Exhibit 8(b)(x)
PARTICIPATION AGREEMENT
Among
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK,
FIRST TRUST VARIABLE INSURANCE TRUST,
and
FIRST TRUST PORTFOLIOS, L.P.
THIS AGREEMENT, made and entered into as of this 17th day of March , 2014
by and among Lincoln Life & Annuity Company of New York (the "Company"), a New
York life insurance company, on its own behalf and on behalf of each of its
segregated asset accounts named on Schedule A (the "Account"); FIRST TRUST
VARIABLE INSURANCE TRUST, a business trust organized under the laws of the
Commonwealth of Massachusetts (the "Fund"); and FIRST TRUST PORTFOLIOS, L.P., an
Illinois limited partnership (the "Distributor") (each a "Party," and
collectively, the "Parties").
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and/or variable annuity
contracts (collectively, the "Variable Insurance Products") to be offered by
insurance companies, including the Company, which have entered into
participation agreements similar to this Agreement (hereinafter, "Participating
Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund may be divided into several
series of shares, each designated a "Portfolio" and representing the interest in
a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund may rely on an order from the Securities and Exchange
Commission ("SEC"), granting Participating Insurance Companies and variable
annuity and variable life insurance separate accounts exemptions from the
provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company
Act of 1940, as amended ("1940 Act"), and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans") ("Mixed and Shared
Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolio(s) are registered under
the Securities Act of 1933, as amended ("1933 Act"); and
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended ("1934 Act"), and is a member in
good standing of the Financial Industry Regulatory Authority, Inc. ("FINRA");
and
WHEREAS, the Company has registered interests, unless exempt, under certain
Variable Insurance Products that are supported wholly or partially by the
Account under the 1933 Act and that are listed in Schedule A hereto
("Contracts"); and
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company
under the insurance laws of the State of New York, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, the Company has registered the Account as a unit investment trust
under the 1940 Act and has registered (or will register prior to sale) the
securities deemed to be issued by the Account under the 1933 Act to the extent
required; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolio(s) listed
in Schedule B hereto (the "Designated Portfolio(s)"), on behalf of the Account
to fund the Contracts, and the Fund is authorized to sell such shares to unit
investment trusts such as the Account at net asset value; and
WHEREAS, in the event both parties agree to use National Securities
Clearing Corporation ("NSCC") Fund/SERV System ("Fund/SERV System"), upon
notification to the Fund of such availability, the parties may permit the Fund
to receive, and the Company to transmit, purchase and redeem orders of Portfolio
shares using the NSCC Fund/SERV System; and
WHEREAS, upon such notification, in order to receive and transmit orders
for Portfolio shares via Fund/SERV, it is intended that the Fund and the
Company, or their duly authorized agents, will establish an account using
Fund/SERV (the "Fund/SERV Account") that will reflect corresponding transactions
and Portfolio share balances in the T/A Account;
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolio(s) listed
in Schedule B hereto (the "Designated Portfolio(s)"), on behalf of the Account
to fund the Contracts, and the Fund is authorized to sell such shares to unit
investment trusts such as the Account at net asset value; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company also intends to continue to purchase shares in other
open-end investment companies or series thereof not affiliated with the Fund
(the "Unaffiliated Funds") on behalf of the Accounts to fund the Contracts.
NOW, THEREFORE, in consideration of their mutual promises, the Parties
agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Fund agrees to make shares of the Designated Portfolio(s)
available for purchase at the applicable net asset value per share by the
Company and the Account on those days on which the Fund calculates its
Designated Portfolio(s)' net asset value pursuant to rules of the SEC, and the
Fund shall use commercially reasonable efforts to calculate such net asset value
on each day which the New York Stock Exchange ("NYSE") is open for regular
trading. Notwithstanding the foregoing, the Board of Trustees of the Fund
(hereinafter the "Board") may refuse to sell shares of any Designated Portfolio
to any person, or suspend or terminate the offering of shares of any Designated
Portfolio if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in good faith and
in light of its fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Designated
Portfolio.
1.2. The Fund and Distributor will not sell shares of the Designated
Portfolio(s) to any other Participating Insurance Company separate account
unless an agreement containing provisions substantially the same as Sections
2.1, 2.4 and 2.10 of Article II, Sections 3.4 and 3.5 of Article III and Article
VII of this Agreement is in effect to govern such sales.
1.3. The Fund agrees to (a) sell to the Company those full and fractional
shares of the Designated Portfolio(s) that the Company, on behalf of the
Account, orders, and (b) redeem, on the Company's order, any full or fractional
shares of the Fund held by the Company, in each case executing such orders on
each Business Day at the net asset value next computed after receipt by the Fund
or its designee of the order for the shares of the Designated Portfolios, except
that the Fund reserves the right to suspend the right of redemption or postpone
the date of payment or satisfaction upon redemption consistent with Section
22(e) of the 1940 Act and any sales thereunder, and in accordance with the
procedures and policies of the Fund as described in the then current prospectus
of the Fund ("Fund Prospectus"). For purposes of this Section 1.3, the Company
shall be the designee of the Fund for receipt of such orders and receipt by such
designee shall constitute receipt by the Fund, provided that:
(i) if the Company transmits such request to the Fund via the NSCC
Fund/SERV System and/or Defined Contribution Clearance & Settlement
("DCC&S") platform, such request must be received by the Company by
the close of regular trading on the NYSE and must be received from
Fund/SERV by 9:00 a.m. Eastern Time on the next following Business
Day; or
(ii) If there are technical problems with Fund/SERV, or if the Parties
are not able to transmit or receive information through Fund/SERV
(e.g., send requests via fax or by other mutually agreed upon means),
such request must be received by the Fund by 10:00 a.m. Eastern Time
on the next following Business Day.
With regard to purchase and redemptions of Shares under this Section 1.3, the
Company is solely responsible for ensuring that each such purchase or redemption
is the net result of requests from Contract owners for Contract transactions
received by it or its duly designated agent each Business Day before the time(s)
that the Fund calculates its net asset value. In the event that any Party is
prohibited from communicating, processing or settling Portfolio share
transactions via Fund/SERV or Networking, such Party shall notify the other
Parties by 10:00 a.m. Eastern Time. "Business Day" shall mean any day on which
the NYSE is open for trading and on which the Designated Portfolio calculates
its net asset value pursuant to the rules of the SEC. The Company shall provide
the Fund with net purchase and redemption requests computed in accordance with
Section 1.7 hereof. The Company agrees to purchase and redeem the shares of each
Designated Portfolio offered by the Fund Prospectus in accordance with the
provisions of such Prospectus.
1.4. In the event of net purchases, the Company shall pay for Fund shares
the same Business Day after an order to purchase Fund shares is made in
accordance with the provisions of Section 1.3 hereof. Payment shall be in
federal funds transmitted to the Fund by wire by 5:30 p.m. Eastern time. With
respect to orders submitted via NSCC, payment shall be from the designated NSCC
Settling Bank on behalf of the Company by the time specified by the Fund's
transfer agent (the "NSCC Wire Cut-off Time"). If payment in federal funds for
any purchase is not received or is received by the Fund after 5:30 p.m. Eastern
time on such Business Day or by the NSCC Wire Cut-Off Time, the Company shall
promptly, upon the Fund's request, reimburse the Fund for any charges, costs,
fees, interest or other expenses incurred by the Fund in connection with any
advances to, or borrowings or overdrafts by, the Fund, or any similar expenses
incurred by the Fund, as a result of portfolio transactions effected by the Fund
based upon such purchase request. Upon receipt by the Fund of the federal funds
so wired, such funds shall cease to be the responsibility of the Company and
shall become the responsibility of the Fund. "Settling Bank" shall mean the
entity appointed by the party to perform such settlement services which entity
agrees to abide by NSCC's then current rules and procedures insofar as they
related to funds settlement.
1.5. In the event of net redemptions, the Fund shall pay and transmit the
proceeds of redemptions of Fund shares the same Business Day after a redemption
order is received in accordance with Section 1.3 hereof (with respect to orders
submitted via NSCC), from the designated NSCC Settling Bank on behalf of the
Fund. Payment shall be in federal funds transmitted to the Company or its
designee by wire. Notwithstanding the foregoing, the Fund may delay the payment
of redemptions and provide redemption proceeds up to three days (3) following
the redemption date if the redemption request represents more than twenty
percent (20%) of the assets of the Portfolio held by the Contract owners of the
Company and the Company does not provide at least ten (10) days advance notice
of the proposed redemption.
