FORM OF
SELLING AGREEMENT
AGREEMENT AMONG INSURANCE COMPANY
and
LNC EQUITY SALES CORPORATION
and
FORM OF SELLING AGREEMENT
Agreement made as of the day of , 1996, between Insurance Company,
the principal underwriter of variable products funded through Separate Account,
and ("Dealer"), an entity registered as a broker-dealer under the Securities
Exchange Act of 1934. (All variable products are hereinafter referred
collectively as the "Contracts" or individually as a "Contract".) Dealer desires
to sell the Contracts underwritten by which are listed on Schedule A.
This Agreement will record the understandings between Insurance Company, LNC
Equity Sales Corporation ("LNCESC") and Dealer relating to sales of the
Contracts and certain other services agreed to be performed by Dealer pursuant
to this Agreement.
SECTION 1. DEFINITIONS
1.1 "Applicant" shall mean either a prospective Contractholder or a prospective
Participant under the Contract.
1.2 "Commission" shall mean the Securities and Exchange Commission.
1.3 "Contractholder" shall mean any entity that is a party to a Contract with
Insurance Company.
1.4 "Contributions" shall mean amounts deposited by Contractholders on behalf
of Participants under a Contract.
1.5 "Dealer" shall mean any broker-dealer who has entered into a selling
agreement with Insurance Company and LNCESC for the purpose of distributing
Contracts.
1.6 "Fund" shall mean the fund or investment company that is the underlying
investment vehicle for Separate Account.
1.7 "Participant" shall mean a person who has enrolled under a Contract and
maintains a Participant Account.
1.8 "Separate Account" shall mean the Separate Account, a separate account
established by Insurance Company in accordance with the laws of the State
of .
SECTION 2. REPRESENTATIONS OF INSURANCE COMPANY AND LNCESC
2.1 REGISTRATION STATEMENTS AND PROSPECTUSES.
Insurance Company and LNCESC represent to Dealer as follows, with respect to
each Contract.
(a) A Registration Statement under the Securities Act of 1933 (the "1933
Act") has become effective.
(b) The prospectus relating to each Contract contained in the appropriate
Registration Statement or any supplement or amendment thereto ("Prospectus"), as
of their respective effective dates, contains all statements and information
which are required to be stated therein by the 1933 Act and in all respects
conform to the requirements thereof, and the Prospectus does not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the foregoing representations shall not
apply to information contained in or omitted from the Prospectus in reliance
upon, and in conformity with, information furnished by any of the Dealers
specifically for use in the preparation thereof.
SECTION 3. REPRESENTATIONS OF DEALER
3.1 LICENSES.
Dealer represents to LNCESC that it is and will remain, registered as a
broker-dealer under the Securities Exchange Act of 1934, as amended, and in such
other jurisdictions as the business transaction by it requires, is a member in
good standing of the National Association of Securities dealers, Inc. ("NASD"),
has obtained any other approvals, licenses, authorizations, orders or consents
which are necessary to enter into this Agreement, and is bonded as required by
all applicable laws and regulations.
Dealer represents that there are no proceedings threatened or pending against
them which could result in the suspension or loss of license to act as a broker
or dealer in any jurisdiction or loss of membership in the NASD.
Dealer further represents that it or its subsidiaries or affiliated companies,
as appropriate, are licensed as insurance agencies in all states which require
such licensing and in which the Contracts are sold by Broker-Dealer or its
subsidiaries or its affiliated companies.
3.2 QUALIFICATIONS OF REGISTERED REPRESENTATIVES.
Dealer represents to LNCESC that each person signing an application as agent
or receiving compensation for soliciting purchases of the Contracts will be a
registered representative or principal of Dealer with all licenses necessary or
appropriate to sell life insurance in the state of such signing or
solicitation (and to sell variable contracts if required by such state), and
will have received an appropriate appointment or license by Insurance Company
and a level of qualification with the NASD appropriate for the Contracts
("Registered Representative").
