EXHIBIT 28(H)(9)
FORM OF
SHAREHOLDER SERVICING AGREEMENT
This Shareholder Servicing Agreement (the "Agreement") is made as of
_________ between Lincoln Advisors Trust, a Delaware statutory trust (the
"Trust") and ___________________ (the "Intermediary"), a _________________
company.
RECITALS
WHEREAS, the Trust is an open-end investment company registered under the
Investment Company Act of 1940 (the "1940 Act") consisting of separate series
(each, a "Fund");
WHEREAS, trust accounts, qualified employee benefit or retirement plans and
nonqualified employee benefit plans (each, a "Plan") sponsored by employers
through which an investment adviser, trustee, sponsor, or administrator of a
Plan (each, a "Plan Representative") may invest on behalf of participants in the
Plans (the "Plan Participants") or offer to Plan Participants the opportunity to
invest;
WHEREAS, one or more banks or trust companies (each, a "Custodian")
maintain custody accounts ("Custody Accounts") that hold shares of various
open-end management investment companies for such Plans and Plan Participants
(or beneficiaries of Plan Participants) and the Plans or Plan Participants, as
applicable, have entered into custodial account agreements with such Custodian;
WHEREAS, the Intermediary has contractually agreed to provide recordkeeping
and other administrative services to such Plans, which requires (among other
things) plan participant recordkeeping services, maintaining shareholder
accounts and other client and communication services;
WHEREAS, such Plans and Plan Participants (also referred to as
"Shareholders") may invest in shares of the Funds ("Shares") and may require
distribution-related, shareholder, administrative, recordkeeping and other
services with respect to the Shares that may be in addition to services required
by other shareholders of the Funds, and the provision of such services to Plan
Participants and Plan Representatives requiring these services may benefit them
and facilitate their ability to invest in Shares;
WHEREAS, the Trust desires to provide, or arrange for the provision of,
certain administrative, recordkeeping and other services (collectively, the
"Services") with respect to Shares;
WHEREAS, the parties agree that the Intermediary, directly or through other
designees or agents, will be responsible for all services to be performed under
this Agreement in exchange for the compensation due under this Agreement;
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WHEREAS, the Intermediary desires to have the Plans and/or the Plan
Participants and Plan Representatives acquire Shares at the net asset value
thereof without any sales charge; and
WHEREAS, the Intermediary is willing to provide, directly or through its
designees, such Services in accordance with the terms and conditions of this
Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and covenants set forth
herein, the Trust and the Intermediary agree as follows:
WITNESSETH
ARTICLE 1 TERMS OF APPOINTMENT
The Trust uses the services of a distributor, a transfer agent (see
Schedule D), a custodian, and other service providers. The Trust hereby
authorizes and appoints the Intermediary to act as limited agent to accept
orders for the purchase and redemption of Shares, and to tender for exchange or
redemption, Shares, subject to such procedures and practices as agreed upon by
the Trust and the Intermediary as set forth in this Agreement. The Intermediary
hereby accepts such appointment. The Trust further acknowledges and agrees that
the Intermediary may designate and authorize such designees or agents as it
deems necessary, appropriate or desirable, to accept as a limited agent of the
Fund, orders from or on behalf of Shareholders for the purchase and redemption
of Shares. The Funds will be deemed to have received a purchase or redemption
order for Shares when the Intermediary or its designees or agents accept the
order in accordance with this Agreement.
ARTICLE 2 OFFERING OF SHARES
The Intermediary's performance of Services, including without limitation,
the acceptance of Orders for the purchase and redemption of Shares for the
Account (defined below), will be subject to the terms and conditions set forth
in the Funds' then current prospectuses and statements of additional
information. The Trust agrees to take all steps necessary, which may include
coordination of efforts with the Trust and the Funds to facilitate offering of
Shares to the Plans and agrees to take all steps necessary so that orders for
the purchase and redemption of such Shares will be effected as specified in
Article 5 of this Agreement.
ARTICLE 3 SERVICES TO BE PERFORMED
Section 3.1 The Intermediary agrees to provide, or cause its designees
or agents to provide the Services specified in this Article 3 for Plans and as
applicable Plan Participants with respect to Shares held in the Account.
