EXHIBIT 99.8(s)
PARTICIPATION AGREEMENT
Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
OPPENHEIMERFUNDS, INC.
and
MINNESOTA LIFE INSURANCE COMPANY
THIS AGREEMENT (the "Agreement"), made and entered into as of the 1st
day of May, 2002 by and among Minnesota Life Insurance Company (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
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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
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. The
Fund as its designated agent will use its best efforts to provide the Company
with the net asset value for each Fund by 6.:00 p.m. Central Time. "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 its 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. In the event adjustments are required to correct any material
error in the computation of the net asset value of the Fund's shares, the Fund
shall notify the Company as soon as practicable after discovering the need for
those adjustments which result in a reimbursement to an Account in accordance
with the Fund's current policies on reimbursement, which the Fund represents are
consistent with applicable SEC standards. If an adjustment is to be made in
accordance with such policies to correct an error which has caused an Account to
receive an amount different than that to which it is entitled, the Fund shall
make all necessary adjustments to the number of shares owned in the Account and
distribute to the Account the amount of such underpayment for credit to the
Contract owners.
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
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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 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,
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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 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.
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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 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 1940 Act.
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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.
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. $5 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.
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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
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 sales 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
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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 supplemented or amended) to have the
prospectus for the Contracts and the Fund's prospectus printed together in one
document (such printing to be at the Company's expense). The Adviser shall be
permitted to review and approve the typeset form of the Fund's Prospectus prior
to such printing.
If the Company elects to include any materials provided by the Fund,
specifically prospectuses, SAIs, shareholder reports and proxy materials, on its
web site or in any other computer or electronic format, the Company assumes sole
responsibility for maintaining such materials in the form provided by the Fund
and for promptly replacing such materials in the form provided by the Fund and
for promptly replacing such materials with all updates proved by the Fund. The
Fund agrees to provide all such materials requested by the Company in Portable
Document Format (PDF, both camera ready and low resolution enhanced) in a timely
fashion at no additional cost, together with such other formats as may be
mutually agreed upon.
The Fund will pay for proportional printing costs for those Fund
documents that are required by law or regulation to be delivered to each
Contract owner who is invested in a designated subaccount: This includes the
Fund's current prospectus, annual report, semi-annual report and other
shareholder communications, including any amendment or supplements to any of the
foregoing, pertaining specifically to the Funds.
3.5. The Fund or the Adviser shall provide the Company with either: (i)
a copy of the Fund's proxy material, reports to shareholders, other information
relating to the Fund necessary to prepare financial reports, and other
communications to shareholders for printing and distribution to
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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 proxy material, 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 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.
(v) The Fund shall provide Minnesota Life with copies of any proxy
materials of the Fund or any Portfolio held by Minnesota Life
Accounts in such quantity as Minnesota Life shall reasonably
require for distribution to contract owners, if required, as part
of the process of soliciting voting instructions. The Fund
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shall bear the costs of providing and distributing its proxy
materials (and similar, related materials such as voting
solicitation instructions).
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 Company shall bear the expenses of typesetting, printing and
distributing the Fund's prospectus, proxy materials and reports to owners of
Contracts issued by the Company.
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 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.
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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 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
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irreconcilable conflicts. The Fund will provide the Company with any amendment
to the Mixed and Shared Funding Exemptive Order.
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 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
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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 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.
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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;
(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
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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;
(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;
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(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.
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.
-19-
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 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
-20-
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 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
-21-
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
(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
-22-
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
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:
-23-
(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.
(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.
-24-
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 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
-25-
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
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Vice President and Secretary
If to the Adviser:
OppenheimerFunds, Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxx, Vice President/Manager
Variable Annuity Operations
If to the Company:
Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: General Counsel
-26-
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.
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
-27-
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 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.
-28-
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.
MINNESOTA LIFE INSURANCE COMPANY
By:
----------------------------------
Xxxxxx X. Xxxxx
Title:
----------------------------------
Second Vice President and Actuary
Date:
------------------------------------
XXXXXXXXXXX VARIABLE ACCOUNT
FUNDS
By:
----------------------------------
Title:
----------------------------------
Date:
------------------------------------
XXXXXXXXXXX FUNDS, INC.
By:
----------------------------------
Title:
----------------------------------
Date:
------------------------------------
-29-
SCHEDULE 1
Separate Accounts Products
Variable Annuity Account Achiever Multi-Option Annuity
Multi-Option Classic Annuity
TBA, variable annuity, October, 2002
-30-
SCHEDULE 2
Portfolios of Xxxxxxxxxxx Variable Account Funds shown below do not include
service class shares unless expressly indicated:
Xxxxxxxxxxx Capital Appreciation Fund / VA- Service Shares
Xxxxxxxxxxx High Income Fund / VA- Service Shares
-31-