3.3 COMPENSATION.
Dealer represents that it will not pay any commissions, or portions thereof,
or other compensation based upon a percentage of Contributions or other valuable
consideration to any person or entity which is not duly licensed or appointed by
Insurance Company to sell life insurance in the state of such payment (and to
sell variable contracts if required by the state in question).
3.4 REPRESENTATIONS UPON ASSIGNMENT.
If Dealer assigns this Agreement as provided in paragraph 7.1 below, the
representations made in paragraphs 3.1 through 3.3 above shall be read to apply
to the affiliate where the context so requires.
SECTION 4. SALE OF THE CONTRACTS
4.1 AUTHORIZATION.
Dealer is hereby authorized to solicit applications for the purchase of the
Contracts through its Registered Representatives in such states where Dealer and
its Registered Representatives are appropriately licensed. This authorization is
non-exclusive and is limited to the states in which the Contracts are approved
for sale.
4.2 SUITABILITY.
Insurance Company and LNCESC wishes to ensure that the Contracts solicited by
Dealer will be issued to persons for whom the Contracts will be suitable. Dealer
shall take reasonable steps to ensure that the Registered
Representatives shall not make recommendations to an Applicant to purchase any
of the Contracts in the absence of reasonable grounds to believe that the
purchase of or participation under any of the Contracts is suitable for such
Applicant. While not limited to the following, a determination of suitability
shall be based on information furnished to a Registered Representative after
reasonable inquiry of such Applicant concerning the Applicant's insurance and
investment objectives, financial situation and retirement needs.
4.3 DISTRIBUTION ALLOWANCE.
Insurance Company and LNCESC agree to pay Dealer a sales commission as
indicated on the attached Schedule B as may be amended. The amount of the total
sales commission may be changed from time to time by Insurance Company and
LNCESC and any such change will apply prospectively to sales of the Contracts.
Where state law prohibits direct payment to Dealer, payments will be made in
accordance with the applicable state law.
Such commissions shall be payable only for a period during which the
Contractholder has designated Dealer as the "Broker-of-Record". The "Broker-of-
Record" designation shall be in writing and in a form satisfactory to Insurance
Company.
Insurance Company and LNCESC may offset against commissions due or to become
due hereunder any amounts owed by Dealer to Insurance Company or LNCESC or to
their affiliates, and the amount of such indebtedness shall be and remain a
first lien against such commissions until the indebtedness has been paid in
full. For purposes of this paragraph affiliate shall mean any corporation
directly or indirectly controlling, controlled by, or under common control with
Insurance Company or LNCESC. This provision shall survive the termination of
this Agreement.
Subject to paragraph 4.4 below, Dealer agrees to pay on behalf of Insurance
Company and LNCESC any compensation due to the Registered Representatives.
4.4 NO COMPENSATION PAYABLE.
No compensation shall be payable, and any compensation already paid, shall be
retured to LNCESC on request under each of the following conditions:
(a) If Insurance Company or LNCESC, in its sole discretion, determine not
to issue the Contracts applied for,
(b) If a Contract is discontinued within the twelve (12) month period
following the effective date of the Contract,
(c) If Insurance Company or LNCESC refunds any Contributions deposited by
the Contractholder or Participant, which Insurance Company or LNCESC will do by
check directly to such person or entity, upon the exercise of any applicable
"free look" period,
(d) If Insurance Company or LNCESC refunds any Contributions deposited by
the Contractholder or Participant as a result of an error in the amount
contributed,
(e) If Insurance Company or LNCESC refunds any Contributions deposited by
the Applicant, Contractholder or Participant as a result of a complaint by such
person or entity, which Insurance Company or LNCESC will do by direct check,
recognizing that Insurance Company or LNCESC has sole discretion to refund such
Contributions, or
(f) If Insurance Company or LNCESC determines that any person signing an
application or any person or entity receiving compensation for soliciting
purchases of Contracts is not duly licensed to sell the Contracts in the
jurisdiction of such attempted sale.
4.5 CONTRIBUTIONS.
Contributions under the Contracts must be forwarded by the Applicant directly
to Insurance Company.
