WHOLESALING AGREEMENT
AGREEMENT dated as of , 2000 by and among LINCOLN LIFE &
ANNUITY COMPANY OF NEW YORK ("LNY"), a New York insurance corporation, LINCOLN
FINANCIAL ADVISORS CORPORATION ("LFA"), an Indiana corporation, in its capacity
as principal underwriter for one or more of LNY's life insurance and/or annuity
separate accounts, and DELAWARE DISTRIBUTORS, L.P., a Delaware limited
partnership (hereinafter referred to as "DELAWARE").
WITNESSETH:
WHEREAS, LNY issues and sells certain variable annuity and variable life
insurance contracts and uses LFA as its principal underwriter for such
contracts; and WHEREAS, LNY, LFA and DELAWARE desire to establish an arrangement
whereby DELAWARE will act as a wholesaler for such variable annuity and variable
life insurance contracts and, as such, will recruit business firms to distribute
such contracts; NOW, THEREFORE, in consideration of their mutual promises, LNY,
LFA and DELAWARE hereby agree as follows:
1. Definitions
a. 1933 Act - The Securities Act of 1933, as amended.
b. 1934 Act - The Securities Exchange Act of 1934, as amended.
c. 1940 Act - The Investment Company Act of 1940, as amended.
d. Account - Each and any separate account established by LNY and listed
on Schedule 1.d to this Agreement, as amended from time to time in
accordance with Section 2.e of this Agreement. The phrase "Account
supporting the Contracts" or "Account supporting a class of Contracts"
shall mean the separate account identified in such Contracts as the
separate account to which the Purchase Payments made, net of any
front-end charges, under such Contracts are allocated and as to which
income, gains ad losses, whether or not realized, from assets
allocated to such separate account, are, in accordance with such
Contracts, credited to or charged against such separate account
without regard to other income, gains, or losses of LNY or any other
separate account established by LNY.
e. Associated Person - This term as used in this Agreement shall have the
meaning assigned to it in the 1934 Act.
f. Broker - An entity registered as a broker-dealer and licensed as a
life insurance agency or associated with an entity so licensed in
accordance with any applicable SEC no-action letter, and recruited by
DELAWARE and subsequently authorized by LNY to distribute the
Contracts pursuant to the sales agreement with LFA entered into in
accordance with Section 3 of this Agreement.
g. Contracts - The variable annuity contracts or variable life insurance
contracts described more specifically on Schedule 1.g to this
Agreement, as amended from time to time pursuant to Section 2.e. The
term "Contracts" shall include any riders to such contracts and any
other contracts offered in connection therewith or any contracts for
which such Contracts may be exchanged or converted. The
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phrase "a class of Contracts" shall mean those variable annuity
contracts or variable life insurance contracts, as the case may be,
issued on the same policy form or forms and covered by the same
Registration Statement, as shown on Schedule 1.g to this Agreement.
h. Distributor - LINCOLN FINANCIAL ADVISORS CORPORATION, principal
underwriter for the Contracts.
i. Fund - any fund or series thereof in which an Account supporting the
Contracts invests. (Plural, "Funds")
j. Fund Prospectus - At any time while this Agreement is in effect, the
prospectus for a Fund most recently filed with the SEC pursuant to
Rule 485 or Rule 497 under the 1933 Act. (For purposes of Section 11
of this Agreement, however, the term "Fund Prospectus" means any
document that is or at any time was a Fund Prospectus within the
meaning of this Section 1.j.)
k. Fund Registration Statement - At any time while this Agreement is in
effect, the currently effective registration statement of a fund filed
with the SEC under the 1933 Act, or currently effective post-effective
amendment thereto, for shares of a fund. (For purposes of Section 11
of this Agreement, however, the term "Fund Registration Statement"
means any document that is or at any time was a Fund Registration
Statement within the meaning of this Section 1.k.)
l. NASD - Collectively, The National Association of Securities Dealers,
Inc. ("Association") and NASD Regulation, Inc. ("NASDR").
m. Participation Agreement - an agreement between LNY and a Fund relating
to the investment of assets of LNY separate accounts in such Fund.
n. Procedures - The administrative procedures prepared and distributed by
LNY or LFA, as such may be amended or supplemented from time to time,
relating to the solicitation, sale, issue and delivery of the
Contracts.
o. Prospectus - At any time while this Agreement is in effect, the
current prospectus relating to the Contracts most recently filed with
the SEC pursuant to Rule 485 or Rule 497 of the 1933 Act. (For
purposes of Sections 5.a and 11 of this Agreement, however, the term
"any Prospectus" means any document that is or at any time was a
Prospectus within the meaning of this Section 1.o.)
p. Premium Payment - a payment made under a Contract by an applicant or
purchaser to purchase benefits under the Contract.
q. Registration Statement - At any time while this Agreement is in effect
the pending or currently effective registration statement (including
post-effective amendments) filed with the SEC under the 1933 Act, as
applicable, relating to a class of Contracts, including financial
statements included in, and all exhibits to, such registration
statement or post-effective amendment. (For purposes of Sections 5.a
and 11 of this Agreement, however, the term "Registration Statement"
means any document that is or at any time was a Registration Statement
within the meaning of this Section 1.q.)
r. Regulations - The rules and regulations promulgated by the SEC under
the 1933 Act, the 1934 Act and the 1940 Act, and the rules and
regulations of the NASD, as in effect at the time this Agreement is
executed or thereafter promulgated, and as they may be amended from
time to time.
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s. Representative - An Associated Person of DELAWARE or a Broker
registered with the NASD as a registered representative or principal
of DELAWARE or Broker, as the case may be.
t. SEC - The Securities and Exchange Commission.
u. State - Any state or commonwealth of the United States, the District
of Columbia or any other territory of the United States.
v. Territory - Any State or territory of the United States (including the
District of Columbia) where the contracts have been filed and approved
for sale by the appropriate regulatory authorities.
w. Wholesaler - DELAWARE, when it performs the functions assigned to it
in this agreement (including, but not by way of limitation, those
functions set forth in Sections 2, 3 and 4 hereof).