Recordkeeping and other administrative services provided to Plan Participants
will be the responsibility of the Intermediary and will not be the
responsibility of the Trust. The Intermediary will cause to be established and
maintained, on behalf of the Plans an omnibus account (the "Account") with each
Fund. The Account will consist of one or more Sub-accounts maintained by
Custodian for the benefit of the Plans and Plan Participants. The Trust hereby
authorizes the Intermediary to provide Services with respect to Shares held
through the Accounts. The Trust and the Intermediary agree that with respect to
the Services provided to Plans and Plan Participants pursuant to this Agreement,
the Intermediary may delegate certain recordkeeping and administrative services
to agents,
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designees and affiliates. The Intermediary will not be performing any of the
transfer agency functions set forth in Section 3(a)(25) of Securities Exchange
Act of 1934.
Section 3.2 Services provided by the Intermediary or its agents or
designees will include one or more of the following: (a) providing recordkeeping
and other administrative services to Plans and Plan Participants; (b)
maintaining records of the contributions to the Plans to purchase Shares; (c)
providing periodic statements to the Plans and to Plan Participants with respect
to Shares held for the benefit of each Plan Participant; (d) processing
distributions from the Plans, including facilitating any necessary redemptions
of Fund Shares for Plan Participants; (e) answering inquiries regarding the
Funds (which may, but need not, include the rendering of investment advice); (f)
transmitting on behalf of the Funds proxy statements, annual reports,
prospectuses and other communications from the Funds to the Shareholders of the
Funds; and (g) upon request, providing agreed upon information in a report that
will assist the Trust in satisfying its Blue Sky compliance obligations.
Section 3.3 Notwithstanding anything to the contrary to this
Agreement, the Intermediary's obligations with respect to frequent trading and
provision of certain Shareholder information will be governed solely by the
provisions of Schedule A and Schedule B.
Section 3.4 The parties intend that this Agreement and all
arrangements contemplated by it be such that a purchase or redemption of Fund
Shares and the Intermediary's compensation is not a prohibited transaction (or
is an exempt prohibited transaction) under ERISA (S) 406 (29 U.S.C. (S) 1106) or
Internal Revenue Code (26 U.S.C.) (S) 4975. Each party in good faith will
cooperate with the other party's reasonable request for a writing needed to make
a transaction not a prohibited transaction (or an exempt prohibited
transaction). Concerning each Plan that is governed by ERISA or that files, or
is required to file, an annual report or return under ERISA (S) 103 or IRC (S)
6058, the Intermediary will furnish information that a Plan's administrator
reasonably requests for it to meet such a reporting duty, including, without
limitation, any information required or permitted to be reported on Schedule C
of Form 5500.
ARTICLE 4 PRICING INFORMATION; DIVIDENDS; CAPITAL GAINS
Section 4.1 The Trust will furnish the Intermediary or its designee,
on each business day that the Funds are open for business, as specified in the
respective prospectuses that describe the Funds ("Business Day"), with (i) net
asset value information as determined at or about the close of trading
(currently 4:00 p.m. Eastern Time) on the New York Stock Exchange or at such
other time at which a Fund's net asset value is calculated as specified in such
Fund's prospectus ("Close of Trading") and (ii) income, dividend, and capital
gains information as it becomes available. The Trust will provide net asset
value, income accrual, dividend and capital gains information to the
Intermediary or its designee by 6:00 p.m. Eastern Time on each Business Day.
Unless otherwise instructed by the Intermediary based upon instructions provided
by authorized persons for the Plans, dividends and capital gains distributions
from any Fund will be automatically reinvested in additional Shares.
Section 4.2 If a Fund determines that corrective action is necessary
with respect to Shareholder records as a result of any error in the computation
of the net asset value of its Shares ("Price Error"), the Fund will promptly
notify the Intermediary of the Price Error. The
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Trust may provide notice of a Price Error via facsimile or via direct or
indirect systems access and will state the incorrect price, the correct price
and, to the extent communicated to the Fund's other shareholders, the reason for
the price change. The Trust will also communicate to the Intermediary the amount
and nature of any changes to the Trust's records with respect to the Account
made in order to correct a Price Error. The Trust will be responsible for making
the Account whole in the event of a Price Error in the calculation of any of the
information provided by the Trust resulting in a lesser amount than what would
have been had such Price Error not been committed. In the event a Price Error
causes the Intermediary to incur costs for re-processing Plan Participant
records, such as preparing and mailing revised statements, at the Trust's
request, the Trust will reimburse the Intermediary for all such reasonable
costs.
