AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made the 1st day of January 2005, by and between ▇▇▇▇▇▇▇▇▇▇▇
Variable Account Funds (hereinafter referred to as the "Trust"), and
OppenheimerFunds, Inc. (hereinafter referred to as "OFI").
WHEREAS, the Trust is an open-end, diversified series management
investment company registered as such with the Securities and Exchange
Commission (the "Commission") pursuant to the Investment Company Act of 1940
(the "Investment Company Act"), and OFI is a registered investment adviser;
and
WHEREAS, ▇▇▇▇▇▇▇▇▇▇▇ Bond Fund/VA (the "Fund") is a series of the Trust
having a separate portfolio, investment policies and investment restrictions;
and
WHEREAS, this Agreement amends and restates the Investment Advisory
Agreement by and between the Trust and OFI for the Fund, dated September 1,
1994 (the "Prior Agreement").
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, it is agreed by and between the parties, as follows:
1. General Provision.
a. The Trust hereby employs OFI and OFI hereby undertakes to act as
the investment adviser of the Fund and to perform for the Fund such other
duties and functions as are hereinafter set forth. OFI shall, in all matters,
give to the Fund and the Trust's Board of Trustees the benefit of its best
judgment, effort, advice and recommendations and shall, at all times conform
to, and use its best efforts to enable the Fund to conform to: (i) the
provisions of the Investment Company Act and any rules or regulations
thereunder; (ii) any other applicable provisions of state or Federal law;
(iii) the provisions of the Declaration of Trust and By-Laws of the Trust as
amended from time to time; (iv) policies and determinations of the Board of
Trustees of the Trust; (v) the fundamental policies and investment
restrictions of the Fund as reflected in the Trust's registration statement
under the Investment Company Act or as such policies may, from time to time,
be amended by the Fund's shareholders; and (vi) the Prospectus and Statement
of Additional Information of the Trust in effect from time to time. The
appropriate officers and employees of OFI shall be available upon reasonable
notice for consultation with any of the trustees and officers of the Trust
with respect to any matters dealing with the business and affairs of the
Trust including the valuation of portfolio securities of the Fund which
securities are either not registered for public sale or not traded on any
securities market.
2. Investment Management.
a. OFI shall, subject to the direction and control by the Trust's
Board of Trustees: (i) regularly provide investment advice and
recommendations to the Fund with respect to its investments, investment
policies and the purchase and sale of securities; (ii) supervise continuously
the investment program of the Fund and the composition of its portfolio and
determine what securities shall be purchased or sold by the Fund; and (iii)
arrange, subject to the provisions of paragraph 7 hereof, for the purchase of
securities and other investments for the Fund and the sale of securities and
other investments held in the portfolio of the Fund.
b. Provided that the Trust shall not be required to pay any
compensation other than as provided by the terms of this Agreement and
subject to the provisions of paragraph 7 hereof, OFI may obtain investment
information, research or assistance from any other person, firm or
corporation to supplement, update or otherwise improve its investment
management services.
c. OFI shall not be liable for any loss sustained by the Trust
and/or the Fund in connection with matters to which this Agreement relates,
except a loss resulting by reason of OFI's willful misfeasance, bad faith or
gross negligence in the performance of its duties; or by reason of its
reckless disregard of its obligations and duties under this Agreement.
d. Nothing in this Agreement shall prevent OFI or any officer
thereof from acting as investment adviser for any other person, firm or
corporation and shall not in any way limit or restrict OFI or any of its
directors, officers, stockholders or employees from buying, selling or
trading any securities for its or their own account or for the account of
others for whom it or they may be acting, provided that such activities will
not adversely affect or otherwise impair the performance by OFI of its duties
and obligations under this Agreement.
3. Other Duties of OFI.
OFI shall, at its own expense, provide and supervise the activities of
all administrative and clerical personnel as shall be required to provide
effective administration for the Fund, including the compilation and
maintenance of such records with respect to its operations as may reasonably
be required; the preparation and filing of such reports with respect thereto
as shall be required by the Commission; composition of periodic reports with
respect to operations of the Fund for its shareholders; composition of proxy
materials for meetings of the Fund's shareholders, and the composition of
such registration statements as may be required by Federal securities laws
for continuous public sale of shares of the Fund. OFI shall, at its own cost
and expense, also provide the Trust with adequate office space, facilities
and equipment. OFI shall, at its own expense, provide such officers for the
Fund as the Fund's Board may request.
