Ex. 99-B.8.47
Form of Fund Participation Agreement dated as of ________________, 2000
between OppenheimerFunds Distributor, Inc.,
OppenheimerFunds Services and Aetna Life Insurance and Annuity Company
PARTICIPATION AGREEMENT
Aetna Life Insurance and Annuity Company (the "Company"),
OppenheimerFunds Distributor, Inc. (the "Distributor") and OppenheimerFunds
Services ("OFS"), a division of OppenheimerFunds, Inc., hereby agree to an
arrangement whereby Class A shares of certain registered investment companies
listed in Schedule B (individually a "Fund" and collectively, the "Funds") shall
be made available to serve as underlying investment media for Variable Annuity
Contracts ("Contracts") to be issued by the Company.
1. Establishment of Accounts; Availability of Fund Shares.
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(a) The Company represents that it has established Variable Annuity
Accounts B, C, D and F and may establish such other accounts as may
be set forth in Schedule A attached hereto and as may be amended from
time to time with the mutual consent of the parties hereto (the
"Accounts"), each of which is a separate account under Connecticut
Insurance law, and has registered or will register each of the
Accounts (except for such Accounts for which no such registration is
required) as a unit investment trust under the Investment Company Act
of 1940 (the "1940 Act"), to serve as an investment vehicle for the
Contracts. Each Contract provides for the allocation of net amounts
received by the Company to an Account for investment in the shares of
one of more specified open-end management investment companies
available through that Account as underlying investment media.
Selection of a particular investment management company and changes
therein from time to time are made by the participant or Contract
owner, as applicable under a particular Contract.
(b) Distributor shall make Class A shares of the Funds available for
purchase by each Account through the broker/dealer of record, if any,
at net asset value without sales charge (and without the payment of a
sales commission) in accordance with the terms of each Fund's then
current prospectus and statement of additional information. It is
acknowledged and agreed that the availability of the shares of any
Fund shall be subject to such Fund's then current prospectus and
statement of additional information, federal and state securities
laws and applicable rules and regulations of the National Association
of Securities Dealers, Inc.
(c) The Company understands that the investments of the Funds will not be
diversified within the meaning of Section 817(h) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the regulations
under the Code. The Company further understands that all beneficial
interests in the Funds will not be owned by one or more insurance
companies or other parties permitted under Regulation 1.817-5(f)(3)
under the Code.
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2. (a) Services Provided by the Company. The Company shall maintain the
account records for each Contract owner, including a daily record of
the number of shares of a Fund owned by the Contract owner, the value
of each Contract owner's account, the dividends accrued on such
accounts, and a record of all exchanges, purchases, and redemptions
for each Contract owner account. Distributor, OFS, and the Funds
shall not have any responsibility with respect to the provision of
administrative services, or recordkeeping services for Contract
owners, including tax reporting or tax withholding. The Company shall
maintain one omnibus account per Account in each Fund registered in
the name of the Account. Distributor, OFS, and the Funds shall not
maintain separate accounts for Contract owners.
(b) Reporting. The Company shall maintain and preserve all records as
required by applicable law, rules and regulations and/or this
Agreement to be maintained and preserved in connection with providing
the services described herein, and will otherwise comply with all
laws, rules and regulations applicable thereto. At OFS' request, the
Company shall provide OFS with any and all information about the
Accounts and number of participants, as may be reasonably necessary
to permit OFS or the Funds to comply with any request of the board of
directors or trustees of the Funds or of a governmental body, or
self-regulatory organization. The parties acknowledge that the
Company shall have no duty to provide any information about the
participants to the board of directors or trustees other than the
number of participants invested in the Funds. The Company shall have
its recordkeeping system audited annually by an independent
accounting firm qualified to conduct such audits and shall provide
OFS with a copy of the auditor's SAS 70 report within 30 days of its
issuance. The Company shall provide OFS or its designated agent
reasonable access to its records relating to the Accounts invested in
the Funds to permit OFS to audit or review (i) the Company's
compliance with the terms of this Agreement and any other agreement
between the parties, (ii) the accuracy of the Company's recordkeeping
system, and (iii) the accuracy of the invoices submitted to OFS and
Distributor for payment.
