FUND PARTICIPATION AGREEMENT
THIS FUND PARTICIPATION AGREEMIENT is made and entered into as of
September 26, 1996 by and between LINCOLN LIFE & ANNUITY CONTANY OF NEW YORK
(the "Company") and TWENTIETH CENTURY SECURITIES, INC. (the
"Distributor").
WHEREAS, the Company offers to the public certain group variable
annuity contracts and group variable life insurance contracts (the
"Contracts"); and
WHEREAS, the Company wishes to offer as investment options under the
Contracts, TCI Balanced and TCI Growth (the "Funds"), both of which are a
series of mutual fund shares registered under the Investment Company Act of
1940, as amended, and issued by TCI Portfolios, Inc. (the "Issuer"); and
WHEREAS, on the terms and conditions hereinafter set forth,
Distributor and the Issuer desire to make shares of the Funds available as
investment options under the Contracts and to retain the Company to perform
certain administrative services on behalf of the Funds;
WHEREAS, the Funds are open-end management investment companies that
were established for the purpose of serving as the investrnent vehicles for
separate accounts established for variable life insurance policies and
variable annuity contracts (collectively referred to as "Variable Insurance
Products", the owners of such products being referred to as "Contract
Owners") to be offered by insurance companies which have entered into
participation agreements with the Fund ("Participating Insurance
Companies"); and
WHEREAS, the Issuer filed with the Securities and Exchange Commission
(the "SEC") and the SEC has declared effective a registration statement
(referred to herein as the "Fund Registration Statement" and the prospectus
contained therein, or filed pursuant to Rule 497 under the 1933 Act, referred
to herein as the "Fund Prospectus") on Form N-IA to register itself as an
open-end management investment company (File No. 40-811-5188) under the
Investment Company Act of 1940, as amended (the " 1940 Act"), and the Fund
shares (File No. 33-14567) under the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, the Company has filed a registration statement with the SEC
to register under the 1933 Act certain variable annuity contracts described
in Schedule A to this Agreement as in effect at the time this Agreement is
executed and such other variable annuity contracts and variable life
insurance policies wolfish may be added to Schedule A from time to time (each
such registration statement for a class or classes of contracts fisted on
Schedule A being referred to as the "Contracts Registration Statement" and
the prospectus for each such class or classes being referred to herein as the
"Contracts Prospectus "); and
WHEREAS, each Account (defined in Section 7(a) below), a validly
existing separate account, duly authorized by resolution of the Board of
Directors of the Company, set forth on
1
Schedule B sets aside and invests assets attributable to the Contracts; and
WHEREAS, the Company has registered or will have registered each
Account with the SEC as a unit investment trust under the 1940 Act before any
Contracts are issued by that Account; and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange. Act of 1934, as amended (the "1934 Act"),
and is a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD"); and
WHEREAS, the Distributor and the Issuer have entered into an agreement
(the "Distribution Agreement") pursuant to which the Distributor will
distribute Fund shares; and
WHEREAS, Investors Research Corporation (the "Investrnent Advisor")
is registered as an investment adviser under the 1940 Act and any applicable
state securities laws and serves as an investment manager to the Issuer and
the Funds pursuant to an agreement; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase Fund shares on behalf of each
Account to fund its Contracts and the Distributor is authorized to sell such
Fund shares to purchasers such as the Accounts at net asset value;
NOW, THEREFORE, the Company and Distributor agree as follows:
1. TRANSACTIONS IN THE FUNDS. Subject to the terms and conditions of
this Agreement, the Distributor will cause the Issuer to make shares of the
Funds available to be purchased, exchanged, or redeemed, by the Company on
behalf of the Accounts through a single account per Fund at the net asset
value applicable to each order. The Funds' shares shall be purchased and
redeemed on a net basis in such quantity and at such time as determined by
the Company to satisfy the requirements of the Contracts for which the Funds
serve as underlying investment media. Dividends and capital gains
distributions will be alltomatically reinvested in full and fractional shares
of the Funds.
2. ADMINISTRATIVE SERVICES. The Company shall be solely responsible
for providing all administrative services for the Contract Owners. The
Company agrees that it will maintain and preserve all records as required by
law to be maintained and preserved, and will otherwise comply with all laws,
rules and regulations applicable to the marketing of the Contracts and the
provision of administrative services to the Contract Owners.
3. TIMING OF TRANSACTIONS.
Distributor hereby appoints the Company as its agent and/or agent for
the Funds for the limited purpose of accepting purchase and redemption orders
for Fund shares from the Accounts and/or Contract Owners, as applicable. On
each day the New York Stock Exchange (the "Exchange") is open for trading
(each, a "Business Day"), the Company may receive instructions from the
Accounts and/or Contract Owners for the purchase or redemption of shares of
the Funds ("Orders"). Orders received and accepted by the Company prior to
the close of regular trading on the Exchange (the "Close of
2
Trading") on any given Business Day (currently, 4:00 p.m. Eastern time) and
transmitted to the Issuers by 10: 00 a.m. Eastern time on the next following
Business Day will be executed at the net asset value determined as of the
Close of Trading on the previous Business Day. Any Orders received by the
Company after the Close of Trading, and all Orders that are transmitted to
the Issuers after 10:00 a.m. Eastern time on the next following Business Day,
will be executed by the Issuers at the net asset value next determined
following receipt of such Order. The day as of which an Order is executed by
the Issuers pursuant to the provisions set forth above is referred to herein
as the "Trade Date".
4. PROCESSING OF TRANSACTIONS.
(a) By 7:00 p.m. Eastern time on each Business Day, Distributor will
provide to the Company, via facsimile or other electronic transmission
acceptable to the Company, the Funds' net asset value, dividend and capital
gain information and, in the case of income funds, the daily accrual for
interest rate factor (mil rate), determined at the Close of Trading.
(b) By 10:00 a.m. Eastern time on each Business Day, the Company win
provide to Distributor via facsimile or other electronic transmission
acceptable to Distributor a report stating whether the Orders received by the
Company from Contract Owners by the Close of Trading on the preceding
Business Day resulted in the Accounts being a net purchaser or net seller of
shares of the Funds. As used in this Agreement, the phrase "other electronic
transmission acceptable to Distributor" includes the use of remote computer
terminals located at the premises of the Company, its agents or affiliates,
which terminals may be linked electronically to the computer system of
Distributor, its agents or affiliates (hereinafter, "Remote Computer
Terminals").
(c) Upon the timely receipt from the Company of the report described
in (b) above, the Funds' transfer agent will execute the purchase or
redemption transactions (as the case may be) at the net asset value computed
as of the Close of Trading on the Trade Date. Payment for net purchase
transactions shall be made by wire transfer to the applicable Fund custodial
account designated by the Distributor on the Business Day next following the
Trade Date. Such wire transfers shall be initiated by the Company's bank
prior to 4:00 p.m. Eastern time and received by the Funds prior to 6:00 p.m.
Easter time on the Business Day next following the Trade Date ("T + I"). If
payments for a purchase Order is not timely received, such Order will be
executed at. the net asset value next computed following receipt of payment.
Payments for net redemption transactions shall be made by wire transfer by
the Issuer to the account designated by the Company on T + 1; PROVIDED,
HOWEVER the Issuer reserves the right to settle redemption transactions
within the time period set forth in the applicable Fund's then-current
prospectus. On any Business Day when the Federal Reserve Wire Transfer System
is closed, all communication and processing rules will be suspended for the
settlement of Orders. Orders will be settled on the next Business Day on
which the Federal Reserve Wire Transfer System is open and the original Trade
Date will apply.
5. PROSPECTUS, PROXY MATERIALS AND OTHER INFORMATION.
(a) Distributor shall provide the Company with copies of the Issuer's
proxy materials, periodic fund reports to shareholders and other materials
that are required by law to be sent to the
3
Issuer's shareholders. In addition, Distributor shall provide the Company
with a sufficient quantity of prospectuses and Statements of Additional
Information of the Funds to be used in conjunction with the transactions
contemplated by this Agreement, together with such additional copies of the
Issuer's prospectuses and Statements of Additional Information as may be
reasonably requested by Company. If the Company provides for pass-through
voting by the Contract Owners, Distributor will provide the Company with a
sufficient quantity of proxy materials for each Contract Owner.
(b) The cost of preparing, printing and shipping of the prospectuses,
proxy materials, periodic fund reports and other materials of the Issuer to
the Company shall be paid by Distributor or its agents or affiliates;
PROVIDED, HOWEVER, that if at any time Distributor or its agent reasonably
deems the usage by the Company of such items to be excessive, it may, prior
to the delivery of any quantity of materials in excess of what is deemed
reasonable, request that the Company demonstrate the reasonableness of such
usage. If the Distributor believes the reasonableness of such usage has not
been adequately demonstrated, it may request that the Company pay the cost of
printing (including press time) and delivery of any excess copies of such
materials. Unless the Company agrees to make such payments, Distributor may
refuse to supply such additional materials and Distributor shall be deemed in
compliance with this SECTION 5 if it delivers to the Company at least the
number of prospectuses and other materials as may be required by the Issuers
under applicable law.
(c) The cost of distribution, if any, of any prospectuses, proxy
materials, periodic fund reports and other materials of the Issuer to the
Contract Owners shall be paid by the Company and shall not be the
responsibility of Distributor or the Issuer.
(d) Except with the prior written permission of the Company, the Fund
shall not give any information or make any representations on behalf of the
Company or concerning the Company, the Account or the Contracts other than
the information or representations contained in the Contracts Registration
Statement or Contracts Prospectus, as such Registration Statement and
Prospectus may be amended or supplemented from time to time, or in published
reports of the Account which are in the public domain or approved in writing
by the Company for distribution to Contract Owners, or in Company sales
literature or other promotional material. The Company agrees to respond to
any request for permission on a prompt and timely basis. If the Company fails
to respond within 10 business days of a request by the Fund or the
Distributor, then the Fund is relieved of the obligation to obtain the prior
written permission of the Company.
