PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST
And
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
And
XXXXXXXX INC.
THIS AGREEMENT, made and entered into this 1st day of May, 2001, by and
among The Lincoln National Life Insurance Company, an Indiana corporation (the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Exhibit A to this Agreement, as may be amended from time to
time (each separate account, a "Separate Account"), and Xxxxx Fargo Variable
Trust, an open-end diversified management investment company organized under the
laws of the State of Delaware (the "Trust"), and Xxxxxxxx Inc., an Arkansas
corporation (the "Underwriter").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially similar
to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several series
of shares, each representing the interest in a particular managed portfolio of
securities and other assets (each, a "Fund"); and
WHEREAS, an order from the U.S. Securities and Exchange Commission (the
"SEC" or "Commission"), dated Sept. 28, 1998 (File No. 812-11158), grants
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief from the provisions of Sections
9(a), 13(a), 15(a) and 15(b) of the Investment Company Act of 1940, as amended
(the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the
extent necessary to permit shares of the Trust to be sold to and held by
variable annuity separate accounts and variable life insurance separate accounts
of both affiliated and unaffiliated Participating Insurance Companies and
qualified pension and retirement plans ("Mixed and Shared Funding Order"), and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts under the 1933 Act, unless exempt
therefrom, and named in Exhibit A to this Agreement, as it may be amended from
time to time (the "Contracts"); and WHEREAS, the Separate Accounts are duly
organized, validly existing segregated asset accounts, established by resolution
of the Board of Directors of the Company under the insurance laws of the State
of Indiana, to set aside and invest assets attributable to the Contracts; and
WHEREAS, the Company has registered the Separate Accounts as unit
investment trusts under the 1940 Act, unless exempt therefrom; and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate
Accounts to fund the Contracts, and the Underwriter is authorized to sell such
shares to unit investment trusts such as the Separate Accounts at net asset
value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, and the Underwriter agree as follows:
ARTICLE I Sale of Trust Shares
1.1. The Underwriter agrees to sell to the Company those shares of the Trust
which the Company orders on behalf of the Separate Accounts, executing
such orders on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the order for the
shares of the Trust. For purposes of this Section 1.1, the Company shall
be the designee of the Trust for receipt of such orders from each
Separate Account and receipt by such designee shall constitute receipt by
the Trust; provided that the Trust receives notice of such order by 9:30
a.m. New York Time on the next following Business Day. "Business Day"
shall mean any day on which the New York Stock Exchange is open for
trading. Exceptions will be approved on a case by case basis. The Trust
will confirm receipt of each trade (ending share balance by account and
fund) by 14:00 p.m. New York Time on the day the trade is placed with the
Trust using a mutually agreed upon format.
1.2. The Trust agrees to make its shares available indefinitely for purchase
at the applicable net asset value per share by Participating Insurance
Companies and their separate accounts on each Business Day; provided,
however, that the Board of Trustees of the Trust (hereinafter the
"Trustees") may refuse to sell shares of any Fund to any person, or
suspend or terminate the offering of shares of any Fund, if such action
is required by law or by regulatory authorities having jurisdiction, or
is, in the sole discretion of the Trustees, acting in good faith and in
light of their fiduciary duties under federal and any applicable state
laws, necessary in the best interests of the shareholders of such Fund.
1.3. The Trust and the Underwriter agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts,
and to qualified pension and retirement plans. No shares of the Trust
will be sold to the general public.
1.4. The Trust and the Underwriter will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, VII, and Section 2.8 of
Article II of this Agreement are in effect to govern such sales.
1.5. The Trust will not accept a purchase order from qualified pension or
retirement plan if such purchase would make the plan shareholder an owner
of 10 percent or more of the assets of a Fund unless such plan executes
an agreement with the Trust governing participation in such Fund that
includes the conditions set forth herein to the extent applicable. A
qualified pension or retirement plan will execute an application
containing an acknowledgment of this condition at the time of its initial
purchase of shares of any Fund.
1.6. The Trust agrees to redeem for cash, upon the Company's request, any full
or fractional shares of the Trust held by the Company, executing such
requests on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the request for
redemption. For purposes of this Section 1.6, the Company shall be the
designee of the Trust for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by
the Trust; provided the Trust receives notice of request for redemption
by 9:30 a.m. New York Time on the next following Business Day. Payment
shall be made on the same Business Day that the Trust receives notice of
the order in federal funds initiated by wire to the Company's account as
designated by the Company in writing no later end of business day as long
as the banking system is open for business. If the banking system is
closed, payment will be initiated the next day the banking system is open
for business. Time If payment is not received by Company by the end of
the Business Day, the Trust shall, upon Company's request, promptly
reimburse Company for any charges, costs, fees, interest or other
expenses incurred in connection with advances, borrowing or overdrafts.
Interest will bear a rate per annum equal to the Federal Funds Rate.
1.7. Purchase, redemption, and exchange orders placed by the Company shall be
placed separately for each Fund and shall not be netted with respect to
any Fund. With respect to
payment of the purchase price by the Company and of redemption proceeds
by the Trust, the Company and the Trust shall net purchases and
redemptions across the Funds and shall transmit one payment for purchases
and one payment for redemptions for all Funds in accordance with Section
1.8.