2. Appointment and Wholesaling Duties
a. LNY and LFA hereby authorize DELAWARE under applicable securities laws
to engage in the activities contemplated in this Agreement relating to
the wholesaling of the Contracts for which LFA acts as principal
underwriter.
b. DELAWARE undertakes to use its best efforts to contact, recruit,
screen, and recommend Brokers in accordance with Section 3 of this
Agreement, consistent with market conditions and compliance with its
responsibilities under the federal securities laws and regulations.
c. (1) The appointment and authorization of DELAWARE to engage in
wholesaling activities pursuant to this Agreement is exclusive as to
the Contracts listed on Schedule 1.g, as amended from time to time in
accordance with Section 2.e of this Agreement. LNY and LFA shall not
authorize any other person to engage in wholesaling activities with
respect to the Contracts or to recruit business firms to engage in
wholesaling or distribution activities with respect to the Contracts
(other than business firms recommended by DELAWARE pursuant to Section
3 of this Agreement) without DELAWARE's prior written consent, nor
shall LNY and LFA separately engage in wholesaling or distribution
activities relating to the Contracts. Nothing in this Agreement,
however, shall preclude or limit LFA's ability to distribute the
Contracts through its own registered representative.
(2) To the extent that any Contract offers a general account option,
LNY shall, if required by the SEC, register that option under the 0000
Xxx.
(3) LNY shall register each Account with the SEC. The subaccounts of
each Account available under the Contracts or a class of Contracts are
listed on Schedule 1.a to this Agreement, as amended form time to time
in accordance with Section 2.e of this Agreement.
d. LNY shall obtain appropriate authorizations, to the extent necessary,
whether by Registration, qualification, approval or otherwise, for the
issuance and sale of the Contracts in any State. From time to time LNY
shall notify DELAWARE in writing of all States other than New York in
which each class of Contract may then lawfully be offered.
e. The parties to this Agreement may amend Schedules 1.d and 1.g to this
Agreement from time to time by mutual agreement to reflect changes in
or relating to the Contracts and the Accounts and to add new classes
of variable
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annuity contracts and variable life insurance contracts to
be issued by LNY for which DELAWARE will act as wholesaler. The
provisions of this Agreement shall be equally applicable to each such
class of Contracts, unless the context otherwise requires. Schedule
9.a to this Agreement may be amended only by mutual agreement of the
parties to this Agreement pursuant to Section 9 of this Agreement.
f. Either party may recommend the addition of funding options for one or
more Accounts. DELAWARE will have final approval of fund additions
(including additions pursuant to substitutions) as long as each such
addition satisfies LNY's then current selection criteria. With respect
to substitutions of funds, the final decision about whether to
substitute rests with LNY, however, DELAWARE will have final approval
of any fund to be added as a result of the substitution, as long as
the fund meets with LNY's current selection criteria. The final
decision about eliminating funding options also rests with LNY.
3. Recruitment of Brokers and Related Responsibilities
a. LNY hereby authorized DELAWARE to contact, recruit, screen, and
recommend to LNY and LFA business firms appropriate to act as Brokers
for the sale of the Contracts, and DELAWARE agrees to do so. DELAWARE
will use its best efforts, upon diligent inquiry, to recruit only
Brokers. LNY shall have the right to reject any such recommendation,
but shall not do so arbitrarily or unreasonably.
b. LFA shall have the responsibility for and bear the cost of: (i)
executing appropriate sales agreements with the business firms
recommended by DELAWARE; and (ii) appointing and renewing appointments
for, such business firms, and/or Associated Persons of such firms, as
insurance agents of LNY in those states where such business firms
and/or Associated Persons possess insurance agent licenses (except as
provided in Section 9.c hereof). DELAWARE shall provide LNY with such
information as LNY requests for this process. Neither DELAWARE nor LFA
nor LNY shall have responsibility for, or bear the cost of, any
registration or licensing of Brokers or any of their Associated
Persons with the SEC, NASD or any state insurance governmental or
regulatory agency. LNY shall maintain the appointment records of all
agents appointed by LNY to distribute the Contracts contemplated by
this Agreement.
c. Any sales agreement entered into by LFA with a Broker shall provide
that:
(1) The Broker (or an affiliated person duly registered as a broker-
dealer with the SEC) shall train, supervise, and be solely responsible
for the conduct of, all of its Associated Persons in the proper method
of solicitation, sale and delivery of the Contracts for the purpose of
complying on a continuous basis with the NASD Conduct Rules and with
federal and state securities and insurance law requirements applicable
in connection with the offering and sale of the Contracts;
(2) Premium Payments shall be made payable to LNY and shall be
delivered together with all applications and related information in
accordance with the Procedures;
(3) The Broker shall be solely responsible for all compensation paid
to its Representatives and all related tax reporting that may be
required under applicable law;
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(4) The Broker and its Representatives shall not use, develop or
distribute any promotional, sales or advertising material that has not
been approved in writing by LNY and filed with the appropriate
governmental or regulatory agencies; and
(5) The Broker shall not have authority, on behalf of LNY, LFA or
DELAWARE, to make , alter or discharge any Contract or other contract
entered into pursuant to a Contract; to waive any Contract forfeiture
provision; to extend the time of paying any Premium Payment; to
receive any monies or Premium Payments (except for the sole purpose of
promptly forwarding monies or Premium Payments to LNY); or to expend,
or contract for the expenditure of, funds of LNY, LFA or DELAWARE.
d. DELAWARE shall provide assistance to LNY at a level acceptable to LNY
or LFA, to facilitate the appointment of Brokers and their
Representatives.
e. DELAWARE shall train, supervise, and be solely responsible for the
conduct of, all of its Associated Persons (but not Brokers or their
Representatives unaffiliated with DELAWARE), for the purpose of
complying on a continuous basis with the NASD Conduct Rules and with
federal securities laws and state securities and insurance laws
applicable to the wholesaling activities contemplated in this
Agreement. DELAWARE shall be responsible for the maintenance and
updating of broker-dealer or agent registrations that they determine
to be necessary for themselves and/or their Associated Persons
pursuant to any federal or state securities law or state insurance
law.
f. DELAWARE, LFA and LNY will have no supervisory responsibility (as such
supervision is contemplated by the 1934 Act or the NASD's Conduct
Rules) with respect to Brokers or their Representatives. Under no
circumstances will DELAWARE be responsible for Brokers' or Broker's
Representatives' failure to comply with the Procedures.
g. DELAWARE shall not have authority on behalf of LNY or LFA to make,
alter or discharge any Contract or other contract entered into to
extend the time of paying any Premium Payment; or to receive any
monies or Purchase Payments. DELAWARE shall not expend, nor contract
for the expenditure of, funds of LNY or LFA; nor shall DELAWARE
possess or exercise any authority on behalf of LNY or LFA other than
that expressly conferred on DELAWARE by this Agreement.
h. DELAWARE shall act as an independent contractor in the performance of
its duties and obligations under this Agreement, and nothing contained
in this Agreement shall constitute DELAWARE or its respective
Associated Persons employees of LNY or LFA in connection with the
wholesaling activities contemplated by this Agreement or otherwise.
i. DELAWARE shall not purchase Contracts from, nor sell Contracts for,
LNY, nor shall it have any direct or indirect participation in such
undertakings, and nothing contained in this Agreement shall constitute
DELAWARE an "underwriter" or a "principal underwriter" of any of the
Contracts, as those terms are defined in the 1933, 1934 or 1940 Acts.
j. The Distributor of the Contracts, as the term "Distributor" is
customarily used in the variable insurance products industry, shall be
LFA. LFA shall be identified as such in all sales, promotional, and
advertising materials for the Contracts. LNY
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shall be referred to as the insurance company issuing the Contracts in
all such sales, promotional, and advertising materials for the
Contracts.