1.6. The Fund shall make the net asset value per share for each Designated
Portfolio available to the Company on each Business Day as soon as reasonably
practical after the net asset value per share is calculated and shall use
commercially reasonable efforts to make such net asset value per share available
by 6:00 p.m. Eastern time. In the event that the Fund is unable to meet the 6:00
p.m. time stated herein, the Fund shall provide additional time for the Company
to place orders received in good order for the purchase and redemption of shares
equal to the additional time it takes the Fund to make the net asset value
available to the Company. However, if net asset values are not available for
inclusion in the next business cycle and purchase orders/redemptions are not
able to be calculated and available for the Company to execute within the time
frame identified in Section 1.3 hereof, the Company on behalf of the Account,
shall be entitled to an adjustment to the number of shares purchased or redeemed
to reflect the correct share net asset value.
1.7. At the end of each Business Day, the Company shall use the information
described herein to calculate Account unit values for the day. Using these unit
values, the Company shall process each such Business Day's separate account
transactions based on requests and premiums received by it by the close of
regular trading on the floor of the NYSE (currently 4:00 p.m., Eastern time) to
determine the net dollar amount of Fund shares which shall be purchased or
redeemed at that day's closing net asset value per share. The Fund hereby
notifies the Company that separate account prospectuses or other separate
account document disclosures regarding potential risks of mixed and shared
funding may be appropriate.
1.8. In the event of an error in the computation of a Designated
Portfolio's net asset value per share ("NAV") or any dividend or capital gain
distribution (each, a "pricing error"), the Fund's adviser or the Fund shall
notify the Company as soon as possible after discovery of the error. Such
notification may be verbal, but shall be confirmed promptly in writing in
accordance with Article XI of this Agreement. Any error in the calculation or
reporting of the closing NAV or any dividend or capital gain distribution shall
be reported promptly, upon discovery, to the Company. In such event, the Company
shall be entitled to an adjustment to the number of shares purchased or redeemed
to reflect the correct closing NAV and the Fund or the Fund's adviser shall bear
the reasonable and necessary expenses of correcting such errors including
correcting statements previously provided to Contract owners in connection with
Fund shares held by Contract owners or in adjusting proceeds paid to Contract
owners who have redeemed interests under their Contracts. Upon notification by
the Fund or Fund's adviser of any overpayment, the Company shall promptly remit
to the Fund or Fund's adviser any overpayment that has not been paid to Contract
owners; however, the Fund and the Fund's adviser acknowledges that the Company
does not intend to seek additional payments from any Contract owner who, because
of a pricing error, may have underpaid for units of interest credited to his/her
account.
1.9. The Fund shall furnish same day notice (by wire or telephone, followed
by written confirmation) to the Company of any income, dividends or capital gain
distributions payable on the Designated Portfolio(s)' shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on the Designated Portfolio shares in additional shares of that
Designated Portfolio. The Company reserves the right to revoke this election and
to receive all such income dividends and capital gain distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
such dividends and distributions.
1.10. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Shares ordered from the Fund will be recorded in an appropriate title for the
Account or the appropriate sub-account of the Account.
1.11. The Parties acknowledge that the arrangement contemplated by this
Agreement is not exclusive; the Fund's shares may be sold to other Participating
Insurance Companies (subject to Section 1.2 and Article VI hereof) and the cash
value of the Contracts may be invested in other investment companies.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the securities deemed to be
issued by the Account under the Contracts are or will be registered under the
1933 Act or are exempt from registration thereunder, and that the Contracts will
be issued and sold in compliance in all material respects with all applicable
laws, rules, and regulations (collectively, "laws"). The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established the Account prior to any issuance or sale of units thereof as a
segregated asset account under the applicable state insurance laws and has
registered the Account as a unit investment trust in accordance with the
provisions of the 1940 Act, unless exempt, to serve as a segregated investment
account for the Contracts and that it will maintain such registration for so
long as any Contracts are outstanding as required by applicable law.
2.2. The Fund represents and warrants that Designated Portfolio(s) shares
sold pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with all applicable federal and
state securities laws including without limitation the 1933 Act, the 1934 Act,
and the 1940 Act, and that the Fund is and shall remain registered under the
0000 Xxx. The Fund shall amend the registration statement for its shares under
the 1933 Act and the 1940 Act from time to time as required in order to effect
the continuous offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and to
the extent deemed advisable by the Fund.
2.3. The Fund has adopted a Rule 12b-1 Service Plan under which it makes
payments to finance certain expenses. The Fund represents and warrants that it
has a Board, a majority of whom are not interested persons of the Fund, which
has formulated and approved its Rule 12b-1 Service Plan to finance certain
expenses of the Fund and that any change to the Fund's Rule 12b-1 Service Plan
will be approved by a similarly constituted Board.
2.4. The Fund makes no representations as to whether any aspect of its
operations, including but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states, except that the Fund represents that the Fund's investment policies,
fees and expenses are and shall at all times remain in compliance with the laws
of the Commonwealth of Massachusetts to the extent required to perform this
Agreement.
2.5. The Fund represents and warrants that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts and that it
does and will comply in all material respects with the 1940 Act.
2.6. The Distributor represents and warrants that it is and shall remain
duly qualified and registered under all applicable laws and that it shall
perform its obligations for the Fund in compliance in all material respects with
all applicable federal and state securities laws.
2.7. The Fund represents and warrants that all of its Trustees, officers,
employees, investment advisers, and other individuals or entities dealing with
the money and/or securities of the Fund are, and shall continue to be at all
times, covered by one or more blanket fidelity bonds or similar coverage for the
benefit of the Fund in an amount not less than the minimal coverage required by
Rule 17g-1 under the 1940 Act or related provisions as may be promulgated from
time
to time. The aforesaid bonds shall include coverage for larceny and embezzlement
and shall be issued by a reputable bonding company.
2.8. The Fund will provide the Company with as much advance notice as is
reasonably practicable of any material change affecting the Designated
Portfolio(s) (including, but not limited to, any material change in the
registration statement or prospectus affecting the Designated Portfolio(s)) and
any proxy solicitation affecting the Designated Portfolio(s) and will consult
with the Company in order to implement any such change in an orderly manner,
recognizing the expenses of changes and attempting to minimize such expenses by
implementing them in conjunction with regular annual updates of the prospectus
for the Contracts where reasonably practicable.
2.9. The Fund represents and warrants that it has adopted a compliance
program in accordance with Rule 38a-1 under the 1940 Act, which includes
appointing a Chief Compliance Officer ("CCO") for the Fund. The CCO is
responsible for monitoring the operation of the Fund's compliance program, and
for reviewing the compliance programs of service providers to the Fund covered
under Rule 38a-1 ("Covered Service Providers"). The CCO has completed or is in
the process of completing an annual review to assess the adequacy of the Fund's
and Covered Service Providers' policies and procedures and the effectiveness of
their implementation.
2.10. The Company represents and warrants, for purposes other than
diversification under Section 817 of the Internal Revenue Code of 1986, as
amended ("the Code"), that the Contracts are currently and at the time of
issuance will be treated as annuity contracts or life insurance contracts under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment and that it will notify the Fund, and the Distributor
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future. In
addition, the Company represents and warrants that the Account is a "segregated
asset account" and that interests in the Account are offered exclusively through
the purchase of or transfer into a "variable contract" within the meaning of
such terms under Section 817 of the Code and the regulations thereunder. The
Company will use every effort to continue to meet such definitional
requirements, and it will notify the Fund or the Distributor immediately upon
having a reasonable basis for believing that such requirements have ceased to be
met or that they might not be met in the future. The Company represents and
warrants that it will not purchase Fund shares with assets derived from
tax-qualified retirement plans except, indirectly, through Contracts purchased
in connection with such plans.
2.11 Each of the Parties represents and warrants to the other that it has,
or shall, to the extent required by applicable law, adopt, implement and
maintain effective "disclosure controls and procedures" and "internal controls"
(as such phrases are defined pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated thereunder (hereinafter collectively the "S-Ox
Act")) and will cooperate with one another in exchanging copies of such policies
and procedures and facilitating the filing by the relevant Parties and/or their
respective officers and auditors of any and all certifications or attestations
as required by the S-Ox Act, including, without limitation, furnishing such
sub-certifications from relevant officers of each Party as such Party shall
reasonably request from time to time.