1.8. The Trust, Underwriter and Company agree that all amounts available under
the Contracts shall be invested in the Funds, in such other Funds managed
by Xxxxx Fargo Bank as may be mutually agreed to in writing by the
parties hereto, in the Company's general account, or in investment
companies other than the Trust.
1.9. In the event of net purchase, the Company shall pay for shares in federal
funds initiated by wire no later than end of business New York Time on
the next Business Day after an order to purchase the Shares is deemed to
be received in accordance with the provisions of Section 1.1 hereof as
long as the banking system is open for business. If the banking system is
closed, payment will be initiated the next day that the banking system is
open for business. If payment is not received by Trust by the end of the
Business Day, the Company shall, upon the Trust request, promptly
reimburse the Trust for any charges, costs, fees, interest or other
expenses incurred in connection with advances, borrowing or overdrafts.
Interest will bear a rate per annum equal to the Federal Funds Rate. For
purposes of Section 2.4 and Section 2.11, upon receipt by the Trust of
the federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the
Fund.
1.10. Issuance and transfer of the Trust's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Separate
Account. Purchase and redemption orders for Trust shares will be recorded
in an appropriate title for each Separate Account or the appropriate
subaccount of each Separate Account.
1.11. The Trust shall furnish notice on or before ex-dividend date using a
mutually agreed upon format to the Company of any income, dividends, or
capital gain distributions payable on the Trust's shares. The Company
hereby elects to receive all such dividends and distributions as are
payable on the Fund shares in the form of additional shares of that Fund.
The Company reserves the right to revoke this election and to receive all
such dividends and distributions in cash. The Trust shall notify the
Company of the number of
shares so issued as payment of such dividends and distributions. Each
year the Trust will provide Company with a dividend and capital gain
payment schedule.
1.12. The Trust shall make the net asset Value per share for each Fund
available to the Company on a daily basis as soon as reasonably practical
after the net asset value per share is calculated and shall use its best
efforts to make such net asset value per share available by 6:00 p.m. New
York Time, each Business Day. The Trust will notify Company when and if
Trust does not communicate the net asset value per share by 6:00 p.m. New
York Time. (Covered in Indemnity section 8.3)
ARTICLE II Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act, unless exempt therefrom, and that the
Contracts will be issued and sold in compliance with all applicable
federal and state laws. The Company further represents and warrants that:
(i) it is an insurance company duly organized and validly existing under
applicable law; (ii) it has legally and validly established each Separate
Account as a segregated asset account under applicable state law and has
registered each Separate Account as a unit investment trust in accordance
with the provisions of the 1940 Act, unless exempt therefrom, to serve as
segregated investment accounts for the Contracts; and (iii) it will
maintain such registration, if required, for so long as any Contracts are
outstanding. The Company shall amend any registration statement under the
1933 Act for the Contracts and any registration statement under the 1940
Act for the Separate Accounts from time to time as required in order to
effect the continuous offering of the Contracts or as may otherwise be
required by applicable law. The Company shall register and qualify the
Contracts for sale in accordance with the securities laws of the various
states only if, and to the extent, deemed necessary by the Company.
2.2. Subject to Article VI hereof, the Company represents that the Contracts
are currently and at the time of issuance will be treated as life
insurance, endowment, or annuity contracts under applicable provisions of
the Internal Revenue Code and that it will maintain such treatment and
that it will notify the Trust and the Underwriter immediately upon having
a reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future.
2.3. The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Trust are covered by a blanket
fidelity bond or similar coverage in an amount not less than $5 million.
The aforesaid includes coverage for larceny and embezzlement and is
issued by a reputable bonding company. The Company agrees that any
amounts received under such bond in connection with claims that derive
from arrangements described in this Agreement will be held by the Company
for the prorata benefit of the Trust. The Company agrees to see that this
bond or another bond
containing these provisions is always in effect, and agrees to notify the
Trust and the Underwriter in the event that such coverage no longer
applies.
2.4. The Trust represents and warrants that Trust shares sold pursuant to this
Agreement shall be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law, and that the Trust is and
shall remain registered under the 1940 Act for as long as the Trust
shares are sold. The Trust shall amend the registration statement for its
shares under the 1933 and the 1940 Acts from time to time as required in
order to effect the continuous offering of its shares. The Trust shall
register and qualify the shares for sale in accordance with the laws of
the various states only if, and to the extent, deemed advisable by the
Trust or the Underwriter.
2.5. The Trust and Underwriter represent and warrant that Trust is currently
qualified as a Regulated Investment Company under Subchapter M of the
Internal Revenue Code, and that Trust will make every effort to maintain
such qualification (under Subchapter M or any successor or similar
provision).
2.6. The Trust makes no representations as to whether any aspect of its
operations, including but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the
various states, except that the Trust represents that it is and shall at
all times remain in compliance with the laws of the state of Delaware to
the extent required to perform this Agreement.
2.7. The Trust represents and warrants that to the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act,
the Trust undertakes to have its Board of Trustees, a majority of whom
are not interested persons of the Trust, formulate and approve any plan
under Rule 12b-1 ("Rule 12b-1 Plan") to finance distribution expenses.
The Trust shall notify the Company immediately upon determining to
finance distribution expenses pursuant to Rule 12b-1.