ARTICLE 5 ORDERS, TRADE REPORTING AND SETTLEMENT
Section 5.1 The parties agree that orders to purchase and redeem
Shares by the Plans will be effected on each Business Day as provided in this
Article. The Intermediary will transmit to the Trust's transfer agent orders to
purchase or redeem Fund Shares for the Account. Purchases and redemptions for
the Plans and Plan Participants will be made at the net asset value determined
as of the Close of Trading on the Business Day that an order to purchase or
redeem Shares is received by the Intermediary, provided that (a) the
Intermediary receives orders in proper form from Plan Representatives, Plan
Participants and other authorized persons under the Plans at a time prior to the
Close of Trading on that Business Day; (b) orders transmitted are received by
7:00 a.m. Eastern Time on the next following Business Day; and (c) the Trust
may, to the extent it deems necessary, delay redemption of Shares to the extent
permitted under the 1940 Act. Orders from Plan Representatives, Plan
Participants and other authorized persons under the Plans received by the
Intermediary after the Close of Trading on a Business Day will be treated as if
received on the next following Business Day.
If the NSCC FUND/SERV system, the NSCC Defined Contribution and Settlement
Service (NSCC-DCC&S), or other automated means agreed upon among the parties
(e.g., computer, etc.) for the placement of orders is unavailable or there is a
malfunction in the Intermediary's systems, the Intermediary will provide via
facsimile (or by other agreed electronic means) by 9:30 a.m. Eastern Time a
report detailing the trading instructions received with respect to the Account
from Plans and Plan Participants on the prior Business Day for each of the
Funds. Contact information for the Trust's transfer agent is stated by Schedule
D. The Trust will update the Intermediary of any changes in such contact
information as soon as reasonably practicable. The parties agree that the terms
of this Agreement with respect to the submission of Account orders on behalf of
Plans and Plan Participants will control over any contrary provisions in any
networking agreement between the Trust and the Plans' Custodian with respect to
orders accepted by the Intermediary or its designee for the Fund.
Section 5.2 The parties agree that payment for net purchases of Shares
attributable to all orders placed with the Fund's transfer agent for the Plans
as of the Close of Trading on a given Business Day will be wired by Custodian to
the Fund's custodial account designated by the Trust no later than 4:00 p.m.
Eastern Time on the next Business Day. The Trust agrees that it will take all
steps necessary so that payment for net redemptions of Shares attributable to
all orders for the Plans transmitted by the Intermediary or its designee as of
the Close of Trading on a given Business Day ordinarily will be wired separately
to a Custody
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Account designated by the Intermediary or its designee no later than 4:00 p.m.
Eastern Time on the next Business Day; provided, however, that the Funds may, if
deemed appropriate, delay redemptions of Shares or postpone payment upon
redemption, to the extent permitted by the 1940 Act.
ARTICLE 6 FEES AND EXPENSES
Section 6.1 Except as provided to the contrary in this Agreement, each
party will bear all expenses necessary and incidental to the performance of its
respective obligations under this Agreement.
Section 6.2 For performance of Services by the Intermediary pursuant
to this Agreement, the Trust will make payments, or cause payments to be made,
as compensation to the Intermediary or its designated payment agent, if any, as
set forth in the fee schedule attached as Schedule C. The fees are for
administrative services only, and do not constitute payment in any manner for
investment advisory services or for costs of distribution of the Shares; and are
not otherwise related to investment advisory or distribution services or
expenses. In the event this Agreement is terminated, the Trust will continue to
pay fees to the Intermediary or its designated payment agent, if any, with
respect to Shares that are held by or on behalf of Shareholders on the date of
termination for so long as such Shares are held by or on behalf of Shareholders
and the Intermediary or its designees or agents continue to provide Services to
Shareholders. The Trust agrees to pay all fees owed within thirty (30) business
days following the end of each calendar quarter.
ARTICLE 7 SHAREHOLDER COMMUNICATIONS; SALES MATERIALS
Section 7.1 The Trust will provide the Intermediary with the number of
prospectuses, proxy solicitation materials, periodic shareholder reports, and
such other supplemental sales materials and reports with respect to the Funds as
the Intermediary may reasonably request ("Disclosure Materials") in order for
the Intermediary to forward them to Shareholders. The Trust will be responsible
for the cost to produce and deliver the Disclosure Materials that the
Intermediary is required to forward to Shareholders under this Agreement. The
Trust will promptly notify the Intermediary regarding planned shareholder
meetings and proxy votes.
Section 7.2 No person is authorized to make any representation
concerning Shares except those contained in the then current prospectuses and
other information provided by the Fund, or as otherwise agreed to by the Fund.
The Intermediary agrees not to use other advertising or sales material relating
to the Fund unless approved by the Fund in advance of such use; provided,
however, that (a) the Intermediary is authorized to identify the Trust and each
Fund in a listing of mutual funds that the Intermediary may make available to
eligible investors; (b) the Intermediary is authorized to use information
obtained from publicly available databases maintained by reputable sources such
as Morningstar, Inc. and Ibbotson, provided such data is properly attributed to
its source by the Intermediary; and (c) as otherwise may be reasonably necessary
for the Intermediary to perform the Services and its duties and obligations
under this Agreement.