3. Pricing Information; Orders; Settlement.
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(a) The Distributor will make Class A shares of the Funds available to be
purchased by the Company, on behalf of each Account, and will accept
redemption orders from the Company, on behalf of each Account, at the
net asset value applicable to each order on those days on which the
Fund calculates its net asset value (a "Business Day"). Fund shares
shall be purchased and redeemed in such quantity and at such time
determined by the Company to be necessary to meet the requirements of
those Contracts for which the Fund(s) serve as underlying investment
media, provided, however, that the Board of Trustees/Directors of a
Fund (hereinafter the "Trustees") may without notice to the Company,
refuse to sell shares of any Fund to any person, or suspend or
terminate the offering of shares of any Fund 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 the best interests of the shareholders of any
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Fund and is acting in compliance with their fiduciary obligations
under federal and/or any applicable state laws.
(b) The Distributor will provide to the Company closing net asset value,
dividend and capital gain information at the close of trading each
day that the New York Stock Exchange (the "Exchange") is open (each
such day a "Business Day"), and use its best efforts to provide or
cause to be provided by 6:30 p.m. Eastern Standard time on each
Business Day, but in no event shall communicate such information
later than 7:00 p.m. Eastern Standard time on such Business Day
unless the delay is due to extraordinary circumstances. The Company
will send via facsimile or electronic transmission to OFS or its
specified agent orders to purchase and/or redeem Fund shares by 9:00
a.m. Eastern Standard Time the following business day. Payment for
net purchases will be wired by the Company to an account designated
by the Distributor to coincide with the order for shares of the Fund.
(c) The Distributor hereby appoints the Company as its agent for the sole
purpose of accepting purchase and redemption orders for Fund shares
relating to the Contracts from Contract owners. Except as provided in
the foregoing sentence, the Company shall not be, nor hold itself out
to the public or engage in any activity as, an agent or distributor
for the Funds, or agent for OFS or Distributor or any of their
affiliates. Orders from Contract owners received from any distributor
of the Contracts (including affiliates of the Company) by the
Company, acting as agent for the Distributor, prior to the close of
the Exchange (as indicated by date and time stamping) on any given
business day will be executed by the OFS, as transfer agent for the
Funds, at the net asset value determined as of the close of the
Exchange on such Business Day, provided that the OFS receives written
(or facsimile) notice of such order by 9 a.m. Eastern Standard Time
on the next following Business Day. Any orders received by the
Company acting as agent on such day but after the close of the
Exchange will be executed by OFS at the net asset value determined as
of the close of the Exchange on the next business day following the
day of receipt of such order, provided that OFS receives written (or
facsimile) notice of such order by 9 a.m. Eastern Standard Time on
the next Business Day following the day of receipt of such order.
(d) Payments for net redemptions of shares of the Fund will be wired by
OFS to an account designated by the Company on the same Business Day
the Company places an order to redeem Fund shares. Payments for net
purchases of the Fund shares will be wired by the Company to an
account designated by OFS on the same Business Day the Company places
an order to purchase Fund shares. Payments shall be in federal funds
transmitted by wire.
(e) In lieu of applicable provisions set forth in paragraphs 3(a) through
3(d) above, the parties may agree to provide pricing information,
execute orders and wire payments for purchases and redemptions
through National Securities Clearing Corporation's Fund/SERV system
in which case such activities will be governed by the provisions set
forth in an Exhibit to this Agreement.
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(f) Each party has the right to rely on information or confirmations
provided by the other party (or by any affiliate of the other party),
and shall not be liable in the event that an error is a result of any
misinformation supplied by the other party
(g) The Distributor shall indemnify and hold the Company harmless, from
the effective date of this Agreement, against any amount the Company
is required to pay to Contract owners due to: (i) an incorrect
calculation of a Fund's daily net asset value, dividend rate, or
capital gains distribution rate or (ii) incorrect or unreasonably
late reporting of the daily net asset value, dividend rate, or
capital gain distribution rate of a Fund, upon written notification
by the Company, with supporting data, to Distributor; provided,
however, that no such amounts shall be returned if they are not
deemed material pursuant to the then prevailing pricing error
guidelines as set forth by the Securities and Exchange Commission and
its staff. In addition, subject to the limits described in this
subparagraph, OFS or the Distributor shall be liable to the Company
for systems and out of pocket costs incurred by the Company in making
a Contract owners's or a participant's account whole, if such costs
or expenses are a result of OFS's or the Distributor's failure to
provide timely or correct net asset values, dividend and capital
gains or financial information and if such information is not
corrected by 4:00 p.m. East Coast time of the next business day after
releasing such incorrect information provided the incorrect NAV as
well as the correct NAV for each day that the error occurred is
provided. If a mistake is caused in supplying such information or
confirmations, which results in a reconciliation with incorrect
information, the amount required to make a Contract owner's account
whole shall be borne by the party providing the incorrect
information, regardless of when the error is corrected. Any gain by a
Contract owner attributable to the incorrect calculation or reporting
of the daily net asset value, dividend rate or capital gains
distribution rate shall, to the extent permissible promptly be
returned to the Fund(s) involved; provided, however, that no such
amounts shall returned if they are not deemed material pursuant to
the then prevailing pricing error guidelines as set forth by the
Securities and Exchange Commission and its staff.