2.8. The Trust and Underwriter represent and warrant that Trust is lawfully
organized and validly existing under the laws of Delaware and that Trust
does and will comply with applicable provisions of the 0000 Xxx.
2.9. The Trust represents and warrants that it and all of its trustees,
officers, employees and other individuals/entities having access to the
funds and/or securities of the Trust are and
continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Trust in an amount not less than the
minimal coverage as required currently by Rule 17g-1 of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid
bond includes coverage for larceny and embezzlement and is issued by a
reputable bonding company.
2.10. The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC.
The Underwriter further represents that it will sell and distribute the
Trust's shares in accordance with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act,
and the 0000 Xxx.
2.11. The Underwriter represents and warrants that the Trust's investment
manager, Xxxxx Fargo Funds Management, LLC, is registered as an
investment adviser under all applicable federal and state securities laws
and that the investment manager will perform its obligations to the Trust
in accordance with any applicable state and federal securities laws.
ARTICLE III Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company, at the Trust's expense, with
as many copies of the Trust's current prospectus as the Company may
reasonably request. If requested by the Company in lieu thereof, the
Trust shall provide such documentation including a final copy of a
current prospectus set in type at the Trust's expense and other
assistance as is reasonably necessary in order for the Company at least
annually (or more frequently if the Trust's prospectus is amended more
frequently) to have the new prospectus for the Contracts and the Trust's
new prospectus printed together in one document; in such case at the
Trust's expense.
3.2. The Trust's prospectus shall state that the statement of additional
information for the Trust is available from the Underwriter (or, in the
Trust's discretion, the Prospectus shall state that such statement is
available from the Trust).
3.3. The Trust, at its expense, shall provide the Company with copies of its
proxy material, if any, reports to shareholders and other communications
to shareholders in such quantity as
the Company shall reasonably require and the Trust shall bear the costs
of distributing them to existing Contract owners or participants.
3.4. The Trust hereby notifies the Company that it is appropriate to include
in the prospectuses pursuant to which the Contracts are offered
disclosure regarding the potential risks of mixed and shared funding.
3.5. To the extent required by law the Company shall:
(1) solicit voting instructions from Contract owners or
participants;
(2) vote the Trust shares held in each Separate Account in
accordance with instructions received from Contract owners or
participants; and
(3) vote Trust shares held in each Separate Account for which no
timely instructions have been received, in the same proportion
as Trust shares of such Fund for which instructions have been
received from the Company's Contract owners or participants;
for so long as and to the extent that the 1940 Act requires pass-through
voting privileges for variable contract owners. The Company reserves the
right to vote Trust shares held in any segregated asset account in its
own right, to the extent permitted by law. Participating Insurance
Companies shall be responsible for assuring that each of their separate
accounts participating in the Trust calculates voting privileges in a
manner consistent with other Participating Insurance Companies and as
required by the Mixed and Shared Funding Order. The Trust will notify the
Company of any changes of interpretation or amendment to the Mixed and
Shared Funding Order.
3.6. The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular, the Trust will either provide
for annual meetings (except to the extent that the Commission may
interpret Section 16 of the 1940 Act not to require such meetings) or
comply with Section 16(c) of the 1940 Act (although the Trust is not one
of the trusts described in Section 16(c) of that Act) as well as with
Sections 16(a)
and, if and when applicable, 16(b) of the 1940 Act. Further, the Trust
will act in accordance with the Commission's interpretation of the
requirements of Section 16(a) with respect to periodic elections of
Trustees and with whatever rules the Commission may promulgate with
respect thereto.
3.7. Trust and Underwriter agree to provide Company all Trust proxies,
reports, and prospectuses (including supplements) in HTML, PDF and hard
copy in final form no later than 15 calendar days before they must be
mailed: Reports - February 13th and August 14th, Prospectuses - April
15th. Trust will customize prospectuses (including supplements), reports
and proxies to include only fund(s) offered in each Company's product.
ARTICLE IV Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Trust
or the Underwriter, each piece of sales literature or other promotional
material in which the Trust or the Trust's investment manager, sub-
advisers or Underwriter is named, at least five Business Days prior to
its use. No such material shall be used if the Trust or the Underwriter
reasonably objects in writing to such use within five Business Day s
after receipt of such material.
4.2. The Company represents and agrees that sales literature for the Contracts
prepared by the Company or its affiliates will be consistent with every
law, rule, and regulation of any regulatory agency or self-regulatory
agency that applies to the Contracts or to the sale of the Contracts,
including, but not limited to, NASD Conduct Rule 2210 and IM-2210-2
thereunder.
4.3. The Company shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection
with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for
the Trust shares as such registration statement and prospectus may be
amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional
material approved by the Trust or by the Underwriter, except with the
permission of the Trust or the Underwriter. The Trust and
the Underwriter agree to respond to any request for approval on a prompt
and timely basis. The Company shall adopt and implement procedures
reasonably designed to ensure that information concerning the Trust, the
Underwriter, or any of their affiliates which is intended for use by
brokers or agents selling the Contracts (i.e., information that is not
intended for distribution to Contract owners or prospective Contract
owners) is so used, and neither the Trust, the Underwriter, nor any of
their affiliates shall be liable for any losses, damages, or expenses
relating to the improper use of such broker only materials by agents of
the Company or its affiliates who are unaffiliated with the Trust or the
Underwriter. The parties hereto agree that this Section 4.3 is not
intended to designate nor otherwise imply that the Company is an
underwriter or distributor of the Trust's shares.