(e) For purposes of this SECTION 5, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use, in a newspaper, magazine or
other periodical, radio, television, telephone or tape recording, videotape
display, computer net site, signs or billboards, motion pictures or other
public media), sales literature (i.e., any written communication distributed
or made generally available to customers or the public, in print or
electronically, including brochures, circulars, research reports, market
letters, form letters, seminar texts, or reprints or excerpts of any other
advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or a agents or employees, registration statements,
prospectuses, Statements of Additional Information, shareholder reports and
proxy materials, and any other material constituting sales
4
literature or advertising under NASD rules, the 1940 Act or the 1933 Act.
6. COMPENSATION AND EXPENSES.
(a) The Accounts shall be the sole shareholder of Fund shares
purchased for the Contract Owners pursuant to this Agreement (the "Record
Owners"). The Company and the Record Owners shall properly complete any
applications or other forms required by Distributor or the Issuer from time
to time.
(b) Distributor acknowledges that it will derive a substantial
savings in administrative expenses, such as a reduction in expenses related
to postage, shareholder communications and recordkeeping, by virtue of having
a single shareholder account per Fund for the Accounts rather than having
each Contract Owner as a shareholder. In consideration of the Administrative
Services and performance of all other obligations under this Agreement by the
Company, Distributor will pay the Company a fee (the "Administrative
Services fee") equal to 20 basis points (0.20%) per annum of the average
aggregate amount invested by the Company under this Agreement. Distributor's
obligation to pay the Administrative Services Fee shall be suspended with
respect to any month during which the Company's average aggregate investment
in the Funds drops below $10 million. Notwithstanding the above, if the
Company's average investment in a single Fund during a month exceeds $5
million, Distributor will pay the Company the Administrative Services Fee
with respect to all amounts invested in such Fund. If the Company's
investment in such Fund drops below $5 million, the Distributors obligation
to pay the Administrative Services Fee shall be suspended until the Company's
average investment in the Fund exceeds $5 million or average aggregate
investment in the Funds exceeds $10 million. For purposes of this SECTION
6(B), the average aggregate investrnent amount of Company's investment shall
include assets of UNUM Life Insurance Company of America and First UNT-JM
Life Insurance Company acquired by Company.
(c) The payments received by the Company under this Agreement are for
administrative and shareholder services only and do not constitute payment in
any manner for investment advisory services or for costs of distribution.
(d) For the purposes of computing the payment to the Company
contemplated by this Section 6, the average aggregate amount invested by the
Accounts in the Funds over a one month period shall be computed by totaling
the Company's aggregate investment (share net asset value multiplied by total
number of shares of the Funds held by the Company) on each Business Day
during the month and dividing by the total number of Business Days during
such month.
(e) Distributor will calculate the amount of the payment to be made
pursuant to this Section 6 at the end of each calendar quarter and will make
such payment to the Company within 30 days thereafter. The check for such
payment will be accompanied by a statement showing the calculation of the
amounts being paid by Distributor for the relevant months and such other
supporting data as may be reasonably requested by the Company and shall be
mailed to:
5
LINCOLN LEFE & ANNUITY COWANY OF NEW YORK
000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
In the event Distributor reduces its management fee with respect to
any Fund after the date hereof, Distributor may amend the Administrative
Services fee payable with regard to such Fund by providing the Company 30
days' advance written notice of any such adjustment. The revised
Administrative Services fee shall become effective as of the latter of 30
days from the date of delivery of the notice or the date prescribed in the
notice.
7. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants that: (i) this Agreement has
been duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; (ii) it has established
the Separate Accounts listed on Schedule B (the "Accounts"), each of which
is a separate account under New York Insurance law, and has registered each
Account as a unit investrnent trust under the Investment Company Act of 1940
(the " 1940 Act") to serve as an investment vehicle for the Contracts;
(iii) each Contract provides for the allocation of net amounts received by
the Company to an Account for investment in the shares of one of more
specified investment companies selected among those companies available
through the Account to act as underlying investment media; (iv) selection of
a particular investment company is made by the Contract Owner under a
particular Contract, who may change such selection from time to time in
accordance with the terms of the applicable Contract; and (v) the activities
of the Company contemplated by this Agreement comply with all provisions of
federal and state insurance, securities, and tax laws applicable to such
activities.
(b) Distributor represents and warrants that: (i) this Agreement has
been duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of
Distributor, enforceable in accordance with its terms; and (ii) the
investments of the Funds will at all times be adequately diversified within
the meaning of Section 817(h) of the Internal Revenue Service Code of 1986,
as amended (the "Code"), and the regulations thereunder, and that at all
tirnes when this Agreement is in effect, all beneficial interests in each of
the Funds will be owned by one or more insurance companies or by any other
party permitted under Section 1.817-5(f)(3) of the Regulations promulgated
under the Code; and (iii) each Fund currently qualifies as a Regulated
Investment Company under Subchapter M of the Code. The Distributor further
represents and warrants that it will make every effort to cause the Funds to
continue to qualify and to maintain such qualification (under Subchapter M or
any successor or similar provision), and that it will notify the Company
immediately upon having a reasonable basis for believing that a Fund has
ceased to so qualify or that it might not so qualify in the future and (iv)
that it is registered as a Broker-Dealer under the 1934 Act.
6
(c) The Distributor represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that the Fund
is and shall remain registered under the 1940 Act for so long as the Fund
shares are sold. The Distributor further represents and warrants that the
Issuer is a corporation duly organized and in good standing under the laws of
Maryland.
(d) The Distributor represents and warrants that the Funds have and
maintains a fidelity bond in accordance with Rule 17g-I under the 1940 Act.
The Fund will immediately notify the Company in the event the fidelity bond
coverage should lapse at any time.
8. ADDITIONAL COVENANTS AND AGREEMENTS.
(a) Each party shall comply with all provisions of federal and state
laws applicable to its respective activities under this Agreement. All
obligations of each party under this Agreement are subject to compliance with
federal and state laws.
(b) Each party shall promptly notify the other parties in the event
that it is, for any reason, unable to perform any of its obligations under
this Agreement.
(c) The Company covenants and agrees that all Orders accepted and
transmitted by it hereunder with respect to each Account on any Business Day
will be based upon instructions that it received from the Contract Owners in
proper form prior to the Close of Trading of the Exchange on that Business
Day. The Company shall time stamp all Orders or otherwise maintain records
that will enable the Company to demonstrate compliance with SECTION 8(C)
hereof
(d) The Company covenants and agrees that all Orders transmitted to
the Issuers, whether by telephone, telecopy, or other electronic transmission
acceptable to Distributor, shall be sent by or under the authority and
direction of a person designated by the Company as being duly authorized to
act on behalf of the owner of the Accounts. Absent actual knowledge to the
contrary, Distributor shall be entitled to rely on the existence of such
authority and to assume that any person transmitting Orders for the purchase,
redemption or transfer of Fund shares on behalf of the Company is "an
appropriate person" as used in Sections 8-308 and 8404 of the Uniform
Commercial Code with respect to the transmission of instructions regarding
Fund shares on behalf of the owner of such Fund shares. The Company shall
maintain the confidentiality of all passwords and security procedures issued,
installed or otherwise put in place with respect to the use of Remote
Computer Terminals and assumes full responsibility for the security therefor.
The Company further agrees to be responsible for the accuracy, propriety and
consequences of all data transmitted to Distributor by the Company by
telephone, telecopy or other electronic transmission acceptable to
Distributor.
(e) The Company agrees to make every reasonable effort to market its
Contracts. It will use its best efforts to give equal emphasis and promotion
to shares of the Funds as is given to other underlying investments of the
Accounts.
(f) The Company shall not, without the written consent of
Distributor, make
7
representations concerning the Issuer or the shares of the Funds except those
contained in the then- current prospectus and in current printed sales
literature approved by Distributor or the Issuer.
(g) Advertising and sales literature with respect to the Issuer or the
Funds prepared by the Company or its agents, if any, for use in marketing
shares of the Funds as underlying investment media to Contract Owners shall
be submitted to Distributor for review and approval before such material is
used. All such materials shall be directed to Xxxx Tantra, Distributor's
advertising compliance manager (or such other person as Distributor may
designate in writing) by mail at 0000 Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000, or by fax at (000) 000-0000. Such materials shall be accompanied by a
request for approval or comments within a reasonable amount of time, which
shall not be less than 10 business days from the date delivered to
Distributor. The Company agrees to use reasonable efforts to notify
Distributor's advertising compliance manager of the delivery of such
materials (which includes leaving a voice mail message). If Distributor fails
to respond within the time period set forth in the request for review,
Company may use such material as submitted without final approval by
Distributor. If subsequent to approval by Distributor (or the expiration of
the time period set forth in the request for approval), Distributor
reasonably determines any such material is or has become inaccurate,
rnisleading or otherwise inappropriate, it may request that the Company
modify such advertising and sales literature, which the Company will do at
the next reprinting of any such materials. If Distributor determines that
such material should be modified immediately, Distributor shall notify the
Company of such fact and Company shall accommodate Distributor's reasonable
requests. In such instances, Distributor shall pay the Company's reasonable
out-of-pocket expenses in reprinting any such advertising and sales
materials. Notwithstanding anything contained herein, Company shall be
responsible for the compliance of all advertising and sales literature
prepared by the Company with all applicable federal, state and NASD
requirements
(h) The Company will provide to Distributor at least one complete
copy of all registration statements, prospectuses, statements of additional
information, annual and semi-annual reports, proxy statements, and all
amendments or supplements to any of the above that include a description of
or information regarding the Funds promptly after the filing of such document
with the SEC or other regulatory authority.
(i) Each party will comply with reasonable requests for information
and documents regarding the Funds or the other party's compliance with its
obligations under this Agreement made by the other party, by the Funds' Board
of Directors or by any appropriate governmental entity or self regulatory
organization.