Dealer has no authority to accept for Insurance Company any Contribution under
the Contracts and payment or delivery of such Contribution to Dealer will not be
considered as having been received by Insurance Company until Insurance Company
receives cash therefor.
4.6 APPLICATIONS.
The Registered Representatives shall transmit promptly all applications they
receive for the Contracts, together with required documentation, to LNCESC. All
such applications shall be on the appropriate Insurance Company form.
4.7 UNDERWRITING.
Insurance Company and LNCESC maintain responsibility for Contract underwriting
and, in its sole discretion, will determine whether to issue any of the
Contracts to each Applicant.
4.8 PROSPECTUSES AND SALES LITERATURE.
The Prospectus for a Contract, the Fund Prospectus (generally attached
thereto) and any supplements or amendments provided by Insurance Company or
LNCESC from time to time, shall be delivered to every Applicant by Dealer or its
registered representative. The Statements of Additional Information ("SAI")
shall be delivered to any Applicant who requests one. LNCESC shall keep Dealer
informed of the date for the appropriate current Prospectus, Fund Prospectus and
SAI and the dates of any supplements or amendments required to be delivered to
an Applicant. Dealer shall not use any sales literature or advertisements, as
defined in the next sentence, for the Policies, for the Fund or mentioning
Insurance Company or LNCESC without the prior written permission of Insurance
Company or LNCESC. For purposes of
this Agreement, "sales literature and advertisements" means brochures, letters,
illustrations, training materials, materials for oral presentation and all other
similar materials, whether transmitted directly to potential Applicants or
published in print or audio-visual media, but does not include generic materials
which do not make reference to Insurance Company or LNCESC, the Fund or the
Contracts.
4.9 UNAUTHORIZED INFORMATION.
Dealer shall not give any information or make any representations concerning
any aspect of any of the Contracts, the Fund, Insurance Company or LNCESC or its
operations unless the information or representations are contained in the
appropriate Prospectus or SAI, as supplemented or amended from time to time, or
are contained in sales literature, advertisements or other promotional
literature approved pursuant to paragraph 4.8 above.
4.10 CONTRACT DELIVERY.
All Contracts issued by Insurance Company and transmitted to Dealer for
delivery shall be promptly delivered to the Contractholder.
4.11 MATERIALS FURNISHED BY LNCESC.
LNCESC, at its own expense, shall furnish to Dealer the following:
(a) the appropriate Prospectus, SAI, if any, and any supplements or
amendments thereto,
(b) the Fund Prospectus, SAI and any supplements or amendments thereto,
(c) applications,
(d) specimen Contracts,
(e) the most recent Semi-Annual or Annual Report of the Fund and the
Separate Account, and
(f) any sales literature and advertisements which LNCESC chooses to make
available in its sole discretion.
Dealer, either directly or by reimbursing LNCESC on request, shall pay all
other expenses of soliciting applications for the Contracts, including but not
limited to expenses relating to sales literature and advertisements originated
by Dealer.
4.12 MAINTENANCE OF BOOKS AND RECORDS.
LNCESC and Dealer agree to keep all records required by federal and state
laws, to maintain books, accounts and records so as to clearly and accurately
disclose the precise nature and details of the transaction, and to assist one
another in the timely preparation of records. Dealer agrees that all records and
other data pertaining to the Contracts are the exclusive property of Insurance
Company and LNCESC, but this shall not preclude Dealer from keeping copies of
such data or records for its own files. Furthermore, upon Insurance Company or
LNCESC's request, Dealer shall deliver to Insurance Company or LNCESC, as soon
as practical, data held by it pursuant to this Agreement in a form mutually
agreed to by the parties.
4.13 REGULATORY MATTERS.
Insurance Company, LNCESC and Dealer shall each submit to all regulatory and
administrative bodies which have jurisdiction over the Contracts any
information, reports or other material required pursuant to applicable laws or
regulations.
