PARTICIPATION AGREEMENT
Among
VARIABLE INSURANCE PRODUCTS FUND,
FIDELITY DISTRIBUTORS CORPORATION
and
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
THIS AGREEMENT, made and entered into as of the Sit day of September,
1996, by and among LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK, (hereinafter the
"Company"), a New York corporation, on its own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A hereto as may be
amended from time to time (each such account hereinafter referred to as the
"Account"), and the VARIABLE INSURANCE PRODUCTS FUND, an unincorporated business
trust organized under the laws of the Commonwealth of Massachusetts (hereinafter
the "Fund") and FIDELITY DISTRIBUTORS CORPORATION (hereinafter the
"Underwriter"), a Massachusetts corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and variable
annuity contracts (collectively, the "Variable Insurance Products") to be
offered by insurance companies which have entered into participation agreements
with the Fund and the Underwriter (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets, any one or more of which may be made
available under this Agreement, as may be amended from time to time by mutual
agreement of the parties hereto (each such series hereinafter referred to as a
"Portfolio"); and
WHEREAS, the Fund filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form N- I A and the SEC has declared
effective said registration statement; and
WHEREAS, the Fund has obtained an order from the SEC, dated October
15, 1985 (File No. 812-6102), granting Participating Insurance Companies and
variable annuity and variable life insurance separate accounts exemptions from
the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (hereinafter the " 1940
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Act") and Rules 6e-2(b) (15) and 6e-3(T) (b) (15) thereunder, to the extent
necessary to permit shares of the Fund to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies (hereinafter the "Shared Funding
Exemptive Order"); and
WHEREAS, the Fund 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 (hereinafter the " 1933 Act"); and
WHEREAS, Fidelity Management & Research Company (the "Adviser") is
duly registered as an investment adviser under the federal Investment Advisers
Act of 1940 and any applicable state securities law; and
WHEREAS, the Company has registered or will register certain variable
life insurance and variable annuity contracts under the 1933 Act; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to the aforesaid variable annuity contracts; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act; 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"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on behalf
of each Account to fund certain of the aforesaid variable life and variable
annuity contracts and the Underwriter is authorized to sell such shares to unit
investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund and the Under-writer agree as follows:
ARTICLE 1. SALE OF FUND SHARES
I A - The Underwriter agrees to sell to the Company those shares of
the Fund which each Account orders, executing such orders on a daily basis at
the net asset value next computed after receipt by the Fund or its designee of
the order for the shares of the Fund. For purposes of this Section 1. 1, the
Company shall be the designee of the Fund for receipt of such orders from each
Account and receipt by such designee shall constitute receipt by the Fund;
provided that the
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Fund receives notice of such order by 9:30 a.m. Boston time on the next
following Business Day. "Business Day" shall mean any day on which the New York
Stock Exchange is open for trading and on which the Fund calculates its net
asset value pursuant to the rules of the Securities and Exchange Commission.
1.2. The Fund agrees to make its shares available indefinitely for
purchase at the applicable net asset value per share by the Company and its
Accounts on those days on which the Fund calculates its net asset value pursuant
to rules of the Securities and Exchange Commission and the Fund shall use
reasonable efforts to calculate such net asset value on each day which the New
York Stock Exchange is open for trading. Notwithstanding the foregoing, the
Board of Trustees of the Fund (hereinafter the "Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund will
be sold only to Participating Insurance Companies and their separate accounts.
No shares of any Portfolio will be sold to the general public.
1.4. The Fund and the Underwriter will not sell Fund shares to any
insurance company or separate account unless an agreement containing -provisions
substantially the same as Articles 1, 111, V, VII and Section 2.5 of Article H
of this Agreement is in effect to govern. such sales.
1.5. The Fund agrees to redeem for cash, on the Company's request, any
full or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after receipt by
the Fund or its designee of the request for redemption. For purposes of this
Section 1.5, the Company shall be the designee of the Fund for receipt of
requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that the Fund receives notice of such
request for redemption on the next following Business Day.
1.6. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Fund shall be made in
accordance with the , provisions of such prospectus. The Company agrees that all
net amounts available under the variable annuity contracts with the form
number(s) which are listed on Schedule A attached hereto and incorporated herein
by this reference, (as such Schedule A may be amended from time to time
hereafter by mutual written agreement of all the parties hereto), (the
"Contracts") shall be invested in the Fund, in such other Funds advised by the
Adviser as may be mutually agreed to in writing by the ' parties hereto, or in
the Company's general account, provided that such amounts may also be invested
in investment companies other than the Fund. The Company shall notify the Fund
as to which other investment companies are available as investment options under
the Contract not later than the time such investment companies are made
available to owners of the
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Contracts. The investment companies available to Contract owners as of the date
of this Agreement are as shown on Schedule C.
1.7. The Company shall pay for Fund shares on the next Business Day
after an order to purchase Fund shares is made in accordance with the provisions
of Section 1. 1 hereof. Payment shall be in federal funds transmitted by wire.
For purpose of Section 2. 10 and 2. 11, upon receipt by the Fund of the federal
funds so wired, such funds shall cease to be the responsibility of the Company
and shall become the responsibility of the Fund.
1.8. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
1.9. The Fund shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income, dividends or
capital gain distributions payable on the Fund's shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on the Portfolio shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Fund shall notify
the Company of the number of shares so issued as payment of such dividends and
distributions.
1.10. The Fund shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated (normally by 6:30
p.m. Boston time) and shall use its best efforts to make such net asset value
per share available by 7 p.m. Boston time.
ARTICLE 11. REPRESENTATIONS AND WARRANTIES
2. 1. The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act; that the Contracts will be issued and
sold in compliance in all material respects with all applicable Federal and
state laws and that the Company will require of every person distributing the
Contracts that the Contracts be offered and sold in compliance in all material
respects with all applicable Federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and
validly existing under applicable law and that it has legally and validly
established each Account, prior to any issuance or sale thereof, as a segregated
asset account under Section 4240 of the New York Insurance Laws and has
registered or, prior to any issuance or sale of the Contracts, will register
each Account as a unit investment trust in accordance with the provisions of the
1940 Act to serve as a segregated investment account for the Contracts.
2.2. The Fund represents and warrants that Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the State of New York and all
applicable federal and state securities
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laws and that the Fund is and shall remain registered under the 0000 Xxx. The
Fund shall amend the Registration Statement for its shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and
to the extent deemed advisable by the Fund or the Underwriter.
2.3. The Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as
amended, (the "Code") and that it will make every effort to maintain such
qualification (under Subchapter M or any successor or similar provision) and
that it will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify in
the future.
2.4. The Company represents that the Contracts are currently treated
as life insurance policies or annuity insurance contracts, under applicable
provisions of the Code and that it will make every effort to maintain such
treatment and that it win notify the Fund 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.
2.5. The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b- I under the 1940 Act or
otherwise, although it may make such payments in the future. The Fund has
adopted a "no fee" or "defensive" Rule 12b- I Plan under which it makes no
payments for distribution expenses. To the extent that it decides to finance
distribution expenses pursuant to Rule 12b- 1, the Fund undertakes to have a
board of trustees, a majority of whom are not interested persons of the Fund,
formulate and approve any plan under Rule 12b- I to finance distribution
expenses.
2.6. The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that the Fund's investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of the
State of New York and the Fund and the Underwriter represent that their
respective operations are and shall at all times remain in material compliance
with the laws of the State of New York to the extent required to perform this
Agreement.
2.7. 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 Fund shares
in accordance with the laws of the State of New York and all applicable state
and federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.8. The Fund represents that it is lawfully organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it does
and will comply in all material respects with the 1940 Act.
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2.9. The Underwriter represents and warrants that the Adviser is and
shall remain duly registered in all material respects under all applicable
federal and state securities laws and that the Adviser shall perform its
obligations for the Fund in compliance in all material respects with the laws of
the State of New York and any applicable state and federal securities laws.
2. 10. The Fund and Underwriter represent and warrant that all of
their directors, officers, employees, investment advisers, and other individual
entities dealing with the money and/or securities of the Fund are and shall
continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund in an amount not less than the minimal
coverage as required currently by Rule 17g-(I) of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid Bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company. The Fund and the Underwriter agree to make all reasonable
efforts to see that this bond or another bond containing these provisions is
always in effect, and agree to notify the Company immediately in the event that
such coverage no longer applies.
2.11. 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 Fund are covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund, and that said bond is
issued by a reputable bonding company, includes coverage for larceny and
embezzlement, and is in an amount not less than $5 million. The Company agrees
to make all reasonable efforts to see that this bond or another bond containing
these provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS-, VOTING
3. 1. The Underwriter shall provide the Company with as many printed
copies of the Fund's current prospectus and Statement of Additional Information
as the Company may reasonably request. If requested by the Company in lieu
thereof, the Fund shall provide camera ready film containing the Fund's
prospectus and Statement of Additional Information, and such other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus and/or Statement of Additional Information for the
Fund is amended during the year) to have the prospectus for the Contracts and
the Fund's prospectus printed together in one document, and to have the
Statement of Additional Information for the Fund and the Statement of Additional
Information for the Contracts printed together in one document. Alternatively,
the Company may print the Fund's prospectus and/or its Statement of Additional
Information in combination with other fund companies' prospectuses and
statements of additional information. Except as provided in the following three
sentences, all expenses of printing and distributing Fund prospectuses and
Statements of Additional Information shall be the expense of the Company. For
prospectuses and Statements of Additional Information provided by the Company to
its existing owners of Contracts in order to update disclosure as required by
the 1933 Act and/or the 1940 Act, the cost of printing shall be borne by the
Fund. If the Company chooses to receive camera-ready film in lieu of receiving
printed copies of the Fund's prospectus, the Fund
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will reimburse the Company in an amount equal to the product of A and B where A
is the number of such prospectuses distributed to owners of the Contracts, and
B is the Fund's per unit cost of typesetting and printing the Fund's
prospectus. The same procedures shall be followed with respect to the Fund's
Statement of Additional Information.
The Company agrees to provide the Fund or its designee with such
information as may be reasonably requested by the Fund to assure that the Fund's
expenses do not include the cost of printing any prospectuses or Statements of
Additional Information other than those actually distributed to existing owners
of the Contracts.
3.2. The Fund's prospectus shall state that the Statement of
Additional Information for the Fund is available from the Underwriter or the
Company (or in the Fund's discretion, the Prospectus shall state that such
Statement is available from the Fund).
3.3. The Fund, at its expense, shall provide the Company with copies
of its proxy statements, reports to shareholders, and other communications
(except for prospectuses and Statements of Additional Information, which are
covered in Section 3. 1) to shareholders in such quantity as the Company shall
reasonably require for distributing to Contract owners.
3.4. If and to the extent required by law the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with instructions
received from Contract owners; and
(iii) vote Fund shares for which no instructions have been
received in a particular separate account in the same
proportion as Fund shares of such portfolio for which
instructions have been received in that separate account,
so long as and to the extent that the Securities and Exchange Commission
continues to interpret the 1940 Act to require pass-through voting privileges
for variable contract owners. The Company reserves the right to vote Fund
shares held in 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 Fund
calculates voting privileges in a manner consistent with the standards set
forth on Schedule B attached hereto and incorporated herein by this reference,
which standards will also be provided to the other Participating Insurance
Companies.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either provide
for annual meetings or comply with Section 16(c) of the 1940 Act (although the
Fund is not one of the trusts described in Section 16(c) of that Act) as well as
with Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will
act in accordance with the Securities and Exchange 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.
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ARTICLE IV. Sales MATERIAL AND INFORMATION
4. 1. The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee, each piece of sales literature or other promotional
material in which the Fund or its investment adviser or the Underwriter is
named, at least ten Business Days prior to its use. No such material shall be
used if the Fund or its designee reasonably objects to such use within ten
Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee or by the Underwriter, except with the permission of the Fund or the
Underwriter or the designee of either.
4.3. The Fund, Underwriter, or its designee 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 and/or its
separate account(s), is named at least ten Business Days prior to its use. No
such material shall be used if the Company or its designee reasonably objects to
such use within ten Business Days after receipt of such material.
4.4. The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company,
each 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 Account which are in the public domain
or approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. The Fund 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 Fund or its shares, within 30
days of the filing of such document with the Securities and Exchange Commission
or other regulatory authorities.
4.6. The Company will provide to the Fund 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
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the Contracts or each Account and their investment in the Fund, within 30 days
of the filing of such document with the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: 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, and registration statements,
prospectuses, Statements of Additional Information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under NASD rules, the 1940 Act or the 1933 Act.
ARTICLE V. FEES AND EXPENSES
5. 1. The Fund and Underwriter shall pay no fee or other compensation
to the Company under this agreement, except that if the Fund or any Portfolio
adopts and implements a plan pursuant to Rule 12b- I to finance distribution
expenses, then 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 and such payments will be made out of existing fees otherwise payable to
the Underwriter, past profits of the Underwriter or other resources available to
the Underwriter. No such payments shall be made directly by the Fund. Currently,
no such payments are contemplated.
5.2. All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Fund, in
accordance with applicable state laws prior to their sale. The Fund shall bear
the expenses for the cost of registration and qualification of the Fund's
shares, preparation and filing of the Fund's prospectus and registration
statement, proxy materials and reports, setting the prospectus in type, setting
in type and printing the proxy materials and reports to shareholders (including
the costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices required by any federal or state law,
and all taxes on the issuance or transfer of the Fund's shares.
5.3. The Company shall bear the expenses of distributing the Fund's
prospectus, proxy materials and reports to owners of Contracts issued by the
Company.
ARTICLE VI. DIVERSIFICATION
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6. 1. The Fund will at all times invest money from the Contracts in
such a manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without limiting
the scope of the foregoing, the Fund will at all times comply with Section 8
17(h) of the Code and Treasury Regulation 1.817-5, 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 of a breach of this Article VI by the Fund, it will
take all reasonable steps (a) to notify Company of such breach and (b) to
adequately diversify the Fund so as to achieve compliance within the grace
period afforded by Regulation 1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
7. 1. The Board will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the contract owners of
all separate accounts investing in the Fund. An irreconcilable material 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 Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Board shall promptly inform the Company if
it determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order, by providing
the Board with all information reasonably necessary for the Board to consider
any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever contract owner voting instructions are
disregarded.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested trustees, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their 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 irreconcilable material conflict, up to and including: (1),
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, ~ including (but not limited to) another Portfolio of the Fund, or
submitting the question whether such segregation should be implemented to a vote
of all affected Contract owners and, as appropriate, segregating the assets of
any appropriate group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such
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segregation, or offering to the affected contract owners the option of making
such a change; and (2), establishing a new registered management investment
company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and that
decision represents a minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account; provided, however that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested members of the Board. Any such
withdrawal and termination must take place within six (6) months after the Fund
gives written notice that this provision is being implemented, and until the end
of that six month period the Underwriter and Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Fund.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the Fund and terminate this Agreement with
respect to such Account within six months after the Board informs the Company in
writing that it has determined that such decision has created an irreconcilable
material conflict; provided, however, that such withdrawal and termination shall
be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
Until the end of the foregoing six month period, the Underwriter and Fund shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict, but in
no event will the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination, provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as detennined by a majority of the
disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
Act or the rules promulgated thereunder with respect to mixed or shared funding
(as defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Fund and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable;
and (b) Sections 3.4, 3.5, 7. 1,
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7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the
extent that terms and conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8. 1. INDEMNIFICATION BY THE COMPANY
8. 1 (a). The Company agrees to indemnify and hold harmless the Fund
and each trustee of the Board and officers and each person, if any, who controls
the Fund within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8. 1) against any and all
losses, claims, 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 Fund'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 Statement or prospectus for the Contracts or contained in
the Contracts or sales literature 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, 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 Fund for use in the Registration Statement or
prospectus 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 Fund shares; or
(ii) arise out of or as a result of any untrue statements or
representations (other than statements or representations contained in
the Registration Statement, prospectus or sales literature of the Fund
not supplied by the Company, or persons under its control) or willful
misfeasance, bad faith, or gross negligence of the Company or persons
under its control, with respect to the sale or distribution of the
Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement,
prospectus, or sales literature of the Fund 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 if such a statement or
omission was
12
made in reliance upon information furnished to the Fund by or on
behalf of the Company; or
(iv) arise as a result of any failure by the Company to
provide the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from 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 of this
Agreement by the Company, as limited by and in accordance with the
provisions of Sections 8. 1 (b) and 8. 1 (c) hereof.
8. 1 (b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
the Fund, whichever is applicable.
8. 1 (c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of. any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Company shall be entitled to participate,
at its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
8. 1 (d). 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 Fund Shares or the Contracts or the operation
of the Fund.
8.2. INDEMNIFICATION BY THE UNDERWRITER
13
8.2(a). The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any 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, 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 Fund'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 or prospectus or sales literature of the
Fund (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, 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 Fund by or on behalf of the Company for use in the
Registration Statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of any untrue statements or
representations (other than statements or representations
contained in the Registration Statement, prospectus or sales
literature for the Contracts not supplied by the Underwriter or
persons under its control) or willful misfeasance, bad faith, or
gross negligence of the Fund, Adviser or Underwriter or persons
under their control, with respect to the sale or distribution of
the Contracts or Fund shares; or
(iii)arise out of any untrue statement or alleged untrue statement of
a material fact contained in a Registration Statement,
prospectus, or sales literature 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, if such statement or omission was made in
reliance upon information furnished to the Company by or on
behalf of the Fund; or
(iv) arise as a result of any failure by the Fund 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 specified in Article VI of this Agreement); or
14
(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; as limited by and in
accordance with the provisions of Sections 8.2(b) and 8.2(c)
hereof.
8.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
each Company or the Account, whichever is applicable.
8.2(c). The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriter of
any such claim shall not relieve the Underwriter from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. The Underwriter also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Underwriter to such party
of the Underwriter'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 Underwriter 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.
8.2(d). The Company agrees promptly to notify the Underwriter of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of each Account.
8.3. INDEMNIFICATION BY THE FUND
8.3(a). The Fund agrees to indemnify and hold harmless the Company,
and each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Fund) or litigation (including reasonable legal and
other expenses) to which the Indemnified Parties may become subject under any
statute, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements result
from the gross negligence, bad faith or willful misconduct of the Board or any
member THEREOF, ARC RELATED TO THE OPERATIONS OF THE FUND AND:
15
(i) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement (including a failure to comply with the diversification
requirements 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 Fund in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
the Company, the Fund, the Underwriter or each Account, whichever is applicable.