4.4. The Trust or the Underwriter shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature
or other promotional material in which the Company, its Separate Account,
or the Contracts are named, at least five Business Days prior to its use.
No such material shall be used if the Company reasonably objects in
writing to such use within five Business Days after receipt of such
material.
4.5. The Trust represents and agrees that sales literature for the Trust
prepared by the Trust or its affiliates in connection with the sale of
the Contracts will be consistent with every law, rule, and Regulation of
any regulatory agency or self regulatory agency that applies to the Trust
or to the sale of Trust shares, including, but not limited to, NASD
Conduct Rule 2210 and IM-2210-2 thereunder.
4.6. The Trust and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or
representations contained in a registration statement or prospectus for
the Contracts, as such registration statement and prospectus may be
amended or supplemented from time to time, or in published reports for
each Separate Account which are in the public domain or approved by the
Company for distribution to Contract owners or participants, or in sales
literature or other promotional material approved by the Company, except
with the permission of the
Company. The Company agrees to respond to any request for approval on a
prompt and timely basis. The Trust and the Underwriter shall xxxx
information produced by or on behalf of the Trust "FOR BROKER USE ONLY"
which is intended for use by brokers or agents selling the Contracts
(i.e., information that is not intended for distribution to Contract
owners or prospective Contract owners) is so used, and neither the
Company nor any of its affiliates shall be liable for any losses,
damages, or expenses arising on account of the use by brokers of such
information with third parties in the event that is not so marked.
4.7. The Trust will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for no-
action letters, and all amendments to any of the above, that relate to
the Trust or its shares, within 20 Business Days of the filing of such
document with the SEC or other regulatory authorities. The Trust or
Underwriter shall promptly inform the Company of the results of any
examination by the SEC (or other regulatory authorities) that relates to
the Trust, and the Trust or Underwriter shall provide the Company with a
copy of relevant portions of any "deficiency letter" or other
correspondence or written report regarding any such examination.
4.8. The Company will provide to the Trust at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no action letters, and all amendments to any of the above,
that relate to the Trust within 20 Business Days of the filing of such
document with the SEC or other regulatory authorities. The Company shall
promptly inform the Trust of the results of any examination by the SEC
(or other regulatory authorities) that relates to the Contracts and their
investment in the Trust, and the Company shall provide the Trust with a
copy of relevant portions of any "deficiency letter" or other
correspondence or written report regarding any such examination.
4.9. For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for
use in, a newspaper, magazine, or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures, or other public media), sales literature (i.e., any
written communication distributed or made generally available to
customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature, or published
article), educational or training materials or other communications
distributed or made generally available to some or all agents or
employees, registration statements, prospectuses, statements of
additional information, shareholder reports, and proxy materials and any
other material constituting sales literature or advertising under NASD
Conduct Rules, the 1940 Act or the 1933 Act.
4.10. Trust or Underwriter will provide a signed compliance report, as
reasonably requested by Company or its designee, on a quarterly basis to
include but not limited to: 817(h), subchapter M, and Prospectus
guidelines. (Please provide copy of bulletin) Trust or Underwriter will
provide fund statistics and commentaries (as reasonably required by
Company) in electronic format each calendar quarter, no later than the
15th of the month following quarter-end.
ARTICLE V Fees and Expenses
5.1. The Trust and Underwriter shall pay no fee or other compensation to the
Company under this Agreement, except subject a Rule 12b-1 Plan to finance
distribution expenses, in which case, subject to obtaining any required
exemptive orders or other regulatory approvals, the Underwriter may make
payments to the Company or to the underwriter for the Contracts if and in
amounts agreed to by the Underwriter in writing. Each party, however,
shall, in accordance with the allocation of expenses specified in this
Agreement, reimburse other parties for expenses initially paid by one
party but allocated to another party. In addition, nothing herein shall
prevent the parties hereto from otherwise agreeing to perform, and
arranging for appropriate compensation for, other services relating to
the Trust and/or to the Separate Accounts.
5.2. All expenses incident to performance by the Trust of this Agreement shall
be paid by the Trust to the extent permitted by law. All Trust shares
will be duly authorized for issuance and registered in accordance with
applicable federal law and to the extent deemed advisable by the Trust,
in accordance with applicable state law, prior to sale. The Trust shall
bear the expenses for the cost of registration and qualification of the
Trust's shares, preparation and filing of the Trust's prospectus and
registration statement, Trust proxy materials and reports, printing and
mailing of Trust prospectuses (including supplements thereto), proxy
materials and reports for existing Contract owners, setting in type the
Trust's prospectuses, the preparation of all statements and notices
required by any federal or state law, all taxes on the issuance or
transfer of the Trust's shares, and any expenses permitted to be paid or
assumed by the Trust pursuant to any Rule 12b-1 Plan under the 1940 Act
duly adopted by the Trust.