4.14 REPORTING.
Each party hereto shall promptly furnish to the other party any reports and
information which the other party may request for the purpose of meeting
reporting and recordkeeping requirements under the insurance
laws of the state of and any other state or jurisdiction and under the
federal or state securities laws or the rules of the NASD.
4.15 CONFIDENTIALITY.
Dealer shall keep confidential any information obtained pursuant to this
Agreement or the transactions contemplated herein and shall disclose such
information only if Insurance Company or LNCESC has authorized such disclosure,
or if such disclosure is required by state or federal regulatory bodies.
4.16 NOTIFICATION OF COMPLAINTS.
Dealer shall immediately notify Insurance Company and LNCESC, at the addresses
in the notice provision of this Agreement, of any sales- related or other
complaint or grievance relating to the Contracts or the transactions
contemplated herein and shall promptly reduce such notice to writing if oral.
Dealer shall promptly furnish all written materials in connection with any such
complaints or grievances to Insurance Company and LNCESC and will cooperate in
Insurance Company and LNCESC investigation of all such complaints or grievances.
Insurance Company and LNCESC retains discretion to resolve complaints or
grievances of Applicants, Contractholders, Participants or others, by settlement
or any other means, against Dealer or any of the Registered Representatives with
respect to the Contracts or any transactions arising out of this Agreement, upon
receipt of proof satisfactory to Insurance Company or LNCESC of the justice of
such claim. Insurance Company and LNCESC's decision shall be binding and
conclusive, and Dealer shall be liable for disbursements and agrees to reimburse
LNCESC therefore. If Insurance Company or LNCESC renders such a liability to
Dealer, it shall do so with full rights of subrogation to Dealer against any
Registered Representative involved.
4.17 COMPLIANCE, SUPERVISION AND TRAINING.
LNCESC and Dealer will each comply with all applicable federal and state
laws and regulations and the rules of the NASD relating to the issuance and sale
of the Contracts. Dealer will bear full responsibility for the supervision of
the Registered Representatives in their solicitation of applications for the
Contracts and all activities relating to this Agreement. Dealer agrees that the
Registered Representatives will maintain a proficiency in insurance knowledge
and sales techniques as is necessary to solicit and service the Contracts.
Insurance Company and LNCESC will assist Dealer by assisting in the training of
Dealer's training personnel in product specifications and markets.
Dealer shall establish and implement reasonable procedures for periodic
inspection and supervision of sales practices of the Registered Representatives
and submit reports to LNCESC as requested from time to time on the result of
such inspections and the compliance with such procedures.
4.18 NOTIFICATION OF REGULATORY PROCEEDINGS.
Insurance Company or LNCESC shall immediately notify Dealer, at the address
in the notice provision of this Agreement, of the issuance by any regulatory
body of any stop order with respect to any of the Prospectuses, or the
initiation of any proceedings for that purpose or for any other purpose relating
to the registration or offering of the Contracts or the Fund shares, and of any
other action or circumstances that may prevent the lawful offer or sale of any
of the Contracts in any state or jurisdiction.
Dealer shall immediately notify Insurance Company and LNCESC, at the
address in the notice provision of this Agreement, of the issuance by any
regulatory body of any order with respect to the operation or business of
Dealer, or the initiation of any proceeding for any purpose
relating to the sale of the Contracts, and of any other actions or circumstances
that may prevent the lawful offer or sale of any of the Contracts in any state
or jurisdiction. In addition, Dealer shall promptly advise LNCESC if any of the
Registered Representatives is subject to any proceedings or any sanctioned or
suspended by the NASD or in any state or other jurisdiction.
4.19 RELATIONSHIP BETWEEN THE PARTIES.
Dealer is an independent contractor. Nothing contained in this Agreement
shall create, or shall be construed to create, the relationship of an employer
and employee between Insurance Company, LNCESC and Dealer or the Registered
Representatives.