9. USE OF NAMES. Except as otherwise expressly provided for in this
Agreement, neither Distributor nor the Funds shall use any trademark, trade
name, service xxxx or logo of the Company, or any variation of any such
trademark, trade name, service xxxx or logo, without the Company's prior
written consent, the granting of which shall be at the Company's sole option.
Except as otherwise expressly provided for in this Agreement, the Company
shall not use any trademark, trade name, service xxxx or logo of the Issuer
or Distributor, or any variation of any such trademarks, trade names, service
marks, or logos, without the prior written consent of either the Issuer or
Distributor, as appropriate, the granting of which shall be at the sole
option of Distributor and/or the Issuer.
8
10. PROXY VOTING.
(a) The Company shall provide pass-through voting privileges to all
Contract Owners so long as the SEC continues to interpret the 1940 Act as
requiring such privileges. It shall be the responsibility of the Company to
assure that it and the separate accounts of the other Participating Companies
(as defined in SECTION 12(A) below) participating in any Fund calculate
voting privileges in a consistent manner.
(b) The Company will distribute to Contract Owners all proxy material
furnished by Distributor and will vote shares in accordance with instructions
received from such Contract Owners. The Company shall vote Fund shares for
which no instructions have been received in the same proportion as shares for
which such instructions have been received. The Company shall not oppose or
interfere with the solicitation of proxies for Fund shares held for such
Contract Owners.
11. INDEMNITY.
11.1. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless the Fund, the Distributor and each person who controls or is
associated with the Fund (other than another Participating Insurance Company)
or the Distributor within the meaning of such terms under the federal
securities laws and any officer, trustee, director, employee or agent of the
foregoing, against any and all losses, claims, expenses, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become subject under any statute or regulation,
at common law or otherwise, insofar as such losses, claims, expenses, damages
or liabilities:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Contracts Registration Statement, Contracts Prospectus, sales
literature or other promotional material for the Contracts or the
Contracts themselves (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 in
light of the circumstances in which they were made; provided that this
obligation to indemnify shall not apply if such statement or omission
or such alleged statement or alleged omission was made in reliance upon
and in conformity with information furnished in writing to the Company
by the Distributor (or a person authorized in writing to do so on behalf
of the Fund or the Distributor) for use in the Contracts Registration
Statement, Contracts Prospectus or in the Contracts or sales literature
(or any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(b) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact by or on behalf of the Company
(other than statements or representations contained in the Fund
Registration Statement, Fund Prospectus or sales literature or other
9
promotional material of the Fund not supplied by the Company or persons under
its control) or wrongful conduct of the Company or persons under its control
with respect to the sale or distribution of the Contracts or Fund shares; or
(c) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the Fund Registration Statement, Fund
Prospectus or sales literature or other promotional material of the Fund
or any amendment thereof or supplement thereto, or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in
fight of the circumstances in which they were made, if such statement or
omission was made in reliance upon and in conformity with information
furnished to the Distributor by or on behalf of the Company; or
(d) arise as a result of any failure by the Company to provide the
services and furnish the materials or to make any payments under the
terms of this Agreement; or
(e) arise out of any material breach by the Company of this
Agreement, including but not limited to any failure to transmit a
request for redemption or purchase of Fund shares on a timely basis
in accordance with the procedures set forth in SECTION 3; or
(f) arise as a result of the Company's providing the Distributor
with inaccurate information, which causes the Distributor to calculate
its Net Asset Values incorrectly.
This indemnification will be in addition to any liability which the Company
may otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage or liability is due to the
willful misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
11.2. INDEMNIFICATION BY THE DISTRIBUTOR. The Distributor agrees to indemnify
and hold harmless the Company and each person who controls or is associated
with the Company within the meaning of such terms under the federal
securities laws and any officer, director, employee or agent of the
foregoing, against any and all losses, claims, expenses, damages or
liabilities, joint or several (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to
which they or any of them may become subject under any statute or regulation,
at common law or otherwise, insofar as such losses, claims, expenses, damages
or liabilities:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Fund Registration
Statement, Fund Prospectus (or any amendment or supplement thereto) or
sales literature or other promotional material of the Fund, 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 in fight of the circumstances
in which they were made; provided that this obligation to indemnify
shall not apply if such statement or omission or alleged statement or
alleged omission was made in reliance upon and in conformity with
information furnished in writing by
10
the Company to the Distributor or its affiliates for use in the Fund
Registration Statement, Fund Prospectus (or any amendment or supplement
thereto) or sales literature or other promotional material of the Fund or
otherwise for use in connection with the sale of the Contracts or Fund
shares; or
(b) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact made by the Distributor (other than
statements or representations contained in the Fund Registration
Statement, Fund Prospectus or sales literature or other promotional
material of the Fund not supplied by the Distributor or persons under
their control) or gross negligence, willful misfeasance or bad faith
of the Distributor or persons under its control with respect to the
sale or distribution of the Contracts or Fund shares; or
(c) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the Contract's Registration Statement,
Contracts Prospectus or sales literature or other promotional material
for the Contracts (or any amendment or supplement thereto), or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading in fight of the circumstances in which they were made, if
such statement or omission was made in reliance upon information
furnished in writing by the Distributor to the Company (or a person
authorized in writing to do so on behalf of the Fund or the
Distributor); or
(d) arise as a result of any failure by the Distributor to provide
the services and furnish the materials under the terms of this Agreement
(including, but not by way of limitation, a failure, whether
unintentional or in good faith or otherwise: (i) to comply with the
diversification requirements specified in SECTION 7(B) of this
Agreement; and (H) to provide the Company with accurate information
sufficient for it to calculate its accumulation and/or annuity unit
values in timely fashion as required by law and by the this
Agreement); or
(e) arise out of any material breach by the Distributor of this
Agreement.
This indemnification will be in addition to any liability which the
Distributor may otherwise have; provided, however, that no party shall be
entitled to indemnification if such loss, claim, damage or liability is due
to the willful misfeasance, bad faith, gross negligence or reckless disregard
of duty by the party seeking indemnification.
11.3. INDEMNIFICATION PROCEDURES. After receipt by a party entitled to
indemnification ("indemnified party") under this SECTION 11 of notice of
the commencement of any action, if a claim in respect thereof is to be made
by the indemnified party against any person obligated to provide
indemnification under this SECTION 11 ("indemnifying party"), such
indemnified party will notify the indemnifying party in writing of the
commencement thereof as soon as practicable thereafter, provided that the
omission to so notify the indemnifying party will not relieve it from any
liability under this SECTION 11, except to the extent that the omission
results in a failure of actual notice to the indemnifying party and such
indemnifying party is damaged solely as a result of the failure to give such
notice. The indemnifying party, upon the request of the indemnified party,
shall retain counsel
11
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (I) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the sarne counsel would be
inappropriate due to actual or potential differing interests between them.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgrnent for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this SECTION 11. The
indemnification provisions contained in this SECTION 11 shall survive any of
this Agreement.
12. POTENTIAL CONFLICTS.
(a) The Company has received a copy of an application for exemptive
relief, as amended, filed by Investors Research and the Issuer on December
21, 1987, with the SEC and the order issued by the SEC in response thereto
(the "Shared Funding Exemptive Order"). The Company has reviewed the
conditions to the requested relief set forth in such application for
exemptive relief. As set forth in such application, the Board of Directors of
the Issuer (the "Board") will monitor the Issuer for the existence of any
material irreconcilable conflict between the interests of the Contract Owners
of all separate accounts ("Participating Companies") investing in funds of
the Issuer. An irreconcilable material conflict may arise for a variety of
reasons, including: (i) an action by any state insurance regulatory
authority; (ii) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar actions by insurance, tax
or securities regulatory authorities; (iii) an administrative or judicial
decision in any relevant proceeding; (iv) the manner in which the investments
of any portfolio are being managed; (v) a difference in voting instructions
given by variable annuity Contract Owners and variable life insurance
Contract Owners; or (vi) a decision by an insurer to disregard the voting
instructions of Contract Owners. The Board shall promptly inform the Company
if it determines that an irreconcilable material conflict exists and the
implications thereof.
(b) The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order by
providing the Board with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever Contract Owner voting
instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested
Board members, determines
12
that a material irreconcilable conflict exists with regard to Contract Owner
investments in a Fund, the Board shall give prompt notice to all
Participating Companies. If the Board determines that the Company is
responsible for causing or creating said conflict, the Company shall at its
sole cost and expense, and to the extent reasonably practicable (as
determined by a majority of the disinterested Board members), take such
action as is necessary to remedy or eliminate the irreconcilable material
conflict. Such necessary action may include but shall not be limited to (i)
withdrawing the assets allocable to the Accounts from the Fund and
reinvesting such assets in a different investment medium or submitting the
question of whether such segregation should be implemented to a vote of all
affected Contract Owners and as appropriate, segregating the assets of any
appropriate group (i.e., annuity Contract Owners, life insurance Contract
Owners, or variable Contract Owners of one or more Participating Companies)
that votes in favor of such segregation, or offering to the affected Contract
Owners the option of making such a change and (ii) establishing a new
registered management investment company or managed separate account. Nothing
in this SECTION 12(C) shall be construed to waive any cause of action which
may be available to Company against any other Participating Insurance Company
or Companies, or against any other person or entity, in the event Company
determines good faith that it (Company) is not responsible (or is not solely
responsible) for the material irreconcilable conflict.
(d) If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard its Contract Owner voting instructions
and said decision represents a minority position or would preclude a majority
vote by all of its Contract Owners having an interest in the Issuer, the
Company at its sole cost, may be required, at the Board's election, to
withdraw an Account's investment in the Issuer and terminate this Agreement;
provided, however, that such withdrawal and termination shall be limited to
the extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 12, a majority of the
disinterested Board members shall determine whether or not any proposed
action adequately remedies any irreconcilable material conflict, but in no
event will the Issuer be required to establish a new funding medium for any
Contract. The Company shall not be required by this SECTION 12 to establish a
new funding medium for any Contract if an offer to do so has been declined by
vote of a majority of the Contract Owners materially adversely affected by
the irreconcilable material conflict.
