EXHIBIT 28(H)(7)
FUND PARTICIPATION AGREEMENT
(FUND OF FUNDS)
THIS AGREEMENT is entered into as of this 30/th/ day of July, 2010 among THE
LINCOLN NATIONAL LIFE INSURANCE COMPANY on behalf of itself and certain of its
separate accounts; LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK (together with
The Lincoln National Life Insurance Company "Insurance Company"), on behalf of
itself and certain of its separate accounts; LINCOLN INVESTMENT ADVISORS
CORPORATION ("LIAC"); LINCOLN VARIABLE INSURANCE PRODUCTS TRUST ("Trust"), an
open-end investment company organized under the laws of Delaware; AMERICAN
FUNDS INSURANCE SERIES ("Series"), an open-end management investment company
organized under the laws of the Commonwealth of Massachusetts; CAPITAL RESEARCH
AND MANAGEMENT COMPANY ("CRMC"), a corporation organized under the laws of the
State of Delaware; CAPITAL INCOME BUILDER, an open-end management investment
company organized under the laws of Delaware; INTERMEDIATE BOND FUND OF
AMERICA, an open-end management investment company organized under the laws of
the Commonwealth of Massachusetts; SHORT-TERM BOND FUND OF AMERICA, INC., an
open-end management investment company organized under the laws of Maryland;
and AMERICAN FUNDS SERVICE COMPANY (the "Transfer Agent"), a corporation
organized under the laws of the State of California.
WITNESSETH:
WHEREAS, Insurance Company proposes to issue, now and in the future, certain
multi-manager variable annuity contracts and/or variable life policies (the
"Contracts") for which the Trust is one of the underlying investment vehicles;
WHEREAS, Insurance Company has established pursuant to applicable insurance
law one or more separate accounts (each, an "Account") for purposes of issuing
the Contracts and has or will register each Account (unless the Account is
exempt from such registration) with the United States Securities and Exchange
Commission (the "Commission") as a unit investment trust under the Securities
Act of 1933, as amended (the "1933 Act") and the Investment Company Act of
1940, as amended (the "1940 Act");
WHEREAS, the Contracts, which are or will be registered by Insurance Company
(unless exempt from such registration) with the Commission for offer and sale,
will be in compliance with all applicable laws prior to being offered for sale;
WHEREAS, the Series has received a "Mixed and Shared Funding Order" from the
Commission granting relief from certain provisions of the 1940 Act and the
rules thereunder to the extent necessary to permit shares of the Series to be
sold to variable annuity and life insurance separate accounts of unaffiliated
insurance companies;
WHEREAS, the Series is divided into various funds (the "Series Funds"), and
each
Series Fund is subject to certain fundamental investment policies which may not
be changed without a majority vote of the shareholders of such Series Fund;
WHEREAS, the Trust is divided into various series (the "Funds"), and each
Fund has its own assets and liabilities and invests in securities in accordance
with its investment objectives and policies, as described in the registration
statement for the Funds;
WHEREAS, certain Funds set forth in Attachment A propose to hold as their
only investment shares of the Series Funds and certain American Funds listed on
Attachment B (the "Retail Funds" and together with the Series Funds, the
"Underlying Funds"), and such Funds will serve as certain of the underlying
investment mediums for the Contracts issued with respect to the Accounts listed
on Attachment C;
WHEREAS, the Trust and LIAC have received an Order from the Commission dated
March 31, 2010 (Release No. 29196, File No. 812-13660) granting exemption from
Section 12(d)(1)(A) and (B), Rule 12d1-2(a) and Section 17(a)(1) and (2) of the
1940 Act (the "Order");
WHEREAS, CRMC is the investment adviser for the Series and the Retail Funds;
and
WHEREAS, LIAC is the investment adviser for the Trust.
NOW, THEREFORE, in consideration of the foregoing and of mutual covenants
and conditions set forth herein and for other good and valuable consideration,
Insurance Company, LIAC, the Trust, the Series, CRMC and the Transfer Agent
hereby agree as follows:
1. (a) The Series, each Retail Fund and CRMC each represents and warrants to
Insurance Company and the Trust that: (i) a registration statement
under the 1933 Act and under the 1940 Act (collectively, the "SEC
Filings") with respect to the Series and each Retail Fund has been
filed with the Commission in the form previously delivered to LIAC,
and copies of any and all amendments thereto will be forwarded to
LIAC at the time that they are filed with the Commission; (ii) the
Series and each Retail Fund is, and shall be at all times while this
Agreement is in force, lawfully organized, validly existing, and
properly qualified in accordance with the laws of the state of its
organization; (iii) the shares of the Underlying Funds sold pursuant
to this Agreement will be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that
the Series and each Retail Fund will remain registered as an open-end
management investment company under the 1940 Act for as long as such
shares of the Series Funds and the Retail Funds are sold; (iv) the
Series and each Retail Fund will 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 and
the Series' and each Retail Fund's registration statement and any
further amendments thereto will, when they become effective, and all
definitive prospectuses and statements of additional information and
any further supplements thereto (the "Prospectus") shall, conform in
all material respects to the requirements of the 1933 Act and the
1940 Act and the rules and regulations
of the Commission thereunder, and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statement
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Series, the Retail Funds or CRMC by Insurance Company, LIAC
and the Trust expressly for use therein; and (v) the Series, the
Retail Funds and CRMC will comply in all material respects with all
applicable laws and regulations, including, without limitation, the
1933 Act and the 1940 Act and the rules and regulations thereunder.
(b) The Series, each Retail Fund and CRMC represent and warrant that all
of the Series and Retail Fund trustees or directors, and officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Series or a Retail Fund
are and continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Series or Retail Fund
in an amount not less than the minimal coverage as required currently
by Rule 17g-(1) of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond includes coverage
for larceny and embezzlement and is issued by a reputable bonding
company.
(c) CRMC represents and warrants that it is lawfully organized and
validly existing under the laws of its state of organization; it is
duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and will remain duly registered
under all applicable federal and state securities laws; and that it
will perform its obligations for the Series and the Retail Funds in
accordance in all material respects with the laws of the applicable
state of organization of the Series and each Retail Fund and any
applicable state and federal securities laws.
(d) The Series, each Retail Fund and CRMC represent that each has
received a copy the Order, and that CRMC and the board of directors
or trustees of the Series and each Retail Fund understand the terms
and conditions of the Order. The Series, each Retail Fund and CRMC
each hereby agree to fulfill their responsibilities under the Order
as set forth in the Order and in this agreement.