5.3. The Company shall bear the expenses of printing and distributing the
Trust prospectuses and proxy statements and shareholder reports used in
connection with new sales. The Company shall bear all expenses associated
with the registration, qualification, and filing of the Contracts under
applicable federal securities and state insurance laws; the cost of
preparing, printing, and distributing the Contracts' prospectuses and
statements of additional information; and the cost of printing and
distributing annual individual account statements for Contract owners as
required by state insurance laws.
ARTICLE VI Diversification
6.1. The Trust and Underwriter represent and warrant that, at all times, the
Funds will comply with Section 817 of the Code and all regulations
thereof, relating to the diversification requirements for variable
annuity, endowment, or life insurance contracts and any amendments or
other modifications to such Section or Regulations. In the event a Fund
ceases to so qualify, the Trust will take all reasonable steps (a) to
notify Lincoln immediately of such event and (b) to adequately diversify
the Fund so as to achieve compliance with the grace period afforded by
Treasury Regulation 1.817-5.
ARTICLE VII Potential Conflicts
7.1. If and to the extent that the Trust engages in mixed and shared funding
as contemplated by exemptive relief provided by the SEC and applicable to
the Trust, this Article VII shall apply.
7.2. The Board of Trustees of the Trust (the "Trust Board") will monitor the
Trust for the existence of any material irreconcilable conflict among the
interests of the Contract owners of all separate accounts investing in
the Trust. A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Fund are being managed; (e) a
difference in voting instructions given by variable annuity contract
owners, variable life insurance contract owners, and trustees of
qualified pension or retirement plans; (f) a decision by a Participating
Insurance Company to disregard the voting instructions of Contract
owners; or (g) if applicable, a decision by a qualified pension or
retirement plan to disregard the voting instructions of plan
participants. The Trust Board shall promptly inform the Company if it
determines that a material irreconcilable conflict exists and the
implications thereof. A majority of the Trust Board shall consist of
Trustees who are not "interested persons" of the Trust.
7.3. The Company has reviewed a copy of the Mixed and Shared Funding Order,
and in particular, has reviewed the conditions to the requested relief
set forth therein. The Company agrees to assist the Trust Board in
carrying out its responsibilities under the Mixed and Shared Funding
Order, by providing the Trust Board with all information reasonably
requested by the Trust Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform
the Trust Board whenever Contract owner voting instructions are
disregarded. The Trust Board shall record in its minutes or other
appropriate records, all reports received by it and all action with
regard to a conflict.
7.4. If it is determined by a majority of the Trust Board, or a majority of
its disinterested Trustees, that a material irreconcilable conflict
exists, the Company shall, at its expense and to the extent reasonably
practicable (as determined by a majority of the disinterested Trustees),
take whatever steps are necessary to remedy or eliminate the material
irreconcilable conflict, which may include: (a) withdrawing the assets
allocable to some or all of the Separate Accounts from the relevant Fund
and reinvesting such assets in a different investment medium, including
another Fund, or in the case of insurance company participants submitting
the question as to whether such segregation should be implemented by a
vote of all affected Contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity Contract owners or life
insurance Contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the
affected Contract owners the option of making such a change; or (b)
establishing a new registered management investment company or managed
separate account.
7.5. If the Company's disregard of voting instructions could conflict with the
majority of Contract owner voting instructions, and the Company's
judgment represents a minority position or would preclude a majority
vote, the Company may be required, at the Trust's election, to withdraw
the Separate Account's investment in the Trust and terminate this
Agreement with respect to such Separate Account, and no charge or penalty
will be imposed as a result of such withdrawal. Any such withdrawal and
termination shall take place within three (3) months, or longer if there
is pending SEC approval of a
Substitution Order to effect the withdrawal, after written notice is
given that this provision is being implemented, subject to applicable law
but in any event consistent with the terms of the Mixed and Shared
Funding Order. Until such withdrawal and termination is implemented, the
Underwriter and the Trust shall continue to accept and implement orders
by the Company for the purchase and redemption of shares of the Trust.
Such withdrawal and termination shall be limited to the extent required
by the foregoing material irreconcilable conflict as determined by a
majority of disinterested Trustees.
7.6. If a particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state insurance regulators,
then the Company will withdraw the Separate Account's investment in the
Trust and terminate this Agreement with respect to such Separate Account
within three months, or longer if there is pending SEC approval of a
Substitution Order to effect the withdrawal after the Trust informs the
Company of a material irreconcilable conflict, subject to applicable law
but in any event consistent with the terms of the Mixed and Shared
Funding Order. Until such withdrawal and termination is implemented, the
Underwriter and the Trust shall continue to accept and implement orders
by the Company for the purchase and redemption of shares of the Trust.
Such withdrawal and termination shall be limited to the extent required
by the foregoing material irreconcilable conflict as determined by a
majority of disinterested Trustees.
7.7. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Trust Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict,
but in no event will the Trust or the Underwriter be required to
establish a new funding medium for the Contracts. The Company shall not
be required by Section 7.3 to establish a new funding medium for the
Contracts.
7.8. The Trust Board's determination of the existence of a material
irreconcilable conflict and its implication will be made known in writing
to the Company.
7.9. The Company shall at least annually submit to the Trust Board such
reports, materials, or data as the Trust Board may reasonably request so
that the Trustees may fully carry out
the duties imposed upon the Trust Board by the Mixed and Shared Funding
Order, and said reports, materials and data shall be submitted more
frequently if deemed appropriate by the Trust Board.