13. APPLICABLE LAW. This agreement shall be subject to the provisions
of all applicable securities law, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant, and the terms hereof shall be limited,
interpreted and construed in accordance therewith.
14. TERMINATION. This agreement shall terminate as to the sale and
issuance of new Contracts:
(a) at the option of either the Company, Distributor or the Issuer
upon six months' advance written notice to the other;
13
(b) at the option of the Company if the Funds' shares are not
available for any reason to meet the requirement of Contracts as detennined
by the Company. Reasonable advance notice of election to terminate shall be
furnished by Company;
(c) at the option of either party upon institution of formal
proceedings against the other party or against the Investment Advisor by the
National Association of Securities Dealers, Inc. (the "NASD"), the SEC or
any other regulatory body which the terminating party reasonably believes
will result in a material harm to the terminating party or the Funds or the
Accounts or the Contract Owners;
(d) upon termination of the Distribution Agreement between the Issuer
and Distributor or the Management Agreement between Investors Research and
the Funds. Notice of such termination shall be promptly finished to the
Company. This subsection (d) shall not be deemed to apply if
contemporaneously with such termination a new contract of substantially
similar terms is entered into between the Issuer and Distributor with respect
to the Distribution Agreement or the Issuer and the Funds with respect to the
Management Agreement;
(e) upon the requisite vote of Contract Owners having an interest in
the Issuer to substitute for the Issuer's shares the shares of another
investment company in accordance with the terms of Contracts for which the
Issuer's shares had been selected to serve as the underlying investment
medium. The Company will give 60 days written notice to the Issuer and
Distributor of any proposed vote to replace the Funds' shares;
(f) upon assignment of this Agreement unless made with the written
consent of all other parties hereto;
(g) if the Issuer's shares are not registered, issued or sold in
conformance with Federal law or such law precludes the use of Fund shares as
an underlying investment medium of Contracts issued or to be issued by the
Company. Prompt notice shall be given by either party should such situation
occur;
(h) at the option of the Issuer, if the Issuer reasonably determines
in good faith that the Company is not offering shares of the Fund in
conformity with the terms of this Agreement or applicable law;
(i) at the option of any party hereto upon a determination that
continuing to perform under this Agreement would, in the reasonable opinion
of the terminating party's counsel, violate any applicable federal or state
law, rule, regulation or judicial order;
(j) at the option of the Company or the Fund upon a determination by
a majority of the Fund Board, or a majority of disinterested Fund Board
members, that an irreconcilable material conflict exists among the interests
of (i) any Contract Owners or (ii) the interests of the Participating
Insurance Companies investing in the Fund;
14
(k) at the option of the Company if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code, or under any
successor or similar provision, or if the Company reasonably believes, based
on an opinion of its counsel, that the Fund may fail to so qualify;
(l) at the option of the Company if the Fund falls to meet the
diversification requirements specified in Section 817(h) of the Code and any
regulations thereunder;
(m) at the option of either the Fund or the Distributor if the Fund
or the Distributor, respectively, shall determine, in their sole judgment
exercised in good faith that either (1) the Company shall have suffered a
material adverse change in its business or financial condition; or (2) the
Company shall have been the subject of material adverse publicity which is
Likely to have a material adverse impact upon the business and operations of
either the Fund or the Distributor; or
(n) at the option of the Company, if the Company shall determine, in
its sole judgment exercised in good faith, that either: (1) the Investment
Advisor or Distributor shall have suffered a material adverse change in their
respective businesses or financial condition; or (2) the Investment Advisor
or Distributor shall have been the subject of material adverse publicity
which is likely to have a material adverse impact upon the business and
operations of the Company.
15. CONTINUATION OF AGREEMENT.
(a) Termination as the result of any cause listed in SECTION 14 shall
not affect the Issuer's obligation to furnish its shares to Contracts then in
force for which its shares serve or may serve as the underlying medium
(unless such further sale of Fund shares is proscribed by law or the SEC or
other regulatory body). Following termination, Distributor shall not have any
Administrative Services payment obligation to the Company (except for payment
obligations accrued but not yet paid as of the termination date).
(b) Notwithstanding any termination of this Agreement pursuant to
SECTION 14 of this Agreement, the Fund will, at the option of the Company,
continue to make available additional Fund shares for so long after the
termination of this Agreement as the Company desires, pursuant to the terms
and conditions of this Agreement for all Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, if the Company so elects to
make additional Fund shares available, the owners of the Existing Contracts
or the Company, whichever shall have legal authority to do so, shall be
permitted to redeem investments in the Fund and/or invest in the Fund.
(c) If Fund shares continue to be made available after such
termination, the provisions of this Agreement shall remain in effect except
as set forth in SECTION 14(A) and thereafter either the Fund or the Company
may terminate the Agreement, as so continued pursuant to this Section 15,
upon prior written notice to the other party, such notice to be for a period
that is reasonable under the circumstances but, if given by the Fund, need
not be for more than six months.
15
(d) The parties agree that this SECTION 15 shall not apply to any
termination made pursuant to SECTION 12 or any conditions or undertakings
incorporated by reference in SECTION 12, and the effect of such SECTION 12
termination shall be governed by the provisions set forth or incorporated by
reference therein.
16. NON-EXCLUSIVITY. Each of the parties acknowledges and agrees that
this Agreement and the arrangement 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.
17. SURVIVAL. The provisions of SECTION 9 (use of names) and
Section 11 (indemnity) of this Agreement shall survive termination of this
Agreement.
18. AMENDMENT. Neither this Agreement, nor any provision hereof, may
be amended, waived, discharged or terminated orally, but only by an
instrument in writing signed by all of the parties hereto.
19. NOTICES. ALL notices and other communications hereunder shall be
given or made in writing and shall be delivered personally, or sent by telex,
telecopier, express delivery or registered or certified mail, postage
prepaid, return receipt requested, to the party or parties to whom they are
directed at the following addresses, or at such other addresses as may be
designated by notice from such party to all other parties.
To the Company:
LINCOLN LIFE & ANNUITY CONTANY OF NEW YORK
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
(000) 000-0000 (office number)
To the Issuer or Distributor:
Twentieth Century Mutual Funds
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
(000) 0000000 (office number)
(000) 0000000 (telecopy number)
Any notice, demand or other communication given in a manner prescribed in this
SECTION 18 shall be deemed to have been delivered on receipt.
16
20. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned
without the written consent of all parties to the Agreement at the time of
such assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
22. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
23. ENTIRE AGREEMENT. This Agreement including the Attachments
hereto, constitutes the entire agreement between the parties with respect to
the matters dealt with herein, and supersedes all previous agreements,
written or oral, with respect to such matters.
17
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
TWENTUTH CENTURY SECURITIES, INC. LINCOLN LIFE & ANNUITY
COMPANY OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxx
Executive Vice President Title: President
18
SCHEDULE A
VARIABLE ANNUITY CONTRACTS
AND VARIABLE LIFE INSURANCE POLICIES
SUPPORTED BY SEPARATE ACCOUNTS
LISTED ON SCHEDULE B
Group Variable Annuity I Contracts
Group Variable Annuity II Contracts
Group Variable Annuity III Contracts
SCHEDULE B
SEPARATE ACCOUNTS OF LINCOLN LIFE & ANNUITY COMPANY OF NEW
YORK
INVESTING IN THE FUND
Lincoln Life & Annuity Variable Annuity Account L
AMENDMENT NO. 1 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 1 TO FUND PARTICIPATION AGREEMENT (the
"Amendment") is effective as of __________, 1999, by and among LINCOLN LIFE
& ANNUITY COMPANY OF NEW YORK (the "Company"), AMERICAN CENTURY INVESTMENT
MANAGEMENT, INC ("ACIM"), and AMERICAN CENTURY INVESTMENT SERVICES, INC.,
F/K/A TWENTIETH CENTURY SECURITIES, INC. (the "ACIS"). Capitalized terms
not otherwise defined herein shall have the meaning ascribed to them in the
Agreement (defined below).
RECITALS
WHEREAS, the Company and ACIS are parties to that certain Fund
Participation Agreement dated September 26, 1996 (the "Agreement") in
connection with the participation by the Funds in Contracts offered by the
Company to its clients and the parties wish to supplement the Agreement as
provided herein;
WHEREAS, since the date of the Agreement, Twentieth Century
Securities, Inc. has changed its name to American Century Investment
Services, Inc.; and
WHEREAS, since the date of the Agreement, the Funds have changed their
names; and
WHEREAS, since the date of the Agreement, ACIS has ceased being the
Distributor of the Funds; and
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
I. FUNDS UTIFIZED. The second "Whereas" clause of the Agreement is
hereby deleted in its entirety and replaced xvith the following language:
"WHEREAS, the Company wishes to offer as investrnent options
under certain of the Contracts, those mutual funds (each a "Fund" and
collectively, the "Funds") listed on Schedule B hereto, each such Fund
a series of mutual fund shares registered under the Investment Company
Act of 1940, as amended, and issued by American Century Variable
Portfolios, Inc.; and"
2. ASSIGNMENT BY COMPANV. ACIS hereby assigns all of its rights and
obligations under the Agreement to ACIM, and ACIN4 hereby accepts such
assignment. The Company hereby consents to such assignment. After the date of
this Amendment, all references to "Distributor" in the Agreement shall be
deemed to refer to ACIN4.
3. COMPENSATION AND EXPENSES. Section 6(b) of the Agreement is hereby
deleted in its entirety and replaced with the following language:
(b) ACIM acknowledges that it derives a substantial savings in
administrative expenses, such as a reduction in expenses related to postage,
shareholder communications and recordkeeping, by virtue of having a single
shareholder account per Fund for the Accounts rather than having each
Contract Owner as a shareholder. In consideration of the Administrative
Services and performance of all other obligations under this Agreement by the
Company, AM will pay the Company a fee (the "Administrative Services Fee")
equal to 25 basis points (0.25%) per annum of the average aggregate amount
invested by the Company under this Agreement, for as long as the average
aggregate market value of the investments by the Company in the Funds exceeds
$50 million. In the event the average aggregate arnount invested by the
Company drops below $50 million, ACIM shall pay Company 20 basis points
(0.20%) per annum of the average aggregate amount invested by the Company.