(e) The Series and each Retail Fund represents and warrants that the
board of the Series and each Retail Fund, as applicable, including a
majority of its independent directors or trustees, has been informed
that no consideration will be paid by the Series or a Series Fund or
by a Retail Fund to the Trust or a Fund in connection with any
services or transactions (other than services or transactions between
the Series or a Retail Fund and CRMC or any of CRMC's affiliates and
an administrative services fee ("Administrative Services Fee") paid
by a Retail Fund to a Fund). In the event that any such consideration
will be paid by an Underlying Fund to the Trust or a Fund and a
Fund's investment in the Underlying Fund exceeds the limit of
Section 12(d)(1)(A)(i) of the 1940 Act, the Series or the applicable
Retail Fund shall seek a determination by its board of trustees or
directors that the consideration (i) is reasonable in relation to the
nature and
quality of services received by the Underlying Fund; (ii) is within
the range of consideration that the Underlying Fund would be required
to pay to another unaffiliated entity in connection with the same
services or transactions; and (iii) does not involve overreaching on
the part of any person concerned.
(f) The Series and each Retail Fund represents and warrants that the
board of the Series and each Retail Fund, including a majority of its
independent directors or trustees, has adopted or will adopt
procedures (the "Affiliated Underwriting Procedures") reasonably
designed to monitor any purchases of securities by Series Funds or
the applicable Retail Fund in an offering of securities during the
existence of an Affiliated Underwriting (as defined in the Order).
The Series and each Retail Fund further represents and warrants that
it will maintain and preserve permanently in an easily accessible
place, a written copy of the Affiliated Underwriting Procedures and
any modifications to the Affiliated Underwriting Procedures. Further,
the Series and each Retail Fund represents and warrants that the
board of the Series and each Retail Fund shall review these
procedures periodically, but no less frequently than annually, to
determine whether purchases were influenced by the investment by the
Trust in the Series or the applicable Retail Fund. Specific
considerations for the board of the Series and the Retail Funds are
detailed in condition 6 of Order.
(g) The Series and each Retail Fund represents and warrants that it shall
not and CRMC represents and warrants that it shall not direct an
Underlying Fund in which a Fund invests to acquire securities of any
other entity that would meet the definition of "investment company"
in the 1940 Act but for the exception provided in Section 3(c)(1) or
3(c)(7) of the Act, in excess of the limits contained in
Section 12(d)(1)(A) of the Act, except to the extent that such
Underlying Fund: (a) receives such securities as a dividend or as a
result of a plan of reorganization of a company (other than a plan
devised for the purpose of evading Section 12(d)(1) of the Act);
(b) acquires (or is deemed to have acquired) such securities pursuant
to exemptive relief from the Commission permitting the Underlying
Fund to: (i) acquire securities of one or more affiliated investment
companies, for short-term cash management purposes or (ii) engage in
inter-fund borrowing and lending transactions.
2. (a) The Trust represents and warrants to the Series, each Retail Fund and
CRMC that (i) the shares of the Funds are or will be registered under
the 1933 Act and that the shares will be issued, sold and distributed
in compliance in all material respects with all applicable federal
securities laws; (ii) the Trust is, and shall be at all times while
this Agreement is in force, lawfully organized and validly existing
under the laws of Delaware; (iii) the Trust is and shall remain at
all times while this Agreement is in force, registered as an open-end
management investment company under the 1940 Act; (d) the SEC Filings
(including the registration statement) of the Trust conform or, when
they become effective, will conform in all material respects to the
requirements of the 1933 Act and the 1940 Act, and the rules and
regulations of the Commission thereunder, and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Trust
by CRMC, the Series or a Retail Fund expressly for use therein; and
the Trust will comply in all material respects with all applicable
laws and regulations, including, without limitation, the 1933 Act and
the 1940 Act and the rules and regulations thereunder.
(b) Insurance Company represents and warrants to the Series, each Retail
Fund and CRMC that:
(i) it has the corporate power and the authority to enter into and
perform all of its duties and obligations under this Agreement;
(ii) this Agreement constitutes its legal, valid and binding
obligation, enforceable against each above-named party in
accordance with its terms;
(iii) no consent or authorization of, filing with, or other act by
or in respect of any governmental authority is required in
connection with the execution, delivery, performance, validity
or enforceability of this Agreement;
(iv) The Lincoln National Life Insurance Company will or has
established the Accounts as separate accounts under Indiana
law;
(v) Lincoln Life & Annuity Company of New York will or has
established the Accounts as separate accounts under New York
law;
(vi) it has registered the Accounts as unit investment trusts under
the 1940 Act to serve as investment vehicles for certain
Contracts or, alternatively, has not registered one or more of
the Accounts in proper reliance upon an exclusion from
registration under the 1940 Act;
(vii) the Contracts are or will be and at the time of issuance will
be treated as annuity contracts and life insurance policies,
as applicable, under applicable provisions of the Internal
Revenue Code of 1986, as amended, and the regulations
thereunder (the "Code"), that Insurance Company will maintain
such treatment and that it will notify the Series 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;
(viii) the offer of the Contracts has been registered with the SEC
under the Securities Act of 1933, unless exempt from
registration, and each such registration statement and any
further amendments or supplements thereto will, when they
become effective, conform in all material respects to the
requirements of the 1933 Act, and the rules and regulations of
the Commission thereunder, and will not contain any untrue
statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statement or omission made in
reliance upon and in conformity with the information furnished
in writing to Insurance Company by CRMC, the Series or a
Retail Fund expressly for use therein;
(ix) any information furnished in writing by Insurance Company for
use in the registration statement or annual report of the
Series or a Retail Fund will not contain any untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, nor result in the Series' or a Retail
Fund's registration statement's failing to materially conform
in all respects to the requirements of the 1933 Act and 1940
Act and the rules and regulations thereunder;
(x) investment by each Account in a Fund is in reliance on and
consistent with the terms of the Series' Mixed and Shared
Funding Order; and
(xi) the Accounts invest in the Funds in reliance on the status of
each Account as a "Permitted Investor" within the meaning of
Section 817(h)(4)(A) of the Internal Revenue Code of 1986, as
amended.
(c) LIAC represents and warrants that it is lawfully organized and
validly existing under the laws of its state of organization; it is
duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and will remain duly registered
under all applicable federal and state securities laws; and that it
will perform its obligations for the Trust in accordance in all
material respects with the laws of the State of Tennessee and any
applicable state and federal securities laws.
(d) The Trust agrees that, if the Series offers a new Series Fund that is
substantially similar to a Retail Fund, the Trust will undertake to
move the Trust's assets invested in such Retail Fund to the new
Series Fund and place all new orders in such new Series Fund as soon
as reasonably practical after the new Series Fund is offered, subject
to LIAC's fiduciary duty requirements. At such time as all Trust
assets allocated to a Retail Fund are moved to a new Series Fund,
such Retail Fund will no longer be a "Retail Fund" under this
Agreement.
(e) The Trust and LIAC hereby agree that they will adhere to allocation
limitations placed on the Retail Funds by CRMC or the Series.
(f) LIAC agrees that pursuant to the terms of the Order it will offset
the management fee it charges a Fund by the amount of any
Administrative Services Fees paid to such Fund by the Retail Funds.
(g) Insurance Company, LIAC and the Trust represent that Insurance
Company,
LIAC and the board of the Trust each understand the terms and
conditions of the Order; and Insurance Company, LIAC and the Trust
each hereby agree to fulfill their responsibilities under the Order
as set forth in the Order and in this agreement.