8.3(c). The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve the Fund from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Fund will be entitled to participate, at
its own expense, in the defense thereof. The Fund also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Fund to such party of the Fund's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund will not be
liable to such party under this Agreement for any legal of other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3(d). The Company and the Underwriter agree promptly to notify the
Fund of the commencement of any litigation or proceedings against it or any of
its respective officers or directors in connection with this Agreement, the
issuance or sale of the Contracts, with respect to the operation of either
Account, or the sale or acquisition of shares of the Fund.
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 Commonwealth of
Massachusetts.
16
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
Securities and Exchange Commission may grant (including, but not limited to, the
Shared Funding Exemptive Order) and the terms hereof shall be interpreted and
construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by six months advance
written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio based upon the
Company's determination that shares of such Portfolio are not
reasonably available to meet the requirements of the Contracts;
or
(c) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio in the event any of the
Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment
media of the Contracts issued or to be issued by the Company; or
(d) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio in the event that such
Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M of the Code or under any successor or similar
provision, or if the Company reasonably believes that the Fund
may fail to so qualify; or
(e) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio in the event that such
Portfolio fails to meet the diversification requirements
specified in Article VI hereof; or
(f) termination by either the Fund or the Underwriter by written
notice to the Company, if either one or both of the Fund or the
Underwriter respectively, shall determine, in their sole judgment
exercised in good faith, that the Company and/or its affiliated
companies has suffered a material adverse change in its business,
operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity;
or
17
(g) termination by the Company by written notice to the Fund and the
Underwriter, if the Company shall determine, in its sole judgment
exercised in good faith, that either the Fund or the Underwriter
has suffered a material adverse change in its business,
operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity;
or
(h) the requisite vote of the Contract owners having an interest in a
Portfolio (unless otherwise required by applicable law) and
written approval of the Company, to substitute the shares of
another investment company for the corresponding shares of a
Portfolio in accordance with the terms of the Contracts; or
(i) at the option of the Fund, upon institution of formal proceedings
against the Company by the NASD, the SEC, the insurance
commission of any state or any other regulatory body regarding
the Company's duties under this Agreement or related to the sale
of the Contracts, the operation of the Account, the
administration of the Contracts or the purchase of Fund shares,
or an expected or anticipated ruling, judgment or outcome which
would, in the Fund's reasonable judgment, materially impair the
Company's ability to perform the Company's obligations and duties
hereunder; or
at the option of the Company, upon institution of formal
proceedings against the Fund, the Underwriter, the Fund's
investment adviser or any sub-adviser, by the NASD, the SEC, or
any state securities or insurance commission or any other
regulatory body regarding the duties of the Fund or the
Underwriter under this Agreement, or an expected or anticipated
ruling, judgment or outcome which would, in the Company's
reasonable judgment, materially impair the Fund's or the
Underwriter's ability to perform the Fund's or the Underwriter's
obligations and duties hereunder; or
(k) at the option of the Company, upon institution of formal
proceedings against the Fund's investment adviser of any
sub-adviser by the NASD, the SEC, or any state securities or
insurance commission or any other regulatory body which would, in
the good faith opinion of the Company, result in material harm to
the Accounts, the Company or Contract owners.
10.2. EFFECT OF TERMINATION. Notwithstanding any termination of this
Agreement, the Fund and the Underwriter shall at the option of the Company,
continue to make available additional shares of the Fund pursuant to the terms
and conditions of this Agreement, for all Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to reallocate investments in the Fund, redeem
investments in the Fund and/or invest in the Fund upon the making of additional
purchase payments under the Existing Contracts. The parties agree that this
Section 10.2 shall
18
not apply to any terminations under Article VII and the effect of such Article
VII terminations shall be governed by Article VII of this Agreement.
10.3 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") or (iii) as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act. Upon
request, the Company will promptly furnish to the Fund and the Underwriter the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund and the Underwriter) 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 Portfolio that
was otherwise available under the Contracts without first giving the Fund or the
Underwriter 90 days notice of its intention to do so.
10.4 Notwithstanding any other provision of this Agreement, each
party's obligation under Article VII to indemnify the other parties shall
survive termination of this Agreement, to the extent that the events giving rise
to the obligation to indemnify the other party occurred prior to the date of
termination
ARTICLE XI. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail 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.
If to the Fund:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
If to the Company:
Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
If to the Underwriter:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
19
ARTICLE XII. MISCELLANEOUS
12.1 All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
12.2 Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information until such time as it may come into
the public domain without the express 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 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 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.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the New York Insurance Commissioner with any non-privileged
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with the
New York Insurance Regulations and any other applicable law or regulations.
12.7 The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Underwriter may assign this
Agreement or any rights or obligations hereunder to any affiliate of or company
under common control with the Underwriter, if such assignee is duly licensed and
registered to perform the obligations of the Underwriter under this Agreement.
20
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President
VARIABLE INSURANCE PRODUCTS FUND
By: /s/ J. Xxxx Xxxxxxxx
J. Xxxx Xxxxxxxxx
Senior Vice President
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
President
21
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Name of Separate Account and Policy Form Numbers of Contracts Funded
Date Established by Board of Directors By Separate Account
Lincoln Life & Annuity Variable GAC96-1 11
Annuity Account L GAC91-101
22
SCHEDULE B
PROXY VOTING PROCEDURE
The following is a list of procedures and corresponding responsibilities for
the handling of proxies relating to the Fund by the Underwriter, the Fund and
the Company. The defined terms herein shall have-the meanings assigned in the
Participation Agreement except that the term "Company" shall also include the
department or third party assigned by the Insurance Company to perform the
steps delineated below.
1. The number of proxy proposals is given to the Company by the Underwriter as
early as possible before the date set by the Fund for the shareholder
meeting to facilitate the establishment of tabulation procedures. At this
time the Underwriter will inform the Company of the Record, Mailing and
Meeting dates. This will be done in writing approximately two months before
meeting.
2. Promptly after the Record Date, the Company will perform a "tape run", or
other activity, which will generate the names, addresses and number of
units which are attributed to each contractowner/policyholder (the
"Customer") as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of the
Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in Step #2. The Company will use its best efforts to call in the
number of Customers to Fidelity, as soon as possible, but no later than two
weeks after the Record Date.
3. The Fund's Annual Report no longer needs to be sent to each Customer by the
Company either before or together with the Customers' receipt of a proxy
statement. Underwriter will provide the last Annual Report to the Company
pursuant to the terms of Section 3.3 of the, Agreement to which this
Schedule relates.
4. The text and format for the Voting Instruction Cards ("Cards" or "Card") is
provided to the Company by the Fund. The Company, at its expense, shall
produce and personalize the Voting Instruction Cards. The Legal Department
of the Underwriter or its affiliate ("Fidelity Legal") must approve the
Card before it is printed. Allow approximately 2-4 business days for
printing information on the Cards. Information commonly found on the Cards
includes:
a. name (legal name as found on account registration)
b. address
c. Fund or account number
d. coding to state number of units
e. individual Card number for use in tracking and verification of
votes (already on Cards as printed by the Fund)
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
23
5. During this time, Fidelity Legal will develop, produce, and the Fund will
pay for the Notice of Proxy and the Proxy Statement (one document). Printed
and folded notices and statements will be sent to Company for insertion
into envelopes (envelopes and return envelopes are provided and paid for by
the Insurance Company). Contents of envelope sent to Customers by Company
will include:
a. Voting Instruction Card(s)
b. One proxy notice and statement (one document)
c. return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
d. "urge buckslip" - optional, but recommended. (This is a small,
single sheet of paper that requests Customers to vote as quickly
as possible and that their vote is important. One copy will be
supplied by the Fund.)
e. cover letter - optional, supplied by Company and reviewed and
approved in advance by Fidelity Legal.
6. The above contents should be received by the Company approximately 3-5
business days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to Fidelity Legal.
7. Package mailed by the Company.
*The Fund must allow at least a 15-day
solicitation time to the Company as the shareowner. (A 5-week
period is recommended.) Solicitation time is calculated as calendar
days from (but NOT including) the meeting, counting backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry.
Note: Postmarks are not generally needed. A need for postmark information
would be due to an insurance company's internal procedure and has not been
required by Fidelity in the past.
9. Signatures on Card checked against legal name on account registration which
was printed on the Card.
Note: For Example, If the account registration is under "Xxxxxxx X. Xxxxx,
Trustee," then that is the exact legal name to be printed on the Card and
is the signature needed on the Card.
24
10. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are considered to be NOT RECEIVED for purposes of vote
tabulation. Any Cards that have "kicked out" (e.g. mutilated, illegible) of
the procedure are "hand verified," i.e., examined as to why they did not
complete the system. Any questions on those Cards are usually remedied
individually
11. There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
12. The actual tabulation of votes is done in units which is then converted to
shares. (It is very important that the Fund receives the tabulations stated
in terms of a percentage and the number OF SHARES.) Fidelity Legal must
review and approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to Fidelity
Legal on the morning of the meeting not later than 10:00 a.m. Boston time.
Fidelity Legal may reasonably request an earlier deadline if required to
calculate the vote in time for the meeting.
14. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
Fidelity Legal will provide a standard form for each Certification.
15. The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, Fidelity Legal
will be permitted reasonable access to such Cards.
16. All arrangements, approvals and "signing-off 'may be done orally, but must
always be followed up in writing.
25
SCHEDULE C
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
Dreyfus Stock Index Fund
Dreyfus Variable Investment Fund: Small Cap Portfolio
Twentieth Century's TCI Portfolios, Inc.
TCI Growth
TCI Balanced
X. Xxxx Price International Series, Inc.
Xxxxxxx Responsibly Invested Balanced Portfolio
26
SCHEDULE A
AMENDED AS OF FEBRUARY 15, 2000
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Form Numbers of Contracts
Name of Separate Account Funded by Separate Account Fidelity Fund (Class)
------------------------ -------------------------- -----------------------
Lincoln Life & Annuity Variable GAC96-111 Growth - Initial
Annuity Account L GAC91-101 Equity-Income - Initial
Lincoln Life & Annuity Flexible LN615NY - LNY Equity-Income - Initial
Premium Variable Life Account M
Lincoln New York Account N AN426NY Equity-Income - Initial
for Variable Annuities Growth - Initial
Overseas - Initial
SCHEDULE C
AMENDED AS OF FEBRUARY 15, 2000
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Alliance Variable Products Series Fund
American Variable Insurance Series (AVIS)
BT Insurance Funds Trust
Xxxxxxx Responsibly Invested Balanced Portfolio
Delaware Group Premium Fund
Dreyfus Stock Index Fund
Dreyfus Variable Investment Fund: Small Cap Portfolio
Liberty Variable Investment Trust
Lincoln National
MFS Variable Insurance Trust
X. Xxxx Price International Series, Inc.
Xxxxxxxxx Variable Products Series Fund
Twentieth Century's TCI Portfolios, Inc.
TCI Growth
TCI Balanced
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to Schedules A and C to be executed in its name and on its behalf by
its duly authorized representative and its seal to be hereunder affixed hereto
as of the date specified below.
Date LINCOLN LIFE & ANNUITY
-------------------------- COMPANY OF NEW YORK
By:
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: CFO/2nd Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS
--------------------------
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
Date FIDELITY DISTRIBUTORS CORPORATION
--------------------------
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
SCHEDULE A
AMENDED AS OF MAY 1, 2000
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Form Numbers of Contracts
Name of Separate Account Funded by Separate Account Fidelity Fund (Class)
------------------------ -------------------------- -----------------------
Lincoln Life & Annuity Variable GAC96-111; GAC91-101 Growth - Initial
Annuity Separate Account L (GVA I, II, III) Equity-Income - Initial
Lincoln Life & Annuity Flexible LN615NY - LNY Equity-Income - Initial
Premium Variable Life Account M (VUL I)
LN660NY Growth - Service
(VUL) High Income - Service
Lincoln New York Separate AN426NY Equity-Income - Initial
Account N for Variable Annuities (ChoicePlus) Growth - Initial
Overseas - Initial
LLANY Separate Account R for LN650 Growth - Service
Flexible Premium Variable (SVUL) High Income - Service
Life Insurance
LN655 Growth - Service
(SVUL II) High Income - Service
LLANY Separate Account S for LN920NY Growth - Service
Flexible Premium Variable (CVUL) High Income - Service
Life Insurance Overseas - Service
LN925 Growth - Service
(CVUL Series III) High Income - Service
Overseas - Service
SCHEDULE C
AMENDED AS OF MAY 1, 2000
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Alliance Variable Products Series Fund
American Century Variable Products Group, Inc.
American Variable Insurance Series (AVIS)
Baron Capital Funds Trust
BT Insurance Funds Trust
Xxxxxxx Responsibly Invested Balanced Portfolio
Delaware Group Premium Fund
Dreyfus Stock Index Fund
Dreyfus Variable Investment Fund: Small Cap Portfolio
Janus Aspen Series
Liberty Variable Investment Trust
Lincoln National Funds
MFS Variable Insurance Trust
Neuberger&Berman Advisers Management Trust
OCC Accumulation Trust
Xxxxxxxxxxx Funds
X. Xxxx Price International Series, Inc.
Xxxxxxxxx Variable Products Series Fund
Twentieth Century's TCI Portfolios, Inc.
TCI Growth
TCI Balanced
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to Schedules A and C to be executed in its name and on its behalf by
its duly authorized representative and its seal to be hereunder affixed hereto
as of the date specified below.
Date LINCOLN LIFE & ANNUITY
-------------------------- COMPANY OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: CFO/2nd Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS
--------------------------
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Senior Vice President
-------------------------------
Date FIDELITY DISTRIBUTORS CORPORATION
--------------------------
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: Vice President
-------------------------------
PARTICIPATION AGREEMENT
-----------------------
Among
VARIABLE INSURANCE PRODUCTS FUND II,
------------------------------------
FIDELITY DISTRIBUTORS CORPORATION
---------------------------------
and
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
------------------------------------------
THIS AGREEMENT, made and entered into as of the 1st day of
September, 1996, by and among LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK,
(hereinafter the "Company"), a New York corporation, on its own behalf and on
behalf of each segregated asset account of the Company set forth on Schedule A
hereto as may be amended from time to time (each such account hereinafter
referred to as the "Account"), and the VARIABLE INSURANCE PRODUCTS FUND 11, an
unincorporated business trust organized under the laws of the Commonwealth of
Massachusetts (hereinafter the "Fund") and FIDELITY DISTRIBUTORS CORPORATION
(hereinafter the "Underwriter"), a
Massachusetts corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and variable
annuity contracts (collectively, the "Variable Insurance Products") to be
offered by insurance companies which have entered into
participation agreements
with the Fund and the Underwriter (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into
several series of shares, each representing the interest in a particular
managed portfolio of securities and other assets, any one of more of which may
be made available under this Agreement, as may be amended from time to time by
mutual agreement of the parties hereto (each such series hereinafter referred
to as a "Portfolio"); and
WHEREAS, the Fund filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form N- I A and the SEC has
declared effective said registration statement; and
WHEREAS, the Fund has obtained an order from the SEC, dated
September 17, 1986 (File No. 812-6422), granting Participating Insurance
Companies and variable annuity and variable life insurance separate accounts
exemptions from the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the
Investment Company Act of 1940, as amended, (hereinafter the "1940
1
Act") and Rules 6e-2(b) (15) and 6e-3(T) (b) (15) thereunder, to the extent
necessary to permit shares of the Fund to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies (hereinafter the "Shared Funding
Exemptive Order"); and
WHEREAS, the Fund 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 (hereinafter the " 1933 Act"); and
WHEREAS, Fidelity Management & Research Company (the "Adviser")
is duly registered as an investment adviser UNDER THE FEDERAL INVESTMENT
Advisers Act of 1940 and any applicable state securities law; and
WHEREAS, the Company has registered or will register certain
variable life insurance and variable annuity contracts under the 1933 Act; and
WHEREAS, each Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors
of the Company, on the date shown for such Account on Schedule A hereto, to set
aside and invest assets attributable to the aforesaid variable annuity
contracts; and
WHEREAS, the Company has registered or will register each
Account as a unit investment trust under the 1940 Act; 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"); and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, the Company intends to purchase shares in the Portfolios on
behalf of each Account to fund certain of the aforesaid variable life and
variable annuity contracts and the Under-writer is authorized to sell such
shares to unit investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund and the Underwriter agree as follows:
ARTICLE 1. SALE OF FUND SHARES
-------------------
I.I. The Underwriter agrees to sell to the Company those
shares of the Fund which each Account orders, executing such orders on a daily
basis at the net asset value next computed after receipt by the Fund or its
designee of the order for the shares of the Fund. For purposes of this Section
1. 1, the Company shall be the designee of the Fund for receipt of such orders
from each Account and receipt by such designee shall constitute receipt by the
Fund; provided that the
2
Fund receives notice of such order by 9:30 a.m. Boston time on the next
following Business Day. "Business Day" shall mean any day on which the New York
Stock Exchange is open for trading and on which the Fund calculates its net
asset value pursuant to the rules of the Securities and' Exchange Commission.
1.2. The Fund agrees to make its shares available indefinitely
for purchase at the applicable net asset value per share by the Company and its
Accounts on those days on which the Fund calculates its net asset value
pursuant to rules of the Securities and Exchange Commission and the Fund shall
use reasonable efforts to calculate such net asset value on each day which the
New York Stock Exchange is open for trading. Notwithstanding the foregoing, the
Board of Trustees of the Fund (hereinafter the "Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund
will be sold only to Participating Insurance Companies and their separate
accounts. No shares of any Portfolio will be sold to the general public.
1.4. The Fund and the Underwriter will not sell Fund shares to
any insurance company or separate account unless an agreement containing
provisions substantially the same as Articles 1, 111, V, VII and Section 2.5 of
Article 11 of this Agreement is in effect to govern such sales.
1.5. The Fund agrees to redeem for cash, on the Company's
request, any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value next computed
after receipt by the Fund or its designee of the request for redemption. For
purposes of this Section 1.5, the Company shall be the designee of the Fund for
receipt of requests for redemption from each Account and receipt by such
designee shall constitute receipt by the Fund; provided that the Fund receives
notice of such request for redemption on the next following Business Day.
1.6. The Company agrees that purchases and redemptions of
Portfolio shares offered by the then current prospectus of the Fund shall be
made in accordance with the provisions of such prospectus. The Company agrees
that all net amounts available under the variable annuity contracts with the
form number(s) which are listed on Schedule A attached hereto and incorporated
herein by this reference, (as such Schedule A may be amended from time to time
hereafter by mutual written agreement of all the parties hereto), (the
"Contracts") shall be invested in the Fund, in such other Funds advised by the
Adviser as may be mutually agreed to in writing by the parties hereto, or in
the Company's general account, provided that such amounts may also be invested
in investment companies other than the Fund. The Company shall notify the Fund
as to which other investment companies are available as investment options
under the Contract not later than the time such investment companies are made
available to owners of the
3
Contracts. The investment companies available to Contract owners as of the
date of this Agreement are as shown on Schedule C.