4. Allocation of Expenses.
All other costs and expenses of the Fund not expressly assumed by OFI
under this Agreement, shall be paid by the Trust, including, but not limited
to: (i) interest and taxes; (ii) brokerage commissions; (iii) insurance
premiums for fidelity and other coverage requisite to its operations; (iv)
compensation and expenses of its trustees other than those associated or
affiliated with OFI; (v) legal and audit expenses; (vi) custodian and
transfer agent fees and expenses; (vii) expenses incident to the redemption
of its shares; (viii) expenses incident to the issuance of its shares against
payment therefor by or on behalf of the subscribers thereto; (ix) fees and
expenses, other than as hereinabove provided, incident to the registration
under Federal securities laws of shares of the Fund for public sale; (x)
expenses of printing and mailing reports, notices and proxy materials to
shareholders of the Fund; (xi) except as noted above, all other expenses
incidental to holding meetings of the Fund's shareholders; and (xii) such
extraordinary non-recurring expenses as may arise, including litigation,
affecting the Fund and any legal obligation which the Trust may have on
behalf of the Fund to indemnify its officers and trustees with respect
thereto. Any officers or employees of OFI or any entity controlling,
controlled by or under common control with OFI, who may also serve as
officers, trustees or employees of the Trust shall not receive any
compensation from the Trust for their services. The expenses with respect to
any two or more series of the Trust shall be allocated in proportion to the
net assets of the respective series except where allocations of direct
expenses can be made.
5. Compensation of OFI.
The Trust agrees to pay OFI on behalf of the Fund and OFI agrees to
accept as full compensation for the performance of all functions and duties
on its part to be performed pursuant to the provisions hereof, a fee computed
on the aggregate net asset value of the Fund as of the close of each business
day and payable monthly at the annual rate of: .75% of the first $200 million
of average annual net assets; .72% of the next $200 million; .69% of the next
$200 million; .66% of the next $200 million; .60% of the next $200 million;
and .50% of average annual net assets in excess of $1 billion.
6. Use of Name "▇▇▇▇▇▇▇▇▇▇▇."
OFI hereby grants to the Trust a royalty-free, non-exclusive license to
use the name "▇▇▇▇▇▇▇▇▇▇▇" in the name of the Trust and the Fund for the
duration of this Agreement and any extensions or renewals thereof. To the
extent necessary to protect OFI's rights to the name "▇▇▇▇▇▇▇▇▇▇▇" under
applicable law, such license shall allow OFI to inspect, and subject to
control by the Trust's Board, control the name and quality of services
offered by the Fund under such name. Such license may, upon termination of
this Agreement, be terminated by OFI, in which event the Trust shall promptly
take whatever action may be necessary to change its name and the name of the
Fund and discontinue any further use of the name "▇▇▇▇▇▇▇▇▇▇▇" in the name of
the Trust or the Fund or otherwise. The name "▇▇▇▇▇▇▇▇▇▇▇" may be used or
licensed by OFI in connection with any of its activities, or licensed by OFI
to any other party.
7. Portfolio Transactions and Brokerage.
a. OFI is authorized, in arranging the purchase and sale of the
Fund's portfolio securities, to employ or deal with such members of
securities or commodities exchanges, brokers or dealers (hereinafter
"broker-dealers"), including "affiliated" broker-dealers (as that term is
defined in the Investment Company Act), as may, in its best judgment,
implement the policy of the Fund to obtain, at reasonable expense, the "best
execution" (prompt and reliable execution at the most favorable security
price obtainable) of the Fund's portfolio transactions as well as to obtain,
consistent with the provisions of subparagraph (c) of this paragraph 7, the
benefit of such investment information or research as will be of significant
assistance to the performance by OFI of its investment management functions.
b. OFI shall select broker-dealers to effect the Fund's portfolio
transactions on the basis of its estimate of their ability to obtain best
execution of particular and related portfolio transactions. The abilities of
a broker-dealer to obtain best execution of particular portfolio
transaction(s) will be judged by OFI on the basis of all relevant factors and
considerations including, insofar as feasible, the execution capabilities
required by the transaction or transactions; the ability and willingness of
the broker-dealer to facilitate the Fund's portfolio transactions by
participating therein for its own account; the importance to the Fund of
speed, efficiency or confidentiality; the broker-dealer's apparent
familiarity with sources from or to whom particular securities might be
purchased or sold; as well as any other matters relevant to the selection of
a broker-dealer for particular and related transactions of the Fund.
