AGREEMENT TO PURCHASE SHARES
The Lincoln National Life Insurance Company ("LNL"), on its behalf and on
behalf of Lincoln National Variable Annuity Account C (the "Variable Account"),
and Lincoln National Capital Appreciation Fund, Inc. (the "Fund") hereby agree
that shares of the Fund shall be made available to serve as an underlying
investment medium for variable annuity contracts to be offered by LNL through
the Variable Account subject to the following provisions:
1. LNL represents and warrants that it is an insurance company duly
organized and existing in good standing under Indiana law and that it has
legally and validly established the Variable Account as permitted under Indiana
law and has registered the Variable Account as permitted under Indiana law and
has registered the Variable Account as a unit investment trust in accordance
with the provisions of the Investment Company Act of 1940, as amended (the
"1940 Act"), to serve as a segregated investment account for certain variable
annuity contracts (the "Contracts"). LNL further represents and warrants that
the Contracts will be registered under the Securities Act of 1933, as amended
(the "1933 Act"), and the Contracts will be issued and sold in compliance with
all applicable federal and state laws. The Contracts will provide for the
allocation of net amounts received by LNL thereunder to separate divisions of
the Variable Account designated as "sub-accounts" for investment in the shares
of registered investment companies selected by LNL ("underlying funds"). The
Fund will be an underlying fund for one of the sub-accounts.
2. Fund shares may be purchased and redeemed by LNL in accordance
with the provisions of the then current prospectus of the Fund. The Fund
anticipates that it will make its shares available indefinitely for purchase by
LNL hereunder, but the Fund reserves the right to suspend or terminate sales of
its shares hereunder at any time or times when its Board of Directors makes a
good faith determination that further sales would be to the detriment of current
holders of Fund shares. Payment for Fund shares shall be made by LNL within
five days after placement of the order for Fund shares. The Fund reserves the
right to delay issuance or transfer of Fund shares and/or to delay the accrual
and/or declaration of dividends in accordance with any policy set forth in its
then current prospectus with respect to such shares until any payment check has
cleared. If payment is not received by the Fund or an agent of the Fund within
the five day period, the Fund may, without notice, cancel the order and require
LNL to promptly reimburse the Fund for any loss suffered by the Fund resulting
from such failure to make timely payment. The Fund represents and warrants that
Fund shares sold hereunder shall be registered under the 1933 Act and duly
authorized for issuance in accordance with Maryland law.
3. LNL and its agents shall make no representation concerning the Fund or
Fund shares except those contained in the then current prospectus of the Fund or
in current printed sales literature of the Fund, or as otherwise approved by the
Fund in writing.
4. Administrative services to owners of and participants under Contracts
shall be the responsibility of LNL and shall not be the responsibility of the
Fund. The Fund will furnish LNL copies of its proxy material, reports to
stockholders and other communications to stockholders in such quantities as LNL
shall reasonably require for distribution to owners of or participants under the
Contracts and LNL will distribute these materials to such owners or participants
as required. LNL will vote
Fund shares, to the extent required by law, in accordance with instructions
received from Contract owners. LNL will vote Fund shares for which no
instructions have been received in the same proportion as Fund shares for which
instructions have been received from Contract owners. LNL and persons under its
control will in no way recommend action in connection with the solicitation of
proxies for Fund shares held in the Variable Account.
5. The Fund shall 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 shall provide LNL with as many copies
of its current prospectus as LNL may reasonably request.
6. This Agreement may be terminated as to the issuance of Fund shares as
follows:
(a) at the option of LNL or the Fund upon 90 days' written notice to
the other party;
(b) at the option of LNL if Fund shares are not available for any
reason to meet the requirements of the Contracts as determined by
LNL; or
(c) at the option of the Fund upon institution of any proceedings
against LNL relating to the Variable Account or the issuance and
sale of the Contracts, by the National Association of Securities
Dealers, Inc., the Securities and Exchange Commission, the
Indiana Insurance Commissioner or any other regulatory body.
7. (a) LNL agrees to Fund and each of its directors of the Fund, as
defined in the "Indemnified Parties") against liabilities (including amounts the
written consent of LNL) or indemnify and hold harmless the who is not an
"interested person" 1940 Act (collectively, the any losses, claims, damages,
paid in settlement
thereof with expenses or actions with respect thereto to which such Indemnified
Parties may become subject, under the federal securities laws or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
Registration Statement or prospectus of the Variable Account or
contained in the Contracts or sales literature (or any amendment
or supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to an Indemnified Party
if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with written
information furnished to LNL by such Indemnified Party expressly
for use in the Registration Statement or prospectus for the
Variable Account or the Contracts or sales literature (or any
amendment or supplement);
(ii) arise out of or as a result of conduct, statements, or
representations (other than statements or representations
contained in the prospectus of the Fund and sales literature not
supplied by LNL) of LNL or persons under its control, with
respect to the sale and distribution of the Contracts, or
(iii) arise as a result of any failure by LNL to provide the services
and furnish the materials set forth in paragraph four hereof.