1.7. The Company shall pay for Fund shares on the next
Business Day after an order to purchase Fund shares is made in accordance
with the provisions of Section 1. 1 hereof. Payment shall be in federal funds
transmitted by wire. For purpose of Section 2. 10 and 2. 11, upon receipt by
the Fund of the federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the Fund.
1.8. Issuance and transfer of the Fund's shares will be by
book entry only. Stock certificates will not be issued to the Company or any
Account. Shares ordered from the Fund will be recorded in an appropriate
title for each Account or the appropriate subaccount of each Account.
1.9. The Fund shall furnish same day notice (by wire or
telephone, followed by written confirmation) to the Company of any income,
dividends or capital gain distributions payable on the Fund's shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
such dividends and distributions.
1.10. The Fund shall make the net asset value per share for
each Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated (normally by 6:30
p.m. Boston time) and shall use its best efforts to make such net asset value
per share available by 7 p.m. Boston time.
ARTICLE 11. REPRESENTATIONS AND WARRANTIES
------------------------------
2.1. The Company represents and warrants that the Contracts
are or will be registered under the 1933 Act; that the Contracts will be
issued and sold in compliance in all material respects with all applicable
Federal and state laws and that the Company will require of every person
distributing the Contracts that the Contracts be offered and sold in
compliance in all material respects with all applicable Federal and state
laws. The Company further represents and warrants that it is an insurance
company duly organized and validly existing under applicable law and that it
has legally and validly established each Account, prior to any issuance or
sale thereof, as a segregated asset account under Section 4240 of the New
York Insurance Laws and has registered or, prior to any issuance or sale of
the Contracts, will register each Account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts.
2.2. The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of the State of
New York and all applicable federal and state securities
4
laws and that the Fund is and shall remain registered under the 0000 Xxx. The
Fund shall amend the Registration Statement for its shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and
to the extent deemed advisable by the Fund or the Underwriter.
2.3. The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Internal Revenue Code
of 1986, as amended, (the "Code") and that it will make every effort to
maintain such qualification (under Subchapter M or any successor or similar
provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it
might not so qualify in the future.
2.4. The Company represents that the Contracts are currently
treated as life insurance policies or annuity insurance contracts, under
applicable provisions of the Code and that it will make every effort to
maintain such treatment and that it will notify the Fund and the 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.
2.5. The Fund currently does not intend to make any payments
to finance distribution expenses pursuant to Rule 12b- I under the 1940 Act
or otherwise, although it may make such payments in the future. The Fund has
adopted a "no fee" or "defensive" Rule 12b- I Plan under which it makes no
payments for distribution expenses. To the extent that it decides to finance
distribution expenses pursuant to Rule 12b- 1, the Fund undertakes to have a
board of trustees, a majority of whom are not interested persons of the Fund,
formulate and approve any plan under Rule 12b- I to finance distribution
expenses.
2.6. The Fund makes no representation as to whether any
aspect of its operations (including, but not limited to, fees and expenses
and investment policies) complies with the insurance laws or regulations of
the various states except that the Fund represents that the Fund's investment
policies, fees and expenses are and shall at all times remain in compliance
with the laws of the State of New York and the Fund and the Underwriter
represent that their respective operations are and shall at all times remain
in material compliance with the laws of the State of New York to the extent
required to perform this Agreement.
2.7. 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 Fund shares in accordance with the laws of the State of New York and all
applicable state and federal securities laws, including without limitation
the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.8. The Fund represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of
Massachusetts and that
it does and will comply in all material respects with the 1940 Act.
5
2.9. The Underwriter represents and warrants that the
Adviser is and shall remain duly registered in all material respects under
all applicable federal and state securities laws and that the Adviser shall
perform its obligations for the Fund in compliance in all material respects
with the laws of the State of New York and any applicable state and federal
securities laws.
2.10. The Fund and Underwriter represent and warrant that
all of their directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-(I) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid
Bond shall include coverage for larceny and embezzlement and shall be issued
by a reputable bonding company. The Fund and the Underwriter agree to make
all reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agree to notify the Company immediately
in the event that such coverage no longer applies.
2.11. 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 Fund are
covered by a blanket fidelity bond or similar coverage for the benefit of the
Fund, and that said bond is issued by a reputable bonding company, includes
coverage for larceny and embezzlement, and is in an amount not less than $5
million. The Company agrees to make all reasonable efforts to see that this
bond or another bond containing these provisions is always in effect, and
agrees to notify the Fund and the Underwriter in the event that such coverage
no longer applies.
ARTICLE Ill. PROSPECTUSES AND PROXY STATEMENTS: VOTING
-----------------------------------------
3. 1. The Underwriter shall provide the Company with as many
printed copies of the Fund's current prospectus and Statement of Additional
Information as the Company may reasonably request. If requested by the
Company in lieu thereof, the Fund shall provide camera-ready film containing
the Fund's prospectus and Statement of Additional Information, and such other
assistance as is reasonably necessary in order for the Company once each year
(or more frequently if the prospectus and/or Statement of Additional
information for the Fund is amended during the year) to have the prospectus
for the Contracts and the Fund's prospectus printed together in one document,
and to have the Statement of Additional Information for the Fund and the
Statement of Additional Information for the Contracts printed together in one
document. Alternatively, the Company may print the Fund's prospectus and/or
its Statement of Additional Information in combination with other fund
companies' prospectuses and statements of additional information. Except as
provided in the following three sentences, all expenses of printing and
distributing Fund prospectuses and Statements of Additional Information shall
be the expense of the Company. For prospectuses and Statements of Additional
Information provided by the Company to its existing owners of Contracts in
order to update disclosure as required by the 1933 Act and/or the 1940 Act,
the cost of printing shall be borne by the Fund. If the Company chooses to
receive camera-ready film in lieu of receiving printed copies of the Fund's
prospectus, the Fund
6
will reimburse the Company in an amount equal to the product of A and B where
A is the number of such prospectuses distributed to owners of the Contracts,
and B is the Fund's per unit cost of typesetting and printing the Fund's
prospectus. The same procedures shall be followed with respect to the Fund's
Statement of Additional Information.
The Company agrees to provide the Fund or its designee with
such information as may be reasonably requested by the Fund to assure that
the Fund's expenses do not include the cost of printing any prospectuses or
Statements of Additional Information other than those actually distributed to
existing owners of the Contracts.
3.2. The Fund's prospectus shall state that the Statement of
Additional Information for the Fund is available from the Underwriter or the
Company (or in the Fund's discretion, the Prospectus shall state that such
Statement is available from the Fund).
3.3. The Fund, at its expense, shall provide the Company with
copies of its proxy statements, reports to shareholders, and other
communications (except for prospectuses and Statements of Additional
Information, which are covered in Section 3. 1) to shareholders in such
quantity as the Company shall reasonably require for distributing to Contract
owners.
3.4. If and to the extent required by law the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with instructions
received from Contract owners; and
(iii)vote Fund shares for which no instructions have been
received in a particular separate account in the
same proportion as Fund shares of such portfolio
for which instructions have been received in that
separate account,
so long as and to the extent that the Securities and Exchange Commission
continues to interpret the 1940 Act to require pass-through voting privileges
for variable contract owners. The Company reserves the right to vote Fund
shares held in 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 Fund
calculates voting privileges in a manner consistent with the standards set
forth on Schedule B attached hereto and incorporated herein by this reference,
which standards will also be provided to the other Participating Insurance
Companies.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either
provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, 16(b).
Further, the Fund will act in accordance with the Securities and Exchange
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.
7
ARTICLE IV. SALES MATERIAL AND INFORMATION
------------------------------
4. 1. The Company shall furnish, or shall cause to be
furnished, to the Fund or its designee, each piece of sales literature or
other promotional material in which the Fund or its investment adviser or the
Underwriter is named, at least ten Business Days prior to its use. No such
material shall be used if the Fund or its designee reasonably objects to such
use within ten Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the
Fund, or in sales literature or other promotional material approved by the
Fund or its designee or by the Underwriter, except with the permission of the
Fund or the Underwriter or the designee of either.
4.3. The Fund, Underwriter, or its designee 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 and/or its
separate account(s), is named at least ten Business Days prior to its use. No
such material shall be used if the Company or its designee reasonably objects
to such use within ten Business Days after receipt of such material
4.4. The Fund and the Underwriter shall not give any
information or make any representations on behalf of the Company or
concerning the Company, each 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 Account which are in the public domain or approved by the Company for
distribution to Contract owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission
of the Company.
4.5. The Fund 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 Fund or
its shares, within 30 days of the filing of such document with the Securities
and Exchange Commission or other regulatory authorities.
4.6. The Company will provide to the Fund 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
8
the Contracts or each Account and their investment in the Fund, within 30 days
of the filing of such document with the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales
literature or other promotional material" includes, but is not limited to,
any of the following that refer to the Fund or any affiliate of the Fund:
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,
and registration statements, prospectuses, Statements of Additional
Information, shareholder reports, and proxy materials and any other material
constituting sales literature or advertising under NASD rules, the 1940 Act
or the 1933 Act.
ARTICLE V. FEES AND EXPENSES
-----------------
5.1. The Fund and Underwriter shall pay no fee or other
compensation to the Company under this agreement, except that if the Fund or
any Portfolio adopts and implements a plan pursuant to Rule 12b- 1 to finance
distribution expenses, then 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 and such payments will be made out of existing fees
otherwise payable to the Underwriter, past profits of the Underwriter or
other resources available to the Underwriter. No such payments shall be made
directly by the Fund. Currently, no such payments are contemplated.
5.2. All expenses incident to performance by the Fund under
this Agreement shall be paid by the Fund. The Fund shall see to it that all
its shares are registered and authorized for issuance in accordance with
applicable federal law and, if and to the extent deemed advisable by the
Fund, in accordance with applicable state laws prior to their sale. The Fund
shall bear the expenses for the cost of registration and qualification of the
Fund's shares, preparation and filing of the Fund's prospectus and
registration statement, proxy materials and reports, setting the prospectus
in type, setting in type and printing the proxy materials and reports to
shareholders (including the costs of printing a prospectus that constitutes
an annual report), the preparation of all statements and notices required by
any federal or state law, and all taxes on the issuance or transfer of the
Fund's shares.
5.3. The Company shall bear the expenses of distributing the
Fund's prospectus, proxy materials and reports to owners of Contracts issued
by the Company.
ARTICLE VI. DIVERSIFICATION
---------------
9
6. 1. The Fund will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be treated as
variable contracts under the Code and the regulations issued thereunder.
Without limiting the scope of the foregoing, the Fund will at all times
comply with Section 817(h) of the Code and Treasury Regulation 1.817-5,
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 of a breach of this Article VI by the
Fund, it will take all reasonable steps (a) to notify Company of such breach
and (b) to adequately diversify the Fund so as to achieve compliance within
the grace period afforded by Regulation 1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
-------------------
7. 1. The Board will monitor the Fund for the existence of
any material irreconcilable conflict between the interests of the contract
owners of all separate accounts investing in the Fund. An irreconcilable
material 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 Portfolio
are being managed; (e) a difference in voting instructions given by variable
annuity contract and variable life insurance contract owners; or (f) a
decision by an insurer to disregard the voting instructions of contract
owners. The Board shall promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing
conflicts of which it is aware to the Board. The Company will assist the
Board in carrying out its responsibilities under the Shared Funding Exemptive
Order, by providing the Board with all information reasonably necessary for
the Board to consider any issues raised. This includes, but is not limited
to, an obligation by the Company to inform the Board whenever contract owner
voting instructions are disregarded.
7.3. If it is determined by a majority of the Board, or a
majority of its disinterested trustees, that a material irreconcilable
conflict exists, the Company and other Participating Insurance Companies
shall, at their 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 irreconcilable material conflict, up
to and including: (1), withdrawing the assets allocable to some or all of the
separate accounts from the Fund or any Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such segregation
should be implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
contract owners, life insurance contract owners, or variable contract owners
of one or more Participating Insurance Companies) that votes in favor of such
10
segregation, or offering to the affected contract owners the option of making
such a change; and (2), establishing a new registered management investment
company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and
that decision represents a minority position or would preclude a majority vote,
the Company may be required, at the Fund's election, to withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account; provided, however that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
Any such withdrawal and termination must take place within six (6) months after
the Fund gives written notice that this provision is being implemented, and
until the end of that six month period the Underwriter and Fund shall continue
to accept and implement orders by the Company for the purchase (and redemption)
of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the affected Account's investment in the Fund and terminate this
Agreement with respect to such Account within six months after the Board
informs the Company in writing that it has determined that such decision has
created an irreconcilable material conflict; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six month
period, the Underwriter and Fund shall continue to accept and implement orders
by the Company for the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this
Agreement, a majority of the disinterested members of the Board shall
determine whether any proposed action adequately remedies any it-reconcilable
material conflict, but in no event will the Fund be required to establish a
new funding medium for the Contracts. The Company shall not be required by
Section 7.3 to establish a new funding medium for the Contracts if an offer
to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Board determines that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw
the Account's investment in the Fund and terminate this Agreement within six
(6) months after the Board informs the Company in writing of the foregoing
determination, provided, however, that such withdrawal and termination shall
be limited to the extent required by any such material irreconcilable
conflict as determined by a majority of the disinterested members of the
Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the Act or the rules promulgated thereunder with respect to mixed
or shared funding (as defined in the Shared Funding Exemptive Order) on terms
and conditions materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1,
11
7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect only to the
extent that terms and conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
---------------
8.1. INDEMNIFICATION BY THE COMPANY
------------------------------
8. 1 (a). The Company agrees to indemnify and hold harmless
the Fund and each trustee of the Board and officers and each person, if any,
who controls the Fund within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, 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 Fund'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 Statement or prospectus for the Contracts
or contained in the Contracts or sales literature 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, 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
Fund for use in the Registration Statement or prospectus 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 Fund shares; or
(ii) arise out of or as a result of any untrue statements
or representations (other than statements or representations
contained in the Registration Statement, prospectus or sales
literature of the Fund not supplied by the Company, or persons
under its control) or willful misfeasance, bad faith, or gross
negligence of the Company or persons under its control, with
respect to the sale or distribution of the Contracts or Fund
Shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration
Statement, prospectus, or sales literature of the Fund 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 if such a statement or omission was
12
made in reliance upon information furnished to the Fund by
or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to
provide the services and furnish the materials under the terms
of this Agreement; or
(v) arise out of or result from 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 of this Agreement by the Company, as limited by and in
accordance with the provisions of Sections 8. 1 (b) and 8. 1
(c) hereof.
8. 1 (b). The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations or duties
under this Agreement or to the Fund, whichever is applicable.
8. 1 (c). The Company shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Company in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but failure to
notify the Company of any such claim shall not relieve the Company from any
liability which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the Company
shall be entitled to participate, at its own expense, in the defense of such
action. The Company also shall be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action. After notice from
the Company to such party of the Company's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Company will not be liable to such
party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
8. 1 (d). 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 Fund Shares or the Contracts or
the operation of the Fund.
8.2. INDEMNIFICATION BY THE UNDERWRITER
----------------------------------
13
8.2(a). The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any 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, 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 Fund'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 or prospectus or sales literature of
the Fund (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, 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 Fund by or on behalf of the Company for use
in the Registration Statement or prospectus for the Fund or in
sales literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or Fund
shares; or
(ii) arise out of or as a result of any untrue statements or
representations (other than statements or representations
contained in the Registration Statement, prospectus or sales
literature for the Contracts not supplied by the Underwriter or
persons under its control) or willful misfeasance, bad faith, or
gross negligence of the Fund, Adviser or Underwriter or persons
under their control, with respect to the sale or distribution of
the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a Registration Statement,
prospectus, or sales literature 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, if such statement or omission was made in
reliance upon information furnished to the Company by or on
behalf of the Fund; or
(iv) arise as a result of any failure by the Fund 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 specified in Article VI of this Agreement); or
14
(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; as limited by and
in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason
of such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to each Company or the Account, whichever is
applicable.
8.2(c). The Underwriter shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Underwriter in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall have
been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but
failure to notify the Underwriter of any such claim shall not relieve the
Underwriter from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Underwriter will be entitled to participate, at its
own expense, in the defense thereof. The Underwriter also shall be entitled
to assume the defense thereof, with counsel satisfactory to the party named
in the action. After notice from the Underwriter to such party of the
Underwriter'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 Underwriter 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.
8.2(d). The Company agrees promptly to notify the Underwriter of the
commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the
Contracts or the operation of each Account.
8.3. INDEMNIFICATION BY THE FUN
8.3(a). The Fund agrees to indemnify and hold harmless the Company,
and each of its directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act (collectively,
the "Indemnified Parties" for purposes of this Section 8.3) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Fund) or litigation (including
reasonable legal and other expenses) to which the Indemnified Parties may
become subject under any statute, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements result from the gross negligence, bad faith or
willful misconduct of the Board or any member thereof, are related to the
operations of the Fund and:
15
(i) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement (including a failure to comply with the diversification
requirements 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 Fund in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c)hereof.
8.3(b). The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company, the Fund, the Underwriter or each
Account, whichever is applicable.
8.3(c). The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Fund of
any such claim shall not relieve the Fund from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Fund will be entitled to
participate, at its own expense, in the defense thereof. The Fund also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Fund to such party of the
Fund's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Fund will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
8.3(d). The Company and the Underwriter agree promptly to notify the
Fund of the commencement of any litigation or proceedings against it or any
of its respective officers or directors in connection with this Agreement,
the issuance or sale of the Contracts, with respect to the operation of
either Account, or the sale or acquisition of shares of the Fund.
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 Commonwealth of
Massachusetts.