The following limits shall apply to the collective liabilities of the
Distributor and/or OFS , as appropriate, to the Company for systems
and out of pocket costs incurred by the Company if such costs or
expenses are a result of the Distributor or OFS's failure to provide
the Company with such correct or timely information: (i) $1,000 per
day for each day that incorrect information provided by the
Distributor or OFSis not corrected, if such period does not include a
month-end or a fiscal quarter-end, (ii) $1,500 per day for each day
that such incorrect information provided by the Distributor or OFS is
not corrected, if such period does include a month-end or a fiscal
quarter-end, and (iii) up to $50,000 per occurrence in the aggregate
under (i) or (ii) above. Any incorrect information that has as a
common nexus any single error shall be deemed to be one occurrence
for these purposes provided all corrections are provided at the same
time.
(h) The Company shall assume responsibility for any loss to Distributor
or to OFS caused by the cancellation or correction made to an order
subsequent to the date on which such order has been received by the
Company and originally relayed to Distributor,
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and the Company will immediately pay such loss to Distributor or OFS
upon receipt of written notification with supporting data.
(i) The Company agrees to purchase and redeem the shares of the Funds
named in Schedule B 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.
(j) The Company acknowledges that the Funds or their designated agent
will accept instructions only from the Company and that neither the
Funds nor their designated agent will accept instructions directly
from a Contract owner or participant.
4. Fees.
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In consideration of services provided by the Company under this
Agreement, the Company shall receive fees as set forth in Schedule C.
5. Expenses.
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(a) Except as otherwise provided in this Agreement, all expenses incident
to the performance by the Distributor or OFS under this Agreement
shall be paid by the Distributor or the Fund as the case may be,
including the cost of registration of Fund shares with the Securities
and Exchange Commission (the "SEC") and in states where required. The
Company shall pay no fee or other compensation to the Distributor or
OFS under this Agreement, and the Distributor or OFS shall pay no fee
or other compensation to the Company, except as provided herein and
in Schedule C attached hereto and made a part of this Agreement as
may be amended from time to time with the mutual consent of the
parties hereto. All expenses incident to performance by each party of
its respective duties under this Agreement shall be paid by that
party, unless otherwise specified in this Agreement.
(b) The Distributor shall provide to the Company, at the location
designated by the Company, periodic fund reports to shareholders and
other materials that are required by law to be sent to Contract
owners or participants. In addition, the Distributor shall provide
the Company, at the Company's reasonable request, with a sufficient
quantity of Fund prospectuses, statements of additional information
and any supplements to any of these materials, to be used in
connection with the offerings and transactions contemplated by this
Agreement.
(c) The Distributor shall provide the company with a sufficient quantity
of Fund proxy material that is required to be sent to Contract owners
or participants. The cost associated with proxy preparation, group
authorization letters, programming for tabulation and necessary
materials (including postage) will be paid by the Distributor.
6. Representations.
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(a) The Company agrees that it and its agents shall not, without the
written consent of the Distributor, make representations concerning
the Fund, or its shares except those contained in the then current
prospectuses and in current printed sales literature approved by or
deemed approved by the Distributor.
(b) The parties hereto represent and warrant that (i) they have examined
and tested their systems and made reasonable inquiry of their
business partners and other entities with whom they conduct business
with respect to Year 2000 problems and (ii) their ability to perform
their obligations under this Agreement will not be interrupted or
disrupted as a result of any business interruptions or other business
problems relating to specific dates or days before, during and after
the Year 2000.
