PARTICIPATION AGREEMENT
Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
OPPENHEIMERFUNDS, INC.
and
MONY LIFE INSURANCE COMPANY of AMERICA
THIS AGREEMENT (the "Agreement"), made and entered into as of
the 1st day of May 2003, by and among MONY Life Insurance Company of America
(hereinafter the "Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule 1 to this Agreement, as may be amended
from time to time by mutual consent (hereinafter collectively the "Accounts"),
Xxxxxxxxxxx Variable Account Funds (hereinafter the "Fund") and
OppenheimerFunds, Inc. (hereinafter the "Adviser").
WHEREAS, the Fund is an open-end management investment company
and is available to act as the investment vehicle for separate accounts now in
existence or to be established at any date hereafter for variable life insurance
policies, variable annuity contracts and other tax-deferred products
(collectively, the "Variable Insurance Products") offered by insurance companies
(hereinafter "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into
several series of shares, each designated a "Portfolio", and each representing
the interests in a particular managed pool of securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities
and Exchange Commission (the "SEC"), dated July 16, 1986 (File No. 812-6324)
granting Participating Insurance Companies and variable annuity and variable
life insurance 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, (hereinafter the "1940 Act") 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 insurance separate accounts of
both affiliated and unaffiliated life insurance companies (hereinafter the
"Mixed and Shared Funding Exemptive Order")
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and its shares are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act");
WHEREAS, the Adviser is duly registered as an investment
adviser under the federal Investment Advisers Act of 1940;
WHEREAS, the Company has registered or will register certain
variable annuity and/or life insurance contracts under the 1933 Act
(hereinafter "Contracts") (unless an exemption from registration is available);
WHEREAS, the Accounts are or will be duly organized, validly
existing segregated asset accounts, established by resolution of the Board of
Directors of the Company, to set aside and invest assets attributable to the
aforesaid variable contracts (the Separate Account(s) covered by the Agreement
are specified in Schedule 1 attached hereto, as may be modified by mutual
consent from time to time);
WHEREAS, the Company has registered or will register the
Accounts as unit investment trusts under the 1940 Act (unless an exemption from
registration is available);
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, the Company intends to purchase shares in the Portfolios (the
Portfolios covered by this Agreement are specified in Schedule 2 attached hereto
as may be modified by mutual consent from time to time), on behalf of the
Accounts to fund the Contracts, and the Fund is authorized to sell such shares
to unit investment trusts such as the Accounts at net asset value; and
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NOW, THEREFORE, in consideration of their mutual promises, the
Fund, the Adviser and the Company agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares
1.1. The Fund agrees to sell to the Company those shares of
the Fund which the Company orders on behalf of the Accounts, executing such
orders on a daily basis at the net asset value next computed after receipt by
the Fund or its designee of the order for the shares of the Fund. For purposes
of this Section 1.1, the Company shall be the designee of the Fund for receipt
of such orders from each Account and receipt by such designee shall constitute
receipt by the Fund; provided that the Fund receives written (or facsimile)
notice of such order by 10:00 a.m. New York time on the next following Business
Day; however the Company undertakes to use its best efforts to provide such
notice to the Fund by no later than 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 SEC.
1.2. The Company shall pay for Fund shares by 2:00 P.M. New
York time on the next Business Day after it places an order to purchase Fund
shares in accordance with Section 1.1 hereof. Payment shall be in federal funds
transmitted by wire or by a credit for any shares redeemed.
1.3. The Fund agrees to make Fund shares available for
purchase by the Company for their separate Accounts listed in Schedule 1 on
those days on which the Fund calculates its net asset value pursuant to rules of
the SEC; provided, however, that the Board of Trustees of the Fund (hereinafter
the "Trustees") may refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of shares of any Portfolio if such action is
required by law or by regulatory authorities having jurisdiction or is, in the
sole discretion of the Trustees, acting in good faith and in
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light of their fiduciary duties under federal and any applicable state laws, in
the best interests of the shareholders of any Portfolio (including without
limitation purchase orders that individually or together with other
contemporaneous orders represent large transactions in shares of any Portfolio
held for a relatively brief period of time). Such shares shall be purchased at
the applicable net asset value per share, increased by any initial sales charge,
if the Fund's prospectus then in effect imposes such a charge on such purchases.