2.12 The Fund and the Company (if the Company uses NSCC) each represents
and warrants to the other that it: (a) has entered into an agreement with NSCC,
(b) has met and will continue to meet all of the requirements to participate in
Fund/SERV and Networking, and (c) intends to remain at all times in compliance
with the then current rules and procedures of NSCC, all to the extent necessary
or appropriate to facilitate such communications, processing, and settlement of
Portfolio share transactions.
2.13. The Company represents and warrants that it has adopted, and will at
all times during the term of this Agreement maintain, reasonable and appropriate
procedures ("Late Trading Procedures") reasonably designed to ensure that any
and all orders relating to the purchase, sale or exchange of Fund shares
communicated to the Fund to be treated in accordance with Article I of this
Agreement as having been received on a Business Day, have been received by the
Valuation Time on such Business Day and were not modified after the Valuation
Time, and that all orders received from Contract owners but not rescinded by the
Valuation Time were communicated to the Fund or its agent as received for that
Business Day. "Valuation Time" shall mean the time as of which the Fund
calculates net asset value for the shares of the Portfolios on the relevant
Business Day.
2.14. Each transmission of orders by the Company shall constitute a
representation by the Company that such orders are accurate and complete and
relate to orders received by the Company by the Valuation Time on the Business
Day for which the order is to be priced and that such transmission includes all
orders relating to Fund shares received from Contract owners but not rescinded
by the Valuation Time. The Company agrees to provide the Fund or its designee
with a copy of the Late Trading Procedures and such certifications and
representations regarding the Late Trading Procedures as the Fund or its
designee may reasonably request. The Company will promptly notify the Fund in
writing of any material change to the Late Trading Procedures.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. At least annually, the Distributor shall provide the Company with as
many printed copies of the Fund Prospectus or the Fund's then current summary
prospectus (as such term is defined in Rule 498 under the 1933 Act or any
successor provision) ("Fund Summary Prospectus"), and any supplements thereto,
for each Designated Portfolio as the Company may reasonably request for
distribution to Contract owners. If requested by the Company, the Fund or
Distributor shall provide such documentation (including a camera-ready copy of
the Fund Prospectus or Fund Summary Prospectus for each Designated Portfolio as
set in type, a diskette containing such documents in the form sent to the
financial printer, or an electronic copy (in print ready PDF format) of the
documents, all as the Company may reasonably request) and such other assistance
as is reasonably necessary in order for the Company once each year (or more
frequently if the such prospectuses are amended) to have the Fund Prospectus or
Fund Summary Prospectus printed, as the case may be, to the extent permitted by
applicable law or other applicable guidance received from the SEC, including
Rule 498, or posted on a website maintained by or for the Company. Expenses
associated with providing such documentation shall be allocated in accordance
with Schedule C hereto. Notwithstanding anything herein to the contrary, the
delivery or use of Fund
Summary Prospectuses shall be upon agreement of the parties. The Fund shall use
commercially reasonable efforts to provide the Fund Summary Prospectuses and
Fund Prospectuses (which only includes the Designated Portfolios offered by the
Company) and full SAI by a specified date as mutually agreed upon by the Fund
and the Company.
(i) The Fund shall host and manage all of the electronic documents for
purposes of compliance with Rule 498 requirements.
(ii) The Company shall be permitted, but not required, to post a copy of
the Fund's statutory prospectuses on the Company's website. The Fund
documents posted on the Company website are for informational purposes
only and are not intended to comply with Rule 498. Notwithstanding the
above, the Fund shall be and remain solely responsible for ensuring
that the Fund electronic documents are hosted and managed by the
Fund's website and fully comply with the requirements of Rule 498.
3.2. If applicable laws require that the Statement of Additional
Information ("SAI") for the Fund be distributed to all Contract owners, then the
Fund or Distributor, as appropriate, shall provide the Company with copies of
the Fund's SAI, and any supplements thereto, for the Designated Portfolio(s) in
such quantities, with expenses to be borne in accordance with Schedule C hereto,
as the Company may reasonably require to permit timely distribution thereof to
Contract owners. If requested by the Company, the Fund or Distributor shall
provide an electronic copy of the Fund SAI in a format suitable for posting on
an Internet website maintained by or on behalf of the Company. The Company shall
send an SAI to any Contract owner within 3 Business Days of the receipt of a
request or such shorter time as may be required by applicable law. The Fund,
and/or Distributor, as appropriate, shall also provide SAIs to any Contract
owner or prospective owner who requests such SAI from the Fund (although it is
anticipated that such requests will be made to the Company).
3.3. The Fund and/or Distributor shall use commercially reasonable efforts
to provide the Company, within 10 (ten) business days of scheduled mailing date,
with printed copies of the Fund's proxy material, reports to shareholders, and
other communications to shareholders for the Designated Portfolio(s) in such
quantity, with expenses to be borne in accordance with Schedule C hereto, as the
Company may reasonably require to permit timely distribution thereof to Contract
owners. If requested by the Company and upon receipt of the pertinent contact
information from the Company, the Fund and/or Distributor shall engage a third
party vendor to distribute the aforementioned materials and/or communications to
shareholders. If requested by the Company, the Fund or Distributor shall provide
an electronic copy of such documentation in a format suitable for posting on an
Internet website maintained by or on behalf of the Company. In lieu of all or
part of the foregoing, the Fund may elect to retain, at its own expense, a proxy
solicitation firm to perform some or all of the tasks necessary for the Company
to obtain voting instructions from Contract owners.
(i) The Fund shall provide the Company with printed copies of Fund annual
and semiannual reports in such quantity as the Company shall
reasonably require for distributing to Contract owners, with expenses
to be borne in accordance with Schedule C hereto.
3.4. If and to the extent required by law and the Mixed and Shared Funding
Exemptive Order, the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Designated Portfolio(s) shares held in the Account in
accordance with instructions timely received from Contract
owners; and
(iii) vote Designated Portfolio shares held in the Account for which
no instructions have been received in the same proportion as
Designated Portfolio(s) shares for which instructions have been
received from Contract owners, so long as and to the extent that
the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners. The
Company reserves the right to vote Fund shares held in its
general account and in any segregated asset account in its own
right, to the extent permitted by law.
(iv) assure that each of its separate accounts calculates voting
privileges in a manner consistent with all other Participating
Insurance Companies and/or as directed by the Fund for this
purpose.
3.5. The Company shall be responsible for assuring that each of its
Accounts participating in a Designated Portfolio calculates voting privileges in
a manner consistent with the standards set forth in the Mixed and Shared Funding
Exemptive Order and consistent with any reasonable standards that the Fund may
adopt, provided, however, the Company shall be free to vote Designated Portfolio
shares attributable to the Account in any manner permitted by applicable law, to
the extent the Mixed and Shared Funding Exemptive Order is superseded by SEC or
administrative practice (including no-action relief).
3.6. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, comply with
Section 16(c) of the 1940 Act (although the Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b) of the 1940 Act. Further, the Fund will act in
accordance with the SEC"s interpretation of the requirements of Section 16(a)
with respect to periodic elections of directors or trustees and with whatever
rules the Commission may promulgate with respect thereto.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, a copy of each piece of sales literature or other promotional
material that the Company develops or proposes to use and in which the Fund (or
a Designated Portfolio thereof), its adviser, any of its sub-advisers, or the
Distributor is named in connection with the Contracts, at least fifteen
(15) Business Days prior to its use. No such material shall be used if the Fund
or Distributor objects to such use within ten (10) Business Days after receipt
of such material. The Fund and Distributor reserve the right to reasonably
object to the continued use of any such sales literature or other promotional
material in which the Fund (or a Designated Portfolio thereof), its adviser, any
of its sub-advisers, or the Distributor is named and no such material shall be
used if the Fund or Distributor, or any designee thereof, so objects.
4.2. The Company shall not give any information or make any representations
or statements on behalf of the Fund in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement, Fund Prospectus or SAI for the Fund shares, as the same may be
amended or supplemented from time to time, or in sales literature or other
promotional material approved by the Fund Distributor, except with the
permission of the Fund or Distributor.
4.3. The Fund or Distributor shall furnish, or shall cause to be furnished,
to the Company, a copy of each piece of sales literature or other promotional
material in which the Company, its separate account(s) and/or any Contract is
named fifteen (15) Business Days prior to its intended date of first use. No
such material shall be used if the Company reasonably objects to such use within
ten (10) Business Days after receipt of such material. The Company reserves the
right to reasonably object to the continued use of any such sales literature or
other promotional material in which the Company, its separate account(s), or any
Contract is named, and no such material shall be used if the Company so objects.