4. Marketing and Sales Material
a. (1) DELAWARE shall be responsible for drafting and designing all
promotional, sales and advertising materials to be developed for
filing pursuant to section 4(a)(3). LNY and LFA will cooperate with
DELAWARE in the development of these materials. No such materials
shall be used without the prior approval of LNY and LFA, which
approval shall not be unreasonably withheld.
(2) LNY/LFA shall be responsible for maintaining that portion of
any World Wide Web site(s) relating to the Contracts and their
distribution. DELAWARE will not, without prior authorization in
writing from LNY or LFA, establish direct or indirect hyperlinks or
other electronic connections between the Web site(s) described in the
preceding sentence and any current or future Web site(s) in use or to
be used for or in connection with any other products or services.
(3) (a) DELAWARE shall be responsible for filing with the NASD, as
required, all promotional, sales and advertising material developed
for use with the Contracts, and shall be responsible for doing any
necessary followup with the NASD . LFA shall provide DELAWARE with
final copies of all such material developed it or by LNY, and shall
not use such material until DELAWARE has informed LFA that such
material has been filed with and where appropriate, reviewed by, the
NASD. LFA and DELAWARE agree to cooperate in implementing requests
for changes received from the NASD.
(b) LNY shall be responsible for filing, as required, all
promotional, sales and advertising material, developed for use with
the Contracts, with any other federal or state governmental or
regulatory agencies, including any state insurance governmental or
regulatory agencies.
(4) With respect to all promotional, sales and advertising material
developed by DELAWARE, LFA and LNY shall have a reasonable period of
time, not to exceed five full business days, for review of each of
such material. In response to this material, LFA or LNY may provide to
DELAWARE: (1) changes, if any, which LFA or LNY deems mandatory; and
(2) changes which LFA or LNY deems optional. DELAWARE will make the
mandatory changes. In addition, DELAWARE may make the optional
changes, at its discretion. Once DELAWARE has completed the processing
of all changes, DELAWARE will provide proof copy to LFA and LNY for
LFA's and LNY's final approval (LFA with respect to the NASD and LNY
with respect to New York Insurance Department Regulation 34-A) before
the materials are filed with the NASD and disseminated to Brokers
and/or to the public.
b. DELAWARE acknowledges that LNY shall have the unconditional right to
reject, in whole or in part, any application for a Contract. In the
event an application is rejected, any Premium Payment submitted will
be returned by or on behalf of LNY. In that event, LNY or LFA on its
behalf will use its best efforts to so notify DELAWARE when it
notifies the Broker/Dealer which submitted the Premium Payment.
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In the event that a purchaser exercises the free look right under the
Contract, any amount to be refunded as provided in such Contract will
be so refunded to the purchaser by or on behalf of LNY. LNY will
follow the same notification procedure that it uses for rejected
applications.
c. (1) DELAWARE will bear the cost of printing and mailing:
(a) all preliminary and definitive Contract Prospectuses used
for sales purposes; and
(b) all preliminary and definitive Fund Prospectuses used
for sales purposes, except to the extent that these expenses are borne
by a Fund pursuant to the relevant Fund Participation Agreement.
(2) LNY will bear the cost of:
(a) preparing, printing and mailing all preliminary and
definitive Contract Prospectuses used for other than sales
purposes; and
(b) printing and mailing all preliminary and definitive Fund
Prospectuses used for other than sales purposes, except to the
extent that these expenses are borne by a Fund pursuant to the
relevant Fund Participation Agreement.
d. DELAWARE will pay the following expenses contemplated by this
Agreement for: (i) the compensation, if any, of its Associated
Persons; (ii) expenses associated with the initial and ongoing NASD
licensing and training of its Associated Persons involved in the
wholesaling activities; (iii) the drafting, design, printing and
mailing of all promotional, sales or advertising material developed by
DELAWARE for use in connection with the distribution of the Contracts;
(iv) expenses associated with telecommunications with LNY and LFA at
the sites of DELAWARE or its Associated Persons, including site
installations and purchases, leases or rentals of modems, terminals
and other hardware, and lease line telephone charges for their
Associated Persons; (v) continuing education courses sponsored by
DELAWARE for all Brokers and relating to the contracts; (vi) fees
associated with NASD filings of promotional, sales or advertising
material developed by DELAWARE; (vii) development and maintenance of
DELAWARE's Internet Web sites and related functions; (viii) media
advertising and promotion (e.g., broker trade journals) for use in
connection with the distribution of the Contracts; and (ix) any other
expenses incurred by DELAWARE or its Associated Persons for the
purpose of carrying out the obligations of DELAWARE hereunder.
e. LNY will pay all expenses in connection with: (i) the preparation and
filing with appropriate governmental or regulatory agencies of the
Registration Statement and each preliminary Prospectus and definitive
Prospectus; (ii) the preparation and issuance of the Contracts; (iii)
any authorization, registration, qualification or approval of the
Contracts required under the securities, blue-sky laws or insurance
laws of the States; (iv) registration fees for the Contracts payable
to the SEC or to any other governmental or regulatory agency; (v) the
mailing of Prospectuses for the Contracts and Fund Prospectuses and
any supplements thereto, as required by federal securities laws, and
proxy soliciting materials and periodic reports relating to a Fund or
the Accounts to Contractowners; (vi) the printing of applications, the
Procedures and any other administrative forms utilized in connection
with the
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servicing of the Contracts; (vii) compensation as provided in Section
9 hereof; (viii) the design and maintenance of any product-specific
Web site for the contracts, if LNY determines that such a Web site is
necessary or advisable; and (ix) any other expenses related to the
distribution of the Contracts except as provided in Sections 4.c and
4.d of this Agreement.
f. Except to the extent for which DELAWARE is responsible under section
6.5 hereof, LNY alone shall be responsible for and bear the cost of
administration of the Contracts following their issue, including all
Contractowner service and communication activities.
g. LFA will confirm to each owner of a Contract, in accordance with Rule
10b-10 under the 1934 Act, LNY's acceptance of Premium Payments and
such other transactions as are required by Rule 10b-10 or
administrative interpretations thereunder and in accordance with
Release 8389 under the 1934 Act. Except for material which is required
by law to accompany these confirmations, nothing shall be included
with them that has not been approved in advance by LNY or LFA and
DELAWARE.