c. OFI shall have discretion, in the interests of the Fund, to
allocate brokerage on the Fund's portfolio transactions to broker-dealers,
other than an affiliated broker-dealer, qualified to obtain best execution of
such transactions who provide brokerage and/or research services (as such
services are defined in Section 28(e)(3) of the Securities Exchange Act of
1934) for the Fund and/or other accounts for which OFI or its affiliates
exercise "investment discretion" (as that term is defined in Section 3(a)(35)
of the Securities Exchange Act of 1934) and to cause the Trust to pay such
broker-dealers a commission for effecting a portfolio transaction for the
Fund that is in excess of the amount of commission another broker-dealer
adequately qualified to effect such transaction would have charged for
effecting that transaction, if OFI determines, in good faith, that such
commission is reasonable in relation to the value of the brokerage and/or
research services provided by such broker-dealer, viewed in terms of either
that particular transaction or the overall responsibilities of OFI or its
affiliates with respect to the accounts as to which they exercise investment
discretion. In reaching such determination, OFI will not be required to place
or attempt to place a specific dollar value on the brokerage and/or research
services provided or being provided by such broker-dealer. In demonstrating
that such determinations were made in good faith, OFI shall be prepared to
show that all commissions were allocated for purposes contemplated by this
Agreement and that the total commissions paid by the Trust over a
representative period selected by the Trust's trustees were reasonable in
relation to the benefits to the Fund.
d. OFI shall have no duty or obligation to seek advance competitive
bidding for the most favorable commission rate applicable to any particular
portfolio transactions or to select any broker-dealer on the basis of its
purported or "posted" commission rate but will, to the best of its ability,
endeavor to be aware of the current level of the charges of eligible
broker-dealers and to minimize the expense incurred by the Fund for effecting
its portfolio transactions to the extent consistent with the interests and
policies of the Fund as established by the determinations of the Board of
Trustees of the Trust and the provisions of this paragraph 7.
e. The Trust recognizes that an affiliated broker-dealer: (i) may
act as one of the Fund's regular brokers so long as it is lawful for it so to
act; (ii) may be a major recipient of brokerage commissions paid by the
Trust; and (iii) may effect portfolio transactions for the Fund only if the
commissions, fees or other remuneration received or to be received by it are
determined in accordance with procedures contemplated by any rule, regulation
or order adopted under the Investment Company Act for determining the
permissible level of such commissions.
8. Duration.
This Agreement will take effect on the date first set forth above.
Unless earlier terminated pursuant to paragraph 10 hereof, this Agreement
shall remain in effect from year to year, so long as such continuance shall
be approved at least annually by the Trust's Board of Trustees, including the
vote of the majority of the Trustees of the Trust who are not parties to this
Agreement or "interested persons"(as defined in the Investment Company Act)
of any such party, cast in person at a meeting called for the purpose of
voting on such approval, or by the holders of a "majority" (as defined in the
Investment Company Act) of the outstanding voting securities of the Fund and
by such a vote of the Trust's Board of Trustees.
9. Disclaimer of Trustee or Shareholder Liability.
OFI understands and agrees that the obligations of the Trust under this
Agreement are not binding upon any Trustee or shareholder of the Trust or
Fund personally, but bind only the Trust and the Trust's property. OFI
represents that it has notice of the provisions of the Declaration of Trust
of the Trust disclaiming Trustee or shareholder liability for acts or
obligations of the Trust.
10. Termination.
This Agreement may be terminated: (i) by OFI at any time without
penalty upon sixty days' written notice to the Trust (which notice may be
waived by the Trust); or (ii) by the Trust at any time without penalty upon
sixty days' written notice to OFI (which notice may be waived by OFI)
provided that such termination by the Trust shall be directed or approved by
the vote of a majority of all of the trustees of the Trust then in office or
by the vote of the holders of a "majority" of the outstanding voting
securities of the Fund (as defined in the Investment Company Act).
11. Assignment or Amendment.
This Agreement may not be amended or the rights of OFI hereunder sold,
transferred, pledged or otherwise in any manner encumbered without the
affirmative vote or written consent of the holders of the "majority" of the
outstanding voting securities of the Trust. This Agreement shall
automatically and immediately terminate in the event of its "assignment", as
defined as stated below.
12. Definitions.
The terms and provisions of this Agreement shall be interpreted and
defined in a manner consistent with the provisions and definitions of the
Investment Company Act.
▇▇▇▇▇▇▇▇▇▇▇ Variable Account Funds
for ▇▇▇▇▇▇▇▇▇▇▇ Bond Fund/VA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President & Secretary
OppenheimerFunds, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman, President & Chief Executive
Officer