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ARTICLE 8 MAINTENANCE OF RECORDS
Each party will maintain and preserve all records as required by law to be
maintained and preserved in connection with the provision of services
contemplated hereunder. Upon the reasonable written request of an authorized
representative of a party hereto, and to the extent permitted by applicable
confidentiality and privacy laws and contractual limitations and requirements,
the relevant party will provide copies of all records as may be necessary to (a)
monitor and review the performance of such party's activities pursuant to this
Agreement; (b) comply with any request of a governmental body or self-regulatory
organization; (d) verify compliance by any party with the terms of this
Agreement; and (e) make required regulatory reports. The requesting party will
reimburse the party providing copies of the relevant records for the reasonable
cost of any copies made pursuant to this Article.
ARTICLE 9 PRIVACY; CONFIDENTIALITY
The parties will keep confidential any information regarding the Funds, the
Plans and Plan Participants received in connection with providing services and
meeting their respective obligations hereunder, except: (a) as necessary to
provide the Services or otherwise meet their respective obligations under this
Agreement; (b) as necessary to comply with applicable law; and (c) information
regarding the Funds which is otherwise publicly available. The parties will
maintain internal safekeeping procedures to safeguard and protect the
confidentiality of the data transmitted to another party or its designees or
agents. In accordance with Section 248.11 of Regulation S-P ("Reg S-P"), and any
other applicable federal or state privacy laws and regulations, including
without limitation, applicable security breach notification, no party will
directly, or indirectly through an affiliate, disclose any non-public personal
information ("Non-public Personal Information"), as defined in Reg S-P, received
from another party to any person that is not an affiliate, designee or agent of
the receiving party and provided that any such information disclosed to an
affiliate designee or agent will be under the same limitations on non-disclosure
and will comply with all legal requirements. The Trust will not use information,
including Non-public Personal Information, directly or indirectly provided to
them by the Intermediary or its designees or agents pursuant to this Agreement
for the purpose of marketing to the Plans or Plan Participants, or any other
similar purpose. Except for confidential information consisting of Non-Public
Personal Information, which will be governed in all respects in accordance with
the immediately preceding sentence, confidential information does not include
information which (i) was publicly known or was in the possession of the party
receiving confidential information (the "Receiving Party") from other sources
prior to the receiving party's receipt the confidential information from the
party disclosing confidential information (the "Disclosing Party"), or (ii) is
or becomes publicly available other than as a result of a disclosure by the
Receiving Party or its representatives, or (iii) is or becomes available to the
Receiving Party on a non-confidential basis from a source (other than the
Disclosing Party) which, to the best of the Receiving Party's knowledge is not
prohibited from disclosing such information to the Receiving Party by a legal,
contractual or fiduciary obligation to the Disclosing Party.
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ARTICLE 10 OPERATIONS OF THE FUNDS
In no way will the provisions of this Agreement limit the authority of the
Fund, to take such lawful action as it may deem appropriate or advisable in
connection with all matters relating to the operation of the Fund and the sale
of the Shares of the Fund.
ARTICLE 11 RELATIONSHIP OF PARTIES
Except to the extent of the limited agency status of the Intermediary
provided for in this Agreement, it is understood and agreed that all Services
performed hereunder by the Intermediary will be as an independent contractor and
not as an employee or agent of the Fund, and neither party will hold itself out
as an agent of the other party with the authority to bind such party.
ARTICLE 12 REPRESENTATIONS AND WARRANTIES
Section 12.1 The Intermediary represents and warrants that the
following are true and will remain true throughout the term of this Agreement:
(a) The Intermediary is a ________________ company duly organized and
existing and in good standing under the laws of the State of ________.
(b) The Intermediary is duly qualified and has all requisite licenses
and authority to carry on its business in _______ and in all other jurisdictions
in which it conducts business.
(c) The Intermediary has full power and authority under applicable
law, and has taken all action necessary, to enter into and perform this
Agreement, and the performance of its obligations hereunder does not and will
not violate, breach, impair or conflict with (i) any governing document or
agreements of the Intermediary; (ii) any applicable law, rule or regulation; or
(iii) any other agreement or understanding the Intermediary has with any other
person, corporation, or other entity.
(d) The Intermediary's obligations under this Agreement constitute its
valid, legal and binding obligations, enforceable in accordance with their
terms.