(h) LIAC represents and warrants that, at the time of investing in the
shares of an Underlying Fund in excess of three percent of the total
outstanding voting stock of the Underlying Fund, it shall notify the
Series or the applicable Retail Fund and CRMC of the investment and
transmit to CRMC on behalf of the Series or Retail Fund, a list of
the names of each Fund of Funds Affiliate (as defined in the Order)
and Underwriting Affiliates (as defined in the Order). In the case of
a subadvised Fund, LIAC represents and warrants that it shall notify
the Series or the applicable Retail Fund and CRMC of the investment
and cause the Fund's subadviser to transmit to CRMC on behalf of the
Series or the applicable Retail Fund, a list of the names of each
Fund of Funds Affiliate and Underwriting Affiliates with respect to
the subadviser.
CRMC and Transfer Agent agree that Transfer Agent will provide LIAC
with the amount of the total outstanding shares of each Underlying
Fund on a monthly basis (or more frequently if needed) so that LIAC
can perform such calculations.
3. (a) The Series and each Retail Fund will furnish to LIAC and the Trust
such information with respect to the Series or Retail Fund in such
form and signed by such of its officers as LIAC and the Trust may
reasonably request, and will warrant that the statements therein
contained when so signed will be true and correct. The Series or the
applicable Retail Fund will advise LIAC and the Trust immediately of:
(i) the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement of the Series or the
Retail Fund or the initiation of any proceeding for that purpose;
(ii) the institution of any proceeding, investigation or hearing
involving the offer or sale of the Contracts or the Series or Retail
Fund of which it becomes aware; or (iii) the happening of any
material event, if known, which makes untrue any statement made in
the registration statement of the Series or a Retail Fund or which
requires the making of a change therein in order to make any
statement made therein not misleading.
(b) The Series and each Retail Fund will register for sale under the 1933
Act and, if required, under state securities laws, such additional
shares of the Series Funds or Retail Funds as may reasonably be
necessary for use as the funding vehicle for the Contracts.
(c) The parties agree that with regard to shares of the Underlying Funds
subject to this agreement, the Insurance Company, Trust and/or their
affiliates do not control the management or policies of the Series,
the Retail Funds or CRMC.
(d) The Series agrees to make Class 1 shares of the Series Funds and each
Retail Fund agrees to make Class F-2 shares of such Retail Fund
specified in Attachment B available for investment by the Funds.
4. The Series and each Retail Fund or the Transfer Agent will compute
the closing net asset value, and any distribution information
(including the applicable ex-date, record date, payable date,
distribution rate per share, income accrual and capital gains
information) for each Underlying Fund as of the close of regular
trading on the New York Stock Exchange (normally 4:00 p.m. Eastern
Time) on each day the New York Stock Exchange is open for business (a
"Business Day") or at such other time as the net asset value of an
Underlying Fund is calculated, as disclosed in the relevant
Underlying Funds' current prospectuses. The Series, the applicable
Retail Fund or the Transfer Agent will use commercially reasonable
efforts to communicate to the Trust such information by 6:30 p.m.
Eastern Time on each Business Day. Such information shall be accurate
and true in all respects and updated continuously. Such information
shall be communicated by electronic transmission acceptable to the
parties or other mutually agreeable method.
5. In the event an adjustment is made to the computation of the net
asset value of Underlying Fund shares as reported to the Trust under
paragraph 4, the correction will be handled in a manner consistent
with SEC guidelines and the 1940 Act and the Series, the applicable
Retail Fund or Transfer Agent shall notify the Trust as soon as
practicable after discovering the need for any such adjustment.
Notification may be made by electronic transmission acceptable to the
parties or other mutually agreeable method.
6. To the extent a price adjustment results in a deficiency or excess to
a Fund's account, LIAC and Transfer Agent agree to evaluate the
situation together on a case-by-case basis with the goal towards
pursuing an appropriate course of action. To the extent the price
adjustment was due to Transfer Agent's error, Transfer Agent shall
reimburse such Fund's account. Any administrative costs incurred for
correcting Fund accounts will be at Trust's expense.
7. Purchases and redemptions of shares shall be handled in the following
manner:
(a) Manual Transactions. The Trust will use the NSCC's Fund/SERV system
and other such NSCC systems as soon as reasonably practicable. The
Trust will use its best efforts to use NSCC systems by October 1,
2010, for transmission and settlement of orders. Additionally, once
the Trust has adopted the use of the NSCC's Fund/SERV and related
systems for submitting transactions, manual transactions may be
submitted by the Trust only in the event that the Trust is in receipt
of orders for purchase and redemption of shares and is unable to
transmit the orders to Transfer Agent via the NSCC due to unforeseen
circumstances such as system wide computer failures experienced by
the Trust or the NSCC or other events beyond the Trust's reasonable
control. In the event manual transactions are used, the following
provisions shall apply:
(i) Prior to 4 p.m. Eastern time each Business Day ("Trade Date"),
LIAC and the Funds shall provide CRMC, the Series and the
Retail Funds with the
percentage of the net assets of the Fund that they desire to
invest in each Underlying Fund (the "Target Allocation"), or
alternatively, LIAC and the Funds may have a standing order
with the Series and the Retail Funds stating the Target
Allocation. To maintain the Target Allocation, LIAC and the
Trust will give instructions to the Transfer Agent by 8:00
a.m. Eastern Time, on the next Business Day, setting forth the
net purchases or redemptions for each Fund to be directed to
an Underlying Fund (the "Transaction Amount"). Provided LIAC
and the Trust provide the Transaction Amount to the Series no
later than 8:00 a.m. the Business Day following Trade Date,
the purchase or redemption order shall be deemed to be
received prior to 4:00 p.m. Eastern time on Trade Date and the
Transfer Agent will therefore execute orders at the net asset
values determined as of the close of trading on the Trade
Date. Transfer Agent may process orders it receives after the
8:00 a.m. deadline using the following Business Day's net
asset value.
None of CRMC, the Series or any Retail Fund shall have any
responsibility for calculating or verifying the Target
Allocation or the Transaction Amount.
(ii) The Trust will initiate payment by wire transfer to a
custodial account designated by the Series and/or the
applicable Retail Fund(s) for the aggregate purchase amounts
prior to 4:00 p.m. Eastern time on the next Business Day
following Trade Date. Dividends and capital gain distributions
shall be automatically reinvested in additional shares at the
ex-dividend-date net asset value.
(iii) Aggregate orders for redemption of shares of the Underlying
Funds will be paid in cash and wired from the Underlying
Funds' custodial account to an account designated by the
Trust. From the effective date of this Agreement through
September 30, 2010 and thereafter if the Trust regularly uses
Fund/SERV but submits manual trades pursuant to paragraph 7(a)
above: (i) for orders received by the Transfer Agent by the
8:00 a.m. deadline Transfer Agent will use commercially
reasonable efforts to initiate payment by wire to the Trust or
its designee of proceeds of such redemptions on the next
Business Day following Trade Date, but in no event shall such
payment be initiated later than two Business Days following
Trade Date (T+2) and (ii) for orders received after the 8:00
a.m. deadline Transfer Agent will initiate payment by wire to
the Trust or its designee of proceeds of such redemptions two
Business Day following Trade Date (T+2). On or after
October 1, 2010, if the Trust does not regularly use Fund/SERV
to submit transactions and regularly submits trades manually,
Transfer Agent will initiate payments by wire of such
redemption proceeds two Business Days following Trade Date
(T+2).
