
representation and/or warranty made by the Fund in this agreement.
15.2 OFI agrees to indemnify and hold harmless GE, each member of its Board of
Directors, each of its officers and any person that controls GE within the
meaning of Section 15 of The Securities Act of 1933 against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of OFI), or expenses of litigation (including court costs and
reasonable attorney's fees) to which the indemnified parties may become subject
under any statute or regulation or 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 policies and;
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(a) arise out of any untrue or allegedly untrue statement of any
material fact contained in the registration statement or prospectus or
sales literature for the Fund, or arise out of or are based upon 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, provided that such statements or omissions were not made in
reliance upon and in conformity with information furnished to OFI by or
on behalf of GE; or
(b) arise out of or as a result of statements or representations or
wrongful conduct of OFI or persons under the control of OFI, with
respect to sale or distribution of the policies, provided any such
statement or representation or wrongful conduct was not made in
reliance upon and in conformity with information furnished to OFI by or
on behalf of GE; or
(c) arise out of any untrue or allegedly untrue statement of any
material fact contained in the registration statement, prospectus or
sales literature for the policies, or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading if such
statement or omission was made in reliance upon information furnished
to GE by OFI; or
(d) arise as a result of a breach of this agreement or a breach of any
representation and/or warranty made by OFI in this agreement.
16. The indemnification provided under Sections 14, 15.1 and 15.2 shall not be
available to an indemnified party if the loss, claim, damages, liability or
litigation for which indemnification is sought resulted from 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.
17. No indemnification shall be available under Sections 14, 15.1 or 15.2 unless
the indemnified party gave written notice of the nature of the claim for which
indemnification is sought to the party from whom indemnification is sought. Said
notice must be given within a reasonable time after the summons or other initial
legal process giving information as to the nature of the claim is served upon
the indemnified party. However, failure to notify the party against whom
indemnification is sought shall not relieve that party of any liability which it
might have in the absence of Sections 14, 15.1 and 15.2 of this agreement.
18. In the event that an action is brought against a party indemnified under
Sections 14, 15.1 or 15.2, the party owning the obligation to indemnify (the
"indemnifying party") may participate, at its own expense in the defense
thereof. The indemnifying party may also assume the defense of any such action,
with counsel satisfactory to the indemnified party. After the indemnifying party
notifies the indemnified party of its intention to assume the defense of an
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action, the indemnified party shall bear the expenses of any additional counsel
obtained by it, and the indemnifying party shall not be liable to the
indemnified party for any legal or other expenses subsequently incurred by the
indemnified party independently in connection with the defense thereof.
19. Subject to the requirements of legal process and regulatory authorities,
each party to this agreement shall treat as confidential the names and addresses
of the owners of the policies.
20. Each party to this agreement shall cooperate with the other parties and with
all governmental authorities (including without limitation, the Securities and
Exchange Commission, the NASD and the state insurance and securities 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.
21. This agreement may be terminated by any party upon six month's advance
written notice to the other parties.
22. OFI and GE each understands 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; OFI and GE 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.
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IN WITNESS WHEREOF, the Fund, OFI and GE has caused this agreement to be
duly executed as of the day and year first above written.
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
By: ________________________________
Xxxxxx X. Xxxxxxx
Vice President and Secretary
OPPENHEIMERFUNDS, INC.
By: ________________________________
Xxxxxx X. Xxxxxxx
Executive Vice President
GE CAPITAL LIFE ASSURANCE COMPANY
OF NEW YORK
By: ________________________________
(Title)
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SCHEDULE A
Portfolios of Xxxxxxxxxxx Variable Account Funds:
Xxxxxxxxxxx Money Fund/VA
Xxxxxxxxxxx High Income Fund/VA
Xxxxxxxxxxx Bond Fund/VA
Xxxxxxxxxxx Aggressive Growth Fund/VA
Xxxxxxxxxxx Capital Appreciation Fund/VA
Xxxxxxxxxxx Multiple Strategies Fund/VA
Xxxxxxxxxxx Global Securities Fund/VA
Xxxxxxxxxxx Main Street Growth & Income Fund/VA
Xxxxxxxxxxx Strategic Bond Fund/VA
Xxxxxxxxxxx Small Cap Growth Fund/VA
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SCHEDULE B
GE Separate Account II
GE Separate Account III