4.20 LIMITS ON AUTHORITY.
Neither Dealer nor the Registered Representatives shall have any authority
on behalf of LNCESC or Insurance Company to:
(a) make, alter or discharge any Contract,
(b) incur any indebtedness or liability or expend or contract for the
expenditure of the funds of Insurance Company or LNCESC,
(c) bind Insurance Company or LNCESC to the reinstatement of any
terminated Contract, or accept or give a receipt for any Contributions
under the Contract,
(d) waive or modify any terms, conditions or limitations of any Contract
and related forms or instructions, grant permits, name special rates
or guarantee dividends or interest rates, make endorsements on any
Contracts,
(e) adjust or settle any claim or commit Insurance Company or LNCESC with
respect thereto, or bind Insurance Company or LNCESC or any of its
affiliates in any way,
(f) enter into legal proceedings in connection with any matter pertaining
to Insurance Company or LNCESC's business without the prior written
consent of Insurance Company or LNCESC unless Dealer is named in such
proceedings. Where Dealer is named, it may retain counsel of its
choice.
4.21 VIOLATION OF LAW.
Nothing contained in this Agreement shall require Insurance Company, LNCESC
or Dealer to do anything which, in its judgment, would be a violation of any
federal or state law or regulation or NASD rule applicable to it.
SECTION 5. INDEMNIFICATION
5.1 OF DEALER WITH RESPECT TO THE PROSPECTUS.
Insurance Company and LNCESC will indemnify and hold harmless Dealer
against any losses, claims, damages or liabilities (or actions in respect
thereof) to which Dealer may become subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus or SAI for any of the Contracts or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse
Dealer for any legal or other expenses reasonably incurred by it in connection
with investigating or defending against such loss, claim, damage, liability or
action in respect thereof; provided, however, that Insurance Company and LNCESC
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission made in the
Prospectus or SAI for any of the Contracts or any such amendment or supplement
in reliance upon and in conformity with information furnished by Dealer,
specifically for use in the preparation thereof.
Insurance Company and LNCESC shall not indemnify Dealer for any action
where an Applicant for any of the Contracts was not furnished or sent or given,
at or prior to written confirmation of a Contribution under the Contract, a copy
of the appropriate Prospectus together with the Fund Prospectus, the SAI or Fund
SAI, if requested, and any supplements or amendments to either furnished to
Dealer by Insurance Company or LNCESC.
The foregoing indemnities shall, upon the same terms and conditions, extend
to and inure to the benefit of each director and officer of Dealer and any
person controlling Dealer.
5.2 OF INSURANCE COMPANY AND LNCESC WITH RESPECT TO THE PROSPECTUS.
Except as provided in paragraph 5.3 below, Dealer will indemnify and hold
harmless Insurance Company and LNCESC against any losses, claims, damages or
liabilities (or actions in respect thereof) to which Insurance Company and
LNCESC may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Prospectus or SAI for any of the Contracts or any amendment or supplement
thereto or the Fund Prospectus and SAI or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case 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
to Insurance Company or LNCESC by Dealer, specifically for use in the
preparation thereof; and will reimburse LNCESC or Insurance Company for any
legal or other expenses reasonably incurred by LNCESC or Insurance Company in
connection with investigating or defending against any such loss, claim, damage,
liability or action.
The foregoing indemnity agreement shall, upon the same terms and
conditions, extend to and inure to the benefit of each director and officer of
LNCESC and Insurance Company and any person controlling Insurance Company and
LNCESC.
5.3 OF LNCESC AND Insurance Company WITH RESPECT TO NEGLIGENCE.
Dealer shall indemnify and hold harmless Insurance Company and LNCESC from
any and all losses, claims, damages or liabilities (or actions in respect
thereof) to which Insurance Company or LNCESC may be subject, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or result from negligent, intentional, improper, fraudulent or unauthorized
acts or errors or omissions by Dealer, its employees or Registered
Representatives or principals, including but not limited to improper
solicitation of applications for the Contracts, except as stated herein.
Dealer shall indemnify and hold harmless Insurance Company and LNCESC for
any losses, claims, damages or liabilities (or actions in respect thereof) to
which LNCESC or Insurance Company may become subject, insofar as the losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any unauthorized use of sales materials or advertisements or any
oral or written misrepresentations or any unlawful sales practices concerning
the Contracts of Insurance Company and LNCESC by Dealer, except as stated
below.