(b) For transactions via the Fund/SERV system, the following provisions
shall apply:
(i) The Trust and Transfer Agent will be bound by the terms of the
Fund/SERV Agreement filed by each with the NSCC. Without
limiting the generality of the following provisions of this
section, the Trust and Transfer Agent each will perform any
and all duties, functions, procedures and responsibilities
assigned to it and as otherwise established by the NSCC
applicable to Fund/SERV and the Networking Matrix Level
utilized.
(ii) Any information transmitted through Networking by any party to
the other and pursuant to this Agreement will be accurate,
complete, and in the format prescribed by the NSCC. Each party
will adopt, implement and maintain procedures reasonably
designed to ensure the accuracy of all transmissions through
Networking and to limit the access to, and the inputting of
data into, Networking to persons specifically authorized by
such party.
(iii) To maintain the Target Allocation on each Business Day, LIAC
and the Trust shall communicate to Transfer Agent by Fund/SERV
the aggregate purchase orders and redemption orders (if any)
of each Underlying Fund by each Fund by the NSCC's Defined
Contribution Clearance & Settlement ("DCC&S") Cycle 8
(generally, 6:30 a.m. Eastern time) on the following Business
Day. Transfer Agent shall treat all trades communicated to
Transfer Agent in accordance with the foregoing as if received
prior to the close of trading on the Trade Date. Target
Allocations or, if Allocations are conveyed by a standing
order, changes to a standing order not communicated to CRMC
and the Series by 4 p.m. Eastern time on a Business Day, shall
not be transmitted to NSCC prior to the conclusion of the
DCC&S Cycle 8 on the following Business Day. Transfer Agent
may process orders it receives after the DCC&S Cycle 8
deadline using the net asset value determined on the Business
Day following the Trade Date.
(c) All orders are subject to acceptance by Transfer Agent and become
effective only upon confirmation by Transfer Agent. Upon
confirmation, the Transfer Agent will verify total purchases and
redemptions and the closing share position for each Fund/account. In
the case of delayed settlement, Transfer Agent and the Trust shall
make arrangements for the settlement of redemptions by wire no later
than the time permitted for settlement of redemption orders by the
1940 Act. If payment for the shares redeemed is not received within
the time permitted for settlement of redemption orders by the 1940
Act, Trust may hold Transfer Agent responsible for any loss, expense,
liability or damage including loss of profit suffered by the Trust or
Insurance Company resulting from the delay or failure to make payment
as aforesaid. Such wires for the Trust will be communicated
separately.
Such wires for Transfer Agent for Series Funds should be sent to:
XXXXX FARGO BANK
ABA#: 000000000
ACCOUNT#: 4100060532
AFS ACCOUNT # AND FUND #
FBO LINCOLN VARIABLE INS PROD TRUST
000 XXXXXXXX XXXX, 00/XX/ XXXXX
XXX XXXXXXX, XX 00000
Such wires for Transfer Agent for Retail Funds should be sent to:
XXXXX FARGO BANK
ABA#: 000000000
ACCOUNT #: 4600-076178
FOR CREDIT TO THE ACCOUNT OF AMERICAN FUNDS SERVICE COMPANY
FBO LINCOLN VARIABLE INS PROD TRUST
FFC (AMERICAN FUNDS ACCOUNT NUMBER)
000 XXXXXXXX XXXX., 00/XX/ XXXXX
XXX XXXXXXX, XX 00000
(d) Processing errors which result from any delay or error caused by the
Trust may be adjusted through the NSCC System by Trust by the
necessary transactions on a current basis.
(e) If applicable, orders for the purchase of Fund shares shall include
the appropriate coding to enable Transfer Agent to properly calculate
commission payments to any broker-dealer firm assigned to the Trust.
(f) Trust shall reconcile share positions with respect to each Underlying
Fund for each Fund as reflected on its records to those reflected on
statements from Transfer Agent and shall, on request, certify that
each Fund's share positions with respect to each Underlying Fund
reported by Transfer Agent reconcile with Trust's share positions for
that Fund. Trust shall promptly inform Transfer Agent of any record
differences and shall identify and resolve all non-reconciling items
within five business days.
(g) Within a reasonable period of time after receipt of a confirmation
relating to an instruction, Trust shall verify its accuracy in terms
of such instruction and shall notify Transfer Agent of any errors
appearing on such confirmation.
(h) Any order by the Trust for the purchase of shares of an Underlying
Fund through Transfer Agent shall be accepted at the time when it is
received by the Transfer Agent (or any clearinghouse agency that
Transfer Agent may designate from time to time), and at the offering
and sale price determined in accordance with this Agreement, unless
rejected by Transfer Agent or the respective Underlying Fund.
In addition to the right to reject any order, the Series and each
Retail Fund has reserved the right to withhold shares from sale
temporarily or permanently. Transfer Agent will not accept any order
from the Trust that is placed on a conditional basis or subject to
any delay or contingency prior to execution. The procedure relating
to the handling of orders shall be subject to instructions that
Transfer Agent shall forward from time to time to the Trust. The
shares purchased will be issued by the respective Underlying Funds
only against receipt of the purchase price, in collected New York or
Los Angeles Clearing House funds. If payment for the shares purchased
is not received within three days after the date of confirmation, the
sale may be cancelled by Transfer Agent or by the respective
Underlying Funds without any responsibility or liability on the part
of the Transfer Agent or the Underlying Funds, and the Transfer Agent
and/or the respective Underlying Funds may hold the Trust or the
Insurance Company responsible for any loss, expense, liability or
damage, including loss of profit suffered by the Transfer Agent
and/or the respective Underlying Funds, resulting from the delay or
failure to make payment as aforesaid.
8. (a) The Series and each Retail Fund reserves the right to temporarily
suspend sales if the board of trustees or directors of the Series or
applicable Retail Fund, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, deems
it appropriate and in the best interests of shareholders or in
response to the order of an appropriate regulatory authority.
Further, the board of trustees or directors of the Series or a Retail
Fund may refuse to sell shares of any Series Fund or the applicable
Retail Fund to any person, or suspend or terminate the offering of
shares of any Series Fund or the applicable Retail Fund if such
action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the applicable board of
trustees or directors, acting in good faith and in light of its
fiduciary duties under federal and any applicable state law,
necessary in the best interests of the shareholders of such Series
Fund or Retail Fund, and as consistent with its anti market-timing
and late-trading policies and procedures.