(e) The Intermediary will maintain facilities, equipment and skilled
personnel sufficient to perform the Services.
Section 12.2 The Trust represents and warrants that the following are
true and will remain true throughout the term of this Agreement:
(a) The Trust is an investment company registered under the 1940 Act
and the Shares sold pursuant to this Agreement are registered under the
Securities Act of 1933, are duly
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authorized for issuance and sale in compliance with applicable state and federal
securities laws, and the registration statement for the Shares will be amended
under the Securities Act of 1933 and the 1940 Act from time to time as required
in order to effect a continuous offering of the Shares.
(b) The Trust will inform the Intermediary as to the states and
jurisdictions in which the Shares have been qualified for sale under, or are
exempt from the requirements of, the respective securities laws of such states
and jurisdictions. The Trust has provided the Intermediary with a list of such
jurisdictions, as of the date of this Agreement. The Trust hereby undertakes to
advise the Intermediary promptly, in writing, of any changes to the list of
jurisdictions.
(c) The prospectuses (including such portions thereof that concern
compensation paid to intermediaries and other authorized agents) and other
materials concerning the Shares and Fund are complete and accurate in all
material respects and do not contain any material omission or misstatement of a
material fact necessary to make the information therein not misleading or
untrue.
ARTICLE 13 INDEMNIFICATION
Section 13.1 The Intermediary agrees to indemnify and hold harmless,
the Trust, each Fund, and their trustees, directors, officers, employees, agents
and each affiliate or person, if any, who controls any of them within the
meaning of the Securities Act of 1933 (each, a "Trust Indemnitee"), against any
losses, claims, damages, liabilities or expenses (including reasonable
attorneys' fees) to which any Trust Indemnitee may become subject to the
proportionate extent those losses, claims, damages, liabilities or expenses or
actions in respect thereof, caused by (i) the Intermediary's negligence or
willful misconduct of the Intermediary in performing the Services, (ii) any
material breach by the Intermediary of any provision of this Agreement or of any
law, rule or regulation applicable to its obligations under this Agreement, or
(iii) any breach by the Intermediary of a representation or warranty made in
this Agreement. This indemnity agreement will be in addition to any liability
which the Intermediary may otherwise have. In no event shall the Intermediary be
liable to a Trust Indemnitee for special, indirect or consequential damages, or
lost profits or loss of business.
Section 13.2 The Trust agrees to indemnify and hold harmless the
Intermediary and its affiliates, trustees, directors, officers, employees,
agents and each person, if any, who controls the Intermediary within the meaning
of the Securities Act of 1933 (each, an "Intermediary Indemnitee") against any
losses, claims, damages, liabilities or expenses (including reasonable
attorneys' fees) to which any Intermediary Indemnitee may become subject to the
proportionate extent those losses, claims, damages, liabilities or expenses or
actions in respect thereof caused by (i) the Fund's negligence or willful
misconduct in performing its respective obligations under this Agreement, (ii)
any material breach by the Trust of any provision of this Agreement or of any
law, rule or regulation applicable to its obligations under this Agreement, or
(iii) any breach by the Trust of a representation or warranty made in this
Agreement. This indemnity agreement will be in addition to any liability which
the Trust may otherwise have. In no event shall the Trust be liable to the
Intermediary Indemnitees for special, indirect or consequential damages, or lost
profits or loss of business.
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Section 13.3 Promptly after receipt by an indemnitee under this
Article of notice of the commencement of a claim or action that may be covered
hereunder ("Claim"), the indemnitee will notify the indemnitor of the
commencement thereof. The omission to so notify the indemnitor will not relieve
it from any liability that it may have to any indemnitee under this Article
except that the failure of the indemnitee so to notify the indemnitor will
relieve the indemnitor of its indemnity obligation with respect to that action
to the extent that such omission results in the forfeiture of substantive rights
or defenses by the indemnitor. If any such action is brought against any
indemnitee and it notifies the indemnitor of the commencement thereof as
specified above, the indemnitor will be entitled to assume the defense thereof
with counsel reasonably satisfactory to the indemnitee, and the defendant or
defendants in such action entitled to indemnification hereunder will have the
right to participate in the defense or preparation of the defense of any such
action. In the event the indemnitor does elect to assume the defense of any such
action, and to retain counsel as provided above, the indemnitees in such action
will bear the fees and expenses of any additional counsel retained by any of
them; but in case the indemnitor does not elect to assume the defense of any
such action, the indemnitor will reimburse the indemnitee(s) named as
defendant(s) in such action for: (i) the fees and expenses of counsel agreed
upon by indemnitor and indemnitee; or (ii) for all reasonable fees and expenses
of counsel retained by the indemnitee(s) in the event that the indemnitor is
found liable under the terms of this Agreement or applicable law for the defense
of such indemnitee(s). If the indemnitor assumes the defense of any such action,
the indemnitor will not, without the prior written consent of the indemnitee(s),
settle or compromise the liability of the indemnitee(s) in such action, or
permit a default or consent to the entry of any judgment in respect thereof,
unless in connection with such settlement, compromise or default or consent,
each indemnitee receives from the claimant a release from all liability in
respect of such claim. The party seeking indemnification will not confess any
claim or make any compromise in any case in which the other party may be
required to indemnify except with the other party's prior written consent. In no
case will the indemnification provided in this Article be available to protect
any person against any liability to which any such person would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the
performance of its obligations or duties hereunder, or by reason of its or his
reckless disregard of his obligations and duties hereunder.
