Exhibit 23(m)(3)
Form of
DISTRIBUTION SERVICES AGREEMENT
This Distribution Services Agreement ("Agreement") is made as of ______by
and between Lincoln Financial Distributors, Inc. (the "Distributor"), and The
Lincoln National Life Insurance Company (the "Company").
Recitals
WHEREAS, the Distributor has been appointed and currently serves as the
principal underwriter of Lincoln Variable Insurance Products Trust (the
"Trust"), a Delaware statutory trust, and each of its series listed in Schedule
A (the "Funds"), pursuant to an underwriting agreement by and between
Distributor and the Trust;
WHEREAS, each Fund currently offers Standard Class shares and Service Class
shares and has adopted a Service Class Distribution and Service Plan (the
"12b-1 Plan") applicable to its Service Class shares; and
WHEREAS, the Company's broker-dealer serves as the principal underwriter of
certain variable annuity and/or variable life insurance contracts issued by the
Company (the "Contracts"), and the Company on behalf of the broker-dealer
desires to provide certain services in connection with the Contracts that offer
Service Class shares of the Funds as underlying investment options of the
Contracts.
Agreement
1. Services
a. The Company shall, on behalf of its broker-dealer and as agreed upon
by the parties from time to time, provide certain services or incur certain
expenses relating to the Service Class shares of the Funds for activities
primarily intended to sell Contracts offering Service Class shares. These
services or expenses are the printing and mailing of Fund prospectuses and
reports used for sales purposes and the payment of service fees on behalf of
its broker-dealer as defined under NASD rules.
b. The Company may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder; provided,
however, that the Company shall not be relieved of any of its obligations
under this Agreement by the appointment of such subcontractor and provided
further, that the Company shall be responsible, to the extent provided in
Section 5 hereof, for all acts of such subcontractor as if such acts were
its own.
c. The Company will furnish to the Trust or its designee such information
as the Trust or its designee may reasonably request, and will otherwise
cooperate with the Trust in preparation of reports to the Trust's Board of
Trustees concerning this Agreement, as well as any other reports or filings
that may be required by law.
2. Fees
In consideration of the services provided by Company with respect to each
Fund's Service Class shares pursuant to the 12b-1 Plan, the Distributor agrees,
to the extent legally permissible, to: (1) pay the Company's broker-dealer
quarterly in arrears a fee (the "Fee") which shall accrue daily in an amount
equal to the product of (A) the daily equivalent of 0.25% per annum multiplied
by (B) the net asset value of the Service Class shares outstanding on such day.
Such Fee shall be paid quarterly (on a calendar year basis) in arrears within
thirty (30) days of the end of the quarter; provided, however, that Company
shall waive payment of the Fee until the Distributor is in receipt of the Fee.
Documentation to support the calculation of this Fee will be provided to the
Company along with the payment. The rate of the Fee with respect to any Fund
may be prospectively increased or decreased by the Trust, in its sole
discretion, at any time upon notice to the Company.
3. Nature of Services
The Distributor and the Company agree that the Distributor's payments
pursuant to this Agreement are only for the services listed in Section 1(a)
herein and do not constitute payment in any manner for investment advisory
services or for administrative services. The Distributor and the Company agree
that this Agreement does not preclude the Trust or Distributor from contracting
separately with the Company to provide other services to the Trust or
Distributor.
4. Representations and Warranties
a. The Company and its broker-dealer agrees to comply with requirements
of all applicable laws, including federal and state securities laws, the
rules and regulations of the SEC in connection with its performance under
this Agreement.
b. The Company's broker-dealer agrees not to act as dealer for its own
account; as directed by the Company, the broker-dealer shall act solely for,
upon the specific or pre-authorized instructions of, and for the account of,
Contract owners. Neither the Company nor its broker-dealer shall make any
representations concerning the Trust or a Fund's shares except those
representations contained in the Fund's then-current prospectus and
statement of additional information and in such printed information as the
Trust may subsequently prepare, unless otherwise agreed to by the parties to
this Agreement or pursuant to the Participation Agreement.
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5. Exculpation and Indemnification
a. The Company agrees that under no circumstances shall the Trust or the
Distributor be liable to the Company, the Broker-Dealer or any other person
under this Agreement as a result of any action by the SEC affecting the
operation or continuation of the 12b-1 Plan.
b. The Distributor shall not be liable to the Company, and the Company
shall not be liable to the Distributor, for acts or failures committed
pursuant to its performance of the Agreement except for acts or failures
which constitute willful malfeasance, bad faith or gross negligence and for
obligations expressly assumed by either party hereunder. Nothing contained
in this Agreement is intended to operate as a waiver by the Distributor or
by the Company of compliance with any applicable law, rule, or regulation.
c. The Distributor will indemnify the Company and hold it harmless from
any claims or assertions relating to the lawfulness of the Distributor's
participation in this Agreement and the transactions contemplated hereby or
relating to any activities of any persons or entities affiliated with the
Distributor performed in connection with the discharge of its
responsibilities under this Agreement. If any such claims are asserted, the
Company shall have the right to manage its own defense, including the
selection and engagement of legal counsel of its choosing, and all costs of
such defense shall be borne by the Distributor.
d. The Company will indemnify the Trust and Distributor and hold each
harmless from any claims or assertions relating to the lawfulness of the
Company's participation in this Agreement and the transactions contemplated
hereby or relating to any activities of any persons or entities affiliated
with the Company performed in connection with the discharge of its
responsibilities under this Agreement. If any such claims are asserted, the
Trust and the Distributor shall each have the right to manage its own
defense, including the selection and engagement of legal counsel of its
choosing, and all costs of such defense shall be borne by the Company.
6. Termination
a. Unless sooner terminated with respect to any Fund, this Agreement will
continue with respect to a Fund only if the continuance of a form of this
Agreement is specifically approved at least annually by the vote of a
majority of the members of the Trust's Board of Trustees who are not
"interested persons" (as such term is defined in the Investment Company Act
of 1940 (the "1940 Act")) who have no direct or indirect financial interest
in the 12b-1 Plan relating to such Fund or any agreement relating to such
12b-1 Plan, including this Agreement, (the "Independent Trustees") cast in
person at a meeting called for the purpose of voting on such approval. This
Agreement may be terminated with respect to any Fund at any time without
penalty by the vote of a majority of the Independent Trustees, or by a vote
of a majority of the Service Class shares of such Fund on 60 days' written
notice.
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b. This Agreement will automatically terminate with respect to a Fund in
the event of its assignment (as such term is defined in the 0000 Xxx) with
respect to such Fund. This Agreement may be terminated with respect to any
Fund by the Trust, the Distributor or the Company, without penalty, upon 60
days' prior written notice to the other party.
7. Miscellaneous
a. This Agreement may only be amended by an instrument in writing signed
by the parties to the Agreement; provided the Trust may amend the amounts of
the Fee in accordance with Section 2 of this Agreement. All notices and
other communications to either party will be duly given if in writing to the
other party.
b. The Distributor may enter into other similar agreements for the
provision of the services contemplated hereunder with any other person or
persons without the Company's consent.
c. The invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability of any other term or
provision hereof. This Agreement shall be governed by and construed in
accordance with the laws (other than the conflict of laws rules) of the
State of Connecticut and shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below.
LINCOLN FINANCIAL DISTRIBUTORS, INC. THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: By:
------------------------------- ------------------------------
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
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Schedule A
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