16
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as
the Securities and Exchange Commission may grant (including, but not limited
to, the Shared Funding Exemptive Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by six months advance
written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio based upon the
Company's determination that shares of such Portfolio are not
reasonably available to meet the requirements of the Contracts;
or
(c) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio in the event any of the
Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment
media of the Contracts issued or to be issued by the Company; or
(d) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio in the event that such
Portfolio ceases to qualify as a Regulated Investment Company under
Subchapter M of the Code or under any successor or similar
provision, or if the Company reasonably believes that the Fund may
fail to so qualify; or
(e) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Portfolio in the event that such
Portfolio fails to meet the diversification requirements specified
in Article VI hereof; or
(f) termination by either the Fund or the Underwriter by written notice
to the Company, if either one or both of the Fund or the
Underwriter respectively, shall determine, in their sole judgment
exercised in good faith, that the Company and/or its affiliated
companies has suffered a material adverse change in its business,
operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity; or
17
(g) termination by the Company by written notice to the Fund and the
Underwriter, if the Company shall determine, in its sole judgment
exercised in good faith, that either the Fund or the Underwriter
has suffered a material adverse change in its business,
operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity;
or
(h) the requisite vote of the Contract owners having an interest in
a Portfolio (unless otherwise required by applicable law) and
written approval of the Company, to substitute the shares of
another investment company for the corresponding shares of a
Portfolio in accordance with the terms of the Contracts; or
(i) at the option of the Fund, upon institution of formal proceedings
against the Company by the NASD, the SEC, the insurance
commission of any state or any other regulatory body regarding
the Company's duties under this Agreement or related to the sale
of the Contracts, the operation of the Account, the
administration of the Contracts or the purchase of Fund shares,
or an expected or anticipated ruling, judgment or outcome which
would, in the Fund's reasonable judgment, materially impair the
Company's ability to perform the Company's obligations and
duties hereunder; or at the option of the Company, upon
institution of formal proceedings against the Fund, the
Underwriter, the Fund's investment adviser or any sub-adviser,
by the NASD, the SEC, or any state securities or insurance
commission or any other regulatory body regarding the duties of
the Fund or the Underwriter under this Agreement, or an expected
or anticipated ruling, judgment or outcome which would, in the
Company's reasonable judgment, materially impair the Fund's or
the Underwriter's ability to perform the Fund's or the
Underwriter's obligations and duties hereunder; or
(k) at the option of the Company, upon institution of formal
proceedings against the Fund's investment adviser of any
sub-adviser by the NASD, the SEC, or any state securities or
insurance commission or any other regulatory body which would,
in the good faith opinion of the Company, result in material
harm to the Accounts, the Company or Contract owners.
10.2. Effect of Termination. Notwithstanding any termination of this
Agreement, the Fund and the Underwriter shall at the option of the Company,
continue to make available additional shares of the Fund pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate investments in the Fund,
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 10.2 shall
18
not apply to any terminations under Article VII and the effect of such
Article VII terminations shall be governed by Article VII of this
Agreement.
10.3 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") or
(iii) as permitted by an order of the SEC pursuant to Section 26(b) of
the 1940 Act. Upon request, the Company will promptly furnish to the Fund and
the Underwriter the opinion of counsel for the Company (which counsel shall
be reasonably satisfactory to the Fund and the Underwriter) 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 Portfolio that was otherwise available under the Contracts
without first giving the Fund or the Underwriter 90 days notice of its
intention to- do so.
10.4 Notwithstanding any other provision of this Agreement, each
party's obligation under Article VII to indemnify the other parties shall
survive termination of this Agreement, to the extent that the events giving
rise to the obligation to indemnify the other party occurred prior to the
date of termination.
ARTICLE XI. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail 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.
If to the Fund:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
If to the Company:
Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
If to the Underwriter:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
19
ARTICLE XII. MISCELLANEOUS
12.1 All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
12.2 Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate or utilize
such names and addresses and other confidential information until such time
as it may come into the public domain without the express 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 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 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. Notwithstanding the generality of the foregoing, each
party hereto further agrees to furnish the New York Insurance Commissioner
with any non-privileged information or reports in connection with services
provided under this Agreement which such Commissioner may request in order to
ascertain whether the insurance operations of the Company are being conducted
in a manner consistent with the New York Insurance Regulations and any other
applicable law or regulations.
12.7 The fights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
12-8. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Underwriter may assign this
Agreement or any rights or obligations hereunder to any affiliate of or
company under common control with the Underwriter, if such assignee is duly
licensed and registered to perform the obligations of the Underwriter under
this Agreement.
20
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President
VARIABLE INSURANCE PRODUCTS FUND II
By: /s/ J. Xxxx Xxxxxxxx
J. Xxxx Xxxxxxxx
Senior Vice President
FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
President
21
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Name of Separate Account and Policy Form Numbers of Contracts Funded
Date Established by Board of Directors By Separate Account
Lincoln Life & Annuity Variable GAC96-111
Annuity Account L GAC91-101
22
SCHEDULE B
PROXY VOTING PROCEDURE
The following is a list of procedures and corresponding responsibilities for
the handling of proxies relating to the Fund by the Underwriter, the Fund and
the Company. The defined terms herein shall have the meanings assigned in the
Participation Agreement except that the term "Company" shall also include
the department or third party assigned by the Insurance Company to perform
the steps delineated below.
1. The number of proxy proposals is given to the Company by the Underwriter
as early as possible before the date set by the Fund for the shareholder
meeting to facilitate the establishment of tabulation procedures. At this
time the Underwriter will inform the Company of the Record, Mailing and
Meeting dates. This will be done in writing approximately two months before
meeting.
2. Promptly after the Record Date, the Company will perform a "tape run",
or other activity, which will generate the names, addresses and number of
units which are attributed to each contractowner/policyholder (the
"Customer") as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of the
Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in Step #2, The Company will use its best efforts to call in the
number of Customers to Fidelity, as soon as possible, but no later than two
weeks after the Record Date.
3. The Fund's Annual. Report no longer needs to be sent to each Customer by
the Company either before or together with the Customers' receipt of a proxy
statement. Underwriter will provide the last Annual Report to the Company
pursuant to the terms of Section 3.3 of the Agreement to which this Schedule
relates.
4. The text and format for the Voting Instruction Cards ("Cards" or
"Card") is provided to the Company by the Fund. The Company, at its
expense, shall produce and personalize the Voting Instruction Cards. The
Legal Department of the Underwriter or its affiliate ("Fidelity Legal")
must approve the Card before it is printed. Allow approximately 2-4 business
days for printing information on the Cards. Information commonly found on the
Cards includes:
a. name (legal name as found on account registration)
b. address
c. Fund or account number
d. coding to state number of units
e. individual Card number for use in tracking and verification of votes
(already on Cards as printed by the Fund)
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
23
5. During this time, Fidelity Legal will develop, produce, and the Fund will
pay for the Notice of Proxy and the Proxy Statement (one document). Printed
and folded notices and statements will be sent to Company for insertion into
envelopes (envelopes and return envelopes are provided and paid for by the
Insurance Company). Contents of envelope sent to Customers by Company will
include:
a. Voting Instruction Card(s)
b. One proxy notice and statement (one document)
c. return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
d. "urge buckslip" - optional, but recommended. (This is a small,
single sheet of paper that requests Customers to vote as
quickly as possible and that their vote is important. One copy
will be supplied by the Fund.)
e. cover letter - optional, supplied by Company and reviewed and
approved in advance by Fidelity Legal.
6. The above contents should be received by the Company approximately 3-5
business days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to Fidelity Legal.
7. Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the Company
as the shareowner. (A 5-week period is recommended.) Solicitation time
is calculated as calendar days from (but NOT including) the meeting,
counting backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry.
Note: Postmarks are not generally needed. A need for postmark information
would be due to an insurance company's internal procedure and has not been
required by Fidelity in the past.
9. Signatures on Card checked against legal name on account registration
which was printed on the Card.
Note: For Example, If the account registration is under "Xxxxxxx X. Xxxxx,
Trustee," then that is the exact legal name to be printed on the Card and is
the signature needed on the Card.
24
10. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are considered to be not received for purposes of vote
tabulation. Any Cards that have "kicked out" (e.g. mutilated, illegible)
of the procedure are "hand verified," i.e., examined as to why they did
not complete the system. Any questions on those Cards are usually remedied
individually.
11. There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
12. The actual tabulation of votes is done in units which is then converted
to shares. (It is very important that the Fund receives the tabulations
stated in terms of a percentage and the number of shares.) Fidelity Legal
must review and approve tabulation format.
13. Final tabulation in shares is verbally given by the Company to Fidelity
Legal on the morning of the meeting not later than 10:00 a.m. Boston
time. Fidelity Legal may reasonably request an earlier deadline if required
to calculate the vote in time for the meeting.
14. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
Fidelity Legal will provide a standard form for each Certification.
15. The Company will be required to box and archive the Cards received from
the Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, Fidelity Legal
will be permitted reasonable access to such Cards.
16. All arrangements, approvals and "signing-off" may be done orally, but
must always be followed up in writing.
25
SCHEDULE C
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
Dreyfus Stock Index Fund
Dreyfus Variable Investment Fund: Small Cap Portfolio
Twentieth Century's TCI Portfolios, Inc.
TCI Growth
TCI Balanced
X. Xxxx Price International Series, Inc.
Xxxxxxx Responsibly Invested Balanced Portfolio
26
SCHEDULE A
AMENDED AS OF FEBRUARY 15, 2000
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Form Numbers of Contracts
Name of Separate Account Funded by Separate Account Fidelity Fund (Class)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Variable GAC96-111 Asset Manager - Initial
Annuity Account L GAC91-101
Lincoln Life & Annuity Flexible LN650NY Contrafund - Service
Premium Variable Account R
Lincoln Life & Annuity Flexible LN615NY - LNY Asset Manager - Initial
Premium Variable Life Account M Investment Grade Bond -
Initial
Contrafund - Service
SCHEDULE C
AMENDED AS OF FEBRUARY 15, 2000
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Baron Capital Funds Trust
BT Insurance Funds Trust
Xxxxxxx Responsibiltiy Invested Balanced Portfolio
Delaware Group Premium Fund, Inc.
Dreyfus Stock Index Fund
Dreyfus Variable Investment Fund: Small Cap Portfolio
Janus Aspen Series
Lincoln National (LN)
MFS-Registered Trademark- Variable Insurance Trust
Xxxxxxxxx Xxxxxx Advisers Management Trust
Xxxxxxxxx Variable Products Series Fund
Twentieth Century's TCI Portfolios, Inc.
X. Xxxx Price International Series, Inc.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to Schedules A and C to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of
the date specified below.
Date LINCOLN LIFE & ANNUITY COMPANY
------------------------- OF NEW YORK
By:
----------------------------
Name: Xxxx X. Xxxxxxx
Title: CFO/2nd Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS III
-------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
Date FIDELITY DISTRIBUTORS CORPORATION
-------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
SCHEDULE A
AMENDED AS OF MAY 1, 2000
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Form Numbers of Contracts
Name of Separate Account Funded By Separate Account Fidelity Fund (Class)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Variable GAC96-111; GAC91-101 Asset Manager - Initial
Annuity Separate Account L (GVA I, II, III) Contrafund - Initial
Lincoln Life & Annuity Flexible LN615NY Asset Manager - Initial
Premium Variable Life Account M (VUL I) Investment Grade Bond -
Initial
LN660NY Contrafund - Service
(VUL)
LLANY Separate Account R LN650NY Contrafund - Service
for Flexible Premium Variable (SVUL)
Life Insurance
LN655 Contrafund - Service
(SVUL II)
LLANY Separate Account S LN920NY Asset Manager - Service
for Flexible Premium Variable (CVUL) Contrafund - Service
Life Insurance
LN925 Asset Manager - Service
(CVUL Series III) Contrafund - Service
SCHEDULE C
AMENDED AS OF MAY 1, 2000
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
American Century Variable Products Group, Inc.
American Variable Insurance Series (AVIS)
Baron Capital Funds Trust
BT Insurance Funds Trust
Xxxxxxx Responsibiltiy Invested Balanced Portfolio
Delaware Group Premium Fund
Dreyfus Stock Index Fund
Dreyfus Variable Investment Fund: Small Cap Portfolio
Janus Aspen Series
Lincoln National Funds
MFS-Registered Trademark- Variable Insurance Trust
OCC Accumulation Trust
Xxxxxxxxxxx Funds
Xxxxxxxxx Xxxxxx Advisers Management Trust
Xxxxxxxxx Variable Products Series Fund
X. Xxxx Price International Series, Inc.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to Schedules A and C to be executed in its name and on its behalf by
its duly authorized representative and its seal to be hereunder affixed hereto
as of the date specified below.
Date LINCOLN LIFE & ANNUITY COMPANY
------------------------- OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: CFO/2nd Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS III
-------------------------
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Title: Senior Vice President
----------------------------
Date FIDELITY DISTRIBUTORS CORPORATION
-------------------------
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
----------------------------
Title: Vice President
----------------------------
FIDELITY FUND
PARTICIPATION AGREEMENT
VIP III COMPLETE AGREEMENT
PARTICIPATION AGREEMENT
Among
VARIABLE INSURANCE PRODUCTS FUND III, FIDELITY DISTRIBUTORS CORPORATION
and
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
THIS AGREEMENT, made and entered into as of the 15th day of
October,1999 by and among LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK,
(hereinafter the "Company"), a New York corporation, on its own behalf and on
behalf of each segregated asset account of the Company set forth on Schedule A
hereto as may be amended from time to time (each such account hereinafter
referred to as the "Account"), and the VARIABLE INSURANCE PRODUCTS FUND III, an
unincorporated business trust organized under the laws of the Commonwealth of
Massachusetts (hereinafter the "Fund") and FIDELITY DISTRIBUTORS CORPORATION
(hereinafter the "Underwriter"), a
Massachusetts corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and variable
annuity contracts (collectively, the "Variable Insurance Products") to be
offered by insurance companies which have entered into
participation agreements
with the Fund and the Underwriter (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets, any one or more of which may be made
available under this Agreement, as may be amended from time to time by mutual
agreement of the parties hereto (each such series hereinafter referred to as a
"Portfolio"); and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission, dated September 17, 1986 (File No. 812-6422), granting
Participating Insurance Companies and variable annuity and variable life
insurance separate accounts exemptions from the provisions of sections 9(a),
13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended,
(hereinafter 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 Fund to be sold to and held by variable annuity and variable life
insurance separate accounts of both affiliated and unaffiliated life
insurance companies hereinafter the "Shared Funding Exemptive Order"); and
WHEREAS, the Fund 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 (hereinafter the "1933 Act"); and
WHEREAS, Fidelity Management & Research Company (the "Adviser") is duly
registered as an investment adviser under the federal Investment Advisers Act of
1940; and
WHEREAS, the Company has registered or will register certain variable
life insurance and variable annuity contracts under the 1933 Act, unless exempt;
and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to the aforesaid variable annuity and variable
life contracts; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act, unless exempt; and
WHEREAS, the Underwriter is registered as a broker dealer with the
Securities and Exchange Commission ("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");
and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on behalf
of each Account to fund certain of the aforesaid variable life insurance and
variable annuity contracts and the Underwriter is authorized to sell such shares
to unit investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund and the Underwriter agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Underwriter agrees to sell to the Company those shares of the
Fund which each Account orders, executing such orders on a daily basis at the
net asset value next computed after receipt by the Fund or its designee of the
order for the shares of the Fund. For purposes of this Section 1.1, the Company
shall be the designee of the Fund for receipt of such orders from each Account
and receipt by such designee shall constitute
1
receipt by the Fund; provided that the Fund receives notice of such order by
9:00 a.m. Boston time on the next following Business Day. "Business Day"
shall mean any day on which the New York Stock Exchange is open for trading
and on which the Fund calculates its net asset value pursuant to the rules of
the Securities and Exchange Commission.
1.2. The Fund agrees to make its shares available indefinitely for
purchase at the applicable net asset value per share by the Company and its
Accounts on those days on which the Fund calculates its net asset value pursuant
to rules of the Securities and Exchange Commission and the Fund shall use
reasonable efforts to calculate such net asset value on each day which the New
York Stock Exchange is open for trading. Notwithstanding the foregoing, the
Board of Trustees of the Fund (hereinafter the "Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund will be
sold only to Participating Insurance Companies and their separate accounts. No
shares of any Portfolio will be sold to the general public.
1.4. The Fund and the Underwriter will not sell Fund shares to any
insurance company or separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, VII and Section 2.5 of Article II
of this Agreement is in effect to govern such sales.
1.5. The Fund agrees to redeem for cash, on the Company's request, any
full or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after receipt by
the Fund or its designee of the request for redemption. For purposes of this
Section 1.5, the Company shall be the designee of the Fund for receipt of
requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that the Fund receives notice of such
request for redemption on the next following Business Day.
1.6. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Fund shall be made in
accordance with the provisions of such prospectus. The Company agrees that all
net amounts available under the variable life insurance or variable annuity
contracts with the form number(s) which are listed on Schedule A attached hereto
and incorporated herein by this reference, as such Schedule A may be amended
from time to time hereafter by mutual written agreement of all the parties
hereto, (the "Contracts") shall be invested in the Fund, in such other Funds
advised by the Adviser as may be mutually agreed to in writing by the parties
hereto, or in the Company's general account, provided that such amounts may also
be invested in one or more investment companies other than the Fund.
2
1.7. The Company shall pay for Fund shares on the next Business Day
after an order to purchase Fund shares is made in accordance with the provisions
of Section 1.1 hereof. Payment shall be in federal funds transmitted by wire.
For purpose of Section 2.10 and 2.11, upon receipt by the Fund of the federal
funds so wired, such funds shall cease to be the responsibility of the Company
and shall become the responsibility of the Fund.
1.8. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
1.9. The Fund shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income, dividends or
capital gain distributions payable on the Fund's shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on the Portfolio shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Fund shall notify
the Company of the number of shares so issued as payment of such dividends and
distributions.
1.10. The Fund shall make the net asset value per share for each
Portfolio available to the Company or its designee on a daily basis as soon as
reasonably practical after the net asset value per share is calculated (normally
by 6:30 p.m. Boston time) and shall use its best efforts to make such net asset
value per share available by 7 p.m. Boston time.
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 an exemption from registration is
available and an opinion of counsel to that effect shall have been furnished to
the Fund; that the Contracts will be issued and sold in compliance in all
material respects with all applicable Federal and State laws. The Company
further represents and warrants that it is an insurance company duly organized
and validly existing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a segregated
asset account under Section 4240 of the New York Insurance Code and has
registered or, prior to any issuance or sale of the Contracts, will register
each Account as a unit investment trust in accordance with the provisions of the
1940 Act, unless exempt, to serve as a segregated investment account for the
Contracts.
2.2. The Fund represents and warrants that Fund shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the State of New York and all
applicable federal and state securities laws and that the Fund is and shall
remain registered under the 0000 Xxx. The Fund shall amend the Registration
Statement for its shares under the 1933 Act and the
3
1940 Act from time to timeas required in order to effect the continuous
offering of its shares. The Fund shall register and qualify the shares for
sale in accordance with the laws of the various states only if and to the
extent deemed advisable by the Fund or the Underwriter.
2.3. The Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as
amended, (the "Code") and that it will make every effort to maintain such
qualification (under Subchapter M or any successor or similar provision) and
that it will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify in
the future.