5. Representations and Warranties
a. LNY represents and warrants to DELAWARE, as of the effective date of
each Registration Statement for the Contracts (or class of Contracts)
and at each time that a Contract is sold, as follows:
(1) The Registration Statement has been declared effective by the SEC
or has become effective in accordance with the Regulations.
(2) The Registration Statement and the Prospectus each comply in all
material respects with the provisions of the 1933 Act and the 1940 Act
and the Regulations, and neither the Registration Statement nor the
Prospectus contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, in light of the
circumstances in which they were made; provided, however, that none of
the representations and warranties in this Section 5.a(2) shall apply
to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to LNY in writing by DELAWARE expressly for use in the
Registration Statement.
(3) LNY has not received notice from the SEC with respect to the
Registration Statement or the Account supporting the Contracts
described in the Registration Statement pursuant to Section 8(e) of
the 1940 Act and no stop order under the 1933 Act has been issued and
no proceeding therefor has been instituted or threatened by the SEC.
(4) The accountants who certified the financial statements included
the Registration Statement and Prospectus are independent public
accountants as required by the 1933 Act, the 1940 Act and the
Regulations.
(5) The financial statements included in the Registration Statement
for the Account and for LNY present fairly the respective financial
positions of LNY and the Account supporting the Contracts described in
the Registration Statement as of the dates indicated; and, for the
Account, such financial statements have been prepared in conformity
with generally accepted accounting principles in the United States
applied on a consistent basis, and for LNY, such financial
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statements have been prepared in conformity with statutory accounting
principles in the United States applied on a consistent basis.
(6) Subsequent to the respective dates as of which information is
given in the Registration Statement or the Prospects, there has not
been any material adverse change in the condition, financial or
otherwise, of LNY or the Account supporting the Contracts described in
the Registration Statement that would cause such information to be
materially misleading.
(7) LNY has been duly organized and is validly existing as a
corporation in good standing under the laws of New York, with full
power and authority to own, lease and operate its properties and
conduct its business in the manner described in the Prospectus, is
duly qualified to transact the business of a life insurance company
and is validly existing or in good standing in each State in which the
Contracts are or will be offered.
(8) Each Account supporting the Contracts described in the
Registration Statement has been duly authorized and established and is
validly existing as an insurance company separate account under the
laws of New York and is duly registered with the SEC as a unit
investment trust under the 0000 Xxx.
(9) The form of the Contracts has been (or, before it is offered for
sale, will be) approved to the extent required by the New York
Superintendent of Insurance and by the governmental agency responsible
for regulating insurance companies in each other state in which the
Contracts are offered.
(10) The execution and delivery of this Agreement and the consummation
of the transactions contemplated in this Agreement have been duly
authorized by all necessary corporate action by LNY and when so
executed and delivered this Agreement will be the valid and binding
obligation of LNY enforceable in accordance with its terms.
(11) LNY has filed with the SEC all statements and other documents
required for registration under the provisions of the 1940 Act and the
Regulations thereunder for the Account supporting the Contracts
described in the Registration Statement, and such registration is (or,
prior to being offered to the public, will be) effective; there are no
agreements or documents required by the 1933 Act, the 1940 Act or the
Regulations to be filed with the SEC as exhibits to the Registration
Statement that have not been so filed; and LNY has obtained all
exemptive or other orders of the SEC necessary to make the public
offering and consummate the sale of the Contracts pursuant to this
Agreement and to permit the operation of the Account supporting the
Contracts described in the Registration statement, as contemplated in
the Prospectus.
(12) The Contracts have been duly authorized by LNY and conform to the
descriptions thereof in the Registration Statement and the Prospectus
and, when issued as contemplated by the Registration Statement, will
constitute legal, validly issued and binding obligations of LNY in
accordance with their terms.
b. DELAWARE represents and warrants to LNY and LFA on the date hereof as
follows:
(1) DELAWARE has been duly organized and is validly existing as a
limited partnership in good standing under the laws of Delaware with
full power and authority to own, lease and operate its properties and
conduct its business as a
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broker-dealer registered with the SEC and with the securities
commission of every State where such registration is required, and is
a member in good standing of the NASD.
(2) DELAWARE has taken all action including, without limitation,
those necessary under its limited partnership agreement, by-laws and
applicable state law, necessary to authorize the execution, delivery
and performance of this Agreement and all transactions contemplated
hereunder.
(3) DELAWARE is and during the term of this Agreement shall remain
duly registered as a broker-dealer under the 1934 Act, a member in
good standing with the NASD, and duly registered as a broker-dealer
under applicable state securities laws.
c. LFA represents and warrants to DELAWARE in the date hereof as follows:
(1) DELAWARE has been duly organized and is validly existing as a
limited partnership in good standing under the laws of Delaware with
full power and authority to own, lease and operate its properties and
conduct its business as a broker-dealer registered with the SEC and
with the securities commission of every State where such registration
is required, and is a member in good standing of the NASD.
(2) DELAWARE has taken all action including, without limitation,
those necessary under its charter, by-laws and applicable state law,
necessary to authorize the execution, delivery and performance of this
Agreement and all transactions contemplated hereunder.
(3) DELAWARE is and during the term of this Agreement shall remain
duly registered as a broker-dealer under the 1934 Act, a member in
good standing with the NASD, and duly registered as a broker-dealer
under applicable state securities laws.
