EXHIBIT 1(8)(B)
Form of Participation Agreement with Panorama Series Fund, Inc.
PARTICIPATION AGREEMENT
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Among
PANORAMA SERIES FUND, INC.,
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OPPENHEIMERFUNDS, INC.
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
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and
MML BAY STATE LIFE INSURANCE COMPANY
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THIS AGREEMENT (the "Agreement"), made and entered into as of the 1st
day of March, 1996 by and among Massachusetts Mutual Life Insurance Company and
MML Bay State Life Insurance Company (hereinafter collectively the
"Companies"), on their own behalf and on behalf of their respective separate
accounts listed on Schedule B hereto (hereinafter collectively the "Accounts"),
Panorama Series Fund, Inc. (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 and variable annuity contracts (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, dated August 31, 1994 (File No. 812-8936) 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
"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 Companies have registered or will register certain
variable annuity and/or life insurance contracts under the 1933 Act (hereinafter
"Contracts");
WHEREAS, the Accounts are duly organized, validly existing segregated
asset accounts, established by resolution of the Board of Directors of the
Companies, to set aside and invest assets attributable to the aforesaid variable
contracts (the Contract(s) and the Account(s) covered by the Agreement are
specified in Schedule B attached hereto, as may be modified from time to time);
WHEREAS, the Companies have registered or will register the Accounts
as unit investment trusts under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Companies intend to purchase shares in the Portfolios (the
Portfolios covered by this Agreement are specified in Schedule A attached
hereto as may be modified from time to time), on behalf of the Accounts (which
are also described on Schedule A, as may be modified from time to time) 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;
NOW, THEREFORE, in consideration of their mutual promises, the Fund,
the Adviser and the Companies agree as follows:
ARTICLE I. Sale of Fund Shares
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1.1 The Fund agrees that shares of the Fund will be sold only to
Variable Insurance Products.
1.2. The Companies shall not permit any person other than a Contract
Holder or such Contract Holder's duly authorized representative to give
instructions to the Companies which would require the Companies to redeem or
exchange shares of the Fund.
ARTICLE II. Sales Material, Prospectuses and Other Reports
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2.1. The Companies 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.
2.2. The Companies 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.
2.3. For purposes of this Article II, 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),
and sales literature (such as brochures, circulars, market letters and form
letters), distributed or made generally available to customers or the public.
2.4. The Fund shall provide one or more diskettes containing its
current prospectus in WordPerfect and XXXXX format, within a reasonable period
of its filing date, and provide other assistance as is reasonably necessary in
order for the Companies 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 Companies' expense). The Adviser shall be permitted to review and
approve the typeset form of the Fund's Prospectus prior to such printing.
2.5. The Fund or the Adviser shall provide the Companies with
either: (i) a diskette or modem transmission (or other automated transmission)
containing 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 Contract owners
at the Companies' expense, or (ii) camera ready and/or printed copies, if
appropriate, of such material for distribution to Contract owners at the
Companies' 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 and shareholder reports prior to such printing provided such materials
have been provided within a reasonable period.
ARTICLE III. Fees and Expenses
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3.1. The Fund and Adviser shall pay no fee or other compensation
to the Companies under this agreement, and the Companies shall pay no fee or
other compensation to the Fund or Adviser, except as provided herein.
3.2. 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.
3.3. Unless mutually agreed upon to the contrary in writing, the
Companies shall bear the expenses of typesetting, printing and distributing the
Fund's prospectus, proxy materials and reports to owners of Contracts issued by
the Companies. The Adviser agrees to use reasonable efforts to restrict the
number of shareholder meetings of the Fund that require the Company to bear the
expenses of typesetting, printing and distributing the Fund's proxy material to
one per fiscal year of the Fund.
3.4. In the event the Fund adds one or more additional Portfolios
and the Companies desire to make such Portfolios available to their respective
Contract owners as an underlying investment medium, a new Schedule A or an
amendment to this Agreement shall be executed by the parties authorizing the
issuance of shares of the new Portfolios to the particular Account. 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.
ARTICLE IV. Potential Conflicts
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4.1. The Board of Directors 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 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 Companies if it determines that an irreconcilable
material conflict exists and the implications thereof.
4.2. The Companies will each report any potential or existing
conflicts of which it is aware to the Board. The Companies will assist the
Board in carrying out its responsibilities in monitoring such conflicts by
providing the Board in a timely manner with all information reasonably necessary
for the Board to consider any issues raised. This includes, but is not limited
to, an obligation by the Companies to inform the Board whenever Contract owner
voting instructions are disregarded and by confirming in writing, at the Fund's
request, that the Companies are unaware of any such potential or existing
material irreconcilable conflicts.