4.4. The Fund and the Distributor 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 a registration statement, prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 0000 Xxx) or SAI for the Contracts, as the
same may be amended or supplemented from time to time, or in sales literature or
other promotional material approved by the Company or its designee, except with
the permission of the Company.
4.5. The Fund or its designee will provide to the Company, upon request, at
least one complete copy of all registration statements, prospectuses, SAIs,
sales literature and other promotional materials, applications for exemptions,
requests for non-confidential no-action letters, and all amendments or
supplements to any of the above, that relate to the Fund or its shares
(collectively, "Fund materials").
4.6. The Company or its designee will provide to the Fund, upon request, at
least one complete copy of all registration statements, prospectuses, SAIs,
sales literature and other promotional materials, applications for exemptions,
requests for non-confidential no-action letters, and all amendments or
supplements to any of the above, that relate to the Contracts, (collectively,
"Contract materials").
4.7. For purposes of Articles IV and VIII, the phrase "sales literature and
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, signs or billboards,
motion pictures, or other public media; E.G., on-line networks such as the
Internet or other electronic media), sales literature (I.E., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters, form
letters, seminar texts, 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 all agents or
employees, shareholder reports, proxy materials (including solicitations for
voting instructions), and any other material constituting sales literature or
advertising under FINRA rules, the 1933 Act or the 1940 Act.
ARTICLE V. FEES AND EXPENSES
5.1. The Fund, Distributor, and the Fund's adviser shall pay no fee or
other compensation to the Company under this Agreement, and the Company shall
pay no fee or other compensation to the Fund, Distributor, or the Fund's adviser
under this Agreement, although the Parties hereto will bear certain expenses in
accordance with Schedule C hereto, Articles III, V, and other provisions of this
Agreement.
5.2. Except as otherwise provided in this Agreement, including without
limitation Schedule C hereto, each Party shall bear all expenses incident to the
performance of its obligations hereunder. Nothing herein shall prevent the
Parties hereto from otherwise agreeing to perform, and arranging for appropriate
compensation for, other services relating to the Fund and /or to the Account
pursuant to this Agreement. The Fund shall see to it that all its shares are
registered and authorized for issuance in accordance with applicable federal and
state securities laws to the extent required or deemed advisable by the Fund.
Except as otherwise set forth in Schedule C of this Agreement, the Fund shall
bear the expenses for the cost of registration and qualification of the Fund's
shares, preparation and filing of the Fund Prospectus and registration
statement, proxy materials and reports, setting the Fund Prospectus in type,
setting in type and printing the proxy materials and reports to shareholders,
the preparation of all statements and notices required by any federal or state
law, and all taxes on the issuance or transfer of the Fund"s shares.
ARTICLE VI. DIVERSIFICATION AND QUALIFICATION.
6.1. The Fund and the Distributor each represents and warrants that the
Fund will at all times sell its shares and invest its assets in such a manner as
to ensure that the Contracts will be treated as annuity contracts under the
Code, and the regulations issued thereunder. Without limiting the scope of the
foregoing, each Designated Portfolio thereof will at all times comply with
Section 817(h) of the Code and Treasury Regulation Section 1.817-5, as amended
from time to time, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications or successor provisions to
such Section or Regulations. In the event of a breach of this Article VI by the
Fund, the Fund and Distributor will take all reasonable steps to: (a) notify the
Company of such breach, and (b) adequately diversify the Fund so as to achieve
compliance within the 30-day grace period afforded by Regulation 1.817-5.
6.2. The Fund and the Distributor each represents and warrants that shares
of the Designated Portfolio(s) will be sold only to Participating Insurance
Companies and their separate accounts and to Qualified Plans, and that no person
has or will purchase shares in any Portfolio for any purpose or under any
circumstances that would preclude the Company from "looking through" to the
investments of each Designated Portfolio in which it invests, pursuant to the
"look through" rules found in Treasury Regulation 1.817-5. No shares of any
Designated Portfolio of the Fund will be sold to the general public.
6.3. The Fund and the Distributor each represents and warrants that the
Fund and each Designated Portfolio intends to qualify as a "regulated investment
company" under Subchapter M of the Code, and that each Designated Portfolio will
maintain such qualification (under Subchapter M or any successor or similar
provisions) as long as this Agreement is in effect.
6.4. The Fund and Distributor each will notify the Company immediately upon
having a reasonable basis for believing that the Fund or any Designated
Portfolio has ceased to comply with the aforesaid Section 817(h) diversification
or Subchapter M qualification requirements or might not so comply in the future.
6.5. The Company agrees that if the Internal Revenue Service ("IRS")
asserts in writing in connection with any governmental audit or review of the
Company or, to the Company's knowledge, or any Contract owner that any
Designated Portfolio has failed to comply with the diversification requirements
of Section 817(h) of the Code or the Company otherwise becomes aware of any
facts that could give rise to any claim against the Fund and Distributor as a
result of such a failure or alleged failure:
(a) the Company shall promptly notify the Fund and the Distributor of such
assertion or potential claim and promptly provide a copy of all
correspondence and other materials received by the Company in connection
therewith;
(b) the Company shall consult with, and work cooperatively with, the Fund
and the Distributor as to how to minimize any liability that may arise as a
result of such failure or alleged failure;
(c) the Company shall use commercially reasonable efforts to minimize any
liability of the Fund and the Distributor resulting from such failure,
including, without limitation, demonstrating, pursuant to Treasury
Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that
such failure was inadvertent;
(d) any written materials to be submitted by the Company to the IRS, any
Contract owner or any other claimant in connection with any of the
foregoing proceedings or contests (including, without limitation, any such
materials to be submitted to the IRS pursuant to Treasury Regulations,
Section 1.817-5(a)(2)) shall be provided by the Company to the Fund and the
Distributor (together with any supporting information or analysis) within
at least two (2) Business Days prior to submission;
(e) the Company shall provide the Fund and the Distributor with such
cooperation as the Fund and the Distributor shall reasonably request
(including, without limitation, by permitting the Fund and the Distributor
to review the relevant books and records of the Company) in order to
facilitate review by the Fund and the Distributor of any written
submissions provided to it or its assessment of the validity or amount of
any claim against it arising from such failure or alleged failure; and
(f) the Company shall not with respect to any claim of the IRS or any
Contract owner that would give rise to a claim against the Fund and the
Distributor (i) compromise or settle any claim, (ii) accept any adjustment
on audit, or (iii) forego any allowable administrative or judicial appeals,
without the express written consent of the Fund and the Distributor, which
shall not be unreasonably withheld; provided that the Company shall not be
required to appeal any adverse judicial decision unless the Fund shall have
provided an opinion of independent counsel to the effect that a reasonable
basis exists for taking such appeal; and further provided that the Fund and
the Distributor shall bear the costs and expenses, including reasonable
attorney's fees, incurred by the Company in complying with this clause (f).
ARTICLE VII. POTENTIAL CONFLICTS AND COMPLIANCE WITH
MIXED AND SHARED FUNDING EXEMPTIVE ORDER
7.1. The Fund represents that the Board will monitor the Fund for the
existence of any material irreconcilable conflict between the interests of the
contract owners of all separate accounts and determine what action, if any,
should be taken in response to such conflicts. A material irreconcilable
conflict may arise for a variety of reasons, including: (a) an action by any
state insurance regulatory authority; (b) 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 action
by insurance, tax, or securities regulatory authorities; (c) an administrative
or judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Designated Portfolio are being managed; (e) a difference in
voting instructions given by variable annuity contract and variable life
insurance contract owners or by contract owners of different Participating
Insurance Companies; or (f) a decision by a Participating Insurance to disregard
the voting instructions of contract owners. The Board shall promptly inform the
Company in writing if it determines that a material irreconcilable conflict
exists and the implications thereof.
7.2. 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 Mixed and 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 to be disregarded. Such responsibilities shall be carried out by the Company
with a view only to the interests of its Contract owners.
7.3. If it is determined by a majority of the Board, or a majority of its
members who are not interested persons of the Fund, the Distributor, the adviser
or any sub-adviser to any of the
Designated Portfolios (the "Disinterested Members" ), that a material
irreconcilable conflict exists, and it is a Participating Insurance Company for
which a material irreconcilable conflict is relevant, the Company shall,
together with other Participating Insurance Companies and at their expense and
to the extent reasonably practicable (as determined by a majority of the
Disinterested Members), take whatever steps are necessary to remedy or eliminate
the material irreconcilable conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the separate accounts from the Fund or any
Designated Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another portfolio of the Fund, or
submitting the question 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 Insurance
Companies) that votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account. The
Company's responsibility to take remedial action shall be carried out by the
Company with a view only to the interests of Contract owners.