LNL will reimburse any legal or other expenses reasonably incurred by the
Indemnified Parties in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement is in addition to
any liability which LNL may otherwise have.
(b) Promptly after receipt by any of the Indemnified Parties of
notice of the commencement of any action, or the making of any claim for which
indemnity may apply under this paragraph, the Indemnified Parties will, if a
claim in respect thereof is to be made against LNL, notify LNL of the
commencement thereof; but the
omission so to notify LNL will not relieve LNL from any liability which it may
have to the Indemnified Parties otherwise than under this Agreement. In case
any such action is brought against the Indemnified Parties, and LNL is notified
of the commencement thereof, LNL will be entitled to participate therein and to
assume the defense thereof, with counsel satisfactory to the party named in the
action, and after notice from LNL to such party of LNL's election to assume the
defense thereof, LNL will not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
8. (a) The parties shall in good faith attempt to resolve any dispute
arising out of or relating to this agreement promptly by negotiations between
executives who have authority to settle the controversy. Either party may give
the other party written notice of any dispute not resolved in the normal course
of business. Within 20 days after delivery of that notice, executives of both
parties shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, to exchange relevant information and to
attempt to resolve the dispute. If the matter has not been resolved within 60
days of the disputing party's notice, or if the parties fail to meet within 20
days, either party may initiate mediation of the controversy or claim as
provided in sub-paragraph (b) above. If a negotiator intends to be accompanied
at a meeting by an attorney, the other negotiator shall be given at least three
working days' notice of that intention and may also be accompanied by an
attorney.
(b) If the dispute has not been resolved by negotiation as provided
herein, the parties shall endeavor to settle the dispute by mediation under the
then current Center for Public Resources ("CPR") Model Procedure for Mediation
of Business Disputes. The neutral third party will be selected from the CPR
Panels of
Neutrals. If the parties encounter difficulty in agreeing on a neutral, they
will seek the assistance of CPR in the selection process. All negotiations
pursuant to subparagraphs (a) and (b) of this paragraph 8 are confidential and
shall be treated as compromise and settlement negotiations for purposes of the
Federal Rules of Evidence and state rules of evidence.
(c) Any dispute arising out of or relating to this contract or the
breach, termination or validity thereof, which has not been resolved by
non-binding procedures as provided in sub-paragraphs (a) or (b) herein within 60
days of the initiation of those procedures shall be finally settled by
arbitration conducted expeditiously in accordance with the CPR Rules for
Non-Administered Arbitration of Business Disputes by a sole arbitrator;
provided, however, that if one party has requested the other party to
participate in a non-binding procedure and the other has failed to participate,
the requesting party may initiate arbitration before expiration of the 60-day
period set out just above. If within 45 days of the commencement of the process
to select an arbitrator the parties cannot agree upon the arbitrator, then he or
she will be selected from the CPR Panels of Neutrals. The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. Sec. 1-16, and judgment
upon the award rendered by the Arbitrator may be entered by any court having
jurisdiction thereof. The place of arbitration shall be Fort Xxxxx, Indiana.
The Arbitrator is not empowered to award damages in excess of compensatory
damages.
Executed and agreed to this 13th day of September, 1993.
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By ____________________________
Xxxxxx X. Xxxxx, President
LINCOLN NATIONAL CAPITAL
APPRECIATION FUND, INC.
By ____________________________
Xxxxxx X. Xxxxxx, President
ADDENDUM
(effective November 1, 1994)
to the
AGREEMENT to PURCHASE SHARES
(effective September 23, 1993)
between
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY and
LINCOLN NATIONAL CAPITAL APPRECIATION FUND, INC.
The Agreement is hereby supplemented to include a new paragraph 9, which reads
as follows:
"9. a) LNL shall own and control all the pertinent records pertaining to
the operation of Variable Account C under this Agreement; and b) LNL, during
normal business hours, shall have the right to inspect, audit and copy all
records pertaining to performance by the Fund of services for LNL under this
Agreement."
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: Xxxxxx X. Xxxxxx
LINCOLN NATIONAL CAPITAL APPRECIATION FUND, INC.
By: Xxxxx X. Xxxxxxxxx