1.4. The Fund agrees to redeem, upon the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of the request for redemption, reduced by any redemption fee or
deferred sales charge, if the Fund's prospectus in effect as of the date of such
redemption imposes such a fee or charge on such redemptions. For purposes of
this Section 1.4, the Company shall be the designee of the Fund for receipt of
requests for redemption and receipt by such designee shall constitute receipt by
the Fund; provided that the Fund receives written (or facsimile) notice of such
request for redemption by 10:00 a.m. New York time on the next following
Business Day; however the Company undertakes to use its best efforts to provide
such notice to the Fund by no later than 9:00 A.M. New York time on the next
following Business Day. Payment shall be made within the time period specified
in the Fund's prospectus or statement of additional information, provided,
however, that if the Fund does not pay for the Fund shares that are redeemed on
the next Business Day after a request to redeem shares is made, then the Fund
shall apply any such delay in redemptions uniformly to all holders of shares of
that Portfolio. Payment shall be in federal funds transmitted by wire to the
Company's bank accounts as designated by the Company in writing from time to
time.
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1.5. The Company agrees to purchase and redeem the shares of
the Portfolios named in Schedule 2 offered by the then current prospectus and
statement of additional information of the Fund in accordance with the
provisions of such prospectus and statement of additional information. The
Company shall not permit any person other than a Contract owner to give
instructions to the Company which would require the Company to redeem or
exchange shares of the Fund.
1.6 The Fund shall make the daily closing net asset value,
dividend and capital gain information for each Portfolio available on a per
share basis to the Company as soon as reasonably practical after the information
is calculated and shall use its best efforts to make the information available
by 6:30 p.m., Eastern Time, on each Business Day.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the securities
deemed to be issued by the Accounts under the Contracts are or will be
registered under the 1933 Act (unless an exemption from registration is
available) and, that the Contracts will be issued, offered and sold in
compliance in all material respects with all applicable federal and state laws
and regulations, including without limitation state insurance suitability
requirements and National Association of Securities Dealers, Inc. ("NASD")
conduct rules. The Company further represents and warrants that it is an
insurance company duly organized and in good standing under applicable state
law and that it has legally and validly established the Accounts prior to the
issuance or sale of units thereof as a segregated asset account and has
registered the Accounts as unit investment trusts in accordance with
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the provisions of the 1940 Act (unless an exemption from registration is
available) to serve as segregated investment accounts for the Contracts, and
that it will maintain such registration for so long as any Contracts are
outstanding or until registration is no longer required under federal and state
securities laws. The Company shall amend the registration statement under the
1933 Act for the Contracts and the registration statement under the 1940 Act for
the Accounts from time to time as required in order to effect the continuous
offering of the Contracts or as may otherwise be required by applicable law. The
Company shall register and qualify the Contracts for sale in accordance with the
securities laws of the various states only if and to the extent deemed necessary
by the Company.
2.2. The Company represents and warrants, for purposes other
than diversification under Section 817 of the Internal Revenue Code of 1986 as
amended (the "Code"), that the Contracts are currently and at the time of
issuance will be treated as life insurance or annuity contracts under applicable
provisions of the Code and the regulations issued thereunder, and that it will
make every effort to maintain such treatment and that it will notify the Fund
and the Adviser immediately upon having a reasonable basis for believing that
the Contracts have ceased to be so treated or that they might not be so treated
in the future. In addition, the Company represents and warrants that the
Accounts are a "segregated asset accounts" and that interests in the Accounts
are offered exclusively through the purchase of or transfer into a "variable
contract" within the meaning of such terms under Section 817 of the Code and the
regulations issued thereunder (and any amendments or other modifications to such
section or such regulations (and any revenue rulings, revenue procedures,
notices and other published announcements of the Internal Revenue Service
interpreting these provisions). The Company shall continue to meet such
definitional requirements, and it will notify the Fund and the Adviser
immediately upon having a reasonable basis for believing
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that such requirements have ceased to be met or that they might not be met in
the future. The Company represents and warrants that it will not purchase Fund
shares with assets derived from tax-qualified retirement plans except
indirectly, through Contracts purchased in connection with such plans.
2.3. Subject to Section 2.5 hereof, the Company represents and
warrants that the Contracts are currently and at the time of issuance will be
treated as life insurance or annuity contracts under applicable provisions of
the Code and that it will make every effort to maintain such treatment and that
it will notify the Fund and the Adviser immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or that they
might not be so treated in the future.
2.4. The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance and sold in accordance with applicable state and federal
law and that the Fund is and shall remain registered under the 1940 Act for as
long as the Fund shares are sold. The Fund shall amend the registration
statement for its shares under the 1933 Act and the 1940 Act from time to time
as required in order to effect the continuous offering of its shares. The Fund
shall register and qualify the shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Fund.