(b) The Trust has policies and procedures in place to detect and
discourage short-term or disruptive trading practices, which may
include (but is not limited to) monitoring Contract holder trading
activity. Insurance Company and the Trust reserve the right to
refuse, to impose limitations on, or to limit any transaction request
if the request would tend to disrupt Contract administration or is
not in the best interest of the Contract holders or an Account or
Subaccount.
9. The Trust will make shares of the Funds listed on Attachment A
available only to Insurance Company and will register for sale under
the 1933 Act and, if required, under state securities laws, such
additional shares of the Funds as may reasonably be necessary for use
as the funding vehicle for the Contracts and to maintain a continuous
offering of the shares of the Funds.
10. The Contracts funded through each Account will provide for the
allocation of net amounts among certain Subaccounts corresponding to
the Fund investing in Class
1 shares of the Series Funds and/or Class F-2 shares of the Retail
Funds (each, a "Subaccount") for investment in shares of the Funds as
may be offered from time to time in the Contracts. The selection of
the particular Subaccount is to be made by the Contract owner and
such selection may be changed in accordance with the terms of the
Contracts.
11. Transfer of the Underlying Funds' shares will be by book entry only.
No stock certificates will be issued to the Funds. Shares ordered
from a particular Underlying Fund will be recorded by the Series or
the applicable Retail Fund as instructed by the Trust in an
appropriate title for the appropriate Fund. Shares ordered from a
particular Fund will be recorded by the Trust or the Trust's transfer
agent as instructed by Insurance Company in an appropriate title for
the corresponding Account or Subaccount.
12. The Series and each Retail Fund shall furnish notice of the dividend
rate to the Trust of any dividend or distribution payable on any
shares of the Series Funds or the applicable Retail Fund held by the
Funds prior to the close of business on the ex-dividend date. The
Trust hereby elects to receive all such dividends and distributions
as are payable on shares of an Underlying Fund recorded in the title
for the corresponding Fund in additional shares of that Underlying
Fund. The Series or the applicable Retail Fund shall notify the Trust
of the number of shares so issued. The Trust reserves the right to
revoke this election and to receive all such income dividends and
capital gain distributions in cash.
13. The Series and each Retail Fund shall pay all expenses incidental to
its performance under this Agreement. The Series and each Retail Fund
shall see to it that all of its shares are registered and authorized
for issue in accordance with applicable federal and state laws prior
to their purchase. The Series and each Retail Fund shall bear the
expenses for the cost of registration of its shares, preparation of
prospectuses (which in this Agreement shall include any summary
prospectuses unless the context otherwise requires) and statements of
additional information to be sent to existing Contract owners (upon
request), proxy statements and related materials and annual and
semi-annual shareholder reports, the printing and distribution of
such items to each Contract owner who has requested such information,
the preparation of all statements and notices required from it by any
federal or state law, and taxes on the issue or transfer of the
Series' or a Retail Fund's shares subject to this Agreement. The
Series and each Retail Fund will provide Insurance Company, at least
once a year, with enough copies of its Statement of Additional
Information to be able to distribute one to each Contract owner or
prospective Contract owner who requests such Statement of Additional
Information.
With respect to any prospectus and annual and semi-annual reports
(the "Reports") of the Series and each Retail Fund that are printed
in combination with any one or more such Reports of other investment
options for the Contracts (the "Booklet"), the Series or the
applicable Retail Fund shall bear the costs of printing
and mailing the Booklet to existing Contract owners based on the
ratio of the number of pages of the Series' or the applicable Retail
Fund's Reports included in the Booklet to the number of pages in the
Booklet as a whole.
14. (a) Insurance Company shall bear the expenses for the cost of preparation
and delivery of any Series or Retail Fund prospectuses (and
supplements thereto) to be sent to prospective Contract owners. The
Series and each Retail Fund shall provide, at its expense, such
documentation, if any as may be required, (in camera-ready or other
mutually agreeable form) and other assistance as is reasonably
necessary in order for Insurance Company once each year (or more
frequently if the prospectus for the Series or a Retail Fund is
amended), and twice each year in the case of the annual and
semi-annual shareholder reports, to have the prospectus or
prospectuses, and the annual and semi-annual shareholder reports for
the Contracts and the Series or Retail Funds, printed together in one
or more documents (such printing to be done at Insurance Company's
expense with respect to prospective investors).
(b) The Series and each Retail Fund will provide to the Trust at least
one complete copy of all registration statements, prospectuses, SAIs,
reports, proxy statements, sales literature and other promotional
materials that pertain to the Trust, applications for exemptions,
requests for no-action letters, and all amendments to any of the
above, that relate to the Series or a Retail Fund or its shares,
within a reasonable time after filing of each such document with the
Commission or the Financial Industry Regulatory Authority.
(c) The Trust may distribute the prospectuses of the Underlying Funds
pursuant to Rule 498 of the Securities Act of 1933 ("Rule 498"). For
purposes of this Agreement, the terms Summary Prospectus and
Statutory Prospectus shall have the same meaning as set forth in Rule
498.
(i) The Series and each Retail Fund represents and warrants that
the Summary Prospectuses and the hosting of such Summary Prospectuses
will comply in all material respects with the requirements of Rule
498 applicable to the Series, the Series Funds and the Retail Funds.
(ii) The Series and each Retail Fund agrees that the URL indicated
on each Summary Prospectus will lead contract owners directly to the
web page used for hosting Summary Prospectuses and that such web page
will host the current Series and Series Fund documents or Retail Fund
documents required to be posted in compliance with Rule 498.
(iii) The Series, each Retail Fund and CRMC represent and warrant
that they will be responsible for compliance with the provisions of
Rule 498(f)(1) involving contract owner requests for additional
Underlying Fund documents made directly to the Series, a Retail Fund,
CRMC or one of their affiliates.
(iv) Insurance Company represents and warrants that any bundling of
Summary Prospectuses and Statutory Prospectuses will be done in
compliance with Rule 498.
(v) CRMC, the Series and the Retail Funds may provide web links or
URLs to the Insurance Company for use with Insurance Company's
electronic delivery of fund documents or on the Insurance Company's
website. Insurance Company will be solely responsible for the
maintenance of such web links. CRMC, the Series and the Retail Funds
will be responsible for maintaining the Series' and the Series Funds'
or Retail Funds' current documents on the site to which such web
links or URLs originally navigate to.
(vi) Each party agrees to notify the other party promptly upon its
discovery of a failure to comply with the provisions of Rule 498.
(vii) The parties agree that Insurance Company is not required to
distribute Summary Prospectuses to its Contract holders, but rather
use of the Summary Prospectus will be at the discretion of Insurance
Company.