Dealer shall indemnify and hold Insurance Company and LNCESC harmless for
any penalties, losses or liabilities resulting from Insurance Company or LNCESC
improperly paying any compensation under this Agreement, unless such improper
payment was caused by Insurance Company or LNCESC's negligence. Unless such
improper payment was caused by Dealer's negligence, the indemnity under the
immediately preceding sentence shall be limited to all compensation payable to
and by Dealer pursuant to this Agreement.
The foregoing indemnities shall, upon the same terms and conditions, extend
to and inure to the benefit of each director and officer of Insurance Company
and LNCESC and any person controlling Insurance Company or LNCESC.
5.4 OF DEALER WITH RESPECT TO NEGLIGENCE.
Insurance Company and LNCESC shall indemnify and hold harmless Dealer
against any losses, claims, damages or liabilities (or actions in respect
thereof) to which Dealer may become subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) result from negligent,
intentional, improper, fraudulent or unauthorized acts or errors or omissions by
LNCESC or Insurance Company or their employees.
The foregoing indemnities shall, upon the same terms and conditions, extend
to and inure to the benefit of each director and officer of Dealer and any
person controlling Dealer.
5.5 OF INSURANCE COMPANY AND LNCESC WITH RESPECT TO COMPENSATION OF THE
REGISTERED REPRESENTATIVES.
Dealer shall indemnify and hold harmless LNCESC and Insurance Company for
any losses, claims, damages or liabilities (or actions in respect thereof) to
which Insurance Company or LNCESC may become subject, insofar as the losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or result from the payments to the Registered Representatives for sale of the
Contracts. The foregoing indemnities shall, upon the same terms and conditions,
extend to and inure to the benefit of each director and officer of Insurance
Company and LNCESC and any person controlling Insurance Company and LNCESC.
5.6 NOTICE OF ACTIONS.
Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party, notify the indemnifying
party in writing of the commencement thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
otherwise have to any indemnified party. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party, similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation.
SECTION 6. EFFECTIVENESS AND TERMINATION
6.1 EFFECTIVENESS.
This Agreement shall be effective upon execution of both parties and will
remain in effect unless terminated
as provided in paragraph 6.2, 6.3 or 7.1 below.
6.2 TERMINATION.
This Agreement may be terminated by either Insurance Company, LNCESC or
Dealer at any time by sixty (60) days written notice to the other.
6.3 AUTOMATIC TERMINATION.
This Agreement shall terminate:
(a) On the death or adjudication of incompetency of Dealer if name is a
natural person,
(b) On the dissolution of Dealer if Dealer is a Corporation, or
(c) Upon termination or expiration of any Insurance Company broker
license or appointment.
6.4 TERMINATION FOR CAUSE.
In the event of any material breach (as defined in paragraphs 6.5 and 6.6
below) of this Agreement by any party, the other party may, at its option,
terminate this Agreement by giving notice of termination, effective upon the
date specified in such termination notice. This remedy shall be in addition to
any other remedies available under this Agreement or at law.
6.5 MATERIAL BREACH BY LNCESC AND INSURANCE COMPANY.
Insurance Company and LNCESC shall be deemed to have materially breached
this Agreement and failed to perform hereunder upon the occurrence of any of the
following events:
(a) Insurance Company or LNCESC shall become insolvent or otherwise admit
in writing their inability to pay its debts when they become due,
become bankrupt, seek protection under any law for the protection of
insolvents, or have a receiver or conservator appointed for it under
any law pertaining to LNCESC or Insurance Company's insolvency; or
(b) Insurance Company or LNCESC shall breach any material provision of
this Agreement and such breach shall remain uncured for more than
ninety (90) days following LNCESC or Insurance Company's receipt of
Dealer written notice of such breach.