2.5. The Fund will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be treated as
variable contracts under the Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund represents and warrants that each
Portfolio of the Fund will comply with Section 817(h) of the Code and Treasury
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Regulation 1.817-5, relating to the diversification requirements for variable
annuity, endowment, or life insurance contracts and any amendments or other
modifications to such Section or Regulations (and any revenue rulings, revenue
procedures, notices, and other published announcements of the Internal Revenue
Service interpreting these provisions). In the event the Fund should fail to so
qualify, it will take all reasonable steps (a) to notify the Company of such
breach and (b) to resume compliance with such diversification requirement within
the grace period afforded by Treasury Regulation 1.817.5. The Fund and Adviser
represent that each Portfolio is qualified as a Regulated Investment Company
under Subchapter M of the Code and that it will maintain such qualification
(under Subchapter M or any successor provision), and that it will notify the
Company immediately upon having a reasonable basis for believing that it has
ceased to so qualify or that it might not so qualify in the future.
2.6. If the Contracts purchase shares of a series and class of
the Fund that have adopted a plan under Rule 12b-1 under the 1940 Act to finance
distribution expenses (a "12b-1 Plan"), the Company agrees to provide the
Trustees any information as may be reasonably necessary for the Trustees to
review the Fund's 12b-1 Plan or Plans.
2.7. The Fund represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts and that it
does and will comply with applicable provisions of the 0000 Xxx.
2.8. The Adviser represents and warrants that it is and will
remain duly registered under all applicable federal and state securities laws
and that it shall perform its obligations for the Fund in compliance with any
applicable state and federal securities laws.
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2.9. The Fund and Adviser each represent and warrant that all
of its respective directors, trustees, officers, employees, investment advisers,
and transfer agent of the Fund are and shall continue to be at all times covered
by a blanket fidelity bond (which may, at the Fund's election, be in the form of
a joint insured bond) or similar coverage for the benefit of the Fund in an
amount not less than the minimal coverage as required currently by Section 17(g)
and Rule 17g-1 of the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable insurance company. The Adviser
agrees to make all reasonable efforts to see that this bond or another bond
containing these provisions is always in effect, and agrees to notify the
Company in the event that such coverage no longer applies.
2.10. The Company represents and warrants that all of its
directors, officers, employees, agents, investment advisers, and other
individuals and entities dealing with the money and/or securities of the Fund
are covered by a blanket fidelity bond or similar coverage in an amount not less
than the equivalent of U.S. $10 million. The aforesaid bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
insurance company. The Company agrees that any amount received under such bond
in connection with claims that derive from arrangements described in this
Agreement will be paid by the Company for the benefit of the Fund. The Company
agrees to make all reasonable efforts to see that this bond or another bond
containing these provisions is always in effect, and agrees to notify the Fund
and the Adviser in the event that such coverage no longer applies.
2.11. The Fund and the Adviser represent that they will make a
good faith effort to (a) materially comply with any applicable state insurance
law restrictions with which the Fund must comply to perform its obligations
under this Agreement, provided, however, that the Company provide specific
notification of such restrictions to the Fund and the Adviser in advance and in
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writing,; and (b) furnish information to the Company about the Fund not
otherwise available to the Company which is required by state insurance law to
enable the Company to obtain the authority needed to issue the Contracts in any
applicable state.
ARTICLE III. Sales Material, Prospectuses and Other Reports
3.1. The Company shall furnish, or shall cause to be
furnished, to the Fund or its designee, each piece of sales literature or other
promotional material in which the Fund or the Adviser is named, at least ten
Business Days prior to its use. No such material shall be used if the Fund or
its designee reasonably object to such use within ten Business Days after
receipt of such material. "Business Day" shall mean any day in which the New
York Stock Exchange is open for trading and in which the Fund calculates its net
asset value pursuant to the rules of the Securities and Exchange Commission.
3.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts 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 or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sale literature or other promotional material approved by the Fund or its
designee, except with the permission of the Fund.
3.3. For purposes of this Article III, the phrase "sales
literature or other promotional material" means advertisements (such as material
published, or designed for use in, a newspaper, magazine, or other periodical,
radio, television, telephone or tape recording, videotape display, signs or
billboard or electronic media), and sales literature (such as brochures,
circulars, market letters and form letters), distributed or made generally
available to customers or the public.