ARTICLE 14 SURVIVAL
The provisions of Articles 8, 9, 13, 16, 17 and Section 6.2 and Schedule B
will survive termination of this Agreement.
ARTICLE 15 TERM AND TERMINATION
Section 15.1 This Agreement will become effective as of the date
first-above written and will continue in effect until terminated as set forth
below.
Section 15.2 This Agreement will automatically terminate as it relates
to the Services provided by the Intermediary with respect to a particular Plan,
if and when the Intermediary's relationship with such Plan is terminated or the
performance of Services by the Intermediary to such Plan is terminated.
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Section 15.3 This Agreement will automatically terminate if the
authorizations, licenses, qualifications or registrations required to be
maintained by the Intermediary in connection with the performance of its duties
hereunder lapses or ceases at any time to be in full force and effect.
Section 15.4 This Agreement may be terminated at any time by either
party upon ninety (90) days' notice in writing to the other party; provided,
however, that the Trust will continue to make payments to the Intermediary after
termination as provided in Section 6.2.
Section 15.5 This Agreement will be terminated immediately upon a
material breach by any party not cured within thirty (30) days after notice from
the other(s).
ARTICLE 16 NOTICES
Each notice required by this Agreement will be given in writing and
delivered personally or mailed by certified mail or overnight courier service to
the party's address identified below or such other address as each party may by
written notice provide to the other. A notice given pursuant to this Section
will be deemed to have been given immediately when delivered personally, three
(3) days after the date of certified mailing and one (1) day after delivery by
overnight courier service.
If to the Intermediary, to:
With a copy to:
If to the Trust, to:
ARTICLE 17 GOVERNING LAW
This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of __________ without regard
to its conflicts of law rules.
ARTICLE 18 AMENDMENT; WAIVER
This Agreement may be amended, modified, superseded, cancelled, renewed or
extended only by a written instrument executed by both parties. The terms of the
covenants under this Agreement may be waived only by a written instrument
executed by the party waiving compliance.
ARTICLE 19 ASSIGNMENT
This Agreement will not be assigned by any party without the prior written
consent of the other party.
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ARTICLE 20 NON-EXCLUSIVITY
Each of the parties acknowledges and agrees that this Agreement and the
arrangements described herein are intended to be non-exclusive and that each of
the parties is free to enter into similar agreements and arrangements with other
entities.
ARTICLE 21 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, the
parties and their respective designees, agents and assigns will not be
responsible for delays or errors caused by acts of God or by circumstances
beyond their control, including without limitation, acts of governmental or
military authority, national emergencies, market closures, bank closures or
temporary suspension of banking business, suspension of trading on national
stock exchanges, labor unrest, strikes and lockouts, insurrection, acts of war
or terrorism, riots, epidemics, failure or unavailability of transportation,
communication or power supply, fire, flood, earthquake or other catastrophe or
trading volumes.
ARTICLE 22 CAPTIONS
The paragraph headings contained herein are for reference purposes only and
will not in any way affect the meaning or interpretation of this Agreement.
ARTICLE 23 SEVERABILITY; CONFLICTS
If any provision or portion of this Agreement other than a provision or
portion of Articles 1-3 is determined to be invalid or unenforceable for any
reason, the remaining provisions and portions of this Agreement will be
unaffected thereby and will remain in full force and effect to the fullest
extent permitted by law.
ARTICLE 24 COMPLETE AGREEMENT
This Agreement contains the full and complete understanding of the parties
and supersedes all prior representations, promises, statements, arrangements,
agreements, warranties and understandings between the parties with respect to
the subject matter hereof, whether oral or written, express or implied.