6. Additional Responsibilities of LNY
a. LNY shall:
(1) maintain the registration of the Contracts with the SEC and any
state securities commissions of any State where the securities or
blue-sky laws of such State require registration of the Contracts,
including without limitation using its best efforts to prevent a stop
order from being issued or if a stop order has been issued using its
best efforts to cause such stop order to be withdrawn;
(2) maintain the approval or other authorization of the Contract
forms where required under the insurance laws and regulations of any
State;
(3) keep such registration, approval and authorization in effect
thereafter so long as the Contracts are outstanding, to the extent
required by law;
(4) For New York Insurance Law purposes, LNY shall be responsible for
the development and maintenance of a method to file and retrieve files
and records as they relate to advertisements reviewed and approved on
behalf of LNY and its representatives that are in accordance with New
York Insurance Department Regulations 34 and 34-A. All such files
shall be maintained at LNY's principal office within the State of New
York.
b. During the term of this Agreement, LNY shall take all action required
to cause each class of Contracts to comply, and to continue to comply,
as annuity contracts
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or life insurance contracts, as the case may be, and to cause the
Registration Statement and the Prospectus for each class of Contracts
to comply, and to continue to comply, with all applicable federal laws
and regulations and all applicable laws and regulations of each State.
c. LNY, during the term of this Agreement, shall notify DELAWARE and LFA
immediately:
(1) When each Registration Statement (or amendment or supplement to
it) has become effective;
(2) Of the initiation of any legal proceeding commenced by any
regulatory body or by any third party alleging that any material
statement made in a Registration Statement or a Prospectus is untrue
in any material respect or results in a material omission in a
Registration Statement or Prospectus;
(3) Of the issuance by the SEC of any stop order with respect to a
Registration Statement or any amendment thereto; or the initiation by
the SEC of any proceedings for that purpose or for any other purpose
relating to the registration and/or offering of the Contracts (or
class of Contracts);
(4) Of all those States in which registration of the Contracts (or
class of Contracts) is required under the securities or blue-sky laws,
and the date on which such registrations have become effective.
d. LNY shall furnish to DELAWARE and LFA without charge, promptly after
filing, on copy of each Registration Statement as originally filed,
including financial statements and all exhibits (including exhibits
incorporated therein by reference).
e. LNY shall file in a timely manner all reports, statements and
amendments required to be filed by or for each Account or class of
Contracts under the 1933 Act and/or the 1940 Act or the Regulations.
f. LNY shall provide DELAWARE and LFA access to such records, officers
and employees of LNY and of each Account at reasonable times as is
necessary to enable DELAWARE to fulfill its obligations under the
federal securities laws, Regulations and NASD rules.
6.5 Additional Responsibilities of DELAWARE
DELAWARE shall:
a. assist LNY with certain administrative activities relating to the
Contracts, to the extent agreed upon from time to time by LNY and
DELAWARE.
b. provide LNY and LFA access to such of its records, officers and
employees at reasonable times as is necessary to enable each of LNY
and LFA to fulfill its obligations under the federal securities laws
and the Regulations, as well as the New York Insurance Law and
regulations promulgated by the New York Insurance Department .
c. be responsible for distribution of illustration and asset allocation
software programs originated by LNY.
7. Confidentiality and Intellectual Property Rights of DELAWARE, LNY AND LFA
11
a. LNY acknowledges that the names and addresses of all customers and
prospective customers (for purposes of this Section 7.a, the terms
"customers" and "prospective customers" shall not mean Brokers) of any
Broker that may come to the attention of LNY or LFA as a result of its
relationship with any Broker and not from any independent source, are
confidential and shall not be used by LNY or LFA for any purpose
whatsoever, except (1) as agreed upon between LNY or LFA and any
Broker; and (2) as may be necessary in connection with the
administration of the Contracts sold by the Brokers, including
responses to specific requests made to LNY for service by
Contractowners or efforts to prevent the replacement of such Contracts
or to encourage the exercise of options under the terms of the
Contracts. The restrictions set forth in the previous sentence do not
apply if and to the extent a Broker knowingly discloses the names and
addresses of its customers or prospective customers to LNY or LFA
outside the operation of this Agreement. In no event shall the names
and addresses of such customers and prospective customers be furnished
by LNY to any other person not affiliated with LNY or LFA. The intent
of this paragraph is that LNY and LFA shall not utilize or permit to
be utilized (other than as provided above) its knowledge of any
Broker, derived as a result of the relationship created through the
funding and sale of the Contracts, for the solicitation of sales of
any product or service other than the Contracts. This paragraph shall
remain operative and in full force and effect regardless of the
termination of this Agreement, and shall survive any such termination.
b. The intellectual property rights of the parties are set forth in
Exhibit A to this Agreement, which is hereby incorporated herein by
this reference.
8. Records
LNY, LFA and DELAWARE each shall maintain such accounts, books and other
documents as are required to be maintained by each of them by applicable
laws and regulations and shall preserve such accounts, books and other
documents for the periods prescribed by such laws and regulations. LNY also
agrees to keep and maintain its records as required by applicable state
law, including, but not limited to New York Insurance Department Regulation
152 (11 NYCRR Part 243). The accounts, books and records of LNY, the
Account, LFA and DELAWARE as to all transactions hereunder shall be
maintained so as to clearly and accurately disclose the nature and details
of the transactions, including such accounting information as necessary to
support the reasonableness of the amounts paid by LNY hereunder. Each party
shall have the right to inspect and audit such accounts, books and records
of the other party during normal business hours upon reasonable written
notice to each other party. Each party shall keep confidential all
information obtained pursuant to such an inspection or audit, and shall
disclose such information to third parties only upon receipt of written
authorization from the other party, except as required under compulsion of
law.
9. Compensation
a. Basis.
(1) LNY shall compensate DELAWARE for sales of the Contracts by the
Brokers pursuant to Schedule 9.a to this Agreement, as such Schedule
may be
12
amended from time to time upon mutual agreement of the parties to this
Agreement. Such compensation shall be based on Premium Payments
received and accepted by LNY for all Contracts issued on applications
obtained by the Brokers or any of their respective Representatives.
LNY will pay compensation due DELAWARE in accordance with the
procedures set forth on Schedule 9.a. The compensation provided for in
this Section 9 shall cease after the termination date of the
Agreement.
(2) If LNY informs DELAWARE that any State, by insurance rule,
regulation or statue, prohibits any payment of compensation by LNY to
a class of business entities including DELAWARE, DELAWARE shall
designate in writing a business entity or natural person, including an
insurance agency affiliate of DELAWARE meeting the requirements of
such State, to receive any amounts that may otherwise be payable to
DELAWARE hereunder, and LNY shall have the right to rely upon the
legality of all such designations. DELAWARE may change such
designation from time to time, upon prior written notice to LNY. Any
payments made by LNY to any person or entity so designated by DELAWARE
shall discharge LNY's liability to DELAWARE hereunder.