For purposes of this Section 6(b), the average aggregate investment amount of
Company's investment shall include assets of UNUM Life Insurance Company of
America and First UNTJM Life Insurance Company acquired by Company.
4. SCHEDULES. Schedules A and B to the Agreement are hereby deleted
and replaced in their entirety with Schedules A and B attached hereto.
5. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a
conflict between the terms of this Amendment and the Agreement it is the
intention of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions of
the Agreement have not been amended by this Amendment, the parties hereby
confirm and ratify the Agreement.
6. COUNTERPARTS: This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together
shall constitute one instrument.
7. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms, covenants
and conditions of the Agreement shall remain unamended and shall continue to be
in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. I as
of the date first above written.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK MANAGEMENT, INC.
By: By:
Name: Name:
Title: Title:
AMERICAN CENTURY INVESTMENT
SERVICES, INC.
By:
Name:
Title:
SCHEDULE A
VARIABLE ANNUITY CONTRACTS
AND VARIABLE LIFE INSURANCE POLICIES
SUPPORTED BY SEPARATE ACCOUNTS
LISTED ON SCHEDULE B
Group Variable Annuity I Contracts
Group Variable Annuity II Contracts
Group Variable Annuity III Contracts
SCHEDULE B
SEPARATE ACCOUNTS OF LINCOLN LIFE & ANNUITY COMPANY OF NEW
YORK
INVESTING IN CERTAIN FUNDS
SEPARATE ACCOUNT NAME AMERICAN CENTURY VP FUND(S) UTILIZED
Lincoln Life & Annuity Variable
Annuity Account L VP Capital Appreciation and VP Balanced
AMENDMENT NO. 2 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 2 TO FUND PARTICIPATION AGREEMENT (the "Amendment")
is effective as of May 1, 2000, by and among LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK (the "Company") and AMERICAN CENTURY INVESTMENT MANAGEMENT, INC
("ACIM"). Capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Agreement (defined below).
RECITALS
WHEREAS, the Company and ACIM are parties to that certain Fund
Participation Agreement dated September 26, 1996 and amended June 14, 1999 (the
"Agreement") in connection with the participation by the Funds in Contracts
offered by the Company to its clients and the parties wish to supplement the
Agreement as provided herein; and
WHEREAS, the parties desire to amend the Agreement to add new products,
a new separate account and new funds to be made available through the separate
account to the Agreement;
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. SCHEDULE A AND SCHEDULE B. Schedules A and B are hereby deleted and
replaced in their entirety with Schedules A and B attached hereto.
2. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a
conflict between the terms of this Amendment and the Agreement, it is the
intention of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions of
the Agreement have not been amended by this Amendment, the parties hereby
confirm and ratify the Agreement.
3. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
4. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms, covenants
and conditions of the Agreement shall remain unamended and shall continue to be
in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment
No. 2 as of the date first above written.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------------- -----------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer and -----------------------
2nd Vice President Title: Executive Vice President
-----------------------
2
SCHEDULE A
VARIABLE ANNUITY CONTRACTS
AND VARIABLE LIFE INSURANCE POLICIES
SUPPORTED BY SEPARATE ACCOUNTS
LISTED ON SCHEDULE B
Group Variable Annuity I Contracts
Group Variable Annuity II Contracts
Group Variable Annuity III Contracts
Lincoln CVUL
Lincoln CVUL Series III
SCHEDULE B
SEPARATE ACCOUNTS OF LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
INVESTING IN CERTAIN FUNDS
SEPARATE ACCOUNT NAME AMERICAN CENTURY VP FUND(S) UTILIZED
Lincoln Life & Annuity Variable VP Capital Appreciation Fund and VP
Annuity Account L Balanced Fund
LLANY Separate Account S for VP Income & Growth Fund and
Flexible Premium Variable VP International Fund
Life Insurance
4
SCHEDULE B
SEPARATE ACCOUNTS OF LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
INVESTING IN CERTAIN FUNDS
SEPARATE ACCOUNT NAME AMERICAN CENTURY VP FUND(S) UTILIZED
Lincoln Life & Annuity Variable VP Capital Appreciation Fund and VP
Annuity Account L Balanced Fund
LLANY Separate Account S for VP Income & Growth Fund and
Flexible Premium Variable VP International Fund
Life Insurance
AMENDMENT NO. 3 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 3 TO FUND PARTICIPATION AGREEMENT (the "Amendment") is
effective as of May 1, 2004, by and among LINCOLN LIFE & ANNUITY COMPANY OF NEW
YORK (the "Company"), AMERICAN CENTURY INVESTMENT MANAGEMENT, INC ("ACIM") and
AMERICAN CENTURY INVESTMENT SERVICES, INC. ("ACIS"). Capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the
Agreement (defined below).
RECITALS
WHEREAS, the Company and ACIM are parties to that certain Fund
Participation Agreement dated September 26, 1996, as amended June 14, 1999 and
May 1, 2000 (the "Agreement") in connection with the participation by the Funds
in Contracts offered by the Company to its clients and the parties wish to
supplement the Agreement as provided herein; and
WHEREAS, as of March 13, 2000, American Century Investment Services, Inc.
("ACIS") became the sole distributor for the Funds and ACIM wishes to assign to
ACIS all its rights and obligations under the Agreement;
WHEREAS, the parties desire to amend the Agreement to add new products, a
new separate account and new funds to be made available through the separate
account to the Agreement; and
WHEREAS, the parties have agreed to revise the reimbursement terms as set
forth herein in connection with the offering of specific Funds;
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
1. ASSIGNMENT BY ACIM. On March 13, 2000, ACIS became the sole
distributor of the Funds. ACIM hereby assigns all its rights and obligations
under the Agreement to ACIS and ACIS hereby accepts such assignment. The Company
hereby consents to such assignment. After the date of this Amendment, all
references to "ACIM" in the Agreement shall be deemed to refer to ACIS.
2. SCHEDULE A AND SCHEDULE B. Schedules A and B are hereby deleted and
replaced in their entirety with Schedules A and B attached hereto.
3. COMPENSATION AND EXPENSES. Sections 6(b) and (c) are hereby deleted
in their entirety and the following sections are substituted in lieu thereof:
"(b) ACIS acknowledges that it will derive a substantial
savings in administrative expenses, such as a reduction in expenses
related to postage, shareholder communications and recordkeeping, by
virtue of having a single shareholder account per Fund for the
Accounts rather than having each Contract owner as a shareholder. In
consideration of the Administrative
Services and performance of all other obligations under this
Agreement by the Company, Distributor will pay the Company its
prorata share of a fee (the "Administrative Services Fee") as set
forth on the attached SCHEDULE C of the average aggregate amount
invested by the Company in Class I and Class II shares of the Funds
under this Agreement. For purposes of this Section 6(b), the average
aggregate investment amount of Company's investment shall include
assets of Lincoln National Life Insurance Company and UNUM Life
Insurance Company of America and First UNUM Life Insurance Company
acquired by an affiliate of the Company. The payments received by
the Company do not constitute payment in any manner for investment
advisory services.
"(c) In consideration of performance of the Distribution
Services specified on SCHEDULE D by the Company, Distributor will
pay the Company a fee (the "Distribution Fee") of 25 basis points
(0.25%) of the average aggregate amount invested by the Company in
Class II of the VP Inflation Protection Fund under this Agreement."
4. TERMINATION. In connection with the expansion of Funds available
under the Agreement, Section 14 is hereby amended by deleting Section 14(f) in
its entirety and replacing it with the following language:
"(f) upon assignment by either party hereto:
The following language is hereby added as Section 14(m):
"(m) by a vote of a majority of independent directors of the
Funds."
5. Section 20 is hereby deleted in its entirety and the following
Section 20 is substituted in lieu thereof:
"20. SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned and will be terminated automatically upon any attempted
assignment. This Agreement shall be binding upon and inure to the
benefit of both parties hereto."
6. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a
conflict between the terms of this Amendment and the Agreement, it is the
intention of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions of
the Agreement have not been amended by this Amendment, the parties hereby
confirm and ratify the Agreement.
2
7. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together
shall constitute one instrument.
8. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms,
covenants and conditions of the Agreement shall remain unamended and shall
continue to be in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 3 as
of the date first above written.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK MANAGEMENT, INC.