ARTICLE 25 COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the date and year first written above.
LINCOLN ADVISORS TRUST
By:
------------------------------------
Name:
Title:
[NAME OF INTERMEDIAIRY]
By:
------------------------------------
Name:
Title:
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SCHEDULE A
FREQUENT TRADING POLICY PROCEDURES FOR INTERMEDIARIES
SERVICING RETIREMENT AND SAVINGS PLANS AND INDIVIDUAL
RETIREMENT ACCOUNTS
Service Provider (hereinafter called "Intermediary" for purposes of this
Schedule A) has adopted policies and procedures reasonably designed to protect
against disruption or harm caused by "market timing" and other types of frequent
or frequent trading in Fund shares ("Intermediary's Frequent Trading Policy"),
which are effective as of the effective date of this Agreement or a later date
mutually agreed upon by the parties. The Trust reviewed and approved the
Intermediary's Frequent Trading Policy set forth below. The Trust further
acknowledges and agrees that the Intermediary will not be required to apply the
Trust's frequent trading policy in monitoring Shareholder trading activity. With
the exception of obligations to provide certain information and implement
restrictions in response to a Fund's request under SEC Rule 22c-2 as more
particularly provided in this Agreement or a Shareholder Information Agreement
between the parties, the Intermediary's only obligations with respect to
frequent trading are those more particularly provided below.
The Intermediary shall have policies and procedures in place reasonably
designed to implement the Intermediary's Frequent Trading Policy for the
duration of this Agreement. The Intermediary shall also provide distributor with
30 days' prior written notice of any proposed material amendments to the
Intermediary's Frequent Trading Policy and the complete text of such proposed
amendments. Should the Trust determine, in its sole discretion, that the
Intermediary's Frequent Trading Policy would be unreasonable or unacceptable as
a result of the proposed amendments, then either (i) the Intermediary may
withdraw its proposal to amend the Intermediary's Frequent Trading Policy or
(ii) the parties may agree to an acceptable alternate procedure in lieu of the
provisions of this paragraph.
INTERMEDIARY'S FREQUENT TRADING POLICY.
[To be inserted]
A-1
SCHEDULE B
PROVISION OF CERTAIN SHAREHOLDER INFORMATION
1. Agreement to Provide Information. The Intermediary agrees to provide the
Fund, upon written request, the taxpayer identification number ("TIN"), the
Individual/International Taxpayer Identification Number ("ITIN"), or other
government-issued identifier ("GII"), if known, of any or all
Shareholder(s) of the account and the amount, date, name or other
identifier of any investment professional(s) associated with the
Shareholder(s) or account (if known), and transaction type (purchase,
redemption, transfer, or exchange) of every purchase, redemption, transfer,
or exchange of Shares held through an account maintained by the
Intermediary during the period covered by the request. The parties intend
this Schedule to include an information sharing agreement that meets the
requirements of SEC Rule 22c-2.
1.1. PERIOD COVERED BY REQUEST. Unless otherwise directed by the Fund, the
Intermediary agrees to provide the information specified in Section 1
for each trading day within the scope of the request, which will not
request transaction information older than 90 calendar days from the
date of the request except as the Fund deems necessary to investigate
compliance with policies established by the Fund for the purpose of
eliminating or reducing dilution of the value of outstanding Shares.
1.2. FORM AND TIMING OF RESPONSE.
1.2.1. The Intermediary agrees to provide, promptly upon request of
the Fund, the requested information specified in Section 1. If
requested by the Fund, the Intermediary agrees to use
reasonable efforts to determine promptly whether any specific
person about whom it has received the identification and
transaction information specified in Section 1 is itself a
financial intermediary ("indirect intermediary") and, upon
further request of the Fund, promptly either (i) provide (or
arrange to have provided) the information set forth in Section
1 for those Shareholders who hold an account with an indirect
intermediary, or (ii) restrict or prohibit the indirect
intermediary from purchasing, in nominee name on behalf of
other persons, securities issued by the Fund. The Intermediary
additionally agrees to inform the Fund whether it plans to
perform (i) or (ii).
1.2.2. Responses required by this section must be communicated in
writing and in a format mutually agreed upon by the parties.
1.2.3. To the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the
NSCC Standardized Data Reporting Format.
B-1
1.3. LIMITATIONS ON USE OF INFORMATION. The Fund agrees not to use the
information received from the Intermediary other than as necessary to
comply with the provisions of Rule 22c-2 or to fulfill other
regulatory or legal requirements, the receipt, use, handling and
disposal of which is subject to the privacy provisions of Title V of
the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and comparable state
laws.