7.10. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3(T) is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Order) on
terms and conditions materially different from those contained in the
Mixed and Shared Funding Order, the Trust and/or the Company, as
appropriate, shall take such steps as may be necessary to comply with
Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable.
ARTICLE VIII Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Trust,
the Underwriter, and each of the Trust's or the Underwriter's directors,
officers, employees, or agents and each person, if any, who controls the
Trust or the Underwriter within the meaning of such terms under the
federal securities laws (collectively, the "indemnified parties" for
purposes of this Section 8.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Company), or litigation (including reasonable
legal and other expenses), to which the indemnified parties may become
subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale or
acquisition of the Trust's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statements, prospectuses or statements of
additional information for the Contracts or contained in the
Contracts, or sales literature or other promotional material
for the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances in which they were made; provided that this
agreement to indemnify shall not apply as to any indemnified
party if such statement or omission or such alleged statement
or omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the
Trust for use in the registration statement, prospectus or
statement of information for the Contracts, or in the Contracts
or sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts
or Trust shares; or
(ii) arise out of or as a result of statements or representations by
or on behalf of the Company (other than statements or
representations contained in the Trust registration statement,
Trust prospectus or sales literature or other promotional
material of the Trust not supplied by the Company or persons
under its control) or wrongful conduct of the Company or
persons under its control, with respect to the sale or
distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the Trust's registration
statement, prospectus, statement of additional information, or
sales literature or other promotional material of the Trust or
any amendment thereof, or supplement thereto or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading in light of the circumstances in which they were
made, if such a statement or omission was made in reliance upon
and in conformity with
information furnished to the Trust by or on behalf of the
Company or persons under its control; or
(iv) arise as a result of any failure by the Company to provide the
services and furnish the materials or to make any payments
under the terms of this Agreement; or
(v) arise out of any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of
or result from any other material breach by the Company of this
Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Company
may otherwise have.
(b) No party shall be entitled to indemnification by the Company if
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence, or reckless disregard of duty
by the party seeking indemnification.
(c) The indemnified parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Trust shares or the Contracts or the
operation of the Trust.
8.2. Indemnification By the Underwriter
(a) The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors, officers, employees, or agents and
each person, if any, who controls the Company within the meaning of such
terms under the federal securities laws (collectively, the "indemnified
parties" for purposes of this Section 8.2) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter), or litigation (including
reasonable legal and other expenses) to which the indemnified parties may
become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Trust's shares or the
Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus, or statement of additional
information for the Trust, or sales literature or other
promotional material of the Trust (or any amendment or
supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances in which they were made; provided
that this agreement to indemnify shall not apply as to any
indemnified party if such statement or omission or such alleged
statement or omission was made in reliance upon and in
conformity with information furnished to the Underwriter or the
Trust by or on behalf of the Company for use in the
registration statement, prospectus, or statement of additional
information for the Trust or in sales literature of the Trust
(or any amendment or supplement thereto) or otherwise for use
in connection with the sale of the Contracts or Trust shares;
or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract or Trust registration statement,
the Contract or Trust prospectus, statement of additional
information, or sales literature or other promotional material
for the Contracts or of the Trust not supplied by the
Underwriter or persons under the control of the Underwriter) or
wrongful conduct of the Underwriter or persons under the
control of the Underwriter, with respect to the sale or
distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, statement of additional information, or sales
literature or other promotional material covering the Contracts
(or any amendment thereof or supplement thereto), or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statement or statements therein not misleading in light of the
circumstances in which they were made, if such statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the
Underwriter or persons under the control of the Underwriter; or
(iv) arise as a result of any failure by the Underwriter to provide
the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in
good faith or otherwise, to comply with the diversification
requirements and procedures related thereto specified in
Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Underwriter;
except to the extent provided in Sections 8.2(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the
Underwriter may otherwise have.
(b) No party shall be entitled to indemnification by the
Underwriter if such loss, claim, damage, liability or litigation is due
to the willful misfeasance, bad faith, gross negligence, or reckless
disregard of duty by the party seeking indemnification.
(c) The indemnified parties will promptly notify the Underwriter of
the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Contracts or the operation of
each Separate Account.
8.3. Indemnification By the Trust
(a) The Trust agrees to indemnify and hold harmless the Company and
each of its directors, officers, employees, or agents and each person, if
any, who controls the Company within the meaning of such terms under the
federal securities laws (collectively, the "indemnified parties" for
purposes of this Section 8.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Trust), or litigation (including reasonable legal
and other expenses) to which the indemnified parties may become subject
under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the operations of the
Trust and:
(i) arise as a result of any failure by the Trust to provide the
services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in
good faith or otherwise, to comply with the diversification
requirements and procedures related thereto specified in
Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Trust;
except to the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust may
otherwise have.
(b) No party shall be entitled to indemnification by the Trust if
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence, or reckless disregard of duty
by the party seeking indemnification.
(c) The indemnified parties will promptly notify the Trust of the
commencement of any litigation or proceedings against it in connection
with the issuance or sale of the Contracts or the operation of each
Separate Account.