(d) The Series, each Retail Fund and CRMC hereby consent to the Insurance
Company's, LIAC's and Trust's use of the names of the Series and
CRMC, as well as the names of the Series Funds and the Retail Funds
set forth in Attachment C of this Agreement, in connection with
marketing the Funds and Contracts, subject to the terms of this
Agreement and Sections 12, 13 and 14 of that certain Business
Agreement, by and among Insurance Company, CRMC, and American Funds
Distributors. The Insurance Company acknowledges and agrees that CRMC
and/or its affiliates own all right, title and interest in and to the
names Capital Research and Management Company, American Funds,
American Funds Distributors, American Funds Insurance Series,
American Funds Service Company and the name of each Retail Funds, and
covenants not, at any time, to challenge the rights of CRMC and/or
its affiliates to such name or design, or the validity or
distinctiveness thereof. The Series, each Retail Fund and CRMC hereby
consent to the use by the Insurance Company, LIAC and the Trust of
any trademark, trade name, service xxxx or logo used by the Series, a
Retail Fund and CRMC, subject to the Series', the applicable Retail
Fund's and CRMC's approval of such use and in accordance with
reasonable requirements of the Series, the Retail Fund or CRMC. Such
consent will terminate with the termination of this Agreement. The
Insurance Company, LIAC and Trust agree and acknowledge that all use
of any designation comprised in whole or in part of the name,
trademark, trade name, service xxxx and logo under this Agreement
shall inure to the benefit of the Series, the Retail Funds and/or
CRMC.
15. (a) Insurance Company, the Trust and LIAC represent and warrant to the
Series and each Retail Fund that any information furnished in writing
by Insurance Company, the Trust or LIAC to the Series or a Retail
Fund for use in the registration statement and financial statements
of the Series or applicable Retail
Fund will not result in the registration statement's failing to
conform in all respects to the requirements of the 1933 Act and the
1940 Act and the rules and regulations thereunder or containing any
untrue statement of a material fact or omission to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(b) The Series, each Retail Fund and CRMC represent and warrant to
Insurance Company, the Trust and LIAC that any information furnished
in writing by the Series, a Retail Fund or CRMC to Insurance Company,
the Trust or LIAC for use in the registration statement and financial
statements of the Trust or the Contracts will not result in the
registration statement's failing to conform in all respects to the
requirements of the 1933 Act and the 1940 Act and the rules and
regulations thereunder or containing any untrue statement of a
material fact or omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
16. (a) Insurance Company, the Trust and their affiliates shall make no
representations concerning the Series' or a Retail Fund's shares
except those contained in the then current registration statement,
Prospectus, or statement of additional information of the Series or
applicable Retail Fund, in such printed information subsequently
issued on behalf of the Series, the Retail Funds or other funds
managed by CRMC as supplemental to the Series' or a Retail Fund's
Prospectus, in information published on the Series', the Retail
Funds' or CRMC's internet site, or in materials approved by CRMC or
its affiliates.
(b) The Series and each Retail Fund and their affiliates shall make no
representations concerning the Trust's shares or the Contracts except
those contained in the then current registration statement,
Prospectus or statement of additional information of the Trust or
Contract, in such printed information subsequently issued on behalf
of the Trust or Insurance Company as supplemental to the Trust's or
Contract's Prospectus, or in materials approved by the Insurance
Company, the Trust or its affiliates.
17. (a) Shares of the Series may be offered to separate accounts of various
insurance companies ("Participating Insurance Companies") in addition
to Insurance Company and the Trust. The Series and CRMC represent and
warrant that each Series Fund is currently qualified as a Regulated
Investment Company under Subchapter M of the Code, and that they will
maintain such qualification (under Subchapter M or any successor or
similar provision) and that no other Participating Insurance Company
will purchase shares in any Series Fund for any purpose or under any
circumstances that would preclude Insurance Company from "looking
through" to the investments of each Series Fund in which it invests,
pursuant to the "look through" rules found in Treasury Regulation
1.817-5. The Series or CRMC will notify the Company immediately upon
having a reasonable basis for believing that any Series Fund has
ceased to so qualify or that any might not so qualify in the future.
(b) The Series and CRMC represent and warrant that the Series will at all
times comply with the diversification requirements of Section 817(h)
of the Code and any regulations thereunder applicable to variable
contracts as defined in Section 817(d) of the Code and any amendments
or other modifications or successor provisions to such Sections or
regulations (and any revenue rulings, revenue procedures, notices,
and other published announcements of the Internal Revenue Service
interpreting those Sections or regulations), as if those requirements
applied directly to each such Series Fund. The Series will notify the
Company immediately upon having a reasonable basis for believing that
the Series or a Series Fund thereunder has ceased to comply with the
diversification requirements or that the Series or Series Fund might
not comply with the diversification requirements in the future. In
the event of a breach of this representation and warranty the Series
will take all reasonable necessary steps to adequately diversify the
Series so as to achieve compliance within the grace period afforded
by Treasury Regulation 1.817-5.
18. The parties to this Agreement recognize that due to differences in
tax treatment or other considerations, the interests of various
Contract owners participating in one or more of the Funds or
Underlying Funds might, at some time, be in conflict. Each party
shall report to the other party any potential or existing conflict of
which it becomes aware. The board of trustees or directors of the
Series or applicable Retail Fund shall promptly notify Insurance
Company and the Trust of the existence of irreconcilable material
conflict and its implications. If such a conflict exists, Insurance
Company or the Trust will, at its own expense, take whatever action
it deems necessary to remedy such conflict; in any case, Contract
owners will not be required to bear such expenses.
The Series hereby notifies Insurance Company and the Trust that it
may be appropriate to include in the Prospectus pursuant to which a
Contract is offered disclosure regarding the risks of mixed and
shared funding.
19. (a) Insurance Company, the Trust and LIAC, as applicable, shall each
indemnify and hold harmless CRMC, each of the Series Funds, each
Retail Fund, and each of its affiliates, directors, officers,
employees and agents and each person who controls them within the
meaning of the Securities Act of 1933, as amended, from and against
any and all losses, claims, damages, liabilities and expenses,
including reasonable attorneys' fees ("Losses"), they may incur,
insofar as such Losses arise out of or are based upon (i) Insurance
Company's, the Trust's or LIAC's negligence or willful misconduct in
the performance of its duties and obligations under this Agreement,
(ii) Insurance Company's, the Trust's or LIAC's violation of any
Applicable Law in connection with the performance of its duties and
obligations under this Agreement, and (iii) any breach by Insurance
Company, the Trust or LIAC of any provision of this Agreement,
including any representation, warranty or covenant made in the
Agreement. Insurance Company or the Trust, as applicable, shall also
reimburse CRMC, the Series Funds, the Retail Funds and
their respective affiliates for any legal or other expenses
reasonably incurred by any of them in connection with investigating
or defending against such Losses. This indemnity provision is in
addition to any other liability which Insurance Company, the Trust or
LIAC may otherwise have to CRMC, the Series Funds, the Retail Funds
or their respective affiliates.