7.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the Account's investment in
the Fund 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. Any such withdrawal and termination must take place
within six (6) months after the Fund gives written notice that this provision is
being implemented, and until the end of that six month period the Fund and the
Distributor shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund subject to the terms and
conditions of this Agreement. No charge or penalty will be imposed as a result
of such withdrawal. The responsibility to take such remedial action shall be
carried out with a view only to the interests of the Contract owners.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
Account's investment in the Fund and terminate this Agreement within six (6)
months after the Board informs the Company in writing that it has determined
that such decision has created an irreconcilable material conflict; 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. Until the end of the foregoing six month
period, the Fund and the Distributor shall continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the Fund
subject to the terms and conditions of this Agreement. The responsibility to
take such action shall be carried out with a view only to the interests of the
Contract owners.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority
of the Disinterested Members shall determine whether any proposed action
adequately remedies any material irreconcilable conflict, but in no event will
the Fund, the Disstributor or its affiliates, as relevant, be required to
establish a new funding medium for the Contracts. The Company shall not be
required by Section 7.3 to establish a new funding medium for the Contracts if
an offer to do so
has been declined by vote of a majority of Contract owners materially and
adversely affected by the material irreconcilable conflict. In the event that
the Board determines that any proposed action does not adequately remedy any
material irreconcilable conflict, then the Company will withdraw the Account's
investment in the Fund and terminate this Agreement within six (6) months after
the Board informs the Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the Disinterested Members.
7.7. If and to the extent that Rule 6e-2 under the 1940 Act and Rule
6e-3(T) under the 1940 Act are amended, or Rule 6e-3 is adopted, to provide
exemptive relief from any provision of the 1940 Act or the rules promulgated
thereunder with respect to mixed or shared funding (as defined in the Mixed and
Shared Funding Exemptive Order) on terms and conditions materially different
from those contained in the Mixed and Shared Funding Exemptive Order, then (a)
the Fund and/or the Company, as appropriate, shall take such steps as may be
necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as
adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5,
3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only
to the extent that terms and conditions substantially identical to such Sections
are contained in such Rule(s) as so amended or adopted.
7.8 Upon the reasonable request by the Fund, the Company will submit to the
Fund such reports, material, or data as the Fund may reasonably request so that
the Fund's Board may carry out its responsibilities imposed under the Mixed and
Shared Exemptive Order.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
(a). The Company agrees to indemnify and hold harmless the Fund, the
Distributor and the Fund's adviser and each of their respective officers,
directors, members, managers, partners or trustees, employees and agents and
each person, if any, who controls the Fund, Distributor or Fund's adviser within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.1) against any and all losses, claims,
expenses, damages and liabilities (including amounts paid in settlement with the
written consent of the Company) or litigation (including reasonable legal and
other expenses) (collectively, a "Loss") to which the Indemnified Parties may
become subject under any statute or regulation, at common law or otherwise,
insofar as such Loss is related to the sale or acquisition of the Fund's shares
or the Contracts and:
(i) arises out of or is based upon any untrue statements or alleged untrue
statements of any material fact contained in any Contract materials as
defined in Section 4.5 and 4.6 herein, or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this Agreement to indemnify
shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of the Fund,
Distributor, or Fund's adviser for use in the Contract materials or
otherwise for use in connection with the sale of the Contracts or Fund
shares; or
(ii) arises out of or as a result of statements or representations (other
than statements or representations contained in Fund materials 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
(iii) arises out of any untrue statement or alleged untrue statement of a
material fact contained in Fund Materials, 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, if
such a statement or omission was made in reliance upon and conformity
with information furnished in writing to the Fund by or on behalf of
the Company; or
(iv) arises out of or results from any failure by the Company to perform
the obligations, provide the services, and furnish the materials
required of it under the terms of this Agreement; or
(v) arises out of or results from any material breach of any
representation and/or warranty made by the Company in this Agreement
or arises out of or results from any other material breach of this
Agreement by the Company, including without limitation Section 2.10
and 6.5 hereof,
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
(b). The Company shall not be liable under this indemnification provision
with respect to any Loss to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations or duties under this
Agreement or to any of the Indemnified Parties.
(c). The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Company of any such claim within a
reasonable time shall not relieve the Company from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision, except to the extent that the
Company has been prejudiced by such failure to give notice. In case any such
action is brought against an Indemnified Party, the Company shall be entitled to
participate, at its own expense, in the defense of such action, and unless the
Indemnified Parties release the Company from any further obligation under this
Section 8.1 with respect to such claim(s), the Company also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Party named in the
action. The Company may not settle any such claim without the prior written
consent of the Indemnified Party,
which consent will not be unreasonably withheld, conditioned or delayed. After
notice from the Company to such Party of the Company's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Company will not be liable to such
Party under this Agreement for any legal or other expenses subsequently incurred
by such Party independently in connection with the defense thereof other than
reasonable costs of investigation.
(d). Each Indemnified Party will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the Agreement, the issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
8.2. INDEMNIFICATION BY THE FUND.
(a). The Fund agrees to indemnify and hold harmless the Company and each of
their respective directors and officers, employees and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any Loss to which the Indemnified Parties may be required to pay or
become subject under any statute or regulation, at common law or otherwise,
insofar as such Loss, is related to the operations of the Fund and:
(i) arises as a result of any material failure by the Fund to perform the
obligations, provide the services and furnish the materials required
of it under the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with the
diversification and other qualification requirements specified in
Article VI of this Agreement); or
(ii) arises out of or results from any material breach of any
representation and/or warranty made by the Fund in this Agreement or
arises out of or result from any other material breach of this
Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
(b). The Fund shall not be liable under this indemnification provision with
respect to any Loss to which an Indemnified Party would otherwise be subject by
reason of such Indemnified Party's willful misfeasance, bad faith, or negligence
in the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement or to any of the Indemnified Parties.
(c). The Fund shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Fund in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim within a reasonable
time shall not relieve it from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this indemnification provision, except to the extent that the Fund has been
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Fund will be entitled to participate, at its
own expense, in the defense thereof and unless the Indemnified Parties release
the Fund from any further obligation under this Section 8.2 with respect to such
claim(s), the Fund shall also be entitled to assume the defense thereof, with
counsel satisfactory to the Party named in the action. The Fund may not settle
any such claim without the prior written consent of the Indemnified Party, which
consent will not be unreasonably withheld, conditioned or delayed.After notice
from the Fund to such Party of the Fund's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Fund will not be liable to such Party
under this Agreement for any legal or other expenses subsequently incurred by
such Party independently in connection with the defense thereof other than
reasonable costs of investigation.
(d). The Company agrees to notify the Fund promptly of the commencement of
any litigation or proceeding against itself or any of its respective officers or
directors in connection with the Agreement, the issuance or sale of the
Contracts, the operation of the Account, or the sale or acquisition of shares of
the Fund.
(e) Limitation of Liability: All parties hereto are expressly put on notice
of the Fund's Declaration of Trust and all amendments thereto, copies of which
are on file with the Secretary of the Commonwealth of Massachusetts, and the
limitation of shareholder and trustee liability contained therein. This
Agreement is executed on behalf of the Funds by the Funds' officers in their
capacity as officers and not individually and is not binding upon any of the
Funds' trustees, officers or shareholders of the Funds individually but the
obligations imposed upon the Funds by this Agreement are binding only upon the
assets and property of the Funds, and persons dealing with the Funds must look
solely to the assets of the Fund for the enforcement of any claims.
8.3. INDEMNIFICATION BY THE DISTRIBUTOR.
(a). The Distributor agrees to indemnify and hold harmless the Company and
each of their respective directors and officers, employees and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.3)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as such Loss is
related to the sale or acquisition of the Fund's shares or the Contracts and:
(i) arises out of or is based upon any untrue statement or alleged untrue
statement of any material fact contained in Fund materials, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, PROVIDED that this
Agreement to indemnify shall not apply as to any Indemnified Party if
such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished in
writing to the Fund or Distributor by or on behalf of the Company for
use in the Fund materials or otherwise for use in connection with the
sale of the Contracts or Fund shares; or
(ii) arises out of or as a result of statements or representations (other
than statements or representations contained in Fund materials not
supplied by the Distributor or persons under its control) or wrongful
conduct of the Distributor or persons under its control, with respect
to the sale or distribution of the Contracts or Fund shares; or
(iii) arises out of any untrue statement or alleged untrue statement of a
material fact contained in any Contract materials, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of the Distributor; or
(iv) arises as a result of any failure by the Distributor to perform the
obligations, provide the services and furnish the materials required
of it under the terms of this Agreement; or
(v) arises out of or result from any material breach of any representation
and/or warranty made by the Distributor in this Agreement or arises
out of or results from any other material breach of this Agreement by
the Distributor;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Distributor specified in Article VI
hereof.