8.4. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.4) shall not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("indemnified party" for the purpose of this
Section 8.4) unless such indemnified party shall have notified the
indemnifying party in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the
claim shall have been served upon such indemnified party (or after such
party shall have received notice of such service on any designated
agent), but failure to notify the indemnifying party of any such claim
shall not relieve the indemnifying party from any liability which it may
have to the indemnified party against whom such action is brought under
the indemnification provision of this Article VIII, except to the extent
that the failure to notify results in the failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a
result of failure to give such notice. In case any such action is brought
against the indemnified party, the indemnifying party will be entitled to
participate, at its own expense, in the defense thereof. The indemnifying
party also shall be entitled to assume the defense thereof, with consent
of the indemnified party and counsel satisfactory to the party named in
the action. After notice from the indemnifying party to the indemnified
party of the indemnifying party's election to assume the defense thereof,
the indemnified party shall bear the fees and expenses of any additional
counsel retained by it, and the indemnifying party will not be liable to
such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation, unless (i)
the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the 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 agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement
or judgment.
A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article VIII.
The indemnification provisions contained in this Article VIII shall
survive any termination of this Agreement.
ARTICLE IX Applicable Law
9.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware without
giving effect to conflicts of laws provisions thereof.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934, and
1940 Acts, and the rules, regulations, and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may
grant (including, but not limited to, the Mixed and Shared Funding Order)
and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X Termination
10.1. This Agreement shall terminate automatically in the event of its
assignment, unless made with written consent of each party; or:
(a) at the option of any party upon six months advance written
notice to the other parties; or
(b) at the option of the Company if shares of the Funds delineated
in Exhibit B are not reasonably available to meet the requirements of the
Contracts as determined by the Company; or
(c) at the option of the Trust upon institution of formal
proceedings against the Company by the NASD, the SEC, the insurance
commission of any state or any other regulatory body, which would have a
material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(d) at the option of the Company upon institution of formal
proceedings against the Trust or the Underwriter by the NASD, the SEC, or
any state securities or insurance department or any other regulatory
body, which would have a material adverse effect on the Underwriter's or
the Trust's ability to perform its obligations under this Agreement; or
(e) at the option of the Company or the Trust upon a determination
by a majority of the Trust Board, or a majority of the disinterested
Trustees, that a material irreconcilable conflict exists among the
interests of (i) all contract owners of variable insurance products of
all separate accounts, or (ii) the interests of the Participating
Insurance Companies investing in the Trust as declined in Article VII of
this Agreement; or
(f) at the option of the Company if the Trust ceases to qualify as
a Regulated Investment Company under Subchapter M of the Internal Revenue
Code, or under any successor or similar provision, or if the Company
reasonably believes that the Trust may fail to so qualify; or
(g) at the option of the Company if the Trust fails to meet the
diversification requirements specified in Article VI hereof or if the
Company reasonably believes that the Trust will fail to meet or
requirements; or
(h) at the option or any party to this Agreement, upon another
party's material breach of any provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that either the Trust or the
Underwriter has suffered a material adverse change in its business,
operations, or financial condition since the date of this Agreement or is
the subject of a material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the Company
or the Contracts (including the sale thereof); or
(j) at the option of the Trust or Underwriter, if the Trust or
Underwriter respectively, shall determine in its sole judgment exercised
in good faith, that the Company has suffered a material adverse change in
its business, operations, or financial condition since the date of this
Agreement or is the subject of material adverse publicity which is likely
to have a material adverse impact upon the business and operations of the
Trust or Underwriter; or
(k) subject to the Trust's compliance with Article VI hereof, at
the option of the Trust in the event any of the Contracts are not issued
or sold in accordance with applicable requirements of federal and/or
state law. Termination shall be effective immediately upon such
occurrence without notice.
10.2. Notice Requirement
(a) In the event that any termination of this Agreement is based
upon the provisions of Article VII, such prior written notice shall be
given in advance of the effective date of termination as required by such
provisions.
(b) In the event that any termination of this Agreement is based
upon the provisions of Sections 10.l(b) - (d) or 10.1(g) - (i), prompt
written notice of the election to terminate this Agreement for cause
shall be furnished by the party terminating the Agreement to the non-
terminating parties, with said termination to be effective upon receipt
of such notice by the non-terminating parties.
(c) In the event that any termination of this Agreement is based
upon the provisions of Sections 10.1(j) or 10.l(k), prior written notice
of the election to terminate this Agreement for cause shall be furnished
by the party terminating this Agreement to the nonterminating parties.
Such prior written notice shall be given by the party terminating this
Agreement to the non-terminating parties at least 30 days before the
effective date of termination.
10.3. It is understood and agreed that the right to terminate this Agreement
pursuant to Section 10.1(a) may be exercised for any reason or for no
reason.
10.4. Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to
Section 10.1 of this Agreement and subject to Section 1.3 of this
Agreement, the
Company may require the Trust and the Underwriter to continue to make
available additional shares of the Trust for so long after the
termination of this Agreement as the Company desires pursuant to the
terms and conditions of this Agreement as provided in paragraph (b)
below, for all Contracts in effect on the effective date of termination
of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts
shall be permitted to reallocate investments in the Trust, redeem
investments in the Trust and/or invest in the Trust upon the making of
additional purchase payments under the Existing Contracts. The parties
agree that this Section 10.4 shall not apply to any terminations under
Article VII and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement.