3.4. The Fund shall provide a copy of its current prospectus
within a reasonable period of its filing date, and provide other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus for the Fund is
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supplemented or amended) to have the prospectus for the Contracts and the Fund's
prospectus printed together in one document. Expenses for such printing shall be
apportioned between the Company and the Fund in proportion to the number of
pages of the Variable Contract and Fund prospectus, taking account of other
relevant factors affecting the expense of printing, such as covers, columns,
graphs and charts, provided, however, that the Company shall bear the expenses
of printing Fund prospectuses that are distributed to prospective purchasers of
Variable Contracts. The Adviser shall be permitted to review and approve the
typeset form of the Fund's Prospectus prior to such printing.
3.5. The Fund or the Adviser shall provide the Company with
either: (i) a copy of the Fund's reports to shareholders, other information
relating to the Fund necessary to prepare financial reports, and other
communications to shareholders for printing and distribution to Contract owners
at the Company's expense, or (ii) camera ready and/or printed copies, if
appropriate, of such material for distribution to Contract owners at the
Company' expense, within a reasonable period of the filing date for definitive
copies of such material. The Adviser shall be permitted to review and approve
the typeset form of such shareholder reports and communications prior to such
printing.
3.6. In the event a meeting of shareholders of the Fund (or
any Portfolio) is called by the Trustees, the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Portfolio(s) shares held in the Account in
accordance with instructions received from Contract
owners;
(iii) vote Portfolio shares held in the Account for which no
instructions have been received, as well as Portfolio
shares held by the Company, in the same proportion as
Portfolio(s) shares for which instructions have been
received from Contract owners, so long as and to the
extent that the SEC continues to
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interpret the 1940 Act to require pass-through voting
privileges for variable contract owners; and
(iv) take responsibility for assuring that the Accounts
calculate voting privileges in a manner consistent with
other Participating Insurance Companies. The Fund and
Adviser agree to assist the Company and the other
Participating Insurance Companies in carrying out this
responsibility.
ARTICLE IV. Fees and Expenses
4.1. The Fund and Adviser shall pay no fee or other
compensation to the Company under this agreement, and the Company shall pay no
fee or other compensation to the Fund or Adviser, except as provided herein.
4.2. All expenses incident to performance by each party of its
respective duties under this Agreement shall be paid by that party. The Fund
shall see to it that all its shares are registered and authorized for issuance
in accordance with applicable federal law and, if and to the extent advisable by
the Fund, in accordance with applicable state laws prior to their sale. The Fund
shall bear the expenses for 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, and the preparation of all statements
and notices required by any federal or state law.
4.3. The expenses of typesetting, printing and distributing
the Fund's prospectus, proxy materials and reports to owners of Contracts issued
by the Company shall be borne by the parties as described in Sections 3.4 and
3.5, hereof.
4.4. In the event the Fund adds one or more additional
Portfolios and the parties desire to make such Portfolios available to the
respective Contract owners as an underlying investment medium, a new Schedule 2
or an amendment to this Agreement shall be executed by the parties authorizing
the issuance of shares of the new Portfolios to the particular Accounts. The
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amendment may also provide for the sharing of expenses for the establishment of
new Portfolios among Participating Insurance Companies desiring to invest in
such Portfolios and the provision of funds as the initial investment in the new
Portfolios.
ARTICLE V. Potential Conflicts
5.1. The Board of Trustees of the Fund (the "Board") will
monitor the Fund for the existence of any material irreconcilable conflict
between the interests of the Contract owners of all separate accounts investing
in the Fund. An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or securities laws
or regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Portfolio
are being managed; (e) a difference in voting instructions given by
participating insurance companies or by variable annuity contract and variable
life insurance contract owners; or (f) a decision by an insurer to disregard the
voting instructions of Contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
5.2. The Company has reviewed a copy of the Mixed and Shared
Funding Exemptive Order, and in particular, has reviewed the conditions to the
requested relief set forth therein. The Company agrees to be bound by the
responsibilities of a participating insurance company as set forth in the Mixed
and Shared Funding Exemptive Order, including without limitation the requirement
that the Company report any potential or existing conflicts of which it is aware
to the Board. The Company will assist the Board in carrying out its
responsibilities in monitoring such conflicts under the Mixed and Shared Funding
Exemptive Order, by providing the Board in a timely manner with all information
reasonably necessary for the Board to consider any
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issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever Contract owner voting instructions are
disregarded and by confirming in writing, at the Fund's request, that the
Company are unaware of any such potential or existing material irreconcilable
conflicts.