(b). The Distributor shall not be liable under this indemnification
provision with respect to any Loss to which an Indemnified Party would otherwise
be subject by reason of such Indemnified Party's willful misfeasance, bad faith,
or negligence in the performance or such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations or duties under
this Agreement or to any of the Indemnified Parties.
(c). The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim within a reasonable time shall not relieve the Distributor from
any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision,
except to the extent that the Distributor has been prejudiced by such failure to
give notice. In case any such action is brought against an Indemnified Party,
the Distributor will be entitled to participate, at its own expense, in the
defense thereof and unless the Indemnified Parties release the Distributor from
any further obligation under this Section 8.3 with respect to such claim(s), the
Distributor also shall be entitled to assume the defense thereof, with counsel
satisfactory to the Party named in the action. The Distributor may not settle
any such claim without the prior written consent of the Indemnified Party, which
consent will not be unreasonably withheld, conditioned or delayed.After notice
from the Distributor to such Party of the Distributor's election to assume the
defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributor will not be liable to such Party under this
Agreement for any legal or other expenses subsequently incurred by such Party
independently in connection with the defense thereof other than reasonable costs
of investigation.
(d). The Company agrees to promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
ARTICLE IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of New York.
9.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, any Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. TERMINATION
10.1. This Agreement shall terminate:
(a) at the option of any Party, with or without cause, with respect to
some or all Designated Portfolios, upon three (3) months' advance
written notice delivered to the other Parties; provided, however, that
such notice shall not be given earlier than six (6) months following
the date of this Agreement; or
(b) at the option of the Company by written notice to the other
Parties with respect to any Designated Portfolio based upon the
Company's determination that shares of such Designated Portfolio are
not reasonably available to meet the requirements of the Contracts; or
(c) at the option of the Company by written notice to the other
Parties with respect to any Designated Portfolio in the event any of
the Designated Portfolio's shares are not registered, issued or sold
in accordance with applicable law or such law precludes the use of
such shares as the underlying investment media of the Contracts issued
or to be issued by the Company; or
(d) at the option of the Fund or Distributor upon written notice to
the other Parties in the event that formal administrative proceedings
are instituted against the Company by FINRA, the SEC, the Insurance
Commissioner or like official of any state or any other regulatory
body regarding the Company's duties under this Agreement or related to
the sale of the Contracts, the operation of any Account, or
the purchase of the Fund shares, if, in each case, the Fund or
Distributor, as the case may be, reasonably determines in its sole
judgment exercised in good faith, that any such administrative
proceedings will have a material adverse effect upon the ability of
the Company to perform its obligations under this Agreement; or
(e) at the option of the Company upon written notice to the other
Parties in the event that formal administrative proceedings are
instituted against the Fund or the Distributor by FINRA, the SEC, or
any state securities or insurance department or any other regulatory
body, if the Company reasonably determines in its sole judgment
exercised in good faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the Fund or the
Distributor to perform their respective obligations under this
Agreement; or
(f) at the option of the Company by written notice to the other
Parties with respect to any Designated Portfolio in the event that
such Portfolio fails to meet the requirements and comply with the
representations and warranties specified in Article VI hereof; or
(g) at the option of the Company by written notice to the other
Parties with respect to any Designated Portfolio in the event that
such Portfolio ceases to qualify as a regulated investment company
under Subchapter M of the Code or under any successor or similar
provision; or
(h) at the option of the Fund or the Distributor, if (i) the Fund or
Distributor, respectively, shall determine, in its sole judgment
reasonably exercised in good faith, that either the Company has
suffered a material adverse change in its business or financial
condition or is the subject of material adverse publicity, (ii) the
Fund or Distributor notifies the Company of that determination and its
intent to terminate this Agreement, AND (iii) after considering the
actions taken by the Company and any other changes in circumstances
since the giving of such a notice, the determination of the Fund or
Distributor shall continue to apply on the sixtieth (60) day following
the giving of that notice, which sixtieth day shall be the effective
date of termination; or
(i) at the option of the Company, if (i) the Company, shall determine,
in its sole judgment reasonably exercised in good faith, that the Fund
or Distributor has suffered a material adverse change in its business
or financial condition or is the subject of material adverse
publicity, (ii) the Company notifies the Fund or Distributor, as
appropriate, of that determination and its intent to terminate this
Agreement, AND (iii) after considering the actions taken by the Fund
or Distributor and any other changes in circumstances since the giving
of such a notice, the determination of the Company shall continue to
apply on the sixtieth (60) day following the giving of that notice,
which sixtieth day shall be the effective date of termination; or
(j) termination by the Fund or Distributor by written notice to the
Company in the event that the Contracts fail to meet the
qualifications specified in Section 2.10 hereof; or
(k) at the option of any non-defaulting Party hereto in the event of a
material breach of this Agreement by any Party hereto (the "defaulting
Party") other than as described in 10.1(a)-(j); provided, that the
non-defaulting Party gives written notice thereof to the defaulting
Party, with copies of such notice to all other non-defaulting Parties,
and if such breach shall not have been remedied within thirty (30)
days after such written notice is given, then the non-defaulting Party
giving such written notice may terminate this Agreement by giving
thirty (30) days written notice of termination to the defaulting
Party.
10.2. NOTICE REQUIREMENT. Except as provided in 10.1(a) and (k) above, no
termination of this Agreement shall be effective unless and until the Party
terminating this Agreement gives at least sixty (60) days' prior written notice
to all other Parties of its intent to terminate, which notice shall set forth
the basis for the termination.
10.3. EFFECT OF TERMINATION.
(a) Notwithstanding any termination of this Agreement, other than as a
result of a failure by either the Fund or the Company to meet Section
817(h) of the Code diversification requirements, the Fund and the
Distributor shall, at the option of the Company, continue, to make
available additional shares of the Designated Portfolio(s) 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") unless such further sale of Designated Portfolio
shares is proscribed by law, regulation, or applicable regulatory
authority, or unless the Board determines that the sale of Designated
Portfolio shares to the Existing Contract owners is not in the best
interests of the Designated Portfolio or that liquidation of the Designated
Portfolio following termination of this Agreement is in the best interests
of the Designated Portfolio. Specifically, without limitation, the owners
of the Existing Contracts shall be permitted to reallocate investments
among the Designated Portfolio(s), redeem investments in the Designated
Portfolio(s) and/or invest in the Designated Portfolio(s) upon the making
of additional purchase payments under the Existing Contracts. The Parties
agree that this Section 10.3 shall not apply to any terminations under
Article VII and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement.
10.4. SURVIVING PROVISIONS. Notwithstanding any termination of this
Agreement, the following provisions shall survive: Article V, Article VIII and
Section 12.1 of Article XII. In addition, with respect to Existing Contracts
assets under which continue to be invested in the Designated Portfolios, all
provisions of this Agreement shall also survive and not be affected by any
termination of this Agreement to the extent such assets remain invested in the
Designated Portfolios.
ARTICLE XI. NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail, or overnight delivery service, by the notifying Party to each other Party
entitled to notice at the addresses set forth below or at such other address as
a Party may from time to time specify in writing to the other Parties.
If to the Fund:
First Trust Variable Insurance Trust
000 X. Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Secretary
If to the Distributor:
First Trust Portfolios L.P.
000 X. Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, General Counsel
If to the Company:
Lincoln Life & Annuity Compnay of New York
c/o the Lincoln National Life Insurance Company
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Funds Management, Xxxxx Xxxxxxx
ARTICLE XII. MISCELLANEOUS
12.1.
(a) Each Party agrees that all information supplied by one Party and its
affiliates and agents (collectively, the "Disclosing Party") to another
("Receiving Party") including, without limitation, any unpublished
information concerning research activities and plans, customers, marketing
or sales plans, sales forecasts or results of marketing efforts, pricing or
pricing strategies, costs, operational techniques, strategic plans,
portfolio holdings, and unpublished financial information, including
information concerning revenues, profits and profit margins will be deemed
confidential and proprietary to the Disclosing Party, regardless of whether
such information was disclosed intentionally or unintentionally or marked
as "confidential" or "proprietary" ("Confidential Information"). In
addition, the Company will not use any Confidential Information concerning
each Fund's portfolio holdings, including, without limitation, the names of
the portfolio holdings and the values thereof, for purposes of making any
decision about whether to purchase or redeem shares of each Fund or to
execute any other securities transaction. The foregoing definition shall
also include any Confidential Information provided by any Party's vendors.