2.4. The Company represents that the Contracts are currently treated as
life insurance policies or annuity insurance contracts under applicable
provisions of the Code; that it will make every effort to maintain such
treatment; and that it will notify the Fund 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.
2.5. (a) With respect to Initial Class shares, the Fund currently does
not intend to make any payments to finance distribution expenses pursuant to
Rule 12b-1 under the 1940 Act or otherwise, although it may make such payments
in the future. The Fund has adopted a "no fee" or "defensive" Rule 12b-1 Plan
under which it makes no payments for distribution expenses. To the extent that
it decides to finance distribution expenses pursuant to Rule 12b- 1, the Fund
undertakes to have a board of trustees, a majority of whom are not interested
persons of the Fund, formulate and approve any plan under Rule 12b-1 to finance
distribution expenses.
(b) With respect to Service Class shares, the Fund has adopted a Rule
12b-1 Plan under which it makes payments to finance distribution expenses. The
Fund represents and warrants that it has a board of trustees, a majority of whom
are not interested persons of the Fund, which has formulated and approved the
Fund's Rule 12b-1 Plan to finance distribution expenses of the Fund and that any
changes to the Fund's Rule 12b-1 Plan will be approved by a similarly
constituted board of trustees.
2.6. The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that the Fund's investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of the
State of New York and the Fund and the Underwriter represent that their
respective operations are and shall at all times remain in material compliance
with the laws of the State of New York to the extent required to perform this
Agreement.
2.7. 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
4
represents that it will sell and distribute the Fund shares
in accordance with the laws of the State of New York and all applicable state
and federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 1940 Act.
5
2.8. The Fund represents that it is lawfully organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it does
and will comply in all material respects with the 1940 Act.
2.9. The Underwriter represents and warrants that the Adviser is and
shall remain duly registered in all material respects under the Investment
Advisers Act of 1940 and that the Adviser shall perform its obligations for the
Fund in compliance in all material respects with the laws of the State of New
York and any applicable state and federal securities laws.
2.10. The Fund and Underwriter represent and warrant that all of their
directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-(l) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid Bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. The Fund and the Underwriter agree to make all
reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agree to notify the Company immediately in
the event that such coverage no longer applies.
2.11. 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 Fund are covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund, and that said bond is
issued by a reputable bonding company, includes coverage for larceny and
embezzlement, and is in an amount not less than $5 million. The Company agrees
to make all reasonable efforts to see that this bond or another bond containing
these provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Underwriter shall provide the Company with as many printed
copies of the Fund's current prospectus and Statement of Additional Information
as the Company may reasonably request. If requested by the Company in lieu
thereof, the Fund shall provide camera-ready film containing the Fund's
prospectus (which shall mean, for purposes of this Article III if the Company so
requests, a separate prospectus for each Fund portfolio used in a particular
Account), and Statement of Additional Information, and such other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus and/or Statement of Additional Information for the
Fund is amended during the year) to have the prospectus for the Contracts and
the Fund's prospectus printed together in one document, and to have the
Statement of Additional Information for the Fund and the Statement of Additional
Information for the Contracts printed together in one document. Alternatively,
the Company may print the Fund's prospectus and/or its Statement of Additional
Information in combination with
6
other fund companies' prospectuses and statements of additional information.
Except as provided in the following three sentences, all expenses of printing
and distributing Fund prospectuses and Statements of Additional Information
shall be the expense of the Company. For prospectuses and Statements of
Additional Information provided by the Company to its existing owners of
Contracts in order to update disclosure annually as required by the 1933 Act
and/or the 1940 Act, the cost of printing shall be borne by the Fund. If the
Company chooses to receive camera-ready film in lieu of receiving printed
copies of the Fund's prospectus, the Fund will reimburse the Company in an
amount equal to the product of A and B where A is the number of such
prospectuses distributed to owners of the Contracts, and B is the Fund's per
unit cost of typesetting and printing the Fund's prospectus. The same
procedures shall be followed with respect to the Fund's Statement of
Additional Information.
The Company agrees to provide the Fund or its designee with such
information as may be reasonably requested by the Fund to assure that the Fund's
expenses do not include the cost of printing any prospectuses or Statements of
Additional Information other than those actually distributed to existing owners
of the Contracts.
3.2. The Fund's prospectus shall state that the Statement of Additional
Information for the Fund is available from the Underwriter or the Company (or in
the Fund's discretion, the Prospectus shall state that such Statement is
available from the Fund).
3.3. The Fund, at its expense, shall provide the Company with copies of
its proxy statements, reports to shareholders, and other communications (except
for prospectuses and Statements of Additional Information, which are covered in
Section 3.1) to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
3.4. If and to the extent required by law the Company shall
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with
instructions received from Contract owners; and
(iii) vote Fund shares for which no instructions have been
received in a particular separate account in the same
proportion as Fund shares of such portfolio for which
instructions have been received in that separate
account, so long as and to the extent that the
Securities and Exchange Commission continues to
interpret the 1940 Act to require pass-through voting
privileges for variable contract owners. The Company
reserves the right to vote Fund shares held in 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 Fund
calculates voting privileges in a manner consistent
with the
7
standards set forth on Schedule B attached
hereto and incorporated herein by this reference,
which standards will also be provided to the other
Participating Insurance Companies.
3.5. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Fund
is not one of the trusts described in Section 16(c) of that Act) as well as with
Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will act in
accordance with the Securities and Exchange 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.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, each piece of sales literature or other promotional
material in which the Fund or its investment adviser or the Underwriter is
named, at least ten Business Days prior to its use. No such material shall be
used if the Fund or its designee reasonably objects to such use within ten
Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee or by the Underwriter, except with the permission of the Fund or the
Underwriter or the designee of either.
4.3. The Fund, Underwriter, or its designee 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 and/or its
separate account(s), is named at least ten Business Days prior to its use. No
such material shall be used if the Company or its designee reasonably objects to
such use within ten Business Days after receipt of such material.
4.4. The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company,
each 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 an offering statement for unregistered contracts, or in published
reports for each Account which are in the public domain or approved by the
Company for distribution to Contract owners, or in sales literature or other
promotional material approved by the Company or its designee, except
8
with the permission of the Company.
4.5. The Fund 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 Fund or its shares, within 30 days of
the filing of such document with the Securities and Exchange Commission or other
regulator5, authorities.
4.6. The Company will provide to the Fund 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 Contracts or
each Account, and to their investments in the Fund within 30 days of the filing
of such document with the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: 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, and registration statements,
prospectuses, Statements of Additional Information, shareholder reports, and
proxy materials, and any other material constituting sales literature or
advertising under NASD rules, the 1940 Act or the 1933 Act.
ARTICLE V. FEES AND EXPENSES
5.1. The Fund and Underwriter shall pay no fee or other compensation to
the Company under this agreement, except that if the Fund or any Portfolio
adopts and implements a plan pursuant to Rule 12b-1 to finance distribution
expenses, then 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 and such payments will be made out of existing fees otherwise payable to
the Underwriter, past profits of the Underwriter or other resources available to
the Underwriter. No such payments shall be made directly by the Fund.
5.2. All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent
9
deemed advisable by the Fund, in accordance with applicable state laws prior
to their sale. The Fund shall bear the expenses for the cost of registration
and qualification of the Fund's shares, preparation and filing of the Fund's
prospectus and registration statement, proxy materials and reports, setting
the prospectus in type, setting in type and printing the proxy materials and
reports to shareholders (including the costs of printing a prospectus that
constitutes an annual report), the preparation of all statements and notices
required by any federal or state law, and all taxes on the issuance or
transfer of the Fund's shares.
5.3. The Company shall bear the expenses of distributing the Fund's
prospectus, proxy materials and reports to owners of Contracts issued by the
Company.
ARTICLE VI. DIVERSIFICATION
6.1. The Fund will at all times invest money from the Contracts in such
a manner as to ensure that the Contracts will be treated as variable contracts
under the Code and the regulations issued thereunder. Without limiting the scope
of the foregoing, the Fund will at all times comply with Section 817(h) of the
Code and Treasury Regulation 1.817-5, 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 of a breach of this Article VI by the Fund, it will take all reasonable
steps (a) to notify Company of such breach and (b) to adequately diversify the
Fund so as to achieve compliance within the grace period afforded by Regulation
1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
7.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Fund. An irreconcilable material 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 Portfolio are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable life insurance contract owners; or (f)
a decision by an insurer to disregard the voting instructions of contract
owners. The Board shall promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order, by providing
the Board with all information reasonably necessary for the Board to consider
any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever contract owner voting instructions are
disregarded.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested
10
trustees, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their 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 irreconcilable material conflict, up to and including: (1),
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Fund, or
submitting the question whether such segregation should be implemented to a vote
of all affected Contract owners and, as appropriate, segregating the assets of
any appropriate group (I.E., variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected contract owners the option of making such a change; and
(2), establishing a new registered management investment company or managed
separate account.
7.4. If a material irreconcilable conflict arises because of a decision
by the Company to disregard contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited
to the extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested members of the Board. Any such
withdrawal and termination must take place within six (6) months after the Fund
gives written notice that this provision is being implemented, and until the end
of that six month period the Underwriter and Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Fund.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the Fund and terminate this Agreement with
respect to such Account within six months after the Board informs the Company in
writing that it has determined that such decision has created an irreconcilable
material conflict: provided, however, that such withdrawal and termination shall
be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
Until the end of the foregoing six month period, the Underwriter and Fund shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict, but in
no event will the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Board determines that
11
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination, provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
Act or the rules promulgated thereunder with respect to mixed or shared funding
(as defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Fund and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable;
and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
8. l.(a) The Company agrees to indemnify and hold harmless tile Fund
and each trustee of the Board and officers and each person, if any, who controls
the Fund within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, 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 Fund'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
Statement or prospectus for the Contracts or
contained in the Contracts or sales literature 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, 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 Fund for use in the
12
Registration Statement or prospectus for the
Contracts or in the Contracts or sales literature (or
any amendment or supplement to any of the foregoing)
or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
(ii) arise out of or as a result of untrue statements or
representations (other than statements or
representations contained in the Registration
Statement, prospectus or sales literature of the Fund
not supplied by the Company, or persons under its
control) or willful misfeasance, bad faith or gross
negligence of the Company or persons under its
control, with respect to the sale or distribution of
the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
Registration Statement, prospectus, or sales
literature of the Fund 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 if such a statement or
omission was made in reliance upon information
furnished to the Fund by or on behalf of the Company;
or
(iv) arise as a result of any failure by the Company to
provide the services and furnish the materials
under the terms of this Agreement; or
(v) arise out of or result from 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 of this Agreement by
the Company, as limited by and in accordance with the
provisions of Sections 8.1 (b) and 8.1 (c) hereof.
8.1.(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations or duties under
this Agreement or to the Fund, whichever is applicable.
8.1.(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Company
of any such claim
13
shall not relieve the Company from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Company shall be entitled to
participate, at its own expense, in the defense of such action. The Company
also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Company
to such party of the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs of investigation.
8. l.(d) 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 Fund Shares or the Contracts or the
operation of the Fund.
8.2. INDEMNIFICATION BY THE UNDERWRITER
8.2.(a) The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Underwriter) or litigation
(including legal and other expenses) to which the Indemnified Parties may
become subject under any statute, 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 Fund'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 or prospectus
or sales literature of the Fund (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, 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 Fund by or on behalf
of the Company for use in the Registration Statement
or prospectus for the Fund or in sales literature (or
any amendment or supplement to any of the foregoing)
or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
(ii) arise out of or as a result of untrue statements or
representations
14
(other than statements or representations contained
in the Registration Statement, prospectus or sales
literature for the Contracts not supplied by the
Underwriter or persons under its control) or willful
misfeasance, bad faith, or gross negligence of the
Fund, Adviser or Underwriter or persons under their
control, with respect to the sale or distribution of
the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
Registration Statement, prospectus, or sales
literature 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,
if such statement or omission was made in reliance
upon information furnished to the Company by or on
behalf of the Fund; or
(iv) arise as a result of any failure by the Fund 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
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; as limited by and in
accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2.(b) The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
each Company or the Account, whichever is applicable.
8.2.(c) The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriter of
any such claim shall not relieve the Underwriter from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified
15
Parties, the Underwriter will be entitled to participate, at its own expense,
in the defense thereof. The Underwriter also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Underwriter to such party of the Underwriter'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 Underwriter 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.
8.2.(d) The Company agrees promptly to notify the Underwriter of tile
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of each Account.
8.3. INDEMNIFICATION BY THE FUND
8.3.(a) The Fund agrees to indemnify and hold harmless the Company, and
each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Fund) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements result from the gross
negligence, bad faith or willful misconduct of the Board or any member thereof,
are related to the operations of the Fund and:
(i) arise as a result of any failure by the Fund to
provide the services and furnish the materials under
the terms of this Agreement (including a failure to
comply with the diversification requirements
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 Fund
in this Agreement or arise out of or result from any
other material breach of this Agreement by the Fund;
as limited by and in accordance with the provisions
of Sections 8.3(b) and 8.3(c) hereof.
8.3.(b) The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
the Company, the Fund, the Underwriter or each Account, whichever is applicable.
16
8.3.(c) The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve the Fund from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Fund will be entitled to participate, at
its own expense, in the defense thereof. The Fund also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Fund to such party of the Fund's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3.(d) The Company and the Underwriter agree promptly to notify the
Fund of the commencement of any litigation or proceedings against it or any of
its respective officers or directors in connection with this Agreement, the
issuance or sale of the Contracts, with respect to the operation of either
Account, or the sale or acquisition of shares of the Fund.
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 Commonwealth of
Massachusetts.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. TERMINATION
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by ninety (90) days
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and
the Underwriter with respect to any Portfolio based upon the
Company's determination that shares of such Portfolio are not
reasonably available to
17
meet the requirements of the Contracts: or
(c) termination by the Company by written notice to the Fund and
the Underwriter with respect to any Portfolio in the event any
of the Portfolio's shares are not registered, issued or sold
in accordance with applicable state and/or federal law or such
law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by
the Company; or
(d) termination by the Company by written notice to the Fund and
the Underwriter with respect to any Portfolio in the event
that such Portfolio ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably
believes that the Fund may fail to so qualify; or
(e) termination by the Company by written notice to the Fund and
the Underwriter with respect to any Portfolio in the event
that such Portfolio fails to meet the diversification
requirements specified in Article VI hereof; or
(f) termination by either the Fund or the Underwriter by written
notice to the Company, if either one or both of the Fund or
the Underwriter respectively, shall determine, in their sole
judgment exercised in good faith, that the Company and/or its
affiliated companies has suffered a material adverse change in
its business, operations, financial condition or prospects
since the date of this Agreement or is the subject of material
adverse publicity; or
(g) termination by the Company by written notice to the Fund and
the Underwriter, if the Company shall determine, in its sole
judgment exercised in good faith, that either the Fund or the
Underwriter has suffered a material adverse change in its
business, operations, financial condition or prospects since
the date of this Agreement or is the subject of material
adverse publicity: or
(h) termination by the Company by written notice to the Fund and
the Underwriter upon the requisite vote of the Contract owners
having an interest in a Portfolio (unless otherwise required
by applicable law) and written approval of the Company, to
substitute shares of another investment company for the
corresponding shares of a Portfolio in accordance with the
terms of the Contracts; or
(i) termination by written notice to the Company at the option of
the Fund, upon institution of formal proceedings against the
Company and by the NASD, the SEC, the insurance commission of
any state or any other regulatory body regarding the Company's
duties under this Agreement or
18
related to the sale of the Contracts, the operation of the
Account, the administration of the Contracts or the purchase
of Fund shares, or an expected or anticipated ruling,
judgment or outcome which would, in the Fund' s reasonable
judgment, materially impair the Company's ability to perform
the Company's obligations and duties hereunder; or
(j) termination by written notice to the Fund and the Underwriter,
at the option of the Company, upon institution of formal
proceedings against the Fund, the Underwriter, the Fund's
investment adviser or any sub-adviser, by the NASD, the SEC,
or any state securities or insurance commission or any other
regulatory body regarding the duties of the Fund or the
Underwriter under this Agreement, or an expected or
anticipated ruling, judgment or outcome which would, in the
Company's reasonable judgment, materially impair the Fund's or
the Underwriter's ability to perform the Fund's or
Underwriter's obligations and duties hereunder; or
(k) termination by written notice to the Fund and the Underwriter,
at the option of the Company, upon institution of formal
proceedings against the Fund's investment adviser of any
sub-adviser by the NASD, the SEC, or any state securities or
insurance commission or any regulatory body which would, in
the good faith opinion of the Company, result in material harm
to the Accounts, the Company or Contract Owners.
10.2. EFFECT OF TERMINATION. Notwithstanding any termination of this
Agreement, the Fund and the Underwriter shall, at the option of the Company,
continue to make available additional shares of the Fund pursuant to the terms
and conditions of this Agreement, for all Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to reallocate investments in the Fund, redeem
investments in the Fund and/or invest in the Fund upon the making of additional
purchase payments under the Existing Contracts. The parties agree that this
Section 10.2 shall not apply to any terminations under Article VII and the
effect of such Article VII terminations shall be governed by Article VII of this
Agreement.
10.3. 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") or
(iii) as permitted by an order of the SEC pursuant to
Section 26(b) of
19
the 1940 Act. Upon request, the Company will
promptly furnish to the Fund and the Underwriter
the opinion of counsel for the Company (which
counsel shall be reasonably satisfactory to the Fund
and the Underwriter) 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 Portfolio that was otherwise
available under the Contracts without first giving
the Fund or the Underwriter 90 days notice of its
intention to do so.
10.4. Notwithstanding any other provision of this Agreement, one
party's obligation under Article VIII to indemnify the other party shall survive
termination of this Agreement, to the extent that the events giving rise to the
obligation to indemnify the other party occurred prior to the date of
termination.
ARTICLE XI. NOTICES
Any notice shall be sufficiently given when sent by registered
or certified mail 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.
If to the Fund:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
If to the Company:
Lincoln Life & Annuity Company of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
If to the Underwriter:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
ARTICLE XII. MISCELLANEOUS
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
20
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information until such time as it may come into
the public domain without the express 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. 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 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.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish any insurance commissioner with any information or reports in
connection with services provided under this Agreement which such Commissioner
may request in order to ascertain whether the insurance operations of the
Company are being conducted in a manner consistent with the insurance
regulations and any other applicable law or regulations of that state.
