WHOLESALING AGREEMENT
AGREEMENT dated as of October , 1999 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 and 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 Section 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 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.
3. RECRUITMENT OF BROKERS AND RELATED RESPONSIBILITIES
a. LNY hereby authorized DELWARE 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. LNY 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 Associate 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;
(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
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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 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, 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. LNY shall be identified as such in all 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
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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 may provide to DELAWARE: (1) changes, if any,
which LFA deems mandatory; and (2) changes which LFA 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 for LFA's final approval 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.
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.
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(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 XX XXXXXX 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 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
issues, including all Contractowner service and communication
activities.
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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 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,
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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 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
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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 Indiana 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; and
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 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
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);
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(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 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 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.
c. be responsible for duplication and distribution of illustration
and asset allocation software programs originated by LNY.
7. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS OF DELAWARE, LNY AND
LFA
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
11
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. 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 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.
12
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 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.
(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
13
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.
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
14
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 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.
15
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
16
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. 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 to the 1933 Act; 1934 Act; 1940 Act; and the
Regulations and the rules and regulations of the NASD, 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.
17
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. 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
Schedule 1.d
Separate Account Subaccounts
To be available under the Contracts
Subject to the Wholesaling Agreement
Effective October___,1999
NAME OF SEPARATE ACCOUNT SUBACCOUNTS
Lincoln New York Separate Account N AIM V.I. Growth Subaccount
AIM V.I. Value Subaccount
AIM V.I. International Equity Subaccount
BT Insurance Trust Equity 500 index Subaccount
Delaware Group Decatur Total Return Subaccount
Delaware Group Devon Subaccount
Delaware Group Social Awareness Subaccount
Delaware Group REIT Subaccount
Delaware Group Small Cap Value Subaccount
Delaware Group Trend Subaccount
Delaware Group International Equity Subaccount
Delaware Group Emerging Markets Subaccounts
Delaware Group Delchester Subaccount
Dreyfus Variable Fund Small Cap Subaccount
Fidelity VIP Equity-Income Subaccount
Fidelity VIP Growth Subaccount
Fidelity VIP Overseas Subaccount
Fidelity VIP III Growth Opportunities Subaccount
Investors Fund Xxxxxx Govt. Securities Subaccount
Investors Fund Xxxxxx Small Cap Growth Subaccount
Liberty Variable Trust Colonial U.S. Stock Subaccount
Liberty Variable Trust Newport Tiger Subaccount
Lincoln National Bond Subaccount
Lincoln National Money Market Subaccount
MFS Variable Trust Total Return Subaccount
MFS Variable Trust Utilities Subaccount
MFS Variable Trust Emerging Growth Subaccount
MFS Variable Trust Research Subaccount
OCC Trust Global Equity Subaccount
OCC Trust Managed Subaccount
23
Schedule 1.g
Contracts Subject to Wholesaling Agreement
Effective October ___, 1999
SEC ('33 Act)
Marketing Policy Registration Name of
Name of Contract Form No. No. Separate Account
---------------- -------- --- ----------------
Delaware-Lincoln Choice Plus AN425-LL* 333-40937 Lincoln New York
Separate Account N
For Variable Annuities
24
SCHEDULE 9.a
COMPENSATION SCHEDULE
EFFECTIVE November 20, 1998
COMPENSATION PAYABLE BY LINCOLN TO DELAWARE FOR WHOLSALING ACTIVITY
Both ChoicePlus and ChoicePlus XL pay the same wholesaling allowances, which
vary by year of deposit. All wholesaling allowances are paid as a percent of new
deposits; no trail of any kind is paid.
Year of Deposit Allowance*
--------------- ----------
(Calendar Year) (Percent of New Deposit)
1998 0.75%
1999 2.08%
2000 1.50%
2001 1.00%
2002 0.75%
Compensation will be paid to DELAWARE according to then current Lincoln
practice, but no less frequently than weekly.
On all business produced through the LFA distribution system, the allowance
shown in the table above will be reduced by the estimated cost of the bonus
program for LFA producers. The amount will be determined annually prior to the
beginning of the calendar year.
* To the extent that the full gross dealer compensation available under
compensation options 1, 2, or 3 as shown below is not paid to a broker/dealer,
the difference between what is paid and the amount available under options 1, 2,
or 3 will be paid to DELAWARE. This is in addition to the percentage shown in
the table above.
To the extent more than the full gross dealer compensation available under
compensation options 1, 2, or 3 as shown below is paid to a broker/dealer, the
excess over the amount available under options 1, 2, or 3 will be paid to
LINCOLN. This will be a deduction from the percentage shown in the table above.
Option Age 80 or Less Ages 81-85
------ -------------- ----------
1 6.50% 4.50%
2 4.00% 2.50%
3 4.75% 3.25%