5.3. If it is determined by a majority of the Board, or a
majority of its disinterested Trustees, that a material irreconcilable conflict
exists, the Company shall, at its expense and to the extent reasonably
practicable (as determined by a majority of the disinterested Trustees), take
whatever steps are necessary to remedy or eliminate the irreconcilable material
conflict, up to and including: (1) withdrawing the assets allocable to some or
all of the separate accounts from the Fund or any Portfolio and reinvesting such
assets in a different investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such segregation
should be implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
contract owners, life insurance contract owners, or variable contract owners of
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of making
such a change; and (2) establishing a new registered management investment
company or managed separate accounts. The Company's obligations under this
Section 5.3 shall not depend on whether other affected participating insurance
companies fulfill a similar obligation.
5.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting instructions and that
decision could conflict with the majority of Contract owner instructions, the
Company may be required, at the Fund's election, to withdraw the Accounts'
investment in the Fund and terminate this Agreement; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Any
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such withdrawal and termination must take place within six (6) months after the
Fund gives written notice that this provision is being implemented, and until
the end of the six month period the Fund shall continue to accept and implement
orders by the Company for the purchase and redemption of shares of the Fund.
5.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the Accounts' investment in the Fund and terminate this Agreement
within six months after the Board informs the Company in writing that it has
determined that such decision has created an irreconcilable material conflict;
provided, however, that such withdrawal and termination shall be limited to the
extent required by the foregoing material irreconcilable conflict as determined
by a majority of the disinterested members of the Board. Until the end of the
foregoing six month period, the Fund shall continue to accept and implement
orders by the Company for the purchase and redemption of shares of the Fund,
subject to applicable regulatory limitation.
5.6. For purposes of Sections 5.3 through 5.6 of this
Agreement, a majority of the disinterested members of the Board shall determine
whether any proposed action adequately remedies any irreconcilable material
conflict, but in no event will the Fund be required to establish a new funding
medium for the Contracts. The Company shall not be required by Section 5.3 to
establish a new funding medium for Contracts if an offer to do so has been
declined by vote of a majority of Contract owners materially adversely affected
by the irreconcilable material conflict. In the event that the Board determines
that any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the particular Accounts' investment in
the Fund and terminate this Agreement within six (6) months after the Board
informs the Company in writing of the foregoing determination, provided,
however, that such withdrawal and
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termination shall be limited to the extent required by any such material
irreconcilable conflict as determined by a majority of the disinterested members
of the Board.
ARTICLE VI. Applicable Law
6.1 This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of New
York.
6.2. This Agreement shall be subject to the provisions of the
1933 Act, the Securities Exchange Act of 1934 and the 1940 Act, and the rules
and regulations and rulings thereunder, including such exemption from those
statutes, rules and regulations as the Securities and Exchange Commission may
grant (including, but not limited to, the Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith, provided however that the term "Registration Statement or Prospectus
for the Variable Contracts" and terms of similar import shall include (i) any
offering circular or similar document and sales literature or other promotional
materials used to offer and/or sell the variable Contracts in compliance with
the private offering exemption in the 1933 Act and applicable federal and state
laws and regulations, and (ii) the term "Registration Statement" and
"Prospectus" as defined in the 1933 Act.
ARTICLE VII. Termination
7.1 This Agreement shall terminate:
(a) at the option of any party upon six month's advance
written notice to the other parties;
(b) at the option of the Company to the extent that
shares of Portfolios are not reasonably available to meet the requirements of
its Contracts or are not appropriate funding vehicles for the Contracts, as
determined by the Company reasonably and in good faith. Prompt notice of the
election to terminate for such cause and an explanation of such cause shall be
furnished by the Company;
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(c) as provided in Article V;
(d) at the option of the Fund or the Adviser upon
institution of formal proceedings against the Company (or its parent) by the
NASD, the SEC, the insurance commission of any state or any other regulatory
body having jurisdiction over that party, which would have a material adverse
effect on the Company's ability to perform its obligations under this Agreement;
(e) at the option of the Company upon institution of
formal proceedings against the Fund or the Adviser (or its parent) by the NASD,
the SEC, or any state securities or insurance department or any other regulatory
body having jurisdiction over that party, which would have a material adverse
effect on the Adviser's or the Fund's ability to perform its obligations under
this Agreement;
(f) at the option of the Company or the Fund upon