4.3. If it is determined by a majority of the Board, or a
majority of its disinterested Directors, that a material irreconcilable conflict
exists, the Companies shall, at their expense and to the extent reasonably
practicable (as determined by a majority of the disinterested Directors), take
whatever steps are necessary to remedy or eliminate the irreconcilable material
conflict, up to an 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.,
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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 account.
4.4. If a material irreconcilable conflict arises because of a
decision by either Company to disregard Contract owner voting instructions and
that decision represents a minority position or would preclude a majority vote,
such Company may be required, at the Fund's election, to withdraw the affected
Account's 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 shall continue to accept and implement orders by such
Company for the purchase and redemption of shares of the Fund.
4.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to such Company
conflicts with the majority of other state regulators, then the affected Company
will withdraw such Account's investment in the Fund and terminate this Agreement
within six months after the Board informs such 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 such Company for the purchase and redemption of shares of the Fund,
subject to applicable regulatory limitation.
4.6. For purposes of Sections 4.3 through 4.6 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. In such case a Company shall not be required by Section 4.3 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 such Company will withdraw the particular Account's 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.
ARTICLE V. Applicable Law
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5.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of New York.
5.2. This Agreement shall be subject to the provisions of the
1933, 1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
Securities and Exchange Commission may grant (including, but not limited to, the
Shared Funding Exemptive Order) and the terms hereof shall be interpreted and
construed in accordance therewith.
ARTICLE VI. Termination
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6.1 This Agreement shall terminate with respect to some or all
Portfolios:
(a) at the option of any party upon six month's advance
written notice to the other parties;
(b) at the option of either 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 such Contracts, as
determined by that 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 that Company; or
(c) as provided in Article IV
6.2. It is understood and agreed that the right of any party
hereto to terminate this Agreement pursuant to Section 6.1(a) may be exercised
for cause or for no cause.
ARTICLE VII. Notices
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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:
Panorama Series Fund, Inc.
c/o OppenheimerFunds, Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Legal Department
If to the Adviser:
OppenheimerFunds, Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: General Counsel
If to the Companies:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. XxXxxxxxxx, Xx.
Vice President & Managing Director
ARTICLE VIII. Miscellaneous
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8.1. 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
this Agreement, 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.
8.2. 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.
8.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.4. 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.
8.5. 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 NASD 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.
8.6. 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.
8.7. It is understood by the parties that this Agreement is not an
exclusive arrangement in any respect.
8.8. The parties agree that the Companies may, on behalf of their
respective Accounts and Contracts listed in Exhibits A and B, elect to make
additional Portfolios available to Accounts upon the approval of the Adviser and
the provision of reasonable notice to the Adviser. Any Portfolio so added will
be subject to all of the terms and conditions of this Agreement.
8.9. Any prior participation agreement to which the Fund is a party is
superseded in its entirety by this Agreement.
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.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By its authorized officer,
By: __________________________________
Title:
Date: ________________________________
MML BAY STATE LIFE COMPANY
By its authorized officer,
By: __________________________________
Title:_________________________________
Date: ________________________________
PANORAMA SERIES FUND, INC.
By its authorized officer,
By: __________________________________
Title:
Date: ________________________________
OPPENHEIMERFUNDS, INC.
By its authorized officer,
By: __________________________________
Title:
Date: ________________________________
SCHEDULE A
The following portfolios of Panorama Series Fund, Inc. are available for these
variable contract products:
MassMutual Strategic Life 9 Contract:
Panorama LifeSpan Capital Appreciation Portfolio
Panorama LifeSpan Balanced Portfolio
Panorama LifeSpan Diversified Income Portfolio
MassMutual & MML Bay State GVUL Contracts:
Panorama Growth Portfolio
Panorama International Equity Portfolio
Panorama Total Return Portfolio
Panorama Capital Appreciation Portfolio
Panorama Balanced Portfolio
Panorama Diversified Income Portfolio
MassMutual Panorama Contract:
Panorama Growth Portfolio
Panorama Total Return Portfolio
MassMutual Account A Contract:
Panorama Growth Portfolio
MassMutual Account B Contract:
Panorama Growth Portfolio
MassMutual BCVUL Contract:
Panorama Growth Portfolio
Panorama Total Return Portfolio
SCHEDULE B
Portfolios of Panorama Series Fund, Inc. are available for the following
separate accounts:
Massachusetts Mutual Variable Life Separate Account I
Strategic Life 9
GVUL
MML Bay State Variable Life Separate Account I
GVUL
Connecticut Mutual Variable Life Separate Account I
BCVUL
Panorama Separate Account
Panorama
CML Variable Annuity Account A
Account A
CML Variable Annuity Account B
Account B