(b) CRMC, the Series and each Retail Fund, as applicable, shall each
indemnify and hold harmless, Insurance Company and its directors,
officers, employees and agents and each person who controls them
within the meaning of the Securities Act of 1933, as amended (the
"1933 Act"), LIAC and its directors, officers, employees and agents
and each person who controls them within the meaning of the 1933 Act
and the Trust and its directors, officers, employees and agents and
each person who controls them within the meaning of the 1933 Act from
and against any and all Losses they may incur, insofar as such Losses
arise out of or are based upon (i) CRMC, the Series' or the
applicable Retail Fund's negligence or willful misconduct in the
performance of its duties and obligations under this Agreement,
(ii) CRMC, the Series' or the applicable Retail Fund's violation of
Applicable Law in connection with the performance of its duties and
obligations under this Agreement, and (iii) any breach by CRMC, the
Series or a Retail Fund of any provision of this Agreement, including
any representation, warranty or covenant made in the Agreement by
CRMC, the Series or applicable Retail Fund. CRMC, the Series and each
Retail Fund, as applicable, shall also reimburse Insurance Company
for any legal or other expenses reasonably incurred in connection
with investigating or defending against such Losses. This indemnity
provision is in addition to any other liability which CRMC, the
Series or a Retail Fund may otherwise have to Insurance Company.
(c) Promptly after receipt by a party entitled to indemnification under
this paragraph 19 (an "Indemnified Party") of notice of the
commencement of an investigation, action, claim or proceeding, such
Indemnified Party will, if a claim in respect thereof is to be made
against the indemnifying party under this paragraph 19, notify the
indemnifying party of the commencement thereof. The indemnifying
party will be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnified Party. After notice from the
indemnifying party of its intention to assume the defense of an
action and the appointment of satisfactory counsel, Indemnified Party
shall bear the expenses of any additional counsel obtained by it, and
the indemnifying party shall not be liable to such Indemnified Party
under this paragraph for any legal expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation. The indemnifying party shall
not, without the prior written consent of the Indemnified Party,
settle or compromise the liability of the Indemnified Party;
provided, however, that in the event that the Indemnified Party fails
to provide its written consent, the indemnifying party shall
thereafter be liable to provide indemnification only to the extent of
the amount for which the action could otherwise have been settled or
compromised.
20. The Trust shall be responsible for voting shares of the Underlying
Funds in a manner consistent with Section 12(d)(1)(E) of the 1940 Act
and the terms of the Order.
21. Insurance Company, the Trust, LIAC, the Series, the Retail Funds and
CRMC each acknowledge that it understands the terms and conditions of
the Order, a copy of which is attached as Attachment D, and that each
shall each comply with the terms and conditions of the Order and
adopt such procedures as may be necessary to comply with such terms
and conditions.
22. The parties understand that there is no intention to create a joint
venture in the subject matter of this Agreement. Accordingly, the
right to terminate this Agreement and to engage in any activity not
inconsistent with this Agreement is absolute. This Agreement will
terminate:
(a) by mutual agreement at any time; or
(b) any party at any time, with respect to one, some or all of the
Underlying Funds, upon sixty (60) days written notice to the other
parties; or
(c) at the option of Insurance Company, the Trust, CRMC, the Series or
each Retail Fund (with respect to that Retail Fund) upon ten calendar
days' prior written notice to the other party if a final
non-appealable administrative or judicial decision is entered against
the other party which has a material impact on the Contracts; or
(d) at the option of the Trust, upon ten calendar days' prior written
notice, if shares of the Series are not reasonably available or with
respect to a Retail Fund if shares of that Retail Fund are not
reasonably available; or
(e) at the option of the Trust, immediately upon written notice, if the
Series or CRMC fails to meet the requirements for diversification
under Section 817 (or any successor or similar provision) or to
qualify as a RIC under the Code or if the Trust reasonably and in
good faith believes a Series Fund may fail to meet such requirements
or qualify; or
(f) in the event the Series' or a Retail Fund's shares are not
registered, issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such shares as an
underlying investment for the Funds; in such event prompt notice
shall be given by the Trust, the Series or the Retail Fund to each of
the other parties; or
(g) at the Trust's option by written notice to the Series or the
applicable Retail Fund and CRMC if the Trust shall determine in its
sole judgment exercised in good faith, to stop offering a Fund
because either the Series, a Retail Fund or CRMC
has suffered a material adverse change in its business, operations,
financial condition or prospects since the date of this Agreement or
is the subject of material adverse publicity such termination to be
effective sixty (60) days' after receipt by the other parties of
written notice of the election to terminate; or
(h) at Insurance Company's option by written notice to the Series or the
applicable Retail Fund and CRMC if Insurance Company shall determine
in its sole judgment exercised in good faith, that investment in the
Funds is no longer an appropriate investment under the Contracts or
no longer in the best interests of Contract owners, such termination
to be effective sixty (60) days' after receipt by the other parties
of written notice of the election to terminate; or
(i) at the option of the Series, each Retail Fund (with respect to that
Retail Fund) or CRMC by written notice to Insurance Company and the
Trust if the Series, the applicable Retail Fund or CRMC shall
determine in its sole judgment exercised in good faith, that
Insurance Company or the Trust has suffered a material adverse change
in its business, operations, financial condition or prospects since
the date of this Agreement or is the subject of material adverse
publicity, such termination to be effective sixty (60) days' after
receipt by the other parties of written notice of the election to
terminate.
The effective date for termination pursuant to any notice given under
this Paragraph shall be calculated beginning with the date of receipt
of such notice.
23. All notices, consents, waivers, and other communications under this
Agreement must be in writing, and will be deemed to have been duly
received: (a) when delivered by hand (with written confirmation of
receipt); (b) when sent by telecopier (with written confirmation of
receipt), provided that a copy is mailed by registered mail, return
receipt requested; or (c) the day after it is sent by a nationally
recognized overnight delivery service, in each case to the
appropriate addresses and telecopier numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate
by notice to the other parties):
IF TO INSURANCE COMPANY:
The Lincoln National Life Insurance Company
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Second Vice President
IF TO THE TRUST OR LIAC:
Lincoln Variable Insurance Products Trust
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
President
IF TO SERIES:
American Funds Insurance Series
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Executive Vice President
Facsimile No.: 000-000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior Counsel,
Fund Business Management Group
Facsimile No.: 000-000-0000
IF TO A RETAIL FUND OR CRMC:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President,
Fund Business Management Group and Secretary
Facsimile No.: 000-000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior Counsel,
Fund Business Management Group
Facsimile No.: 000-000-0000
IF TO THE TRANSFER AGENT:
American Funds Service Company
000 Xxxxx Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Chairman
Facsimile No.: 000-000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President,
Fund Business Management Group and Secretary
Facsimile No.: 000-000-0000
and
American Funds Service Company
Attn: HOST - Contract Administration Team
0000 Xxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000-0000
Facsimile No.: 000-000-0000
24. If this Agreement terminates, any provision of this Agreement
necessary to the orderly windup of business under it will remain in
effect as to that business, after termination.