receipt of any necessary regulatory approvals or the vote of the Contract owners
having an interest in the Account (or any subaccount) to substitute the shares
of another investment company for the corresponding Portfolio shares of the Fund
in accordance with the terms of the Contracts for which those Portfolio shares
have been selected to serve as the underlying investment media. The Company will
give 45 days prior written notice to the Fund of the date of any proposed vote
or other action taken to replace the Fund's shares;
(g) at the option of the Company or the Fund upon a
determination by a majority of the Board, or a majority of the disinterested
Board members, that an irreconcilable material conflict exists among the
interests of (i) all Contract owners of variable insurance products of all
separate accounts or (ii) the interests of the Participating Insurance Companies
investing in the Fund as delineated in Article VII of this Agreement;
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(h) at the option of the Company if the Fund ceases to
qualify as a Regulated Investment Company under Subchapter M of the Code, or
under any successor or similar provision, or if the Company reasonably believes
that the Fund may fail to so qualify;
(i) at the option of the Company if the Fund fails to
meet the diversification requirements specified in section 2.5 hereof or if the
Company reasonably believes that the Fund will fail to meet such requirements;
(j) at the option of any party to this Agreement, upon
another party's failure to cure a material breach of any provision of this
Agreement within thirty days after written notice thereof;
(k) at the option of the Company, if the Company
determines in its sole judgment exercised in good faith, that either the Fund or
the Adviser has suffered a material adverse change in its business, operations
or financial condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Company;
(l) at the option of the Fund or the Adviser, if the Fund
or Adviser respectively, shall determine in its sole judgment exercised in good
faith, that the Company has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a material adverse
impact upon the business and operations of the Fund or the Adviser; or
(m) subject to the Fund's compliance with Section 2.5
hereof, at the option of the Fund in the event any of the Contracts are not
issued or sold in accordance with applicable requirements of federal and/or
state law.
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7.2. It is understood and agreed that the right of any party
hereto to terminate this Agreement pursuant to Section 7.1(a) may be exercised
for cause or for no cause.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a). The Company agrees to indemnify and hold
harmless the Fund and the Adviser, each member of their Board of Trustees or
Board of Directors, each of their officers and each person, if any, who controls
the Fund within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company) or litigation (including reasonable legal
and other expenses), to which the Indemnified Parties may become subject under
any statute, regulation, 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
Contracts and:
(i) arise out of or are based upon any
untrue statement or alleged untrue
statement of any material fact contained
in the registration statement,
prospectus or statement of additional
information for the Contracts or
contained in sales literature or other
promotional material for the Contracts
(or any amendment or supplement to any
of the foregoing), or arise out of or
are based upon the omission or the
alleged omission to state therein a
material fact required to be stated
therein or necessary to make the
statements therein not misleading in
light of the circumstances which they
were made; provided that this agreement
to indemnify shall not apply as to any
Indemnified Party if such statement or
omission or such alleged statement or
omission was made in reliance upon and
in conformity with information furnished
to the Company by or on behalf of the
Fund or the Adviser for use in the
registration statement, prospectus or
statement of additional information for
the Contracts or sales
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literature (or any amendment or
supplement) or otherwise for use in
connection with the sale of the
Contracts or Fund shares; or
(ii) arise out of or as a result of
statements or representations by or on
behalf of the Company (other than
statements or representations contained
in the Fund registration statement, Fund
prospectus or sales literature or other
promotional material of the Fund not
supplied by the Company or persons under
its control) or wrongful conduct of the
Company or persons under its control,
with respect to the sale or distribution
of the Contracts or Fund shares,
provided any such statement or
representation or such wrongful conduct
was not made in reliance upon and in
conformity with information furnished in
writing, via fax or via electronic
means, to the Company by or on behalf of
the Advisor or the Fund; or
(iii) arise out of any untrue statement or
alleged untrue statement of a material
fact contained in the Fund registration
statement, Fund prospectus, statement of
additional information or sales
literature or other promotional material
of the Fund or any amendment thereof or
supplement thereto 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 in
light of the circumstances in which they
were made, if such statement or omission
was made in reliance upon information
furnished in writing, via fax or via
electronic means, to the Fund or the
Adviser by or on behalf of the Company
or persons under its control; or
(iv) arise out of or result from any material
breach of this Agreement by the Company.
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b). The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in
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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.