By: /s/ Rise X.X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------- --------------------------
Name: Rise X.X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: 2nd Vice President Title: President
AMERICAN CENTURY
INVESTMENT SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
3
SCHEDULE A
VARIABLE ANNUITY CONTRACTS
AND VARIABLE LIFE INSURANCE POLICIES
SUPPORTED BY SEPARATE ACCOUNTS
LISTED ON SCHEDULE B
Group Variable Annuity I Contracts
Group Variable Annuity II Contracts
Group Variable Annuity III Contracts
Lincoln CVUL
Lincoln CVUL Series III
ChoicePlus
ChoicePlus Access
ChoicePlus II
ChoicePlus II Access
ChoicePlus II Bonus
ChoicePlus II Advance
ChoicePlus Assurance (B Share)
ChoicePlus Assurance (C Share)
ChoicePlus Assurance (Bonus)
ChoicePlus Assurance (L Share)
ChoicePlus Momentum Income Option
Director
Lincoln VUL(CV)
Lincoln VUL(CV) II Elite
Lincoln VUL(CV) III
Lincoln VUL(CV) IV
Lincoln VUL(CV) IV M
Lincoln VUL(DB)
Lincoln VUL(DB) Elite
Lincoln VUL(DB) II
Lincoln VUL(DB) IV
Lincoln VUL(DB) IV M
Lincoln SVUL
Lincoln SVUL Elite
Lincoln SVUL II Elite
Lincoln SVUL III
4
SCHEDULE B
SEPARATE ACCOUNTS OF LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
INVESTING IN CERTAIN FUNDS
SEPARATE ACCOUNT NAME AMERICAN CENTURY VP FUND(S) UTILIZED
--------------------- ------------------------------------
Lincoln Life & Annuity Variable VP Capital Appreciation Fund, VP
Annuity Account L Balanced Fund (Class I)
Lincoln New York Account N VP Inflation Protection Fund (Classes I & II)
For Variable Annuities
LLANY Separate Account S for VP Income & Growth Fund,
Flexible Premium Variable VP International Fund (Class I)
Life Insurance
LLANY Separate Account R for VP Inflation Protection Fund (Classes I & II)
Flexible Premium Variable
Life Insurance
Lincoln Life & Annuity Flexible Premium VP Inflation Protection Fund (Classes I & II)
Variable Life Account M
Lincoln New York Separate Account 401 VP Inflation Protection Fund (Classes I & II)
5
SCHEDULE C
FUNDS AVAILABLE AND ADMINISTRATIVE SERVICES FEES
CLASS I OF:
VP Balanced Fund
VP Capital Appreciation Fund
VP International Fund
VP Income & Growth Fund
Fees: 20 basis points on first $50M in total assets(1)
25 basis points on total assets in excess of $50M
CLASSES I & II OF:
VP Inflation Protection Fund
Fees: 20 basis points on first $30M in assets(2) of Classes I & II of
this Fund
25 basis points on combined assets of Classes I & II of this Fund
in excess of $30M
----------
(1) The total asset level shall include only those Funds that meet the
requirements for reimbursement in accordance with the schedule as set forth
above. The total asset level shall be determined by aggregating the assets
invested in the Funds by the Company with all assets (except VP Class II Fund
assets) invested in the American Century family of funds by the following
affiliates of the Company:
Lincoln Life & Annuity Company of New York
UNUM Life Insurance Company of America
First UNUM Life Insurance Company
(2) The total asset level shall include only Classes I & II of the VP Inflation
Protection Fund in accordance with the schedule as set forth above. The total
asset level shall be determined by aggregating the assets invested in Classes I
& II of the VP Inflation Protection Fund by the Company and Lincoln Life &
Annuity Company of New York.
6
SCHEDULE D
DISTRIBUTION SERVICES
Pursuant to the Agreement to which this is attached, the Company shall perform
distribution services for Advisor Class shares of the Funds, including, but not
limited to, the following:
1. Receive and answer correspondence from prospective shareholders, including
distributing prospectuses, statements of additional information, and
shareholder reports.
2. Provide facilities to answer questions from prospective investors about
Fund shares.
3. Assist investors in completing application forms and selecting dividend
and other account options.
4. Provide other reasonable assistance in connection with the distribution
of Fund shares.
7
AMENDMENT NO. 4 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 4 TO FUND PARTICIPATION AGREEMENT (the "Amendment") is
effective as of July 1, 2004, by and among LINCOLN LIFE & ANNUITY COMPANY OF NEW
YORK (the "Company"), AMERICAN CENTURY INVESTMENT MANAGEMENT, INC ("ACIM") and
AMERICAN CENTURY INVESTMENT SERVICES, INC. ("ACIS"). Capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the
Agreement (defined below).
RECITALS
WHEREAS, the Company and ACIM are parties to that certain Fund
Participation Agreement dated September 26, 1996, as amended June 14, 1999, May
1, 2000 and May 1, 2004 (the "Agreement") in connection with the participation
by the Funds in Contracts offered by the Company to its clients and the parties
wish to supplement the Agreement as provided herein; and
WHEREAS, the parties desire to amend the Agreement to revise the list of
separate accounts for which Funds are made available under the Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
1. SCHEDULE A. Schedule A is hereby deleted in its entirety and is
replaced by Schedule A, attached hereto.
2. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a
conflict between the terms of this Amendment and the Agreement, it is the
intention of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions of
the Agreement have not been amended by this Amendment, the parties hereby
confirm and ratify the Agreement.
3. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together
shall constitute one instrument.
4. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms,
covenants and conditions of the Agreement shall remain unamended and shall
continue to be in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 4 as
of the date first above written.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK SERVICES, INC.
By: /s/ Rise X.X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------- --------------------------
Name: Rise X.X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: 2nd Vice President Title: President
AS AMENDED EFFECTIVE
OCTOBER 1, 2004
SCHEDULE A
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE POLICIES
SUPPORTED BY SEPARATE ACCOUNTS LISTED ON SCHEDULE B
Group Variable Annuity I Contracts
Group Variable Annuity II Contracts
Group Variable Annuity III Contracts
Lincoln CVUL
Lincoln CVUL Series III
ChoicePlus
ChoicePlus Access
ChoicePlus II
ChoicePlus II Access
ChoicePlus II Bonus
ChoicePlus II Advance
ChoicePlus Assurance (B Share)
ChoicePlus Assurance (C Share)
ChoicePlus Assurance (Bonus)
ChoicePlus Assurance (L Share)
ChoicePlus Momentum Income Option
Director
Lincoln VUL(CV)
Lincoln VUL(CV) II Elite
Lincoln VUL(CV) III
Lincoln VUL(CV) IV
Lincoln VUL(DB)
Lincoln VUL(DB) Elite
Lincoln VUL(DB) II
Lincoln VUL(DB) IV
Lincoln VUL(ONE)
Lincoln Momentum VUL(ONE)
Lincoln SVUL
Lincoln SVUL Elite
Lincoln SVUL II Elite
Lincoln SVUL III
Lincoln SVUL IV
AMENDMENT NO. 5 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 5 TO FUND PARTICIPATION AGREEMENT (the "Amendment") is
effective as of May 1, 2006, by and among LINCOLN LIFE & ANNUITY COMPANY OF NEW
YORK (the "Company") and AMERICAN CENTURY INVESTMENT SERVICES, INC. ("ACIS").
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Agreement (defined below).
RECITALS
WHEREAS, the Company and ACIS are parties to that certain Fund
Participation Agreement dated September 26, 1996, as amended June 14, 1999, May
1, 2000, May 1, 2004 and July 1, 2004 (the "Agreement") in connection with the
participation by the Funds in Contracts offered by the Company to its clients
and the parties wish to supplement the Agreement as provided herein; and
WHEREAS, the parties desire to amend the Agreement to revise the list of
variable annuity contracts and variable life policies supported by the separate
accounts listed in the Agreement; and
WHEREAS, the parties desire to amend the Agreement to revise the list of
separate accounts for which Funds are made available under the Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
1. SCHEDULES A AND B. Schedules A and B are hereby deleted in their entirety
and are replaced by Schedules A and B, attached hereto.
2. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a conflict
between the terms of this Amendment and the Agreement, it is the intention
of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions
of the Agreement have not been amended by this Amendment, the parties
hereby confirm and ratify the Agreement.
3. COUNTERPARTS. This Amendment may be executed in two or more counterparts,
each of which shall be an original and all of which together shall
constitute one instrument.
4. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms,
covenants and conditions of the Agreement shall remain unamended and shall
continue to be in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 5 as
of the date first above written.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxxxxx
Title: 2nd Vice President Title: Senior Vice President
AS AMENDED EFFECTIVE
MAY 1, 2006
SCHEDULE A
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE POLICIES
SUPPORTED BY SEPARATE ACCOUNTS LISTED ON SCHEDULE B
Group Variable Annuity I Contracts
Group Variable Annuity II Contracts
Group Variable Annuity III Contracts
Lincoln CVUL
Lincoln CVUL Series III
ChoicePlus
ChoicePlus Access
ChoicePlus II
ChoicePlus II Access
ChoicePlus II Bonus
ChoicePlus II Advance
ChoicePlus Assurance (B Share)
ChoicePlus Assurance (C Share)
ChoicePlus Assurance (Bonus)
ChoicePlus Assurance (L Share)
ChoicePlus Momentum Income Option
Director
Lincoln VUL(CV)
Lincoln VUL(CV) II Elite
Lincoln VUL(CV) III
Lincoln VUL(CV) IV
Lincoln VUL(DB)
Lincoln VUL(DB) Elite
Lincoln VUL(DB) II
Lincoln VUL(DB) IV
Lincoln VULONE
Lincoln Momentum VULONE
Lincoln Momentum SVULONELincoln SVUL
Lincoln SVUL Elite
Lincoln SVUL II Elite
Lincoln SVUL III
Lincoln SVUL IV
Lincoln SVULONE
Lincoln Corporate Variable 5
SCHEDULE B
SEPARATE ACCOUNTS OF LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
INVESTING IN CERTAIN FUNDS
SEPARATE ACCOUNT NAME AMERICAN CENTURY VP FUND(S) UTILIZED
--------------------- ------------------------------------
Lincoln Life & Annuity Variable VP Capital Appreciation Fund, VP
Annuity Account L Balanced Fund (Class I)
Lincoln New York Account N VP Inflation Protection Fund
For Variable Annuities (Classes I & II)
LLANY Separate Account S for VP Income & Growth Fund,
Flexible Premium Variable VP International Fund (Class I)
Life Insurance VP Inflation Protection Fund
(Class II)
LLANY Separate Account R for VP Inflation Protection Fund
Flexible Premium Variable (Classes I & II)
Life Insurance
Lincoln Life & Annuity Flexible Premium VP Inflation Protection Fund
Variable Life Account M (Classes I & II)
Lincoln New York Separate Account 401 VP Inflation Protection Fund
(Classes I & II)
AMENDMENT NO. 6 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 6 TO FUND PARTICIPATION AGREEMENT (the "Amendment") is
effective as of October 1, 2006, by and among LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK (the "Company") and AMERICAN CENTURY INVESTMENT SERVICES, INC.
("ACIS"). Capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Agreement (defined below).