12.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Underwriter may assign this Agreement or any
rights or obligations hereunder to any affiliate of or company under common
control with the Underwriter, if such assignee is duly licensed and registered
to perform the obligations of the Underwriter under this Agreement. The Company
shall promptly notify the Fund and the Underwriter of any change in control of
the Company.
12.9. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee copies of the following reports:
21
(a) the Company's annual statement (prepared under
statutory ) and annual report (prepared under
generally accepted accounting principles ("GAAP"), if
any), as soon as practical and in any event within 90
days alter the end of each fiscal year;
(b) the Company's quarterly statements (statutory)
(and GAAP, if any). as soon as practical and in any
event within 45 days after the end of each quarterly
period:
(c) any financial statement, proxy statement, notice or
report of the Company sent to stockholders and/or
policyholders, as soon as practical after the
delivery thereof to stockholders;
(d) any registration statement (without exhibits) and
financial reports of the Company filed with the SEC
or any state insurance regulator, as soon as
practical after the filing thereof;
(e) any other report submitted to the Company by
independent accountants in connection with any
annual, interim or special audit made by them of the
books of the Company, as soon as practical after the
receipt thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------------
Title: CFO/2nd Vice President
---------------------------------------
VARIABLE INSURANCE PRODUCTS FUND III
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Xxxxxx X. Xxxxx
Senior Vice President
FIDELITY DISTRIBUTION
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
Vice President
22
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
AS OF OCTOBER 15, 1999
Separate Account and Date ESTABLISHED BY Form Numbers of Contracts FUNDED BY
BOARD OF DIRECTORS SEPARATE ACCOUNT FIDELITY FUND (CLASS)
Lincoln Life & Annuity Separate LN650NY Growth Opportunities -
Account R (January 29, 1998) Service Class
23
SCHEDULE B
PROXY VOTING PROCEDURE
The following is a list of procedures and corresponding responsibilities for the
handling of proxies relating to the Fund by the Underwriter, the Fund and the
Company. The defined terms herein shall have the meanings assigned in the
Participation Agreement except that the term "Company" shall also include the
department or third party assigned by the Insurance Company to perform the steps
delineated below.
1. The number of proxy proposals is given to the Company by the Underwriter as
early as possible before the date set by the Fund for the shareholder
meeting to facilitate the establishment of tabulation procedures. At this
time the Underwriter will inform the Company of the Record, Mailing and
Meeting dates. This will be done in writing approximately two months before
meeting.
2. Promptly after the Record Date, the Company will perform a "tape run", or
other activity, which will generate the names, addresses and number of
units which are attributed to each contractowner/policyholder (the
"Customer") as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of the
Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in Step #2. The Company will use its best efforts to call in the
number of Customers to Fidelity, as soon as possible, but no later than two
weeks after the Record Date.
3. The Fund's Annual Report no longer needs to be sent to each Customer by the
Company either before or together with the Customers' receipt of a proxy
statement. Underwriter will provide the last Annual Report to the Company
pursuant to the terms of Section 3.3 of the Agreement to which this
Schedule relates.
4. The text and format for the Voting Instruction Cards ("Cards" or "Card") is
provided to the Company by the Fund. The Company, at its expense, shall
produce and personalize the Voting Instruction Cards. The Legal Department
of the Underwriter or its affiliate ("Fidelity Legal") must approve the
Card before it is printed. Allow approximately 2-4 business days for
printing information on the Cards. Information commonly found on the Cards
includes:
a. name (legal name as found on account registration)
b. address
c. Fund or account number
d. coding to state number of units
e. individual Card number for use in tracking and
verification of votes (already on Cards as printed by the
Fund)
24
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
1. During this time, Fidelity Legal will develop, produce, and the Fund will
pay for the Notice of Proxy and the Proxy Statement (one document). Printed
and folded notices and statements will be sent to Company for insertion
into envelopes (envelopes and return envelopes are provided and paid for by
the Insurance Company). Contents of envelope sent to Customers by Company
will include:
a) Voting Instruction Card(s)
b) One proxy notice and statement (one document)
c) Return envelope (postage pre-paid by Company) addressed to the
company or its tabulation agent
d) "Urge buckslip" - optional, but recommended. )This is a small,
single sheet of paper that requests Customers to vote as quickly
as possible and that their vote is important. One copy will be
supplied by the Fund.
e) Cover letter - optional, supplied by Company and reviewed and
approved in advance by Fidelity legal.
1. The above contents should be received by the Company at least 7 business
days before mail date. Individual in charge at Company reviews and approves
the contents of the mailing package to ensure correctness and completeness.
Copy of this approval sent to Fidelity Legal.
2. Package mailed by the Company.
The Fund MUST allow at least a 15-day solicitation time to the Company
as the shareowner. (A 5-week period is recommended.) Solicitation time
is calculated as calendar days from (but NOT including) the meeting,
counting backwards.
3. Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry.
Note: Postmarks are not generally needed. A need for postmark
information would be due to an insurance company's internal procedure and
has not been required by Fidelity in the past.
4. Signatures on Card checked against legal name on account registration which
was printed on the Card.
Note: For Example, If the account registration is under "Xxxxxxx X.
Xxxxx, Trustee," then that is the exact legal name to be printed on the
Card and is the signature needed on the Card.
25
5. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are considered to be NOT RECEIVED for purposes of vote
tabulation. Any Cards that have "kicked out" (e.g. mutilated, illegible) of
the procedure are "hand verified," i.e., examined as to why they did not
complete the system.
Any questions on those Cards are usually remedied individually.
6. There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
7. The actual tabulation of votes is done in units which is then converted to
shares. (It is very important that the Fund receives the tabulations stated
in terms of a percentage and the number of SHARES.) Fidelity Legal must
review and approve tabulation format.
8. Final tabulation in shares is verbally given by the Company to Fidelity
Legal on the morning of the meeting not later than 10:00 a.m. Boston time.
Fidelity Legal may reasonably request an earlier deadline if required to
calculate the vote in time for the meeting.
9. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
Fidelity Legal will provide a standard form for each Certification.
10. The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, Fidelity Legal
will be permitted reasonable access to such Cards.
11. All approvals and "signing-off" may be done orally, but must always be
followed up in writing.
26
SCHEDULE C
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
Investment Companies
Available: AIM, Bankers Trust, Baron Capital, Colonial, Delaware, Dreyfus,
Janus, Kemper, Lincoln National Investments, MFS, Xxxxxxxxx
Xxxxxx, Xxxxxxxxx
27
SCHEDULE A
AMENDED AS OF FEBRUARY 15, 2000
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Form Numbers of Contracts
Name of Separate Account Funded By Separate Account Fidelity Fund (Class)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Separate LN650NY Growth Opportunities
Account R - Service Class
Lincoln New York Account N AN426NY Growth Opportunities
for Variable Annuities - Initial Class
Lincoln Life & Annuity Flexible LN615NY - LNY Growth Opportunities
Premium Variable Life Account M - Service Class
SCHEDULE C
AMENDED AS OF FEBRUARY 15, 2000
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Alliance Variable Products Series Fund
American Variable Insurance Series (AVIS)
BT Insurance Funds Trust
Baron Capital Funds Trust
Delaware Group Premium Fund
Janus Aspen Series
Liberty Variable Investment Trust
Lincoln National Investments
MFS Variable Insurance Trust
Xxxxxxxxx & Xxxxxx AMT
Xxxxxxxxx Variable Products Series Fund
1
IN WITNESS WHEREOF, each of the parties hereto has caused these
Amendments to Schedules A and C to be executed in its name and on its behalf
by its duly authorized representative and its seal to be hereunder affixed
hereto as of the date specified below.
Date LINCOLN LIFE & ANNUITY COMPANY
------------------------- OF NEW YORK
By:
----------------------------
Name: Xxxx X. Xxxxxxx
Title: CFO/2nd Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS III
-------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
Date FIDELITY DISTRIBUTORS CORPORATION
-------------------------
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
2
SCHEDULE A
AMENDED AS OF MAY 1, 2000
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Form Numbers of Contracts
Name of Separate Account Funded By Separate Account Fidelity Fund (Class)
------------------------ -------------------------- ---------------------
LLANY Separate Account R for LN650NY Growth Opportunities
Flexible Premium Variable Life (SVUL) - Service Class
Insurance
LN 655 Growth Opportunities
(SVUL II) - Service Class
Lincoln New York Separate Account AN426NY Growth Opportunities
N for Variable Annuities (ChoicePlus) - Initial Class
Lincoln Life & Annuity Flexible LN660NY Growth Opportunities
Premium Variable Life Account M (VUL) - Service Class
SCHEDULE A
AMENDED AS OF JULY 15, 2000
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Form Numbers of Contracts
Name of Separate Account Funded by Separate Account Fidelity Fund (Class)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Variable GAC96-1 11; GAC91 -101 Growth - Initial
Annuity Separate Account L (GVA 1, 11, 111) Equity-Income - Initial
Lincoln Life & Annuity Flexible LN615NY - LNY Equity-Income - Initial
Premium Variable Life Account M (VUL 1)
LN660NY Growth - Service
(VUL) High Income - Service
Lincoln New York Separate AN426NY Equity-Income - Initial
Account N for Variable Annuities (ChoicePlus) Growth - Initial
Overseas - Initial
30296NY (ChoicePlus Access) Equity-Income - Service 2
Growth - Service 2
Overseas - Service 2
LLANY Separate Account R for LN650 Growth - Service
Flexible Premium Variable (SVUL) High Income - Service
Life Insurance
LN655 Growth - Service
(SVUL II) High Income - Service
LLANY Separate Account S for LN920NY Growth - Service
Flexible Premium Variable (CVUL) High Income - Service
Life Insurance Overseas - Service
LN925 Growth - Service
(CVUL Series III) High Income - Service
Overseas - Service
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedule A to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Date LINCOLN LIFE & ANNUITY
COMPANY OF NEW YORK
By:
Name:
Title: Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
Date FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
SCHEDULE C
AMENDED AS OF MAY 1, 2000
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Alliance Variable Products Series Fund
American Variable Insurance Series (AVIS)
BT Insurance Funds Trust
Baron Capital Funds Trust
Delaware Group Premium Fund
Janus Aspen Series
Liberty Variable Investment Trust
Lincoln National Investments
MFS Variable Insurance Trust
Xxxxxxxxx & Xxxxxx AMT
OCC Accumulation Trust
Xxxxxxxxxxx Funds
Xxxxxxxxx Variable Products Series Fund
1
IN WITNESS WHEREOF, each of the parties hereto has caused these
Amendments to Schedules A and C to be executed in its name and on its behalf
by its duly authorized representative and its seal to be hereunder affixed
hereto as of the date specified below.
Date LINCOLN LIFE & ANNUITY COMPANY
--------------------- OF NEW YORK
By:
-------------------------
Name: Xxxx X. Xxxxxxx
Title: CFO/2nd Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS III
----------------------
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Date FIDELITY DISTRIBUTORS CORPORATION
----------------------
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
2
SCHEDULE A
AMENDED AS OF OCTOBER 15, 1999
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Name of Separate Account and Policy Form Numbers of Contracts
Date Established by Board of Directors Funded by Separate Account
-------------------------------------- --------------------------
Lincoln Life & Annuity Variable GAC96-111
Annuity Account L GAC91-101
Lincoln Life & Annuity Flexible Premium LN650NY
Variable Account R
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to Schedule A to be executed in its name and on its behalf by its
duly authorized representative and its seal to be hereunder affixed hereto as
of the date specified below.
Date LINCOLN LIFE & ANNUITY
------------------------ COMPANY OF NEW YORK
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Date VARIABLE INSURANCE PRODUCTS
------------------------ FUNDS II
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Date FIDELITY DISTRIBUTORS CORPORATION
------------------------
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
SCHEDULE C
AMENDED AS OF OCTOBER 15, 1999
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM VARIABLE INSURANCE FUNDS, INC.
AIM V.I. Growth Fund
AIM International Equity Fund
AIM V.I. Value Fund
BARON CAPITAL FUNDS TRUST
Baron Capital Asset Fund
BT INSURANCE FUNDS TRUST
EAFE Index Fund
Equity 500 Index Fund
Small Cap Index Fund
Xxxxxxx Responsibiltiy Invested Balanced Portfolio
DELAWARE GROUP PREMIUM FUND, INC.
Delchester Series
Devon Series
Emerging Markets Series
REIT Series
Small Cap Value Series
Trend Series
Dreyfus Stock Index Fund
Dreyfus Variable Investment Fund: Small Cap Portfolio
FIDELITY VARIABLE INSURANCE PRODUCTS FUND II
Contrafund Portfolio
FIDELITY VARIABLE INSURANCE PRODUCTS FUND III
Growth Opportunities Portfolio
JANUS ASPEN SERIES
Janus Aspen Series Balanced Portfolio
Janus Aspen Series Worldwide Growth Portfolio
LINCOLN NATIONAL (LN)
XX Xxxx Fund
LN Capital Appreciation Fund
LN Equity-Income Fund
LN Global Asset Allocation Fund
LN Money Market Fund
LN Social Awareness Fund
MFS-Registered Trademark- VARIABLE INSURANCE TRUST
MFS Emerging Growth Series
MFS Total Return Series
MFS Utilities Series
XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST
AMT Mid-Cap Growth Portfolio
AMT Partners Portfolio
TEMPLETON VARIABLE PRODUCTS SERIES FUND
Xxxxxxxxx International Fund - Class 2
Templeton Stock Fund - Class 2
TWENTIETH CENTURY'S TCI PORTFOLIOS, INC.
TCI Growth
TCI Balanced
X. Xxxx Price International Series, Inc.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to Schedule C to be executed in its name and on its behalf by its
duly authorized representative and its seal to be hereunder affixed hereto as
of the date specified below.