7. Termination.
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This agreement shall terminate as to the sale and issuance of new
Contracts:
(a) at the option of either the Company, the Distributor or OFS, upon
sixty days advance written notice to the other parties;
(b) at the option of the Company, upon one week advance written notice to
the Distributor and OFS, if Fund shares are not available for any
reason to meet the requirement of Contracts as determined by the
Company (reasonable advance notice of election to terminate shall be
furnished by Company);
(c) at the option of either the Company, the Distributor or OFS,
immediately upon institution of formal proceedings against the
broker-dealer or broker-dealers marketing the Contracts, an Account,
the Company, OFS or the Distributor by the National Association of
Securities Dealers, Inc. (the "NASD"), the SEC or any other
regulatory body;
(d) upon the determination of the Accounts to substitute for the Fund's
shares the shares of another investment company in accordance with
the terms of the applicable Contracts (the Company will give 60 days
written notice to OFS and the Distributor of any decision to replace
the Fund's shares);
(e) upon assignment of this Agreement, unless made with the written
consent of all other parties hereto;
(f) if Fund shares are not registered, issued or sold in conformance with
Federal law or such law precludes the use of Fund shares as an
underlying investment medium for Contracts issued or to be issued by
the Company (prompt notice shall be given by the appropriate party
should such situation occur).
8. Continuation of Agreement.
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Termination as the result of any cause listed in Section 7 shall not
affect Distributor's obligation to furnish its shares to Contracts then
in force for which its shares serve or may
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serve as the underlying medium unless such further sale of Fund shares is
prohibited by law or the SEC or other regulatory body.
9. Advertising Materials; Filed Documents.
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(a) Advertising and sales literature with respect to the Fund prepared by
the Company or its agents for use in marketing its Contracts, other
than any materials that merely reference the Funds' names, will be
submitted to Distributor or its designee for review before such
material is submitted to any regulatory body for review. No such
material shall be used if the Distributor or its designee reasonably
object to such use in writing, transmitted by facsimile within five
business days after receipt of such material.
(b) The Distributor will provide additional copies of the Fund's
financials as soon as available to the Company and at least one
complete copy of all registration statements, prospectuses,
statements of additional information, annual and semi-annual reports,
proxy statements and all amendments or supplements to any of the
above that relate to the Fund promptly after the filing of such
document with the SEC or other regulatory authorities. At the
Distributor's request, the Company will provide to the Distributor at
least one complete copy of all registration statements, prospectuses,
statements of additional information, annual and semi-annual reports,
proxy statements, and all amendments or supplements to any of the
above that relate to the Account promptly after the filing of such
document with the SEC or other regulatory authority.
(c) The Distributor will provide via Excel spreadsheet diskette format or
in electronic transmission to the Company at least quarterly
portfolio information necessary to update Fund profiles within
fourteen (14) business days following the end of each quarter.
10. Proxy Voting.
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(a) The Company shall provide pass-through voting privileges on Fund
shares held by registered separate accounts to all Contract owners to
the extent the SEC continues to interpret the 1940 Act as requiring
such privileges. The Company shall provide pass-through voting
privileges on Fund shares held by unregistered separate accounts to
all Contract owners.
(b) The Company will distribute to Contract owners, as appropriate, all
proxy material furnished by the Distributor and will vote Fund shares
in accordance with instructions received from such Contract owners.
If and to the extent required by law, the Company, with respect to
each group Contract and in each Account, shall vote Fund shares for
which no instructions have been received in the same proportion as
shares for which such instructions have been received. The Company
and its agents shall not oppose or interfere with the solicitation of
proxies for Fund shares held for such Contract owners.
11. Indemnification.
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(a) The Company agrees to indemnify and hold harmless OFS, the Funds and
the Distributor, and their respective directors, officers, employees,
agents and each person, if any, who controls OFS or the Distributor
within the meaning of the Securities Act of 1933 (the "1933 Act")
against any losses, claims, damages or liabilities to which the
Distributor or OFS or any such director, officer, employee, agent, or
controlling person of them may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) 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 sales
literature of the Company 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, or arise out of or as a result of conduct,
statements or representations (other than statements or
representations contained in the prospectuses or sales literature of
the Fund) of the Company or its agents, with respect to the sale and
distribution of Contracts for which Fund shares are the underlying
investment. The Company will reimburse any legal or other expenses
reasonably incurred by the Distributor, the Fund or OFS or any such
director, officer, employee, agent, investment adviser, or
controlling person of them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon (i) an untrue statement or omission or
alleged omission made in such Registration Statement or prospectus in
conformity with written materials furnished to the Company by the
Fund specifically for use therein or (ii) the willful misfeasance,
bad faith, or gross negligence by OFS or the Distributor in the
performance of its duties or OFS' or the Distributor's reckless
disregard of obligations or duties under this Agreement or to the
Company, whichever is applicable. This indemnity agreement will be in
addition to any liability, which Company may otherwise have.