8.2. Indemnification by Adviser and Fund
8.2(a)(1). The Adviser agrees to indemnify and
hold harmless the Company and each of its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Adviser) or litigation
(including reasonable legal and other expenses) to which the Indemnified Parties
may become subject under any statute, regulation, 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 Contracts and:
(i) arise out of or are based upon any
untrue statement or alleged untrue
statement of any material fact contained
in the registration statement,
prospectus, statement of additional
information or sales literature of the
Fund (or any amendment or supplement to
any of the foregoing), or arise out of
or are based upon the omission or the
alleged omission to state therein a
material fact required to be stated
therein or necessary to make the
statements therein not misleading in
light of the circumstances in which they
were made; provided that this agreement
to indemnify shall not apply as to any
Indemnified Party if such statement or
omission or such alleged statement or
omission was made in reliance upon and
in conformity with information furnished
in writing, via fax or via electronic
means, to the Adviser or the Fund by or
on behalf of the Company for use in the
Fund registration statement, prospectus
or statement of additional information,
or sales literature or other promotional
material for the Contracts or of the
Fund; or
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(ii) arise out of or as a result of
statements or representations (other
than statements or representations
contained in the Contracts or in the
Contract registration statement, the
Contract prospectus, statement of
additional information, or sales
literature or other promotional material
for the Contracts not supplied by the
Adviser or the Fund or persons under the
control of the Adviser or the Fund
respectively) or wrongful conduct of the
Adviser or persons under its control,
with respect to the sale or distribution
of the Contracts, provided any such
statement or representation or such
wrongful conduct was not made in
reliance upon and in conformity with
information furnished in writing, via
fax or via electronic means, to the
Adviser or the Fund by or on behalf of
the Company; or
(iii) arise out of any untrue statement or
allegedly untrue statement of a material
fact contained in a registration
statement, prospectus, statement of
additional information or sales
literature covering the Contracts (or
any amendment thereof or supplement
thereto), or the omission or alleged
omission to state therein a material
fact required to be stated therein or
necessary to make the statement or
statements therein not misleading in
light of the circumstances in which they
were made, if such statement or omission
was made in reliance upon information
furnished in writing, via fax or via
electronic means, to the Company by or
on behalf of the Fund or persons under
the control of the Adviser; or
(iv) arise out of or result from any material
breach of this Agreement by the Adviser;
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Adviser may
otherwise have.
8.2(a)(2) The Fund agrees to indemnify and hold harmless
the Indemnified Parties [as defined in Section 8.2(a)(1)] against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Fund) or litigation (including reasonable legal and
other expenses) to which the Indemnified Parties may become subject under any
-22-
statute, regulation, 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 operations of the Fund or the sale or acquisition of the
Fund's shares and:
(i) arise out of or are based upon (a) any
untrue statement or alleged untrue
statement of any material fact or (b)
the omission or the alleged omission to
state therein a material fact required
to be stated therein or necessary to
make the statements made therein, in
light of the circumstances in which they
were made, not misleading, if such fact,
statement or omission is contained in
the registration statement for the Fund
or the Contracts, or in the prospectus
or statement of additional information
for the Contracts or the Fund, or in any
amendment to any of the foregoing, or in
sales literature or other promotional
material for the Contracts or of the
Fund, provided, however, that this
agreement to indemnify shall not apply
as to any Indemnified Party if such
statement, fact or omission or such
alleged statement, fact or omission was
made in reliance upon and in conformity
with information furnished in writing,
via fax or via electronic means, to the
Adviser or the Fund by or on behalf of
the Indemnified Party; or
(ii) arise out of or as a result of
statements or representations (other
than statements or representations
contained in the Contracts or in the
Contract registration statement, the
Contract prospectus, statement of
additional information, or sales
literature or other promotional material
for the Contracts not supplied by the
Adviser or the Fund or persons under the
control of the Adviser or the Fund
respectively) or wrongful conduct of the
Fund or persons under its control with
respect to the sale or distribution of
Contracts, provided any such statement
or representation or such wrongful
conduct was not made in reliance upon
and in conformity with information
furnished in writing, via fax or via
electronic means, to the Adviser or the
Fund by or on behalf of the Company; or
(iii) arise out of or result from any material
breach of this Agreement by the Fund
(including a failure to comply with the
diversification requirements specified
in Section 2.5 of this Agreement);
except to the extent provided in Section 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Fund may
otherwise have.
-23-
(b). The Fund and Adviser shall not be liable
under this indemnification provision with respect to any losses, claims,
damages, liabilities or litigation to which an Indemnified Party would otherwise
be subject by reason of 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.