(b) Confidential Information will not include any information or material,
or any element thereof, whether or not such information or material is
Confidential Information for the purposes of this Agreement, to the extent
any such information or material, or any element thereof:
(i) has previously become or is generally known, unless it has become
generally known through a breach of this Agreement or a similar
confidentiality or non-disclosure agreement;
(ii) was already rightfully known to the Receiving Party prior to
being disclosed by or obtained from the Disclosing Party as evidenced
by written records kept in the ordinary course of business of or by
proof of actual use by the Receiving Party;
(iii) has been or is hereafter rightfully received by the Receiving
Party from a third person (other than the Disclosing Party) without
restriction or disclosure and without breach of a duty of
confidentiality to the Disclosing Party;
(iv) has been independently developed by the Receiving Party without
access to Confidential Information of the Disclosing Party; or
(v) must be disclosed to third party vendors, to the extent reasonably
necessary for the Receiving Party to perform its duties and
obligations assigned under the Agreement. In the event such
information is disclosed to a third party vendor, the Receiving Party
will require such third party vendor to protect Confidential
Information to the same extent the Receiving Party is required to
protect such Confidential Information under this Agreement.
It will be presumed that any Confidential Information in a Receiving
Party's possession is not within exceptions (ii), (iii) or (iv) above, and
the burden will be upon the Receiving Party to prove otherwise by records
and documentation.
(c) Each Party recognizes the importance of each other Party's Confidential
Information. In particular, each Party recognizes and agrees that the
Confidential Information of another Party is critical to its business and
that no Party would enter into this Agreement without assurance that such
information and the value thereof will be protected as provided in this
Section 12.1 and elsewhere in this Agreement. Accordingly, each Party
agrees as follows:
(i) The Receiving Party will hold any and all Confidential Information
it obtains in strictest confidence and will use and permit use of
Confidential Information solely for the purposes of this Agreement.
Without limiting the foregoing, the Receiving Party shall use at least
the same degree of care, but no less than reasonable care, to avoid
disclosure or use of this Confidential Information as the Receiving
Party employs with respect to its own Confidential Information of a
like importance;
(ii) The Receiving Party may disclose or provide access to its
responsible employees who have a need to know and may make copies of
Confidential Information only to the extent reasonably necessary for
the Receiving Party to carry out its obligations hereunder;
(iii) The Receiving Party currently has, and in the future will
maintain in effect and enforce, rules and policies to protect against
access to or use or disclosure of Confidential Information other than
in accordance with this Agreement, to ensure that such employees and
agents protect the confidentiality of Confidential Information. The
Receiving Party expressly will instruct its employees and agents not
to disclose Confidential Information to third parties, including
without limitation customers, subcontractors or consultants, without
the Disclosing Party's prior written consent; and
(iv) The Receiving Party will notify the Disclosing Party immediately
of any unauthorized disclosure or use, and will cooperate with the
Disclosing Party to protect all proprietary rights in and ownership of
its Confidential Information.
12.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
12.5. Each Party hereto shall cooperate with each other Party and all
appropriate governmental authorities (including without limitation the SEC,
FINRA and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.6. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the Parties hereto are entitled to under state and
federal laws.
12.7. This Agreement or any of the rights and obligations hereunder may not
be assigned by any Party without the prior written consent of all Parties
hereto.
12.9. (a) It is expressly acknowledged and agreed that the obligations of
the Fund hereunder shall not be binding upon any of the shareholders, Trustees,
officers, employees or agents of the Fund personally, but shall bind only the
trust property of the Fund or property of a Series as provided in the Fund's
Declaration of Trust. The execution and delivery of this Agreement have been
authorized by the Trustees of the Fund and signed by an officer of the Fund,
acting as such, and neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Fund or property of a Series as
provided in the Fund's Declaration of Trust.
(b) The Fund and the Distributor agree that the obligations assumed by the
Company pursuant to this Agreement shall be limited in any case to the Company
and its assets, and neither the Fund nor Distributor shall seek satisfaction of
any such obligation from the shareholders of the Company, the directors,
officers, employees, or agents of the Company.
12.10. Schedules A through C hereto, as the same may be amended from time
to time by mutual written agreement of the Parties, are attached hereto and
incorporated herein by reference.
12.11 If requested by the Fund, the Company shall furnish, or shall cause
to be furnished, to the Fund or its designee copies of the following reports:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles ("GAAP"), if any), as soon as practical and in
any event within 90 days after the end of each fiscal year; and
(b) any registration statement (without exhibits) and financial reports of
the Company filed with the SEC or any state insurance regulator, as
soon as practical after the filing thereof.
ARTICLE XIII. ANTI-MONEY LAUNDERING
13.1. The Company represents and warrants that it is in compliance and will
continue to be in compliance with all applicable anti-money laundering laws and
regulations, including the relevant provisions of the USA PATRIOT Act (Pub. L.
No. 107-56 (2001)) ("the Patriot Act") and the regulations issued thereunder.
13.2. The Company hereby certifies that it has established and maintains an
anti-money laundering program that includes written policies, procedures and
internal controls reasonably designed to identify its Contract owners and has
undertaken appropriate due diligence efforts to "know its customers" in
accordance with all applicable anti-money laundering regulations in its
jurisdiction including, where applicable, the Patriot Act. The Company further
confirms that it will monitor for suspicious activity in accordance with the
requirements of the Patriot Act. In addition, the Company represents and
warrants that it has adopted and implemented policies and procedures reasonably
designed to achieve compliance with the applicable requirements administered by
the Office of Foreign Assets Control of the U.S. Department of the Treasury. The
Company agrees to provide the Distributor with such information as it may
reasonably request, including but not limited to the filling out of
questionnaires, attestations and other documents, to enable the Distributor to
fulfill its obligations under applicable law, and, upon its request, to file a
notice pursuant to Section 314 of the Patriot Act and the implementing
regulations related thereto to permit the voluntary sharing of information
between the parties hereto. Upon filing such a notice, the Company agrees to
forward a copy to the Distributor, and further agrees to comply with all
requirements under the Patriot Act and implementing regulations concerning the
use, disclosure, and security of any information that is shared.
ARTICLE XIV. SHAREHOLDER INFORMATION (RULE 22c-2)
14.1 Pursuant to Rule 22c-2 under the 1940 Act, the Company agrees to
provide to the Fund, upon written request, the taxpayer identification number
("TIN"), the Individual/International Taxpayer Identification Number ("ITIN"),
or other government-issued identifier ("GII") and the Contract Owner number or
participant account number, if known, of any or all Contract Owner(s) of the
account, and the amount, date and transaction type (purchase, redemption,
transfer, or exchange) of every purchase, redemption, transfer, or exchange of
shares held through an account maintained by the Company during the period
covered by the request. Unless otherwise specifically requested by the Fund, the
Company shall only be required to provide information relating to Contract Owner
Initiated Transfer Purchases or Contract Owner Initiated Transfer Redemptions.
(a) Period Covered by Request. Requests must set forth a specific period, not to
exceed 90 days from the date of the request, for which transaction information
is sought. The Fund may request transaction information older than 90 days from
the date of the request as it deems necessary to investigate compliance with
policies established or utilized by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding shares issued by a
Portfolio. If requested by the Fund, the Company will provide the information
specified in this Section 14.1 for each trading day.
(b) Form and Timing of Response. The Company agrees to provide, promptly upon
request of the Fund, the requested information specified in this Section 14.1.
The Company agrees to use commercially reasonable efforts to determine promptly
whether any specific person about whom it has received the identification and
transaction information specified in this section is itself a "financial
intermediary," as that term is defined in Rule 22c-2 under the 1940 Act (an
"Indirect Intermediary") and, upon request of the Fund, promptly either (i)
provide (or arrange to have provided) the information set forth in this section
for those Contract Owners who hold an account with an Indirect Intermediary or
(ii) restrict or prohibit the Indirect Intermediary from purchasing shares in
nominee name on behalf of other persons. The Company additionally agrees to
inform the Fund whether it plans to perform (i) or (ii) above. Responses
required by this paragraph must be communicated in writing and in a format
mutually agreed upon by the parties. To the extent practicable, the format for
any Contract Owner and transaction information provided to the Fund should be
consistent with the NSCC Standardized Data Reporting Format.