2. AGREEMENT TO RESTRICT TRADING. The Intermediary agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Shares by a Shareholder that has been identified by the Fund
as having engaged in transactions in the Fund's Shares (directly or
indirectly through the Intermediary's account) that violate policies
established by the Fund for the purpose of eliminating or reducing any
dilution of the value of the outstanding Shares issued by the Fund.
Unless otherwise specifically requested by the Fund, the Intermediary will not
be required to restrict or prohibit the following types of transactions: (1)
purchases of Fund Shares in connection with automated periodic or scheduled
purchases of Fund Shares pursuant to a contractual arrangement such as a salary
reduction agreement or other type of scheduled Plan contribution; (2)
redemptions of Fund Shares in connection with automated periodic or scheduled
redemptions of Fund Shares pursuant to a contractual arrangement such as a Plan
benefit payment; and (3) transfers or exchanges or Fund Shares in connection
with automated scheduled transfers or exchanges of Fund Shares, such as through
a "dollar cost averaging" program, asset allocation program or periodic "account
rebalancing" program.
Non-routine inquiries with respect to market timing or written instructions from
the Fund to restrict or prohibit further purchases or exchanges of Shares by any
Shareholder that has been identified by the Fund as having engaged in
transactions in Shares that violate policies established or utilized by the Fund
for the purpose of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Fund (e.g., market timing and late trading
policies) must be received by the Intermediary at the following email address,
or such other email address and/or facsimile number that the Intermediary may
communicate to the Fund in written correspondence from time to time:
[To be inserted]
2.1. FORM OF INSTRUCTIONS. Instructions to restrict or prohibit trading
must include the TIN, ITIN, or GII, if known, and the specific
restriction(s) to be executed. If the TIN, ITIN, or GII is not known,
the instructions must include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon information to which
the instruction relates.
2.2. TIMING OF RESPONSE. The Intermediary agrees to execute instructions
from the Fund to restrict or prohibit trading as soon as reasonably
practicable, but not later than five (5) business days after receipt
of the instructions by the Intermediary.
2.3. CONFIRMATION BY THE INTERMEDIARY. The Intermediary must provide
written confirmation to the Fund that instructions have been executed.
The Intermediary
B-2
agrees to provide confirmation as soon as reasonably practicable, but
not later than ten (10) business days after the instructions have been
executed.
3. Definitions. For purposes of this Schedule B:
3.1. The term "Fund" includes the Fund's principal underwriter and Fund
Agent. The term not does include any "excepted funds" as defined in
SEC Rule 22c-2(b) under the 0000 Xxx.
3.2. The term "Shares" means the interests of Shareholders corresponding to
the redeemable securities of record issued by the Fund under the 1940
Act that are held by the Intermediary.
3.3. The term "Shareholder" means the beneficial owner of Shares, whether
the Shares are held directly or by the Intermediary in nominee name;
except:
3.3.1. with respect to retirement plan recordkeepers, the term
"Shareholder" means the Plan Participant (or beneficiary or
alternate payee) notwithstanding that the Plan may be deemed to
be the beneficial owner of Shares; and
3.3.2. with respect to insurance companies, the term "Shareholder"
means each holder of interests in a variable annuity or
variable life insurance contract issued by the Intermediary.
3.4. The term "written" includes electronic writings and facsimile
transmissions.
3.5. The term "Intermediary" will mean a "financial intermediary" as
defined in SEC Rule 22c-2.
3.6. The term "purchase" does not include the automatic reinvestment of
dividends.
3.7. The term "promptly" as used in Section 1.2 will mean as soon as
practicable but in no event later than 10 business days from the
Intermediary's receipt of the request for information from the Fund or
its designee.
Non-routine inquiries with respect to market timing or written instructions from
the Fund to restrict or prohibit further purchases or exchanges of Shares by any
Shareholder that has been identified by the Fund as having engaged in
transactions in Shares that violate policies established or utilized by the Fund
for the purpose of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Fund (e.g., market timing and late trading
policies) must be received by the Intermediary or its designee at the following
email address, or such other email address and/or facsimile number that the
Intermediary may communicate to the Fund in written correspondence from time to
time:
[To be inserted]
B-3
SCHEDULE C
COMPENSATION AND FEES
Payments to the Intermediary or its payment agent, if any, under Section 6.2 of
the Agreement will be calculated and paid by the Funds or its agent as provided
below:
C-1
SCHEDULE D
CONTACT INFORMATION FOR THE FUND'S TRANSFER AGENT
D-1