8.3 Indemnification Procedure
Any person obligated to provide indemnification under this
Article VIII ("indemnifying party" for the purpose of this Section 8.3) shall
not be liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification under this
Article VIII ("indemnified party" for the purpose of this Section 8.3) unless
such indemnified party shall have notified the indemnifying party in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
indemnified party (or after such party shall have received notice of such
service on any designated agent), but failure to notify the indemnifying party
of any such claim shall not relieve the indemnifying party from any liability
which it may have to the indemnified party against whom such action is brought
under the indemnification provisions of this Article VIII, except to the extent
that the failure to notify results in the failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
failure to give such notice. In case any such action is brought against the
indemnified party, the indemnifying party will be entitled to participate, at
its own expense, in the defense thereof. The indemnifying party also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the indemnifying party to the indemnified
party of the indemnifying party's
-24-
election to assume the defense thereof, the indemnified party shall bear the
fees and expenses of any additional counsel retained by it, and the indemnifying
party will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation, unless
(i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall
be entitled to the benefits of the indemnification contained in this Article
VIII. The indemnification provisions contained in this Article VIII shall
survive any termination of this Agreement.
ARTICLE IX. Notices
Any notice shall be sufficiently given when sent by registered
or certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify to
the other party.
If to the Fund:
Xxxxxxxxxxx Variable Account Funds
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
If to the Adviser:
OppenheimerFunds, Inc.
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000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
If to the Company:
MONY Life Insurance Company of America
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Secretary of MONY Life Insurance Company of
America
ARTICLE X. Miscellaneous
10.1. The Company represents and warrants that any Contracts
eligible to purchase shares of the Fund and offered and/or sold in private
placements will comply in all material respects with the exemptions from the
registration requirements of the 1933 Act and applicable federal and state laws
and regulations.
10.2. Subject to the requirements of legal process and
regulatory authority, each party hereto shall treat as confidential the names
and addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by (i) this Agreement and (ii) by Title V, Subtitle A of the
Xxxxx-Xxxxx-Xxxxxx Act and by regulations adopted thereunder by regulators
having jurisdiction over the parties hereto, shall not disclose, disseminate or
utilize such names and addresses and other confidential information without the
express written consent of the affected party until such time as it may come
into the public domain.
10.3. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
10.4. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together shall constitute one and the
same instrument.
-26-
10.5. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
10.6. Each party hereto shall cooperate with, and promptly
notify each other party and all appropriate governmental authorities (including
without limitation the Securities and Exchange Commission, the National
Association of Securities Dealers, Inc. and state insurance 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.
10.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
10.8. It is understood by the parties that this Agreement is
not an exclusive arrangement in any respect.
10.9. The Company and the Adviser each understand and agree
that the obligations of the Fund under this Agreement are not binding upon any
Trustee or shareholder of the Fund personally, but bind only the Fund with
respect to the Portfolio and the Portfolio's property; the Company and the
Adviser each represent that it has notice of the provisions of the Declaration
of Trust of the Fund disclaiming Trustee and shareholder liability for acts or
obligations of the Fund.
10.10. This Agreement shall not be assigned by any party
hereto without the prior written consent of all the parties. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, the Adviser
may transfer or assign its rights, duties and obligations hereunder or interest
herein to any entity owned, directly or indirectly, by Xxxxxxxxxxx Acquisition
Corp. (the Adviser's parent corporation) or to a successor in interest pursuant
to a merger, reorganization, stock sale, asset sale or other transaction,
without the consent of the Company, as long as (i) that assignee
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agrees to assume all the obligations imposed on the Adviser by this Agreement,
and (ii) the Fund consents to that assignment.
10.11. This Agreement sets forth the entire agreement between
the parties and supercedes all prior communications, agreements and
understandings, oral or written, between the parties regarding the subject
matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed as of the date specified
below.
MONY LIFE INSURANCE COMPANY of America
By: __________________________________
Title: _______________________________
Date: ________________________________
XXXXXXXXXXX VARIABLE ACCOUNT
FUNDS
By: __________________________________
Xxxxx X. Xxxxxxx
Title: Assistant Secretary
Date: ________________________________
OPPENHEIMERFUNDS, INC.
By: __________________________________
Xxxxx X. Xxxxxxx
Title: Vice President
Date: ________________________________
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SCHEDULE 1
Separate Accounts Products
MONY America Variable Account A MONY Variable Annuity
MONY C Variable Annuity
MONY L Variable Annuity
MONY Custom Master
MONY Variable Account A MONY Variable Annuity
MONY C Variable Annuity
MONY L Variable Annuity
MONY Custom Master
MONY America Variable Account L MONY Variable Universal Life
MONY Variable Account L MONY Variable Universal Life
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SCHEDULE 2
Portfolios of Xxxxxxxxxxx Variable Account Funds shown below do not include
service class shares unless expressly indicated:
Xxxxxxxxxxx Global Securities Fund/VA: Service Shares
Xxxxxxxxxxx Main Street Growth & Income Fund/VA: Service Shares
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