Date LINCOLN LIFE & ANNUITY
---------------------- COMPANY OF NEW YORK
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Date VARIABLE INSURANCE PRODUCTS
----------------------- FUNDS II
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Date FIDELITY DISTRIBUTORS CORPORATION
-----------------------
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
SCHEDULE A
AMENDED AS OF JULY 15, 2001
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------- -------------------------- ---------------------
LLANY Separate Account R for Flexible LN650NY Growth Opportunities
Premium Variable Life Insurance (SVUL) - Service Class
LN 655 Growth Opportunities
(SVUL II) - Service Class
Lincoln New York Separate Account N for AN426NY Growth Opportunities
Variable Annuities (ChoicePlus) - Initial Class
30296 (ChoicePlus Access) Growth Opportunities
- Service Class 2
Lincoln Life & Annuity Flexible Premium LN660NY Growth Opportunities
Variable Life Account M (VUL) - Service Class
LN615NY Growth Opportunities
(VUL I) - Service Class
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to Schedule A to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 8/3/01 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: 2nd Vice-President
Date 8/10/01 VARIABLE INSURANCE PRODUCTS FUNDS III
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
-------------------------------------
Title: Treasurer
-------------------------------------
Date 8/10/01 FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: EVP
-------------------------------------
1
SCHEDULE A
AMENDED AS OF JULY 15, 2001
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Variable GAC96-111; GAC91-101 Growth - Initial
Annuity Separate Account L (GVA I, II, III) Equity-Income - Initial
Overseas - Service
Money Market Portfolio
Lincoln Life & Annuity Flexible LN615NY - LNY Equity-Income - Initial
Premium Variable Life Account M (VUL I) Growth Portfolio - Service
LN660NY Growth - Service
(VUL) High Income - Service
LN680NY Equity-Income - Service
(VUL(DB)) (VUL(CV)) Growth Portfolio - Service
LN665NY Overseas - Service
(MoneyGuard) (VUL(CV2))
Lincoln New York Separate AN426NY Equity-Income - Initial, Service
Account N for Variable Annuities (ChoicePlus) Growth - Initial
Growth Portfolio - Service
Overseas - Initial, Service
30296NY (ChoicePlus Access) Equity-Income - Service 2
Growth - Service 2
Overseas - Service 2
30070-B (ChoicePlus II) Equity-Income - Service Class 2
(ChoicePlus II Access) Growth Portfolio - Service Class 2
(ChoicePlus II Advance) Overseas - Service Class 2
LLANY Separate Account R for LN650 Growth - Service
Flexible Premium Variable (SVUL) High Income - Service
Life Insurance
LN655 Equity-Income - Service
(SVUL II) Growth - Service
Growth Portfolio - Service
High Income - Service
Overseas - Service
LLANY Separate Account S for LN920NY Equity-Income - Service
Flexible Premium Variable (CVUL) Growth - Service
Life Insurance High Income - Service
Overseas - Service
LN925 Equity-Income - Service
(CVUL III) Growth - Service
Growth Portfolio - Service
High Income - Service
Overseas - Service
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to Schedule A to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 8/3/01 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
--------------------
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: 2nd Vice-President
Date 8/3/01 VARIABLE INSURANCE PRODUCTS FUNDS
--------------------
By: /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
------------------------------------
Title: Treasurer
------------------------------------
Date 8/10/01 FIDELITY DISTRIBUTORS CORPORATION
--------------------
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: EVP
------------------------------------
SCHEDULE A
AMENDED AS OF JULY 15, 2001
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Variable GAC96-111; GAC91-101 Asset Manager - Initial
Annuity Separate Account L (GVA I, II, III) Contrafund - Service
Contrafund - Service Class 2
Lincoln Life & Annuity Flexible LN615NY Asset Manager - Initial
Premium Variable Life Account M (VUL I) Investment Grade Bond -
Initial, Service
LN660NY Contrafund - Service
(VUL)
LN680NY Contrafund - Service
(VUL(DB)), (VUL(CV))
LN665NY
(Money Guard) (VUL(CV2))
Lincoln New York Separate 30070-B Contrafund - Service Class 2
Account N for Variable Annuities (ChoicePlus II; ChoicePlus II Access)
(ChoicePlus II Advance)
LLANY Separate Account R LN650NY Contrafund - Service
for Flexible Premium Variable (SVUL)
Life Insurance
LN655 Asset Manager - Initial
(SVUL II) Contrafund - Service
Investment Grade Bond - Initial
LLANY Separate Account S LN920NY Asset Manager - Service
for Flexible Premium Variable (CVUL) Contrafund - Service
Life Insurance
LN925 Asset Manager - Service
(CVUL Series III) Contrafund - Service
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to Schedule A to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 8/3/01 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
-----------------------
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: 2nd Vice President
Date 8/10/01 VARIABLE INSURANCE PRODUCTS FUNDS II
-----------------------
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
-------------------------------------
Title: Treasurer
-------------------------------------
Date 8/10/01 FIDELITY DISTRIBUTORS CORPORATION
-----------------------
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: EVP
-------------------------------------
SCHEDULE A
AMENDED AS OF MAY 1, 2003
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Variable GAC96-111; XXX00-000 Xxxxxx - Initial Class
Annuity Separate Account L (GVA I, II, III) Equity-Income - Initial Class
Money Market - Initial Class
Lincoln Life & Annuity Flexible Premium LN615NY (VUL I) Equity-Income - Initial Class
Variable Life Account M
LN660NY (VUL) (VUL(CV)) Growth - Service Class
LN680NY (VUL(DB)) High Income - Service Class
ELITE SERIES: Equity-Income - Service Class
LN665NY (VUL(CV)-II) Growth - Service Class
LN680 (LVUL(DB)) Overseas - Service Class
LN670 (LVUL(CV)-III)
LN690 (LVUL(DB)-II)
Lincoln New York Account N AN426NY (ChoicePlus) Equity-Income - Initial Class
for Variable Annuities Growth - Initial Class
Overseas - Initial Class
30296NY (ChoicePlus Access) Equity-Income - Service Class 2
Growth - Service Class 2
Overseas - Service Class 2
30070BNYMVA3 Equity-Income -Service Class 2
(ChoicePlus II) Growth - Service Class 2
(ChoicePlus II Access) Overseas - Service Class 2
(ChoicePlus II Advance)
(ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL[ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
LLANY Separate Account R for LN650 (SVUL) Growth - Service Class
Flexible Premium Variable High Income - Service Class
Life Insurance Overseas - Service Class
ELITE SERIES: Equity-Income - Service Class
LN655 (SVUL II) Growth - Service Class
LN650 (SVUL) Overseas - Service Class
LN656 (SVUL III)
LLANY Separate Account S for Flexible ELITE SERIES: Equity-Income - Service Class
Premium Variable Life Insurance LN925 (CVUL III) Growth - Service Class
Overseas - Service Class
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedule A to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Date 10/6/03 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
------------------------
By: /s/ Rise X. X. Xxxxxx
-----------------------------------
Name: Rise X. X. Xxxxxx
Title: 2nd Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS
------------------------
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
-----------------------------------
Title: Treasurer
-----------------------------------
Date Oct. 17, 2003 FIDELITY DISTRIBUTORS CORPORATION
------------------------
By: /s/ D. Holborn
-----------------------------------
Name: D. Holborn
-----------------------------------
Title: EVP
-----------------------------------
SCHEDULE A
AMENDED AS OF MAY 1, 2003
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Variable GAC96-111; GAC91-101 Asset Manager - Initial Class
Annuity Separate Account L (GVA I, II, III) Contrafund - Service Class 2
Lincoln Life & Annuity Flexible LN615NY (VUL I) Asset Manager - Initial Class
Premium Variable Life Account M Investment Grade Bond - Initial
LN660NY (VUL) (VUL(CV)) Contrafund - Service Class
LN680NY (VUL(DB))
ELITE SERIES: Contrafund - Service Class
LN665NY (LVUL(CV)-II)
LN680 (LVUL(DB))
LN670 (LVUL(CV)-III)
LN690 (LVUL(DB)-II)
Lincoln New York Account N AN426NY (ChoicePlus) Contrafund - Service Class 2
for Variable Annuities
30296NY (ChoicePlus Access) Contrafund - Service Class 2
30070BNYMVA3 Contrafund - Service Class 2
(ChoicePlus II; ChoicePlus II Access)
(ChoicePlus II Advance; ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
LLANY Separate Account R for Flexible LN650NY (SVUL) Contrafund - Service Class
Premium Variable Life Insurance
ELITE SERIES: Contrafund - Service Class
LN655 (SVUL II)
LN650 (SVUL)
LN656 (SVUL III)
LLANY Separate Account S for Flexible ELITE SERIES: Asset Manager - Service Class
Premium Variable Life Insurance LN925 (CVUL Series III) Contrafund - Service Class
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to Schedule A to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 10/6/03 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
-----------------------------
By: /s/ Rise X. X. Xxxxxx
---------------------------------
Name: Rise X. X. Xxxxxx
Title: 2nd Vice President
DATE VARIABLE INSURANCE PRODUCTS FUNDS II
------------------------
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
---------------------------------
Title: Treasurer
---------------------------------
Date Oct 17, 2003 FIDELITY DISTRIBUTORS CORPORATION
---------------------------
By: D. Holborn
---------------------------------
Name: /s/ D. Holborn
---------------------------------
Title: EVP
---------------------------------
SCHEDULE A
AMENDED AS OF MAY 1, 2003
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------- ------------------------- ---------------------
LLANY Separate Account R for Flexible LN650NY (SVUL) Growth Opportunities
Premium Variable Life Insurance - Service Class
Lincoln Life & Annuity Flexible Premium LN660NY (VUL) (VULCV) Growth Opportunities
Variable Life Account M LN680 NY (VULDB) - Service Class
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to Schedule A to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 10/6/2003 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
------------------
By: /s/ Rise X. X. Xxxxxx
-----------------------------------
Name: Rise X. X. Xxxxxx
Title: 2nd Vice-President
Date VARIABLE INSURANCE PRODUCTS FUNDS III
------------------
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
-----------------------------------
Title: Treasurer
-----------------------------------
Date Oct. 17, 2003 FIDELITY DISTRIBUTORS CORPORATION
------------------
By: /s/ D. Holborn
-----------------------------------
Name: D. Holborn
-----------------------------------
Title: EVP
-----------------------------------
SCHEDULE A
AMENDED AS OF MAY 1, 2004
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------ -------------------------- ---------------------
Lincoln Life & Annuity Variable GAC96-111; XXX00-000 Xxxxxx - Initial Class
Annuity Separate Account L (GVA I, II, III) Equity-Income - Initial Class
Money Market - Initial Class
Lincoln Life & Annuity Flexible LN615NY (VUL I) Equity-Income - Initial Class
Premium Variable Life Account M
LN660NY (VUL) (VUL(CV)) Growth - Service Class
LN680NY (VUL(DB)) High Income - Service Class
ELITE SERIES: Equity-Income - Service Class
LN680 (LVUL(DB)) Growth - Service Class
LN690 (LVUL(DB) II) (LVUL(DB) IV) Overseas - Service Class
LN665NY (VUL(CV) II)
LN670 (LVUL(CV) III) (LVUL(CV) IV)
LN691NY (LVUL(ONE))
LN693NY (Momentum LVUL(ONE))
Lincoln New York Account N AN426NY (ChoicePlus) Equity-Income - Initial Class
for Variable Annuities Growth - Initial Class
Overseas - Initial Class
30296NY (ChoicePlus Access) Equity-Income -Service Class 2
Growth- Service Class 2
Overseas -Service Class 2
30070BNYMVA3 Equity-Income -Service Class 2
(ChoicePlus II) Growth- Service Class 2
(ChoicePlus II Access) Overseas -Service Class 2
(ChoicePlus II Advance)
(ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501 (ChoicePlus Momentum Income Option)
LLANY Separate Account R for LN650 (SVUL) Growth - Service Class
Flexible Premium Variable High Income - Service Class
Life Insurance Overseas - Service Class
ELITE SERIES: Equity-Income - Service Class
LN655 (SVUL II) Growth - Service Class
LN650 (SVUL) Overseas - Service Class
LN656 (SVUL III) (SVUL IV)
LLANY Separate Account S for ELITE SERIES: Equity-Income - Service Class
Flexible Premium Variable Life LN925 (CVUL III) Growth - Service Class
Insurance Overseas - Service Class
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedule A to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Date 12/17/04 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
-----------------
By: /s/ Rise X. X. Xxxxxx
----------------------------
Name: Rise X. X. Xxxxxx
Title: 2nd Vice-President
Date 12/17/04 VARIABLE INSURANCE PRODUCTS FUNDS
-----------------
By: /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date 12/17/04 FIDELITY DISTRIBUTORS CORPORATION
-----------------
By: /s/ Don Holborn
----------------------------
Name: Don Holborn
Title: EVP
AMENDMENT NO. 6 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund III
and Fidelity Distributors Corporation, hereby amend their Participation
Agreement, dated October 15, 1999 and as subsequently amended, by replacing
Schedule A in its entirety with the following:
SCHEDULE A
AMENDED AS OF MAY 1, 2005
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS FUNDED BY
NAME OF SEPARATE ACCOUNT SEPARATE ACCOUNT FIDELITY FUND (CLASS)
---------------------------------------------------------------------------------------------------------------
Lincoln Life & Annuity Flexible LN660NY (VUL) (VUL(CV)) Growth Opportunities - Service
Premium Variable Life Account M LN680NY (VUL(DB)) Class
ELITE SERIES:
LN680NY (VUL(DB)) Mid Cap - Service Class
LN690NY (VUL(DB) II) (VUL(DB) IV)
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VUL(ONE))
LN693NY (Momentum VUL(ONE))
LN694NY (VUL(ONE) 2005)
LN695NY (Momentum VUL(ONE)2005
Lincoln New York Account N for AN426NY (ChoicePlus) Mid Cap - Service Class
Variable Annuities
30296NY (ChoicePlus Access) Mid Cap - Service Class
30070BNYMVA3 Mid Cap - Service Class
(ChoicePlus II; ChoicePlus II Access)
(ChoicePlus II Advance; ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income Option)
LLANY Separate Account R for LN650NY (SVUL) Growth Opportunities - Service
Flexible Premium Variable Life Class
Insurance ELITE SERIES:
LN650NY (SVUL) Mid Cap - Service Class
LN656NY (SVUL IV)
LLANY Separate Account S for ELITE SERIES: Mid-Cap - Service Class
Flexible Premium Variable Life LN925NY (CVUL Series III)
Insurance LN935NY (LCV4)
LNY Separate Account 401 19476 (Director) Mid-Cap - Initial Class
for Group Annuities
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedule A to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Date June 1, 2005 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
---------------
By: /s/ Rise X. X. Xxxxxx
-----------------------------------
Name: Rise X. X. Xxxxxx
Title: 2nd Vice-President
Date July 15, 2005 VARIABLE INSURANCE PRODUCTS FUND III
----------------
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date June 7, 2005 FIDELITY DISTRIBUTORS CORPORATION
---------------
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
1
AMENDMENT NO. 7 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund and
Fidelity Distributors Corporation, hereby amend their Participation Agreement,
dated September 1, 1996 and as subsequently amended, by replacing Schedule A in
its entirety with the following:
SCHEDULE A
AMENDED AS OF MAY 1, 2005
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------------- -------------------------------------------- ------------------------------
Lincoln Life & Annuity Variable GAC96-111; XXX00-000 Xxxxxx - Initial Class
Annuity Separate Account L (GVA I, II, III) Equity-Income - Initial Class
Money Market - Initial Class
Lincoln Life & Annuity Flexible LN615NY (VUL I) Equity-Income - Initial Class
Premium Variable Life Account M
LN660NY (VUL) (VUL(CV)) Growth - Service Class
LN680NY (VUL(DB)) High Income - Service Class
ELITE SERIES: Equity-Income - Service Class
LN680NY (VUL(DB)) Growth - Service Class
LN690NY (VUL(DB) II) (VUL(DB) IV) Overseas - Service Class
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VUL(ONE))
LN693NY (Momentum VULONE)
LN694NY (VULONE2005)
LN695NY (Momentum VULONE2005)
Lincoln New York Account N AN426NY (ChoicePlus) Equity-Income - Initial Class
for Variable Annuities Growth - Initial Class
Overseas - Initial Class
30296NY (ChoicePlus Access) Equity-Income -Service Class 2
Growth- Service Class 2
Overseas -Service Class 2
30070BNYMVA3 Equity-Income -Service Class 2
(ChoicePlus II) Growth- Service Class 2
(ChoicePlus II Access) Overseas -Service Class 2
(ChoicePlus II Advance)
(ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income Option)
LLANY Separate Account R for LN650NY (SVUL) Growth - Service Class
Flexible Premium Variable High Income - Service Class
Life Insurance Overseas - Service Class
ELITE SERIES: Equity-Income - Service Class
LN655NY (SVUL II) Growth - Service Class
LN650NY (SVUL) Overseas - Service Class
LN656NY (SVUL III) (SVUL IV)
LLANY Separate Account S for ELITE SERIES: Equity-Income - Service Class
Flexible Premium Variable Life LN925NY (CVUL III) Growth - Service Class
Insurance LN935NY (LCV4) Overseas - Service Class
LNY Separate Account 401 for 19476NY (Director) Equity-Income - Service Class 2
Group Annuities Growth - Service Class 2
Overseas - Service Class 2
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedule A to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Date June 1, 2005 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
--------------
By: /s/ Rise X.X. Xxxxxx
-----------------------------------
Name: Rise X. X. Xxxxxx
Title: 2nd Vice-President
Date July 15, 2005 VARIABLE INSURANCE PRODUCTS FUND
--------------
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date June 7, 2005 FIDELITY DISTRIBUTORS CORPORATION
--------------
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
AMENDMENT NO. 10 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund II
and Fidelity Distributors Corporation, hereby amend their Participation
Agreement, dated September 1, 1996 and as subsequently amended, by replacing
Schedule A in its entirety with the following:
SCHEDULE A
AMENDED AS OF MAY 1, 2005
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------------- -------------------------------------------- -------------------------------
Lincoln Life & Annuity Variable GAC96-111; GAC91-101 Asset Manager - Initial Class
Annuity Separate Account L (GVA I, II, III) Contrafund - Service Class 2
Lincoln Life & Annuity LN615NY (VUL I) Asset Manager - Initial Class
Flexible Premium Variable Investment Grade Bond - Initial
Life Account M
LN660NY (VUL) (VUL(CV)) Contrafund - Service Class
LN680NY (VUL(DB))
ELITE SERIES: Contrafund - Service Class
LN680NY (VUL(DB))
LN690NY (VUL(DB) II) (VUL(DB) IV)
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VUL(ONE))
LN693NY (Momentum VUL(ONE))
LN694NY (VUL(ONE) 2005)
LN695NY (Momentum VUL(ONE)2005)
Lincoln New York Account N AN426NY (ChoicePlus) Contrafund - Service Class 2
for Variable Annuities
30296NY (ChoicePlus Access) Contrafund - Service Class 2
30070BNYMVA3 Contrafund - Service Class 2
(ChoicePlus II; ChoicePlus II Access)
(ChoicePlus II Advance; ChoicePlus II
Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income
Option)
LLANY Separate Account R for LN650NY (SVUL) Contrafund - Service Class
Flexible Premium Variable Life
Insurance
ELITE SERIES: Contrafund - Service Class
LN655NY (SVUL II)
LN650NY (SVUL)
LN656NY (SVUL III) (SVUL IV)
LLANY Separate Account S for ELITE SERIES: Asset Manager - Service Class
Flexible Premium Variable Life LN925NY (CVUL Series III) Contrafund - Service Class
Insurance LN935NY (LCV4)
LNY Separate Account 401 for 19476 (Director) Contrafund - Service Class
Group Annuities
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedule A to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Date June 1, 2005 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
-----------------
By: /s/ Rise X.X. Xxxxxx
-----------------------------------
Name: Rise X. X. Xxxxxx
Title: 2nd Vice President
Date July 15, 2005 VARIABLE INSURANCE PRODUCTS FUND II
-----------------
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date June 7, 2005 FIDELITY DISTRIBUTORS CORPORATION
-----------------
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
AMENDMENT NO. 11 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund II
and Fidelity Distributors Corporation, hereby amend their Participation
Agreement, dated September 1, 1996 and as subsequently amended, by replacing
Schedules A and C in their entirety with the following:
SCHEDULE A
AMENDED AS OF MAY 1, 2006
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
---------------------------------- -------------------------------------------- -------------------------------
Lincoln Life & Annuity Variable GAC96-111; GAC91-101 Asset Manager - Initial Class
Annuity Separate Account L (GVA I, II, III) Contrafund - Service Class 2
Lincoln Life & Annuity Flexible LN615NY (VUL I) Asset Manager - Initial Class
Premium Variable Life Account M Investment Grade Bond - Initial
LN660NY (VUL) (VUL(CV)) Contrafund - Service Class
LN680NY (VUL(DB))
ELITE SERIES: Contrafund - Service Class
LN680NY (VUL(DB))
LN690NY (VUL(DB) II) (VUL(DB) IV)
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VUL(ONE))
LN693NY (Momentum VUL(ONE))
LN694NY (VUL(ONE) 2005)
LN695NY (Momentum VUL(ONE)2005)
Lincoln New York Account N AN426NY (ChoicePlus) Contrafund - Service Class 2
for Variable Annuities
30296NY (ChoicePlus Access) Contrafund - Service Class 2
30070BNYMVA3 Contrafund - Service Class 2
(ChoicePlus II; ChoicePlus II Access)
(ChoicePlus II Advance; ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income Option)
LLANY Separate Account R for LN650NY (SVUL) Contrafund - Service Class
Flexible Premium Variable Life
Insurance
ELITE SERIES: Contrafund - Service Class
LN655NY (SVUL II)
LN650NY (SVUL)
LN656NY (SVUL III) (SVUL IV)
LN657 (SVULONE)
LN658 (Momentum SVULONE)
LLANY Separate Account S for ELITE SERIES: Asset Manager - Service Class
Flexible Premium Variable Life LN925NY (CVUL Series III) Contrafund - Service Class
Insurance LN935NY (LCV4)
LN939NY (LCV5)
LNY Separate Account 401 for Group 19476 (Director) Contrafund - Service Class
Annuities
SCHEDULE C
AMENDED AS OF MAY 1, 2006
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Xxxxx
AllianceBernstein Variable Products Series Fund
American Century Investments Variable Products
American Funds Insurance Series
Baron Capital Funds Trust
Delaware VIP Trust
Dreyfus Variable Investment Fund
DWS Investments VIT Funds (f/k/a Xxxxxxx; f/k/a/ BT Insurance Funds Trust)