6.6 MATERIAL BREACH BY DEALER.
Dealer shall be deemed to have materially breached this Agreement and
failed to perform hereunder upon the occurrence of any of the following events:
(a) Dealer shall become insolvent or otherwise admit in writing its
inability to pay its debts when they become due, become bankrupt,
seek protection under any law for the protection of insolvents, or
have a receiver or conservator appointed for it under any law
pertaining to Dealer's insolvency; or
(b) Dealer shall breach any material provision of this Agreement and such
breach shall remain uncured for more than thirty (30) days following
Dealer's receipt of LNCESC or Insurance Company's written notice of
such breach. In the event of a breach of the provisions of paragraph
4.17 or 4.18, the thirty (30) day period for cure is reduced to seven
(7) days.
SECTION 7. MISCELLANEOUS
7.1 ASSIGNMENT.
This Agreement is not assignable by Dealer except to an affiliate of Dealer
in order to comply with applicable laws or regulations and will terminate
automatically in the event of a purported assignment. If this Agreement is
assigned to an affiliate as permitted herein, Dealer shall not be relieved of
any of its obligations hereunder.
7.2 APPLICABLE LAW.
This Agreement shall be subject to the 1933 Act, the Securities Exchange
Act of 1934 and the Investment Company Act of 1940, and the rules, regulations,
and rulings issued thereunder, including such exemptions as the Commission may
grant. This Agreement shall also be subject to the rules of the NASD.
Except as provided in this paragraph, this Agreement shall be construed in
accordance with the laws of the State of and shall be subject to its
insurance and securities laws and the applicable insurance and securities laws
of any other state or jurisdiction in which the Contracts are sold by Dealer.
7.3 ENFORCEABILITY.
If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
7.4 FORFEITURE.
Any fraud in connection with these Contracts, failure to promptly remit
funds collected on behalf of Insurance Company or LNCESC, or willful violation
of any of the terms of this Agreement shall result in the immediate termination
of this Agreement if then in force and the immediate termination of Dealer right
to any further compensation otherwise payable hereunder. This paragraph shall
survive the termination of this Agreement.
7.5 ENTIRE AGREEMENT.
The parties declare that there are no oral or other agreements or
understandings between them affecting this Agreement or relating to the selling
or servicing of the Contracts, except as disclosed herein. This Agreement
supersedes all prior agreements between the parties and constitutes the entire
Agreement between the parties.
This Agreement may be modified only if in writing and if
attested to by those persons authorized to enter into Agreements on behalf of
Insurance Company and LNCESC and Dealer, respectively.
7.6 NO WAIVER.
If either party fails to require performance by the other party of any
provision of this Agreement, that party does not waive its right to require such
performance at a later time. If either party waives the breach of any provision
of this Agreement by the other party, the waiving party still has the right to
require performance of that provision and its conduct shall not be construed to
waive succeeding breaches of that provision or any breaches of any other
provision.
7.7 With respect to the Contracts specified in the attached Schedule, this
Agreement supersedes any prior agreement, contract or understanding between the
parties. Commissions payable under any such prior agreements shall be determined
and paid as specified therein. The right of lien and offset for the security of
any indebtedness due to Insurance Company or LNCESC under such prior agreements
are reserved and continued.
7.8 NOTICES.
Unless otherwise provided in this Agreement, all notices, requests, demands
and other communications which must be provided under this Agreement shall be in
writing and shall be deemed to have been given on the date of service if served
personally on the party to whom notice is to be given or on the date of mailing
if sent by first class mail, registered or certified, postage prepaid.
7.9 MISCELLANEOUS.
The headings in this Agreement are for purposes of reference only and shall
not limit or define the meaning hereof.
This Agreement may be executed in several counterparts, each of which is an
original, but all of which together shall constitute one instrument.
The parties hereto have caused this Agreement to be executed in their names
and on their behalf by and through their duly authorized officers.
INSURANCE COMPANY
By
---------------------------
Date
-------------------------
Title
------------------------
LNC EQUITY SALES CORPORATION
By
---------------------------
Date
-------------------------
Title
------------------------
SEPARATE ACCOUNT
By
---------------------------
Date
-------------------------
Title
------------------------