RECITALS
WHEREAS, the Company and ACIS are parties to that certain Fund
Participation Agreement dated September 26, 1996, as amended June 14, 1999, May
1, 2000, May 1, 2004, July 1, 2004 and May 1, 2006 (the "Agreement") in
connection with the participation by the Funds in Contracts offered by the
Company to its clients and the parties wish to supplement the Agreement as
provided herein; and
WHEREAS, the parties desire to amend the Agreement to revise the list of
variable annuity contracts and variable life policies supported by the separate
accounts listed in the Agreement; and
WHEREAS, the parties desire to amend the Agreement to revise the list of
separate accounts for which Funds are made available under the Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereto agree as follows:
1. SCHEDULES A AND B. Schedules A and B are hereby deleted in their entirety
and are replaced by Schedules A and B, attached hereto.
2. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a conflict
between the terms of this Amendment and the Agreement, it is the intention
of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions
of the Agreement have not been amended by this Amendment, the parties
hereby confirm and ratify the Agreement.
3. COUNTERPARTS. This Amendment may be executed in two or more counterparts,
each of which shall be an original and all of which together shall
constitute one instrument.
4. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms,
covenants and conditions of the Agreement shall remain unamended and shall
continue to be in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 6 as
of the date first above written.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxxxxx
Title: 2nd Vice President Title: Senior Vice President
AS AMENDED EFFECTIVE
OCTOBER 1, 2006
SCHEDULE A
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE POLICIES
SUPPORTED BY SEPARATE ACCOUNTS LISTED ON SCHEDULE B
Group Variable Annuity I Contracts
Group Variable Annuity II Contracts
Group Variable Annuity III Contracts
Lincoln CVUL
Lincoln CVUL Series III
ChoicePlus
ChoicePlus Access
ChoicePlus II
ChoicePlus II Access
ChoicePlus II Bonus
ChoicePlus II Advance
ChoicePlus Assurance (A Share)
ChoicePlus Assurance (B Share)
ChoicePlus Assurance (C Share)
ChoicePlus Assurance (Bonus)
ChoicePlus Assurance (L Share)
ChoicePlus Momentum Income Option
ChoicePlus Design
Director
Lincoln VUL(CV)
Lincoln VUL(CV) II Elite
Lincoln VUL(CV) III
Lincoln VUL(CV) IV
Lincoln VUL(DB)
Lincoln VUL(DB) Elite
Lincoln VUL(DB) II
Lincoln VUL(DB) IV
Lincoln VULONE
Lincoln Momentum VULONE
Lincoln Momentum SVULONE
Lincoln SVUL
Lincoln SVUL Elite
Lincoln SVUL II Elite
Lincoln SVUL III
Lincoln SVUL IV
Lincoln SVULONE
Lincoln Corporate Variable 5
Lincoln Corporate Private Solution
SCHEDULE B
SEPARATE ACCOUNTS OF LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
INVESTING IN CERTAIN FUNDS
SEPARATE ACCOUNT NAME AMERICAN CENTURY VP FUND(S) UTILIZED
Lincoln Life & Annuity Variable VP Capital Appreciation Fund, VP
Annuity Account L Balanced Fund (Class I)
Lincoln New York Account N VP Inflation Protection Fund
For Variable Annuities (Classes I & II)
LLANY Separate Account S for VP Income & Growth Fund,
Flexible Premium Variable VP International Fund (Class I)
Life Insurance VP Inflation Protection Fund
(Class II)
LLANY Separate Account R for VP Inflation Protection Fund
Flexible Premium Variable (Classes I & II)
Life Insurance
Lincoln Life & Annuity Flexible Premium VP Inflation Protection Fund
Variable Life Account M (Classes I & II)
Lincoln New York Separate Account 401 VP Inflation Protection Fund
(Classes I & II)
Lincoln Life & Annuity Flexible Premium VP Balanced Fund (Class I)
Variable Life Account Z VP Income & Growth Fund (Class I)
VP Inflation Protection Fund
(Class II)
VP International Fund (Class I)
VP Value Fund (Class II)
AMENDMENT NO. 7 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 7 TO FUND PARTICIPATION AGREEMENT (the "Amendment"), by
and among LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK (the "Company") and
AMERICAN CENTURY INVESTMENT SERVICES, INC. ("ACIS") is effective as of
April 1, 2007, regardless when executed.
RECITALS
WHEREAS, a merger of Lincoln Life & Annuity Company of New York and
Jefferson Pilot LifeAmerica Insurance Company ("JPLA") is expected to occur
on or about April 2, 2007;
WHEREAS, effective on or about Xxxxx 0, 0000, XXXX will change its state
of domicile from New Jersey to New York and will change its name to Lincoln
Life & Annuity Company of New York;
NOW, THEREFORE, For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree to amend the
Agreement as follows:
1. SUBSTITUTION OF PARTY. By signing below, the parties hereby agree that
the former Lincoln Life & Annuity Company of New York shall be replaced as a
party to this Agreement by the new Lincoln Life & Annuity Company of New
York, which as of the effective date of this Amendment, shall have all the
rights and responsibilities associated with such substitution.
2. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a conflict
between the terms of this Amendment and the Agreement, it is the intention
of the parties that the terms of this Amendment shall control and the
Agreement shall be interpreted on that basis. To the extent the provisions
of the Agreement have not been amended by this Amendment, the parties hereby
confirm and ratify the Agreement.
3. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together
shall constitute one instrument.
4. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms, covenants
and conditions of the Agreement shall remain unamended and shall continue to
be in full force and effect.
IN WITNESS WHEREOF, the undersigned have caused this Amendment No.7 to be
executed in its name and on behalf of its duly authorized officer on the date
specified below.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxx
----------------------------- ---------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxx
Title: 2nd Vice President Title: President
AMENDMENT NO. 8 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 8 TO FUND PARTICIPATION AGREEMENT (the "Amendment"), by
and among LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK (the "Company") and
AMERICAN CENTURY INVESTMENT SERVICES, INC. ("ACIS") is effective as of April
2, 2007, regardless when executed.
RECITALS
WHEREAS, effective April 2, 2007, Lincoln Financial Distributors, Inc.
assumed the role of principal underwriter of the separate accounts listed in
the Agreement;
NOW, THEREFORE, For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree to amend the
Agreement as follows:
1. SUBSTITUTION OF PARTY. By signing below, the parties hereby agree that
Lincoln Financial Advisors Corporation shall be replaced as principal
underwriter of the separate accounts and distributor of the contracts listed
on Schedule B of the Agreement by Lincoln Financial Distributors, Inc., which
as of the effective date of this Amendment, shall have all the rights and
responsibilities associated with such substitution.
2. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a conflict
between the terms of this Amendment and the Agreement, it is the intention of
the parties that the terms of this Amendment shall control and the Agreement
shall be interpreted on that basis. To the extent the provisions of the
Agreement have not been amended by this Amendment, the parties hereby confirm
and ratify the Agreement.
3. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together
shall constitute one instrument.
4. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms, covenants
and conditions of the Agreement shall remain unamended and shall continue to
be in full force and effect.
IN WITNESS WHEREOF, the undersigned have caused this Amendment No.8 to be
executed in its name and on behalf of its duly authorized officer on the date
first listed above.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------- --------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxx
Title: 2nd Vice President Title: President
AMENDMENT NO. 9 TO FUND PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 9 TO FUND PARTICIPATION AGREEMENT (the "Amendment")
is made as of this 1st day of November, 2008, by and between LINCOLN LIFE &
ANNUITY COMPANY OF NEW YORK (the "Company") and AMERICAN CENTURY INVESTMENT
SERVICES, INC. ("ACIS"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Agreement (defined below).
RECITALS
WHEREAS, the Company and ACIS are parties to that certain Fund
Participation Agreement dated September 26, 1996, as amended (the
"Agreement"); and
WHEREAS, effective April 2, 2007, Jefferson Pilot LifeAmerica Insurance
Company ("JPLA") merged into its affiliated insurance company, Lincoln Life &
Annuity Company of New York, and ceased all legal existence. The Company and
ACIS agree that the Shareholder Services Agreement between ACIS and JPLA
dated May 1, 2001, shall be of no further effect; and
WHEREAS, the parties have agreed to amend the Agreement to revise the
list of variable annuity contracts and variable life policies supported by
the separate accounts under the Agreement, as set forth in the attached
Schedule A; and
WHEREAS, the parties have agreed to amend the Agreement to revise the
list of separate accounts for which Funds are made available under the
Agreement, as set forth in the attached Schedule B; and
WHEREAS, the parties have agreed to make additional Funds available as
investment options and to revise the reimbursement terms under the Agreement,
as set forth in the attached Schedule C; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree to amend the
Agreement as follows:
1. FUNDS AVAILABLE. The second recital of the Agreement is hereby
deleted in its entirety and replaced with the following language:
"WHEREAS, the Company wishes to make available as investment options
under the Agreement, one or more of the funds identified in SCHEDULE C
attached hereto (the "Funds"), each of which is a series of mutual fund
shares registered under the Investment Company Act of 1940, as amended, and
issued by a registered investment company (each an "Issuer" and
collectively, the "Issuers"); and"
2. TIMING OF TRANSACTIONS. Section 3 to the Agreement is hereby
deleted in its entirety and replaced with the following language:
"(a) Distributor hereby appoints the Company as agent for the Funds
for the limited purpose of accepting purchase and redemption orders for
Shares from the Plans sponsors and/or Participants, as applicable. On each
day the New York Stock Exchange (the "Exchange") is open for business
(each, a "Business Day"); the Company may receive instructions from the
Plans sponsors and/or Participants for the purchase or redemption of Shares
("Orders"). Orders received and accepted by the Company prior to the price
time for
each Fund as set forth in its Prospectus (the "Price Time"), generally the
close of regular trading on the Exchange (the "Close of Trading") on any
given Business Day (currently, 4:00 p.m. Eastern time) and transmitted to
Transfer Agent either (1) prior to the Price Time on such Business Day or
(2) pursuant to the National Securities Clearing Corporation's ("NSCC")
Mutual Fund Settlement, Entry and Redemption Verification ("Fund/SERV")
system in accordance with Section 4 hereof, will be executed at the net
asset value determined as of the relevant Fund's Price Time on the Business
Day the Company received such Order. Any Orders received by the Company
on such day but after the relevant Fund's Price Time on a Business Day will
be executed at the net asset value next determined as of that Fund's Price
Time on the next Business Day. The day as of which an Order is executed by
Transfer Agent pursuant to the provisions set forth above is referred to
herein as the "Trade Date". All Orders are subject to acceptance or
rejection by American Century or the Funds in the sole discretion of any
of them.