(3) If a purchaser rescinds a Contract or exercises a right to
surrender a contract for return of all Premium Payments, DELAWARE will
repay to LNY, on demand, the amount of any compensation it received on
the Premium Payments returned.
b. Indebtedness. Nothing in this Agreement shall be construed as giving
DELAWARE the right to incur any indebtedness on behalf of LNY.
c. Renewal Appointment Fees for Low-producing Firms and Associated
Persons. LNY and/or LFA shall consult with DELAWARE prior to any
refusal by LNY, on grounds of insufficient production of premium
income for LNY products, to renew the appointment of any firm or
Associated Person appointed to LNY under Section 3.b above. DELAWARE
shall not unreasonably object to any such non-renewal.
d. Reporting. DELAWARE shall be responsible for all tax reporting
information DELAWARE is required to provide under applicable tax law
to its Associated Persons with respect to the Contracts. Nothing
contained in this Agreement or any sales agreement with a Broker is to
be construed to require DELAWARE to provide any tax reporting
information directly or indirectly to any unaffiliated Broker or its
Representatives.
10. Investigation and Proceedings
a. LNY, LFA and DELAWARE will cooperate fully in any securities or
insurance regulatory investigation or proceeding, or judicial
proceeding brought by any regulatory authority, arising in connection
with the offering, sale or distribution of the Contracts for which
DELAWARE acts as wholesaler pursuant to this Agreement. Without
limiting the foregoing, each party agrees to furnish to the other
party any official notices received about these proceedings.
(1) In the case of a complaint involving the terms of the Contract,
DELAWARE will provide LNY and LFA with all available information and
will cooperate fully in LNY's and LFA's investigation of the
complaint.
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(2) In the case of a complaint involving DELAWARE, LNY or LFA will
provide DELAWARE with all available information and will cooperate
fully in DELAWARE's investigation of the complaint.
11. Indemnification
a. LNY shall indemnify and hold harmless DELAWARE and any officer,
director, employee or agent of DELAWARE, against any and all losses,
claims, damages or liabilities (including reasonable investigative and
legal expenses incurred in connection with any action, suit or
proceeding, or any amount paid in settlement thereof with the prior
approval of LNY), to which DELAWARE and/or any such person may become
subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities:
(1) arise out of or are based upon: (a) any untrue statement or
allege untrue statement of a material fact contained in (i) any
Registration Statement, Prospectus, Blue-Sky application or other
document executed by LNY specifically for the purpose of qualifying
any or all of the Contracts for sale under the securities laws of the
United States or any State; (ii) any promotional, sales or advertising
material for the Contracts; (iii) the Contracts themselves; or (iv)
any amendment or supplement to any of the foregoing; or (b) the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in case of (a) or (b) above this obligation to
indemnify shall not apply if such untrue statement or omission or such
alleged untrue statement or alleged omission was made in reliance upon
ad in conformity with information furnished in writing to LNY by
DELAWARE specifically for use in the preparation of any such
Registration Statement, Prospectus or Blue-Sky application or other
document, material, or Contract (or any such amendment or supplement
thereto),
(2) arise out of or are based upon any untrue statement or alleged
untrue statement or omission or alleged omission of a material fact by
or on behalf of LNY (other than statements or representations
contained in any Fund Registration Statement, Fund Prospectus or
promotional, sales or advertising material of a Fund that were not
supplied by LNY or by persons under its control) or the gross
negligence or intentional misconduct of LNY or persons under its
control with respect to the sale or distribution of the Contracts; or
(3) result because of the terms of any Contract or because of any
material breach by LNY of any terms of this Agreement or of any
Contracts or that proximately result from any activities of LNY's
officers, directors, employees or agents or their failure to take
action in connection with the sale of a Contract, to the extent of
LNY's obligations under the Agreement or otherwise, or the processing
or administration of the Contracts.
This indemnification obligation will be in addition to any
liability that LNY may otherwise have; provided, however, that
DELAWARE shall not be entitled to indemnification pursuant to this
Section 11.a if such loss, claim, damage or liability is due to the
willful misfeasance, bad faith, gross negligence or reckless disregard
of duty by DELAWARE.
14
b. DELAWARE shall indemnify and hold harmless LNY and LFA and any
officer, director, employee or agent of LNY or LFA, against any and
all losses, claims, damages or liabilities (including reasonable
investigative and legal expenses incurred in connection with, any
action, suit or proceeding or any amount paid in settlement thereof
wit the prior approval of DELAWARE), to which LNY and/or any such
person may become subject under any statute or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon:
(1) (a) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or
Blue-Sky application or other document executed by LNY specifically
for the purposes of qualifying any or all of the Contracts for sale
under the securities law of any state (or any amendment or supplement
to the foregoing), or (b) omission or alleged omission to state
therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, in light of the
circumstances in which they were made; in the case of (a) and (b) to
the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with information furnished in writing
to LNY by DELAWARE specifically for use in the preparation of any such
Registration Statement, Prospectus, such Blue-Sky application or other
document (or any such amendment or supplement thereto); or
(2) any use of promotional, sales or advertising material for the
Contracts not authorized by LNY or LFA pursuant to Section 4.a of this
Agreement or any verbal or written misrepresentations or any unlawful
sales practices concerning the Contracts by DELAWARE under federal
securities laws or NASD regulations (but not including state insurance
laws, compliance with which is a responsibility of LNY under this
Agreement or otherwise); or
(3) claims by agents, representatives or employees of DELAWARE for
commissions or other compensation or remuneration of any type; or
(4) any material breach by DELAWARE of any provision of this
Agreement. This indemnification obligation will be in addition to any
liability that DELAWARE may otherwise have; provided, however, that
LNY shall not be entitled to indemnification pursuant to this Section
11.b if such loss, claim, damage or liability is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty
by LNY
c. After receipt by a party entitled to indemnification ("indemnified
party") under this Section 11 of notice of the commencement of any
action, if a claim in respect thereof is to be made by the indemnified
party against any person obligated to provide indemnification under
this Section 11 ("indemnifying party"), such indemnified party will
notify the indemnifying party will not relieve it from any liability
under this Section 11, except to the extent that the omission results
in a failure of actual notice to the indemnifying party and such
indemnifying party is damaged solely as a result of the failure to
give such notice. The indemnifying party, upon the request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others
the indemnifying party designate in such proceeding and shall pay the
fees
15
and disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel, or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the counsel would be inappropriate due to the
indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
d. The indemnification provisions contained in this Section 11 shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of LNY or by or on behalf of any
controlling or affiliated person thereof, (ii) delivery of any
Contracts and Purchase Payments therefore, or (iii) any termination of
this Agreement. A successor by law of DELAWARE, LFA or LNY, as the
case may be, shall be entitled to the benefits of the indemnification
provisions contained in this Section 11.