25. If this Agreement terminates, the Series and each Retail Fund, at the
Trust's option, will continue to make additional shares of the Series
or the applicable Retail Fund available for all existing Contracts as
of the effective date of termination (under the same terms and
conditions as were in effect prior to termination of this Agreement
with respect to existing Contract owners), unless the Series or the
applicable Retail Fund liquidates or applicable laws prohibit further
sales. The Trust agrees not to redeem shares of the Series and each
Retail Fund unless: (a) the Agreement is terminated; (b) legitimately
doing so to meet Target Allocations; (c) under an order from the
Commission or pursuant to exemptive relief granted by the Commission
or pursuant to a vote of Contract owners; (d) as otherwise agreed to
or permitted among the parties; or (e) Insurance Company or the Trust
provides at least sixty (60) days advance written notice.
26. The obligations of the Series and the Retail Funds under this
Agreement are not binding upon any of the trustees, directors,
officers, employees or shareholders (except CRMC if it is a
shareholder) of the Series and each Retail Fund individually, but
bind only the Series' and the Retail Funds' assets. When seeking
satisfaction for any liability of the Series or a Retail Fund in
respect of this Agreement, the Trust, LIAC, Insurance Company and the
Account agree not to seek recourse against said trustees, directors,
officers, employees or shareholders, or any of them, or any of their
personal assets for such satisfaction. Notwithstanding the foregoing,
if Insurance Company or the Trust seek satisfaction for any liability
of the Series or a Retail Fund in respect of this Agreement,
Insurance Company (on behalf of itself or any Account) and/or the
Trust may seek recourse against CRMC. All obligations of the Trust
hereunder shall be binding only upon the assets of Trust and shall
not be binding on any other series of the Trust or on the trustees,
officers or shareholders of the Trust or of any
other series of the Trust.
27. This Agreement shall be construed in accordance with the laws of the
State of New York without reference to its conflicts of law
provisions.
28. This Agreement and the parties' rights, duties and obligations under
this Agreement are not transferable or assignable by any of them
without the express, prior written consent of the other parties
hereto. Any attempt by a party to transfer or assign this Agreement
or any of its rights, duties or obligations under this Agreement
without such consent is void; provided, however, that a merger of,
reinsurance arrangement by, or change of control of a party shall not
be deemed to be an assignment for purposes of this Agreement.
29. CRMC, the Series and the Retail Funds agree that the names,
addresses, and other information relating to the Contractholders or
prospects for the sale of the Contracts developed by Insurance
Company are the exclusive property of the Insurance Company and may
not be used by CRMC, the Series, the Retail Funds or their affiliates
or agents without the written consent of the Insurance Company except
for carrying out the terms of this Agreement or as otherwise provided
for in this Agreement and any amendments thereto. Each party to this
Agreement agrees to maintain the confidentiality of all information
(including personal financial information of the customers of either
party) received from the other party pursuant to this Agreement. Each
party agrees not to use any such information for any purpose, or
disclose any such information to any person, except as permitted or
required by applicable laws, rules and regulations, including the
Xxxxx-Xxxxx-Xxxxxx Act and any regulations promulgated thereunder.
30. Each party hereto shall cooperate with the other parties and all
appropriate governmental authorities and shall permit authorities
reasonable access to its books and records upon proper notice in
connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby. Each party shall
maintain and preserve all records in its possession as required by
law to be maintained and preserved in connection with the provision
of the services contemplated hereunder. Upon the request of a party,
the other party shall provide copies of all records as may be
necessary to (a) monitor and review the performance of either party's
activities, (b) assist either party in resolving disputes,
reconciling records or responding to auditor's inquiries, (c) comply
with any request of a governmental body or self-regulatory
organization, (d) verify compliance by a party with the terms of this
Agreement, (e) make required regulatory reports, or (f) perform
general customer service. The parties agree to cooperate in good
faith in providing records to one another under this provision.
31. The following Sections shall survive any termination of this
Agreement: 4-7, 19, 24-32.
32. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary corporate or board
action, as applicable, by such party and when so executed and
delivered this Agreement will be the valid and binding obligation of
such party enforceable in accordance with its terms, and will not
result in its violating any applicable law or breaching or otherwise
impairing any of its contractual obligations.
33. 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.
34. This Agreement and any amendment to it may be executed in one or more
counterparts. All of those counterparts shall constitute one and the
same agreement.
35. In the event of a dispute between the parties with respect to this
Agreement, and in the event the parties are unable to resolve the
dispute between them, such dispute shall be settled by arbitration;
one arbitrator to be named by each party to the disagreement and a
third arbitrator to be selected by the two arbitrators named by the
parties. The decision of a majority of the arbitrators shall be final
and binding on all parties to the arbitration. The expenses of such
arbitration shall be paid by the non-prevailing party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and attested as of the date first above written.
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY (ON BEHALF OF ITSELF
AND EACH ACCOUNT)
Attest:
/s/ Xxxxxxx X. Xxxxx
By: -----------------------------------
------------------------ Its: Second Vice President
LINCOLN VARIABLE INSURANCE
PRODUCTS TRUST
Attest:
/s/ Xxxxx X. Xxxxxxx
By: -----------------------------------
------------------------ Its: Second Vice President
LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK (ON BEHALF OF ITSELF AND EACH
ACCOUNT)
Attest:
/s/ Xxxxxxx X. Xxxxx
By: -----------------------------------
------------------------ Its: Second Vice President
LINCOLN INVESTMENT ADVISORS
CORPORATION
Attest:
/s/ Xxxxxx X. Xxxxx
By: -----------------------------------
------------------------ Its: President
CAPITAL RESEARCH AND MANAGEMENT
COMPANY
Attest:
By: Xxxxxxx Xxxxxx
/s/ illegible signature Its: Senior Vice President and Secretary
AMERICAN FUNDS INSURANCE SERIES
Attest:
By: /s/ illegible signature
/s/ illegible signature Its: Secretary
CAPITAL INCOME BUILDER
Attest:
By: /s/ illegible signature
/s/ illegible signature Its: Secretary
INTERMEDIATE BOND FUND OF AMERICA
Attest:
/s/ Xxxxxxxx X. Xxxxxxx
By: ------------------------
/s/ illegible signature Its: Secretary
SHORT-TERM BOND FUND OF AMERICA,
INC.
Attest:
/s/ Xxxxxxxx X. Xxxxxxx
By: ------------------------
/s/ illegible signature Its: Secretary
AMERICAN FUNDS SERVICE COMPANY
Attest:
/s/ Xxxxxx X. Xxxxxxxx
By: ------------------------
/s/ illegible signature Its: Secretary
Attachment A
Trust Funds
Trust Funds:
[_] LVIP American Balanced Allocation Fund
[_] LVIP American Growth Allocation Fund
[_] LVIP American Income Allocation Fund
27
Attachment B
Retail Funds
Retail Funds:
[_] Capital Income Builder
[_] Intermediate Bond Fund of America
[_] Short-Term Bond Fund of America
28
ATTACHMENT C
List of Accounts:
Accounts:
[_] Lincoln National Variable Annuity Account E
[_] Lincoln National Variable Annuity Account H
[_] Lincoln Life & Annuity Variable Annuity Account H
29
ATTACHMENT D
The Order
30