(c) Limitations on Use of Information. The Fund agrees not to use the
information received under this section for any purpose other than as necessary
to comply with the provisions of Rule 22c-2 or to fulfill other regulatory or
legal requirements subject to the privacy provisions of Title V of the
Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and comparable state laws.
(d) Agreement to Restrict Trading. The Company agrees to execute written
instructions from the Fund to restrict or prohibit further purchases or
exchanges of Portfolio shares by a Contract Owner that has been identified by
the Fund as having engaged in transactions in Portfolio shares (directly or
indirectly through the Company's account) that violate policies established or
utilized by the Fund for the purpose of eliminating or reducing any dilution of
the value of the outstanding shares issued by a Portfolio. Unless otherwise
directed by the Fund, any such restrictions or prohibitions shall only apply to
Contract Owner Initiated Transfer Purchases or Contract Owner Initiated Transfer
Redemptions that are affected directly or indirectly through the Company.
(e) Form of Instructions. Instructions must include the TIN, ITIN or GII and the
specific individual Contract Owner number or participant account number
associated with the Contract Owner, if known, and the specific restriction(s) to
be executed. If the TIN, ITIN, GII or the specific individual Contract Owner
number or participant account number associated with the Contract Owner is not
known, the instructions must include an equivalent identifying number of the
Contract Owner(s) or account(s) or other agreed upon information to which the
instruction relates.
(f) Timing of Response. The Company agrees to execute instructions from the Fund
as soon
as reasonably practicable, but not later than five (5) Business Days after
receipt of the instructions by the Company.
(g) Confirmation by the Company. The Company must provide written confirmation
to the Fund that the Fund's instructions to restrict or prohibit trading have
been executed. The Company agrees to provide confirmation as soon as reasonably
practicable, but not later than ten (10) Business Days after the instructions
have been executed.
(h) Definitions. For purposes of this Section 14.1, the following terms shall
have the following meanings, unless a different meaning is clearly required by
the context:
(i)The term "Contract Owner" means the holder of interests in a Contract or
a participant in an employee benefit plan with a beneficial interest in a
Contract.
(ii) The term "Contract Owner Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Contract owner that results
in a transfer of assets within a Contract to a Portfolio, but does not
include transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollment such as a transfer of
assets within a Contract to a Portfolio as a result of "dollar cost
averaging" programs, insurance company approved asset allocation programs,
or automatic rebalancing programs; (ii) pursuant to a Contract death
benefit; (iii) as a result of a one-time step-up in Contract value pursuant
to a Contract death benefit; (iv) as a result of an allocation of assets to
a Portfolio through a Contract as a result of payments such as loan
repayments, scheduled contributions, retirement plan salary reduction
contributions, or planned premium payments to the Contract; or (v)
pre-arranged transfers at the conclusion of a required "free look" period.
(iii) The term "Contract Owner Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Contract Owner that results
in a transfer of assets within a Contract out of a Portfolio, but does not
include transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollments such as transfers of
assets within a Contract out of a Portfolio as a result of annuity payouts,
loans, systematic withdrawal programs, insurance company approved asset
allocation programs and automatic rebalancing programs; (ii) as a result of
any deduction of charges or fees under a Contract; (iii) within a Contract
out of a Portfolio as a result of scheduled withdrawals or surrenders from
a Contract; or (iv) as a result of payment of a death benefit from a
Contract.
(iv) The term "Portfolios" shall mean the constituent series of the Fund,
but for purposes of this Section 14.1 shall not include Portfolios excepted
from the requirements of paragraph (a) of Rule 22c-2 by paragraph (b) of
Rule 22c-2.
(v) The term "promptly" shall mean as soon as practicable but in no event
later than ten (10) Business Days from the Company's receipt of the request
for information from the Distributor.
(vi) The term "written" includes electronic writings and facsimile
transmissions.
(vii) In addition, for purposes of this Section 14.1, the term "purchase"
does not include the automatic reinvestment of dividends or distributions.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
as of the date specified below.
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By its authorized officer,
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
Attest:____________________________
Name:
Title:
FIRST TRUST VARIABLE INSURANCE TRUST
By its authorized officer,
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President and CEO
FIRST TRUST PORTFOLIOS, L.P.
By its authorized officer,
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Operating Officer
SCHEDULE A
SEGREGATED ASSET ACCOUNTS:
All segregated asset Accounts utilizing any Designated Portfolio.
CONTRACTS:
All Contracts funded by the segregated asset Accounts that utilize any
Designated Portfolio.
SCHEDULE B
DESIGNATED PORTFOLIOS
First Trust/Dow Xxxxx Dividend & Income Allocation Portfolio (May 1, 2012)
First Trust Multi Income Allocation Portfolio (__________)
SCHEDULE C
EXPENSES
The Fund and/or the Distributor and/or Fund's adviser, and the Company will
coordinate the functions and pay the costs of completing these functions based
upon an allocation of costs in the tables below.
PARTY RESPONSIBLE FOR PARTY RESPONSIBLE
ITEM FUNCTION COORDINATION FOR EXPENSE
----------------------------- --------------------------------- -------------------------- -----------------------
Mutual Fund Prospectus and, Fund, Distributor or Fund's Fund and/or Company Fund, Distributor or
if applicable, Summary adviser shall supply the Company Fund's adviser, as
Prospectus with such numbers of the applicable, will pay
Designated Portfolio(s) for printing and
prospectus(es) as the Company delivering
may reasonably request and/or (including postage)
provide the Company with a copies to existing
print-ready PDF of the Contract owners who
Designated Portfolio(s) allocate contract
prospectus(es) for printing and value to any
expense reimbursement Designated Portfolio.
Product Prospectus Printing, Filing and Company Company will pay
Distribution printing and
delivery.
Mutual Fund Prospectus and, Fund, Distributor or Fund's Fund and/or Company Fund, Distributor or
if applicable, Summary adviser shall supply the Company Fund's adviser, as
Prospectus Update & with such numbers of the applicable, will pay
Distribution (Supplements) Designated Portfolio(s) for printing and
prospectus supplements as the delivering
Company may reasonably request (including postage)
and/or provide the Company with to existing Contract
a print -ready PDF of the owners who allocate
Designated Portfolio(s) contract value to
prospectus supplements for any Designated
printing and expense Portfolio.
reimbursement
PARTY RESPONSIBLE FOR PARTY RESPONSIBLE
ITEM FUNCTION COORDINATION FOR EXPENSE
----------------------------- --------------------------------- -------------------------- -----------------------
Product Prospectus Update & If Required by Fund or Company Fund or Distributor
Distribution Distributor
(Supplements)
If Required by the Company Company Company
Mutual Fund SAI Printing Fund or Distributor Fund or Distributor
Distribution Company Fund or Distributor
Product SAI Printing & Distribution Company Company
Proxy Material for Mutual Printing Fund or Distributor or a Fund or Distributor
Fund: proxy solicitation firm
chosen by the Fund
Distribution (including labor Company or a proxy Fund or Distributor
and postage) solicitation firm chosen
by the Fund
Mutual Fund Annual & Fund, Distributor or Fund's Company Fund, Distributor or
Semi-Annual Report adviser shall supply the Company Fund's adviser, as
with such numbers as the Company applicable, will pay
may reasonably request and/or for printing and
provide the Company with a print delivering
-ready PDF for printing and (including postage)
expense reimbursement copies to existing
Contract owners who
allocate contract
value to any
Designated Portfolio.
Other communication to If Required by the Fund or Company Fund or Distributor
Prospective clients Distributor
If Required by the Company Company Company
Other communication to Distribution (including labor Company Fund or
existing Contract and printing) if
PARTY RESPONSIBLE FOR PARTY RESPONSIBLE
ITEM FUNCTION COORDINATION FOR EXPENSE
----------------------------- --------------------------------- -------------------------- -----------------------
owners required by the Distributor
Fund or Distributor
Distribution (including labor Company Company
and printing) if required by the
Company
Operations of the Fund All operations and related Fund or Distributor Fund or Fund's
expenses, including the cost of adviser
registration and qualification
of shares, taxes on the issuance
or transfer of shares, cost of
management of the business
affairs of the Fund, and
expenses paid or assumed by the
Fund pursuant to any Rule 12b-1
plan
Operations of the Account Federal registration of units of Company Company
separate account (24f-2 fees)