12. Termination
a. This Agreement may be terminated at the option of any party upon 90
calendar days advance written notice to the other party;
b. This Agreement shall terminate automatically if it is assigned;
provided, however, that a transaction will not be deemed an assignment
if it does no result in a change of actual control or management of a
party. This Agreement may be terminated at the option of one party
upon the other party's material breach of any provision of this
Agreement.
c. Upon termination of this Agreement all authorizations, rights and
obligations shall cease except: (i) the obligation to settle accounts
hereunder, including incurred compensation; and (ii) the provisions
contained in Sections 7 and 11 of this Agreement.
13. Rights, Remedies, etc. are Cumulative. 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 to this Agreement are entitled to under state and federal laws.
Failure of one party to insist upon strict compliance by an other party
with any of the conditions of this Agreement in any one instance shall not
be construed as a waiver of any of the conditions for any subsequent
instance, but the same shall remain in full force and effect. No waiver of
any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provisions, whether or not similar, nor
shall any waiver constitute a continuing waiver.
14. Notices. All notices hereunder are to be in writing and shall be given, if
to LNY, to:
Xxxxxxx Xxxxxxxx
Annuities Product Management
Lincoln Life & Annuity Company of New York
c/o Lincoln National Life Insurance Company
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
And
Xxxxxx X. Xxxxxxxx, Esq.
Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxx Xxxx 00000
If to DELAWARE:
Xxxxxx X. X'Xxxxx
Delaware Distributors, L.P.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Any party may specify another name and/or address in writing. Each such
notice to a party shall be hand-delivered; or transmitted by postage
prepaid registered or certified United States mail, with return receipt
requested; or sent by an overnight courier service.
15. Interpretation, Jurisdiction, Etc.
a. This Agreement constitutes the whole agreement among the parties to
this Agreement relating to the wholesaling activities contemplated in
this Agreement, and supersedes all prior oral or written negotiations
among the parties to this Agreement with respect to the subject matter
of this Agreement. The parties acknowledge that LNY and the Funds have
entered into Participation Agreements and that it may be necessary to
construe the terms of such Participation Agreements and this Agreement
together. This Agreement shall be construed and the provisions of this
Agreement interpreted under and in accordance with the internal laws
of the State of New York without giving effect to its principles of
conflict of laws.
b. Anything in this Agreement to the contrary notwithstanding, (i) in no
event will DELAWARE, in performing its services for LNY under this
Agreement, interpose itself into the contractual relationship between
LNY and any of its contractowners; and (ii) in no event will DELAWARE,
in performing its services for LNY or LFA under this Agreement,
intervene in the relationship between LNY or LFA and any of its
Brokers and/or Brokers' Associated Persons in such a manner as to
directly or indirectly cause any Broker(s) to breach its/their Selling
Group Agreement(s) with LNY or LFA.
16. Headings. The headings in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions of
this Agreement or otherwise affect their construction or effect.
17
17. Counterparts. This Agreement may be executed in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
18. Severability. This is a severable agreement and in the event that any part
or parts of this Agreement shall be held to be unenforceable to its or
their full extent, then it is the intention of the parties to this
Agreement that such part or parts shall be enforced to the extent permitted
under the law, and, in any event, that all other parts of this Agreement
shall remain valid and duly enforceable as if the unenforceable part or
parts had never been a part of this Agreement.
19. Regulation. This Agreement shall be subject to all applicable provisions of
state law and regulations promulgated thereunder, and to the 1933 Act; 1934
Act; 1940 Act; and the Regulations, from time to time in effect; including
such exemptions from the 1940 Act as the SEC may grant. The terms of this
Agreement shall be interpreted and construed in accordance therewith.
Without limiting the generality of the foregoing, the term "assigned" shall
not include any transaction exempted from Section 15(b)(2) of the 1940 Act.
IN WITNESS WHEREOF, each party hereto represents that the officer signing
this Agreement on the party's behalf is duly authorized to execute this
Agreement; and each party has caused this Agreement to be duly executed by such
authorized officer as of the date first set forth above.
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
LINCOLN FINANCIAL ADVISORS
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
DELAWARE DISTRIBUTORS, L.P.
By: DELAWARE DISTRIBUTORS, INC.
(General Partner)
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
18
EXHIBIT A
Intellectual Property Rights of the Parties
I. DELAWARE. Delaware Management Holdings, Inc. owns all right, title and
interest, including the good will associated therewith, in and to the marks
DELAWARE, DELAWARE GROUP, DELAWARE INVESTMENTS and DELAWARE GROUP PREMIUM FUND,
which may be used in connection with one or more of the underlying investment
media for the Contracts, and in and to the name DELAWARE in whatever manner used
in connection with the performance of this Agreement (such marks are hereinafter
referred to as "Delaware Licensed Marks"). Delaware Management Holdings, Inc.
has granted to DELAWARE the right and license to use the Delaware Licensed Marks
and the right to sublicense to others. DELAWARE hereby grants to LNY a
revokable, nonexclusive license to use the Delaware Licensed Marks in connection
with the Contracts and LNY's performance of the services as set forth under this
Agreement.
A. Term. The grant of limited license as specified in this Exhibit A
shall terminate with respect to Delaware Licensed Marks on the earlier of the
following events:
1. A change of name of such Delaware Licensed Xxxx to a name that does
not include the term "Delaware"; or
2. Solely at the option of DELAWARE, with respect to any or all
Delaware Licensed Marks and respecting only new business, upon a
termination of this Agreement. In the case of existing business, the grant
of limited license as specified in this Exhibit A shall survive the
termination of the Agreement, but only to the extent necessary to allow the
continuance of any business written prior to such termination wherein the
Delaware Licensed Marks were previously used, and so long as such use was
made in conformity and continue to conform with the terms of this
Agreement.
Upon termination of the grant of limited license, LNY shall, within ten (10)
business days of the effective termination date, cease to issue new Contracts or
to use or disseminate any promotional, sales or advertising material relating to
the Contracts or service existing Contracts except as provide in A.2 above under
such Delaware Licensed Xxxx, and shall likewise cease any new business activity
that suggests that it has any right under such Delaware Licensed Xxxx or that it
has any association with DELAWARE in connection with any such Contracts with
respect to such Delaware Licensed Xxxx. In addition, LNY shall cease to use the
Xxxx DELAWARE-LNY CHOICPLUS, except to the extent permitted for DELAWARE
Licensed Markers under A.2 above.