Evergreen
Franklin Xxxxxxxxx Variable Insurance Products Trust
Janus Aspen Series
Lincoln Variable Insurance Products Trust
M Funds
MFS(R) Variable Insurance Trust
OCC Accumulation Trust
Xxxxxxxxxxx Funds
Xxxxxxxxx Xxxxxx Advisers Management Trust
Xxxxxx Variable Trust
X. Xxxx Price International Series, Inc.
Xxxxx Fargo Variable Trust Funds
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedules A and C to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 6/12/06 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: 2nd Vice President
Date 8/31/06 VARIABLE INSURANCE PRODUCTS FUND II
By: /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date 8/15/06 FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
AMENDMENT NO. 7 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund III
and Fidelity Distributors Corporation, hereby amend their Participation
Agreement, dated October 15, 1999 and as subsequently amended, by replacing
Schedules A and C in their entirety with the following:
SCHEDULE A
AMENDED AS OF MAY 1, 2006
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS FUNDED BY SEPARATE
NAME OF SEPARATE ACCOUNT ACCOUNT FIDELITY FUND (CLASS)
----------------------------------- -------------------------------------------- -----------------------
Lincoln Life & Annuity Flexible LN660NY (VUL) (VUL(CV)) Growth Opportunities
Premium Variable Life Account M LN680NY (VUL(DB)) - Service Class
ELITE SERIES:
LN680NY (VUL(DB)) Mid Cap - Service Class
LN690NY (VUL(DB) II) (VUL(DB) IV)
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VUL(ONE))
LN693NY (Momentum VUL(ONE))
LN694NY (VUL(ONE) 2005)
LN695NY (Momentum VUL(ONE)2005
Lincoln New York Account N for AN426NY (ChoicePlus) Mid Cap - Service Class
Variable Annuities
30296NY (ChoicePlus Access) Mid Cap - Service Class
30070BNYMVA3 Mid Cap - Service Class
(ChoicePlus II; ChoicePlus II Access)
(ChoicePlus II Advance; ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income Option)
LLANY Separate Account R for LN650NY (SVUL) Growth Opportunities -
Flexible Premium Variable Life Service Class
Insurance ELITE SERIES:
LN650NY (SVUL) Mid Cap - Service Class
LN656NY (SVUL IV)
LN657 (SVULONE) Mid Cap - Service Class
LN658 (MOMENTUM SVULONE)
LLANY Separate Account S for ELITE SERIES: Mid-Cap - Service Class
Flexible Premium Variable Life LN925NY (CVUL Series III)
Insurance LN935NY (LCV4)
LN939NY (LCV5)
LNY Separate Account 401 for Group 19476 (Director) Mid-Cap - Initial Class
Annuities
SCHEDULE C
AMENDED AS OF MAY 1, 2006
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Xxxxx
AllianceBernstein Variable Products Series Fund
American Century Investments Variable Products
American Funds Insurance Series
Baron Capital Funds Trust
Delaware VIP Trust
DWS Investments VIT Funds (f/k/a/ Xxxxxxx; f/k/a BT Insurance Funds Trust)
Dreyfus Variable Investment Fund
Evergreen
Franklin Xxxxxxxxx Vairable Insurance Products Trust
Janus Aspen Series
Lincoln Variable Insurance Products Trust
M Funds
MFS Variable Insurance Trust
Xxxxxxxxx Xxxxxx AMT
OCC Accumulation Trust
Xxxxxxxxxxx Funds
Xxxxxx Variable Trust
X. Xxxx Price International Series, Inc.
Xxxxx Fargo Variable Trust Funds
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedules A and C to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 6/12/06 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: 2nd Vice President
Date 8/31/06 VARIABLE INSURANCE PRODUCTS FUND III
By: /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date 8/15/06 FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
AMENDMENT NO. 8 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund III
and Fidelity Distributors Corporation, hereby amend their Participation
Agreement, dated October 15, 1999 and as subsequently amended, by replacing
Schedules A and C in their entirety with the following:
SCHEDULE A
AMENDED AS OF OCTOBER 1, 2006
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS FUNDED BY
NAME OF SEPARATE ACCOUNT SEPARATE ACCOUNT FIDELITY FUND (CLASS)
-------------------------------------------- ---------------------------------------------- -----------------------
Lincoln Life & Annuity Flexible Premium LN660NY (VUL) (VUL(CV)) Growth Opportunities
Variable Life Account M LN680NY (VUL(DB)) - Service Class
ELITE SERIES:
LN680NY (VUL(DB)) Mid Cap - Service Class
LN690NY (VUL(DB) II) (VUL(DB) IV)
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VUL(ONE)
LN693NY (Momentum VUL(ONE)
LN694NY (VULONE 2005)
LN695NY (Momentum VUL(ONE) 2005
Lincoln New York Account N for Variable AN426NY (ChoicePlus) Mid Cap - Service Class
Annuities
30296NY (ChoicePlus Access) Mid Cap - Service Class
30070BNYMVA3 Mid Cap - Service Class 2
(ChoicePlus II; ChoicePlus II Access)
(ChoicePlus II Advance; ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income Option)
30070-CP-Design 1, 2 or 3 (ChoicePlus Design)
LLANY Separate Account R for Flexible LN650NY (SVUL) Growth Opportunities -
Premium Variable Life Insurance Service Class
ELITE SERIES:
LN650NY (SVUL) Mid Cap - Service Class
LN656NY (SVUL IV)
LN657 (SVULONE) Mid Cap - Service Class
LN658 (MOMENTUM SVUL(ONE))
LLANY Separate Account S for Flexible ELITE SERIES: Mid-Cap - Service Class
Premium Variable Life Insurance LN925NY (CVUL Series III)
LN935NY (LCV4)
LN939NY (LCV5)
LNY Separate Account 401 for Group 19476 (Director) Mid-Cap - Initial Class
Annuities
Lincoln Life & Annuity Flexible Premium LN930NY (Lincoln Corporate Private Solution) Growth Opportunities -
Variable Life Account Z Service Class
Mid-Cap - Service Class
SCHEDULE C
AMENDED AS OF OCTOBER 1, 2006
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Xxxxx
AllianceBernstein Variable Products Series Fund
American Century Investments Variable Products
American Funds Insurance Series
Baron Capital Funds Trust
Delaware VIP Trust
DWS Investments VIT Funds (f/k/a/ Xxxxxxx; f/k/a BT Insurance Funds Trust)
Dreyfus Variable Investment Fund
Evergreen
Franklin Xxxxxxxxx Vairable Insurance Products Trust
Xxxxxxx Sachs VIT
Janus Aspen Series
XX Xxxxxx
Xxxxxxxxx Pilot Variable Fund
Lincoln Variable Insurance Products Trust
M Funds
MFS Variable Insurance Trust
Xxxxxxxxx Xxxxxx AMT
OCC Accumulation Trust
Xxxxxxxxxxx Funds
PIMCO
ProFund XX
Xxxxxx Variable Trust
X. Xxxx Price International Series, Inc.
Vanguard VIF
Xxxxx Fargo Variable Trust Funds
Vanguard Xxxxx Fargo Variable Trust Funds
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedules A and C to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 11/1/06 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: 2nd Vice-President
Date 12/7/06 VARIABLE INSURANCE PRODUCTS FUND
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date 11/27/06 FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
AMENDMENT NO. 8 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund and
Fidelity Distributors Corporation, hereby amend their Participation Agreement,
dated September 1, 1996 and as subsequently amended, by replacing Schedules A
and C in their entirety with the following:
SCHEDULE A
AMENDED AS OF MAY 1, 2006
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
------------------------------------------ ------------------------------------------------ --------------------------------------
Lincoln Life & Annuity Variable GAC96-111; XXX00-000 Xxxxxx - Initial Class
Annuity Separate Account L (GVA I, II, III) Equity-Income - Initial Class
Money Market - Initial Class
Lincoln Life & Annuity Flexible LN615NY (VUL I) Equity-Income - Initial Class
Premium Variable Life Account M
LN660NY (VUL) (VUL(CV)) Growth - Service Class
LN680NY (VUL(DB)) High Income - Service Class
ELITE SERIES: Equity-Income - Service Class
LN680NY (VUL(DB)) Growth - Service Class
LN690NY (VUL(DB) II) (VUL(DB) IV) Overseas - Service Class
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VULONE)
LN693NY (Momentum VUL(ONE))
LN694NY (VUL(ONE))2005)
LN695NY (Momentum VUL(ONE)2005)
Lincoln New York Account N AN426NY (ChoicePlus) Equity-Income - Initial Class
for Variable Annuities Growth - Initial Class
Overseas - Initial Class
30296NY (ChoicePlus Access) Equity-Income -Service Class 2
Growth- Service Class 2
Overseas -Service Class 2
30070BNYMVA3 Equity-Income -Service Class 2
(ChoicePlus II) Growth- Service Class 2
(ChoicePlus II Access) Overseas -Service Class 2
(ChoicePlus II Advance)
(ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income Option)
LLANY Separate Account R for LN650NY (SVUL) Growth - Service Class
Flexible Premium Variable High Income - Service Class
Life Insurance Overseas - Service Class
ELITE SERIES: Equity-Income - Service Class
LN655NY (SVUL II) Growth - Service Class
LN650NY (SVUL) Overseas - Service Class
LN656NY (SVUL III) (SVUL IV)
LN657 (SVUL(ONE)) Growth - Service Class
LN658 (Momentum SVUL(ONE)) Overseas - Service Class
LLANY Separate Account S for Flexible ELITE SERIES: Equity-Income - Service Class
Premium Variable Life Insurance LN925NY (CVUL III) Growth - Service Class
LN935NY (LCV4) Overseas - Service Class
LN939NY (LCV5) Growth - Service Class
Overseas - Service Class
LNY Separate Account 401 for Group 19476NY (Director) Equity-Income - Service Class 2
Annuities Growth - Service Class 2
Overseas - Service Class 2
SCHEDULE C
AMENDED AS OF MAY 1, 2006
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Xxxxx
AllianceBernstein Variable Products Series Fund
American Century Investments Variable Products
American Funds Insurance Series)
Baron Capital Funds Trust
DWS Investments VIT Funds (f/k/a/ Xxxxxxx; f/k/a BT Insurance Funds Trust)
Delaware VIP Trust
Dreyfus Variable Investment Fund
Evergreen
Franklin Xxxxxxxxx Variable Insurance Products Trust
Janus Aspen Series
Lincoln Variable Insurance Products Trust
M Funds
MFS Variable Insurance Trust
Xxxxxxxxx Xxxxxx Advisers Management Trust
OCC Accumulation Trust
Xxxxxxxxxxx Funds
Xxxxxx Variable Trust
X. Xxxx Price International Series, Inc.
Xxxxx Fargo Variable Trust Funds
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedules A and C to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 6/12/06 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: 2nd Vice-President
Date 8/31/06 VARIABLE INSURANCE PRODUCTS FUND
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date 8/15/06 FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
AMENDMENT NO. 9 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund and
Fidelity Distributors Corporation, hereby amend their Participation Agreement,
dated September 1, 1996 and as subsequently amended, by replacing Schedules A
and C in their entirety with the following:
SCHEDULE A
AMENDED AS OF OCTOBER 1, 2006
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
-------------------------------------------- ---------------------------------------------- --------------------------------------
Lincoln Life & Annuity Variable GAC96-111; XXX00-000 Xxxxxx - Initial Class
Annuity Separate Account L (GVA I, II, III) Equity-Income - Initial Class
Money Market - Initial Class
Lincoln Life & Annuity Flexible Premium LN615NY (VUL I) Equity-Income - Initial Class
Variable Life Account M
LN660NY (VUL) (VUL(CV)) Growth - Service Class
LN680NY (VUL(DB)) High Income - Service Class
ELITE SERIES: Equity-Income - Service Class
LN680NY (VUL(DB)) Growth - Service Class
LN690NY (VUL(DB) II) (VUL(DB) IV) Overseas - Service Class
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VULONE)
LN693NY (Momentum VUL(ONE))
LN694NY (VUL(ONE)2005)
LN695NY (Momentum VUL(ONE)2005)
Lincoln New York Account N AN426NY (ChoicePlus) Equity-Income - Initial Class
for Variable Annuities Growth - Initial Class
Overseas - Initial Class
30296NY (ChoicePlus Access) Equity-Income -Service Class 2
Growth- Service Class 2
Overseas -Service Class 2
30070BNYMVA3 Equity-Income -Service Class 2
(ChoicePlus II) Growth- Service Class 2
(ChoicePlus II Access) Overseas -Service Class 2
(ChoicePlus II Advance)
(ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income Option)
30070-CP-Design 1, 2 or 3 (ChoicePlus Design)
LLANY Separate Account R for LN650NY (SVUL) Growth - Service Class
Flexible Premium Variable High Income - Service Class
Life Insurance Overseas - Service Class
ELITE SERIES: Equity-Income - Service Class
LN655NY (SVUL II) Growth - Service Class
LN650NY (SVUL) Overseas - Service Class
LN656NY (SVUL III) (SVUL IV)
LN657 (SVUL(ONE)) Growth - Service Class
LN658 (Momentum SVUL(ONE)) Overseas - Service Class
LLANY Separate Account S for Flexible ELITE SERIES: Equity-Income - Service Class
Premium Variable Life Insurance LN925NY (CVUL III) Growth - Service Class
LN935NY (LCV4) Overseas - Service Class
LN939NY (LCV5) Growth - Service Class
Overseas - Service Class
LNY Separate Account 401 for Group Annuities 19476NY (Director) Equity-Income - Service Class 2
Growth - Service Class 2
Overseas - Service Class 2
Lincoln Life & Annuity Flexible Premium LN930NY (Lincoln Corporation Private Equity-Income - Service Class
Variable Life Account Z Solution) Growth - Service Class
High Income - Service Class
Overseas - Service Class
SCHEDULE C
AMENDED AS OF MAY 1, 2006
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Xxxxx
AllianceBernstein Variable Products Series Fund
American Century Investments Variable Products
American Funds Insurance Series
Baron Capital Funds Trust
DWS Investments VIT Funds (f/k/a/ Xxxxxxx; f/k/a BT Insurance Funds Trust)
Delaware VIP Trust
Dreyfus Variable Investment Fund
Evergreen
Franklin Xxxxxxxxx Vairable Insurance Products Trust
Xxxxxxx Sachs VIT
Janus Aspen Series
XX Xxxxxx
Xxxxxxxxx Pilot Variable Fund
Lincoln Variable Insurance Products Trust
M Funds
MFS Variable Insurance Trust
Xxxxxxxxx Xxxxxx Advisers Management Trust
OCC Accumulation Trust
Xxxxxxxxxxx Funds
PIMCO
ProFund
Xxxxxx Variable Trust
X. Xxxx Price International Series, Inc.
Vanguard Xxxxx Fargo Variable Trust Funds
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedules A and C to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 11/1/06 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: 2nd Vice-President
Date 12/7/06 VARIABLE INSURANCE PRODUCTS FUND
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date 11/27/06 FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
AMENDMENT NO. 12 TO PARTICIPATION AGREEMENT
Lincoln Life & Annuity Company of New York, Variable Insurance Products Fund II
and Fidelity Distributors Corporation, hereby amend their Participation
Agreement, dated September 1, 1996 and as subsequently amended, by replacing
Schedules A and C in their entirety with the following:
SCHEDULE A
AMENDED AS OF OCTOBER 1, 2006
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
FORM NUMBERS OF CONTRACTS
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT FIDELITY FUND (CLASS)
-------------------------------------------- ---------------------------------------------- --------------------------------------
Lincoln Life & Annuity Variable GAC96-111; GAC91-101 Asset Manager - Initial Class
Annuity Separate Account L (GVA I, II, III) Contrafund - Service Class 2
Lincoln Life & Annuity Flexible Premium LN615NY (VUL I) Asset Manager - Initial Class
Variable Life Account M Investment Grade Bond - Initial
LN660NY (VUL) (VUL(CV)) Contrafund - Service Class
LN680NY (VUL(DB))
ELITE SERIES: Contrafund - Service Class
LN680NY (VUL(DB))
LN690NY (VUL(DB) II) (VUL(DB) IV)
LN665NY (VUL(CV) II) (VULFlex)
LN670NY (VUL(CV) III) (VUL(CV) IV)
LN691NY (VULONE)
LN693NY (Momentum VUL(ONE))
LN694NY (VUL(ONE) 2005)
LN695NY (Momentum VUL(ONE)2005)
Lincoln New York Account N AN426NY (ChoicePlus) Contrafund - Service Class 2
for Variable Annuities
30296NY (ChoicePlus Access) Contrafund - Service Class 2
30070BNYMVA3 Contrafund - Service Class 2
(ChoicePlus II; ChoicePlus II Access)
(ChoicePlus II Advance; ChoicePlus II Bonus)
30070BNYBA [ChoicePlus Assurance (B Share)]
30070BNYC [ChoicePlus Assurance (C Share)]
30070BNYAL [ChoicePlus Assurance (L Share)]
30070BNYN [ChoicePlus Assurance (Bonus)]
AN501NY (ChoicePlus Momentum Income Option)
30070-CP-Design 1, 2 or 3 (ChoicePlus Design)
LLANY Separate Account R for Flexible LN650NY (SVUL) Contrafund - Service Class
Premium Variable Life Insurance
ELITE SERIES: Contrafund - Service Class
LN655NY (SVUL II)
LN650NY (SVUL)
LN656NY (SVUL III) (SVUL IV)
LN657 (SVUL(ONE))
LN658 (Momentum SVUL(ONE))
LLANY Separate Account S for Flexible ELITE SERIES: Asset Manager - Service Class
Premium Variable Life Insurance LN925NY (CVUL Series III) Contrafund - Service Class
LN935NY (LCV4)
LN939NY (LCV5)
LNY Separate Account 401 for Group 19476 (Director) Contrafund - Service Class
Annuities
Lincoln Life & Annuity Flexible Premium LN930NY (Lincoln Corporate Private Solution) Asset Manager - Service Class
Variable Life Account Z Contrafund - Service Class
Investment Grade Bond - Initial Class
SCHEDULE C
AMENDED AS OF OCTOBER 1, 2006
Other investment companies currently available under variable annuities or
variable life insurance issued by the Company:
AIM Variable Insurance Funds, Inc.
Xxxxx
AllianceBernstein Variable Products Series Fund
American Century Investments Variable Products
American Funds Insurance Series
Baron Capital Funds Trust
Delaware VIP Trust
Dreyfus Variable Investment Fund
DWS Investments VIT Funds (f/k/a Xxxxxxx; f/k/a/ BT Insurance Funds Trust)
Evergreen
Franklin Xxxxxxxxx Variable Insurance Products Trust
Xxxxxxx Sachs VIT
Janus Aspen Series
XX Xxxxxx
Xxxxxxxxx Pilot Variable Fund
Lincoln Variable Insurance Products Trust
M Funds
MFS(R) Variable Insurance Trust
Xxxxxxxxx Xxxxxx Advisers Management Trust
OCC Accumulation Trust
Xxxxxxxxxxx Funds
PIMCO
ProFund
Xxxxxx Variable Trust
X. Xxxx Price International Series, Inc.
Vanguard VIF
Xxxxx Fargo Variable Trust Funds
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
Schedules A and C to be executed in its name and on its behalf by its duly
authorized representative and its seal to be hereunder affixed hereto as of the
date specified below.
Date 11/1/06 LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: 2nd Vice-President
Date 12/7/06 VARIABLE INSURANCE PRODUCTS FUND
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer, SVP
Date 11/27/06 FIDELITY DISTRIBUTORS CORPORATION
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: EVP