"(b) Notwithstanding Section 3(a) above, if the Securities and
Exchange Commission adopts a rule, or a law is enacted, that changes the
requirements for intermediaries with regard to accepting Orders on behalf
of the Funds, the timing of transmitting Orders to the Funds, or otherwise
affects the way Orders are accepted, transmitted or priced, Section 3(a)
shall be deemed to be automatically amended to comply with such new rule or
law."
3. PROCESSING OF TRANSACTIONS. If transactions in Shares are to be
settled manually, the provisions in Sections 4(a), (b) and (c) continue to
apply. The Agreement is hereby amended with the following language:
"(d) If transactions in Shares are to be settled through the
Fund/SERV system, the following provisions shall apply:
"(1) Each party to this Agreement represents that it or one of
its affiliates has entered into the Standard Networking Agreement with
the NSCC and it desires to participate in the programs offered by the
NSCC Fund/SERV system which provide (i) an automated process whereby
shareholder purchases and redemptions, exchanges and transactions of
mutual fund shares are executed through the Fund/SERV system, and
(ii) a centralized and standardized communication system for the
exchange of customer-level information and account activity through the
Fund/SERV Networking system ("Networking").
"(2) For each Fund/SERV transaction, including transactions
establishing accounts with American Century or its affiliates, the
Company shall provide the Funds and American Century or its affiliates
with all information necessary or appropriate to establish and maintain
each Fund/SERV transaction (and any subsequent changes to such
information), which the Company hereby certifies is and shall remain
true and correct. The Company shall maintain documents required by
American Century or the Funds to effect Fund/SERV transactions. Each
instruction shall be deemed to be accompanied by a representation by
the Company that it has received proper authorization from each person
whose purchase, redemption, account transfer or exchange transaction is
effected as a result of such instruction.
"(3) At all times each party shall maintain insurance coverage
that is reasonable and customary in light of all its responsibilities
hereunder and under applicable law. Such coverage shall insure for
losses resulting from the criminal acts, errors or omissions of each
party's employees and agents.
"(4) The Company represents and warrants that all instructions,
questions and other correspondence concerning the accounts for which
trades are made in accordance with this SECTION 4(a) shall come from
the Company, and that individual account holders shall contact the
Company, rather than contact Distributor or the Funds directly, with
instructions, questions and requests concerning the Funds. The Company
further represents and warrants that it, rather than Distributor or the
Funds, has reporting responsibility to its clients for confirmations of
transactions and monthly, quarterly and year-end statements.
"(e) If transactions in Shares are to be settled directly with
Transfer Agent, procedures relating to the processing and settlement of
Orders shall be subject to such instructions as American Century may
forward to the Company from time to time. Payment for net purchase
transactions shall be made by wire transfer or through a clearinghouse
agency approved by the American Century to the applicable Fund
custodial account designated by American Century on the Business Day
next following the Trade Date. Such wire transfers shall be initiated
by the Company's bank prior to 4:00 p.m. Eastern time and received by
the Funds prior to 6:00 p.m. Eastern time on the Business Day next
following the Trade Date. If payment for a purchase Order is not
timely received, the Fund may cancel the Order or, at American
Century's option, resell the shares to the applicable Fund at the then
prevailing net asset value, and the Company shall be responsible for
all costs to American Century, the Funds or any affiliate of American
Century or the Funds resulting from such resale. The Company shall be
responsible for any loss, expense, liability or damage, including loss
of profit suffered by American Century and/or the respective Funds
resulting from delay or failure to make timely payment for such shares
or cancellation of any trade, or for any Orders that are processed on
an "as of" basis as an accommodation to the Company. The Company shall
not be entitled to any gains generated thereby.
"(f) The Company agrees not to withhold placing Orders received from
any customers for the purchase or sale of shares so as to profit itself
as a result of such withholding. The Company shall not purchase shares
through Distributor except for the purpose of covering purchase Orders
received by the Company, or for the Company's bona fide investment.
The Company agrees to purchase shares only from the Funds or its
customers. If the Company purchases shares from its customers, it will
pay such customers not less than the applicable redemption price as
established by the then-current prospectuses of the Funds."
4. COMPENSATION AND EXPENSES. Section 6(b) is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"(b) ACIS acknowledges that it will derive a substantial savings in
administrative expenses, such as a reduction in expenses related to
postage, shareholder communications and recordkeeping, by virtue of having
a single shareholder account per Fund for the Accounts rather than having
each Contract owner as a shareholder. In consideration of the
Administrative Services and performance of all other obligations under this
Agreement by the Company, ACIS will pay the Company a fee (the
"Administrative Services Fee") attached as SCHEDULE C, attached hereto.
Any such fee shall be paid to the Company only with respect to Accounts
where the Company's Dealer # 4686 and/or # 7002003 is indicated."
5. SCHEDULES A, B AND C. Schedules A, B and C are hereby deleted in
their entirety and are replaced by Schedules A, B and C, attached hereto.
6. RATIFICATION AND CONFIRMATION OF AGREEMENT. In the event of a
conflict between the
terms of this Amendment and the Agreement, it is the intention of the parties
that the terms of this Amendment shall control and the Agreement shall be
interpreted on that basis. To the extent the provisions of the Agreement
have not been amended by this Amendment, the parties hereby confirm and
ratify the Agreement.
7. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be an original and all of which together
shall constitute one instrument.
8. FULL FORCE AND EFFECT. Except as expressly supplemented, amended or
consented to hereby, all of the representations, warranties, terms, covenants
and conditions of the Agreement shall remain unamended and shall continue to
be in full force and effect.
IN WITNESS WHEREOF, the undersigned have caused this Amendment No.9 to be
executed in its name and on behalf of its duly authorized officer on the date
first listed above.
LINCOLN LIFE & ANNUITY AMERICAN CENTURY INVESTMENT
COMPANY OF NEW YORK SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: 2nd Vice President Title: Vice President
AS AMENDED EFFECTIVE
AUGUST 1, 2008
SCHEDULE A
VARIABLE ANNUITY CONTRACTS AND VARIABLE LIFE INSURANCE POLICIES
SUPPORTED BY SEPARATE ACCOUNTS LISTED ON SCHEDULE B
Group Variable Annuity Contracts Lincoln VUL(CV)
Lincoln CVUL Lincoln VUL(CV) II Elite
Lincoln CVUL Series III Lincoln VUL(CV) III
ChoicePlus Lincoln VUL(CV) IV
ChoicePlus Access Lincoln VUL(DB)
ChoicePlus II Lincoln VUL(DB) Elite
ChoicePlus II Access Lincoln VUL(DB) II
ChoicePlus II Bonus Lincoln VUL(DB) IV
ChoicePlus II Advance Lincoln VUL(ONE)
ChoicePlus Assurance (A Share) Lincoln Momentum VULONE
ChoicePlus Assurance (A Share) i4LIFE(R) Advantage Lincoln Momentum SVULONE
ChoicePlus Assurance (A Class) Lincoln SVUL
ChoicePlus Assurance (B Share) Lincoln SVUL Elite
ChoicePlus Assurance (B Share) i4LIFE(R) Advantage Lincoln SVUL II Elite
ChoicePlus Assurance (B Class) Lincoln SVUL III
ChoicePlus Assurance (C Share) Lincoln SVUL IV
ChoicePlus Assurance (Bonus) Lincoln SVULONE
ChoicePlus Assurance (L Share) Lincoln Corporate Variable 5
ChoicePlus Momentum Income Option Lincoln Corporate Private Solution
ChoicePlus Design Lincoln Ensemble II VUL
ChoicePlus Design i4LIFE(R) Advantage
Director
AS AMENDED EFFECTIVE
AUGUST 1, 2008
SCHEDULE B
SEPARATE ACCOUNTS OF LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
INVESTING IN CERTAIN FUNDS
SEPARATE ACCOUNT NAME AMERICAN CENTURY VP FUND(S) UTILIZED
--------------------- ------------------------------------
Lincoln Life & Annuity Variable VP Capital Appreciation Fund
Annuity Account L VP Balanced Fund (Class I)
Lincoln New York Account N VP Inflation Protection Fund (Classes I & II)
For Variable Annuities
LLANY Separate Account S for VP Income & Growth Fund
Flexible Premium Variable VP International Fund (Class I)
Life Insurance VP Inflation Protection Fund (Class II)
LLANY Separate Account R for VP Inflation Protection Fund (Classes I & II)
Flexible Premium Variable
Life Insurance
Lincoln Life & Annuity Flexible Premium VP Inflation Protection Fund (Classes I & II)
Variable Life Account M
Lincoln New York Separate Account 401 VP Inflation Protection Fund (Classes I & II)
Lincoln Life & Annuity Flexible Premium VP Balanced Fund (Class I)
Variable Life Account Z VP Income & Growth Fund (Class I)
VP Inflation Protection Fund (Class II)
VP International Fund (Class I)
VP Value Fund (Class II)
Lincoln Life & Annuity Flexible Premium VP International Fund (Class I)
Variable Life Account JA-B VP Value Fund (Class II)
AS AMENDED EFFECTIVE
AUGUST 1, 2008
SCHEDULE C
FUNDS AVAILABLE AND ADMINISTRATIVE SERVICES FEE
CLASS I OF: FEES
---------- ----
VP Balanced 25 bps
VP Capital Appreciation Fund 25 bps
VP International 25 bps
VP Income & Growth 25 bps
CLASS II OF:
-----------
VP Inflation Protection Fund 25 bps
VP Value II 10 bps