(b) If shares of the Trust continue to be made available after
termination of this Agreement pursuant to this Section 10.4, the
provisions of this Agreement shall remain in effect except for Section
10.l(a) and thereafter the Trust, the Underwriter, or the Company may
terminate the Agreement, as so continued pursuant to this Section 10.4,
upon written notice to the other party, such notice to be for a period
that is reasonable under the circumstances but need not be for more than
90 days.
10.5. The Company shall not redeem Fund shares attributable to the Contracts
(as opposed to Fund shares attributable to the Company's assets held in
the Account) except (i) as necessary to implement Contract Owner
initiated or approved transactions, or (ii) as required by state and/or
federal laws or regulations or judicial or other legal precedent of
general application (hereinafter referred to as a "Legally Required
Redemption"). Upon request, the Company will promptly furnish to the
Trust and the Underwriter the opinion of counsel for the Company to the
effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under
the terms of the Contracts, the Company shall not prevent Contract Owners
from
allocating payments to a Fund that was otherwise available under the
Contracts without first giving the Trust or the Underwriter 30 days
notice of its intention to do so.
ARTICLE XI Notices
Any notice shall be deemed duly given only if sent by hand, evidenced by
written receipt or by certified mail, return receipt requested, to the
other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the
other party. All notices shall be deemed given three Business Days after
the date received or rejected by the addressee.
If to the Trust: Xxxxx Fargo Variable Trust
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Secretary
Copy: C. Xxxxx Xxxxxxx, Esq.
Vice President & Senior Counsel
Xxxxx Fargo Bank
Legal Department
000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
If to the Company: The Lincoln National Life Insurance Company
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Second Vice President
If to the Underwriter: Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
ARTICLE XII Miscellaneous
12.1. All persons dealing with the Trust must look solely to the property of
the Trust for the enforcement of any claims against the Trust as neither
the Trustees, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust.
12.2. Subject to law and regulatory authority, each party hereto shall treat as
confidential all information reasonably identified as such in writing by
any other party hereto (including without limitation the names and
addresses of the owners of the Contracts) and, except as contemplated by
this Agreement, shall not disclose, disseminate, or utilize such
confidential information until such time as it may come into the public
domain without the express prior written consent of the affected party.
12.3. The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the
same instrument.
12.5. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6. This Agreement shall not be assigned by any party hereto without the
prior written consent of all the parties.
12.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
SEC, the NASD, and state insurance regulators) and shall permit each
other and such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement
or the transactions contemplated hereby.
12.8. Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
12.9. The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts, the
Separate Accounts or the Funds of the Trust.
12.10. The Trust has filed a Certificate of Trust with the Secretary of State of
The State of Delaware. The Company acknowledges that the obligations of
or arising out of the Trust's Declaration of Trust are not binding upon
any of the Trust's Trustees, officers, employees, agents or shareholders
individually, but are binding solely upon the assets and property of the
Trust in accordance with its proportionate interest hereunder. The
Company further acknowledges that the assets and liabilities of each Fund
are separate and distinct and that the obligations of or arising out of
this instrument are binding solely upon the assets or property of the
Fund on whose behalf the Trust has executed this instrument. The Company
also agrees that the obligations of each Fund hereunder shall be several
and not joint, in accordance with its proportionate interest hereunder,
and the Company agrees not to proceed against any Fund for the
obligations of another Fund.
12.11. Except as otherwise expressly provided in this Agreement, neither the
Trust nor the underwriter nor any affiliate thereof shall use any
trademark, trade name, service xxxx or logo of the Company or any of its
affiliates, or any variation of any such trademark, trade name service
xxxx or logo, without the Company's prior consent, the granting of which
shall be at the Company's sole option. Except as otherwise expressly
provided in this Agreement, neither the Company nor any affiliate thereof
shall use any trademark, trade
name, service xxxx or logo of the Trust or of the Underwriter, or any
variation of any such trademark, trade name, service xxxx or logo,
without the prior consent of either the Trust or of the Underwriter, as
appropriate, the granting of which shall be at the sole option of the
Trust or of the Underwriter, as applicable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Xxxxx Fargo Variable Trust
By: _______________________________
Name: Xxxxxxx X. Xxxxx
Title: Secretary
The Lincoln National Life Insurance Company
By: _______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Second Vice President
Xxxxxxxx Inc.
By: ______________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
--------------------------------------
Separate Account(s):
-------------------
Lincoln Life Variable Annuity Account W
Contracts:
---------
Xxxxx Fargo New Directions Core
Xxxxx Fargo New Directions Access
Xxxxx Fargo New Directions Access 4
EXHIBIT B
Funds Subject to the Participation Agreement
--------------------------------------------
Xxxxx Fargo Asset Allocation
Xxxxx Fargo Corporate Bond
Xxxxx Fargo Equity Value
Xxxxx Fargo Equity-Income
Xxxxx Fargo Growth
Xxxxx Fargo International Equity
Xxxxx Fargo Large Company Growth
Xxxxx Fargo Money Market
Xxxxx Fargo Small Company Growth