B. Pre-Release Approval of Trademark-Bearing Materials.
1. LNY agrees that it will display the Delaware Licensed Marks only
in such form and manner as are specifically approved by DELAWARE and that
it will cause them to appear on all promotional, sales or advertising
material used in connection with the Contracts or related services with
such legends, markings and notices as DELAWARE may request in order to give
appropriate notice of service xxxx registration when effected. All such
materials will be submitted by LNY to DELWARE for the purpose of service
xxxx reviews and approval at least ten (10) business days before their
intended use by LNY.
19
2. During the term of this limited license, DELAWARE may request that
LNY submit samples of any material bearing any of the Delaware Licensed
Marks that were previously approved by DELAWARE or that were not previously
approved in the manner set forth above. If, on reconsideration or on
initial review, respectively, any such sample fails to meet with the
written approval of DELAWARE, then LNY shall immediately cease using or
disseminating such disapproved material. LNY shall obtain the prior written
approval of DELAWARE for the use of any new material developed to replace
the disapproved material, in the manner set forth above. All costs
associated with any such reconsideration will be borne by LNY.
C. Assignment. This limited license is personal to LNY and may not be
assigned without the prior written consent of DELAWARE.
D. Breach. If LNY shall violate or fail to perform any of its obligations
under this limited license, DELAWARE shall have the right to terminate this
limited license upon thirty (30) days written notice, and such notice of
termination shall become effective unless LNY shall completely remedy the
default within such 30-day period. Termination of the license under the
provisions of this paragraph shall be without prejudice to any other rights
that DELAWARE may have against LNY.
E. DELAWARE's Rights. All rights in the Delaware Licensed Marks other than
those specifically granted herein are reserved by DELAWARE for its own use
and benefit. LNY shall at any time, whether during or after the term of
this limited license, execute any documents reasonably required by DELAWARE
to confirm DELAWARE's ownership of all such rights.
II. LNY. Lincoln National Corporation owns all right, title and interest,
including the good will associated therewith, in and to the marks LINCOLN
NATIONAL, LINCOLN SILHOUETTE DESIGN, and LINCOLN FINANCIAL GROUP which may
be used in connection with one or more of the underlying investment media
for the contracts, and in and to the name LINCOLN in whatever manner used
in connection with the performance of this Agreement (such marks are
hereinafter referred to as "LNC Marks"). Lincoln National Corporation has
granted to LINCOLN the right and license to use the LNC Marks and the right
to sublicense to others. In addition, LINCOLN owns all right, title and
interest, including the good will associated therewith, in and to the
marks, LINCOLN LIFE, A. Lincoln Signature Design, and DELAWARE-LINCOLN
CHOICEPLUS (such marks are hereinafter referred to as "Lincoln Marks"). For
the purpose of this Agreement, the LNC Marks and the Lincoln Marks shall be
collectively referred to as the "Lincoln Licensed Marks". LINCOLN hereby
grants to DELAWARE a revokable, nonexclusive limited license to use the
Lincoln Licensed Marks in connection with the Contracts and DELAWARE's
performance of the services as set forth under this Agreement.
A. Term. The grant of limited license as specified in this Exhibit A
shall terminate with respect to Lincoln Licensed Marks on the earlier of
the following events:
1. A change of name of such Lincoln Licensed Marks to a name
that does not include the term "LINCOLN"; or
20
2. Solely at the option of LINCOLN, with respect to any or all
Lincoln Licensed Marks and respecting only new business, upon a
termination of this Agreement. In the case of existing business, the
grant of limited license as specified in this Exhibit A shall survive
the termination of the Agreement, but only to the extent necessary to
allow the continuance of any business written prior to such
termination wherein the Lincoln Licensed Marks were previously used,
and so long as such use was made in conformity and continues to
conform with the terms of this Agreement.
Upon termination of the grant of limited license, DELAWARE
shall, within ten (10) business days of the effective termination
date, cease its wholesaling activities hereunder and suspend all
dissemination of promotional, sales and advertising material relating
to the Contracts or service existing Contracts except as provided in
A.2 above under such Lincoln Licensed Marks, and shall likewise cease
any new business activity that suggests that it has any right under
such Lincoln Licensed Marks or that it has any association with
LINCOLN in connection with any such Contracts with respect to such
Lincoln Licensed Marks.
B. Pre-Release Approval of Trademark-Bearing Materials.
1. DELAWARE agrees that it will display the Lincoln Licensed
Marks only in such form and manner as are specifically approved by
LINCOLN and that it will cause them to appear on all promotional,
sales or advertising material used in connection with the Contracts or
related services with such legends, markings and notices as LINCOLN
may request in order to give appropriate notice of service xxxx
registration when effected. All such materials will be submitted by
DELAWARE to LINCOLN for the purpose of service xxxx reviews and
approval at least ten business days before their intended use by
DELAWARE.
2. During the term of this limited license, LINCOLN may request
that DELAWARE submit samples of any material bearing any of the
Lincoln Licensed Marks that were previously approved by LINCOLN or
that were not previously approved in the manner set forth above. If,
on reconsideration or on initial review, respectively, any such sample
fails to meet with the written approval of LINCOLN, then DELAWARE
shall immediately cease using or disseminating such disapproved
material. DELAWARE shall obtain the prior written approval of LINCOLN
for the use of any new material developed to replace the disapproved
material, in the manner set forth above. All costs associated with any
such reconsideration will be borne by DELAWARE.
C. Assignment. This limited license is personal to DELAWARE and may not
be assigned without the prior written consent of LINCOLN.
D. Breach. If DELAWARE shall violate or fail to perform any of its
obligations under this limited license. LINCOLN shall have the right to
terminate this limited license upon thirty (30) days written notice, and
such notice of termination shall become effective unless DELAWARE shall
completely remedy the default within such 30-day period. Termination of the
license under the provisions of this paragraph shall be without prejudice
to any other rights that LINCOLN may have against DELAWARE.
21
X. XXXXXXX'x Rights. All rights in the Lincoln Licensed Marks other than
those specifically granted herein are reserved by LINCOLN for its own use
and benefit. DELAWARE shall at any time, whether during or after the term
of this limited license, execute any documents reasonably required by
LINCOLN to confirm LINCOLN's ownership of all such rights.
22