(b) The Distributor and OFS agree to indemnify and hold harmless the
Company and its directors, officers, employees, agents and each
person, if any, who controls the Company within the meaning of the
1933 Act against any losses, claims, damages or liabilities to which
the Company or any such director, officer, employee, agent or
controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, prospectuses or sales literature of
the Fund 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 material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Distributor will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, employee,
agent, or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Distributor will not be liable in any
such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon (i) an untrue statement or
omission or alleged omission made in such Registration Statement or
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prospectuses which are in conformity with written materials furnished
to the Fund by the Company specifically for use therein or (ii) the
willful misfeasance, bad faith, or gross negligence of the Company.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of action, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 11. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may wish to, assume the defense thereof, with counsel satisfactory
to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section 11 for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
12. Miscellaneous.
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(a) Amendment and Waiver. Neither this Agreement, nor any provision
hereof, may be amended, waived, discharged or terminated orally, but
only by an instrument in writing signed by all parties hereto.
(b) Notices. All notices and other communications hereunder shall be
given or made in writing and shall be delivered personally, or sent
by telex, telecopier or registered or certified mail, postage
prepaid, return receipt requested, or recognized overnight courier
service to the party or parties to whom they are directed at the
following addresses, or at such other addresses as may be designated
by notice from such party to all other parties.
To the Company:
Aetna Life Insurance and Annuity Company
151 Farmington Avenue
Hartford, Connecticut 06156
Attention: Julie E. Rockmore, Counsel
To OFS:
OppenheimerFunds Services
6803 South Tucson Way
Englewood, Colorado 80112
Attn: Mark Barry
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To the Distributor:
OppenheimerFunds Distributor, Inc.
Two World Trade Center, 34th Floor
New York, New York 10048
Attn: Andrew J. Donohue
Any notice, demand or other communication given in a manner prescribed in
this subsection (b) shall be deemed to have been delivered on receipt.
(c) Successors and Assigns. This agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any party hereto may execute this Agreement by signing
any such counterpart.
(e) Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby.
(f) Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior
agreement and understandings relating to the subject matter hereof.
(g) Governing Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Connecticut.
(h) Non Exclusivity. It is understood by the parties that this Agreement
is not an exclusive arrangement in any respect.
(i) Use of Name. Except as otherwise provided in this Agreement, the
Company shall not use the Oppenheimer name or any trademark or
service mark of Oppenheimer without the Distributor's prior written
consent. In the event this Agreement is terminated, the Company shall
not use Oppenheimer's name, trademark, service mark or any other
inference that may be reasonably construed to imply a continuing
relationship.
(j) Confidentiality. The terms of this Agreement and the Schedules
thereto will be held confidential by each party except to the extent
that either party or its counsel may deem it necessary to disclose
such terms.
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13. Acknowledgement.
The parties hereto acknowledge that there is a Service Agreement between
the Company, the Distributor, OFS and Aetna Investment Services, Inc. dated
October 1, 1998 and a March 11, 1997 Participation Agreement between the
Company, OppenheimerFunds, Inc. and Oppenheimer Variable Account Funds. The
parties hereto agree that the terms and conditions of this Agreement shall not
affect or amend the terms and conditions of those agreements.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers effective as of the ____ day of _________, _____.
AETNA LIFE INSURANCE AND ANNUITY COMPANY
By: ___________________________________
Name:__________________________________
Title:_________________________________
OFS
By: ___________________________________
Name:__________________________________
Title:_________________________________
DISTRIBUTOR
By: ___________________________________
Name:__________________________________
Title:_________________________________
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Schedule A
Variable Annuity Account B
Variable Annuity Account C
Variable Annuity Account D
Variable Annuity Account F
(Or any future separate accounts - See Section 1(a))
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Schedule B
(List of funds available--See Section 1(b))
Oppenheimer Bond Fund (Class A)
Oppenheimer Capital Appreciation Fund (Class A)
Oppenheimer Capital Income Fund (Class A)
Oppenheimer Developing Markets Fund (Class A)
Oppenheimer Global Fund (Class A)
Oppenheimer High Yield Fund (Class A)
Oppenheimer Main Street Growth & Income Fund (Class A)
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