Exhibit 1(3)
UNDERWRITING AGREEMENT
----------------------
THIS AGREEMENT is entered into on this 30th day of April, 1995 among THE
LINCOLN NATIONAL LIFE INSURANCE COMPANY ("LNL"), a life insurance company
organized under the laws of the State of Indiana on behalf of itself and LINCOLN
NATIONAL FLEXIBLE PREMIUM VARIABLE LIFE ACCOUNT J, a separate account
established by LNL pursuant to the Indiana Insurance Code ("Separate Account
J"), and AMERICAN FUNDS DISTRIBUTORS, INC. ("AFD"), a corporation organized
under the laws of the State of California.
WITNESSETH:
WHEREAS, LNL proposes to issue to the public certain individual flexible
premium variable life insurance policies through Separate Account J (the
"Policies"); and
WHEREAS, LNL has established Separate Account J for the purpose of issuing
the Policies and has registered Separate Account J with the Securities and
Exchange Commission (the "Commission") as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act"); and
WHEREAS, the Policies to be issued are registered by LNL with the
Commission for offer and sale to the public, and otherwise are in compliance
with all applicable laws; and
WHEREAS, AFD is a broker-dealer registered under the Securities Exchange
Act of 1934 (the "1934 Act") and is a member of the National Association of
Securities Dealers, Inc. (the "NASD"), and proposes to form a selling group for
the distribution of the Policies; and
WHEREAS, LNL will be the principal underwriter of the Policies; and
WHEREAS, LNL desires to obtain the services of AFD as a co-underwriter of
the Policies;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, LNL, Separate Account J and AFD hereby agree as follows:
Duties of AFD
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1. Upon agreement with LNL, AFD will form a selling group consisting of
broker-dealers other than those listed in the attached Schedule of Excluded
Broker-Dealers (the "Broker Schedule"), to distribute the Policies which are
issued by LNL through Separate Account J and are registered with the Commission
under the Securities Act of 1933 (the "1933 Act") for offer and sale to the
public.
2. AFD will enter into and maintain a selling group agreement with each
broker-dealer joining such selling group (each, a "Member"). Promptly
after execution, AFD will provide an executed copy of each selling group
agreement to LNL. Any such selling group agreement will expressly be made
subject to this Agreement and will provide:
(i) that each Member will distribute the Policies only in those
jurisdictions in which the Policies are registered or qualified for sale
and only through duly licensed registered representatives of the Members
who are properly insurance licensed with LNL to sell the Policies in the
applicable jurisdiction(s);
(ii) that all applications and initial and subsequent payments under the
Policies collected by the Member will be remitted promptly by the Member to
LNL at such address as it may from time to time designate;
(iii) that each Member will comply with all applicable federal and state
laws, rules and regulations.
3. AFD will use reasonable efforts to provide information and marketing
assistance to the Members, including preparing and providing Members will
advertising materials and sales literature, and providing Members with current
Prospectuses for the Policies and for the shares of American Variable Insurance
Series (the "Series"). AFD will use reasonable efforts to ensure that Members
deliver only the currently effective Prospectuses of the Policies and the
Series.
AFD and LNL will cooperate in the development of advertising and sales
literature to be used by Members and by AFD itself.
LNL will deliver to LNC Equity Sales Corporation ("LNESCO") and to any
other broker-dealers listed in the Broker Schedule, and will use reasonable
efforts to ensure that LNESCO and any of those broker-dealers use, only sales
literature and advertising material which conform to the requirements of federal
and state laws and regulations and which have been authorized by both LNL and
AFD.
AFD will deliver to Members, and use reasonable efforts to ensure that
Members use, only sales literature and advertising material which conform to the
requirements of federal and state laws and regulations and which have been
authorized by both LNL and AFD.
Until such time as AFD has begun forming a selling group to distribute the
Policies, LNL will be responsible for filing sales literature used by LNESCO and
any other broker-dealer listed in the attached Broker Schedule and advertising
material, where necessary, with appropriate securities regulatory authorities,
including the NASD. Once AFD has begun forming a selling group, AFD will perform
these functions.
Neither LNL nor AFD will distribute any Prospectus, sales literature,
advertising material or any other printed matter or material relating to the
Policies or the Series, if, to its knowledge, any of the foregoing misstates the
duties,
obligations or liabilities of LNL or AFD.
4. AFD shall not be responsible for
(i) taking or transmitting applications for the Policies;
(ii) examining or inspecting risks or approving, issuing or delivering
Policies;
(iii) receiving, collecting or transmitting insurance premiums;
(iv) assisting in the completion of applications for Policies;
(v) paying sales commissions to licensed broker-dealers and insurance
agents; and
(vi) otherwise offering and selling Policies directly to the public.
5. AFD will bear all its expenses of providing services under this
Agreement, including the cost of preparing, printing and mailing advertising and
sales literature used by Members (other than LNL and LNESCO), and the cost of
printing and mailing Policy and Series Prospectuses which are used by Members
(other than LNESCO) for sales purposes, except that AFD shall not bear the
expenses of registering and qualifying the Policies for sale under federal and
state laws, nor expenses of preparing, printing and mailing Policy Prospectuses,
proxies and shareholder reports for purposes other than sales of new Policies by
Members besides LNESCO. It is understood that LNL will not be required to bear
the cost of preparing, printing and mailing Series Prospectuses (except for the
printing and mailing duties provided in paragraph 13), or of registering Series
shares. AFD will reimburse LNL for all state insurance licensing fees and
associated renewal fees incurred to enable representatives of Members to sell
the Policies.
6. AFD will furnish to LNL such information with respect to the Series in
such form and signed by such of its officers as LNL may reasonably request, and
will warrant that the statements therein when so signed are true and correct.
AFD will advise LNL immediately of:
(a) any request by the Commission (i) for amendment of the registration
statement relating to the Policies or the Series or (ii) for additional
information;
(b) the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement of the Policies or the Series
or the initiation of any proceedings for that purpose;
(c) the institution of any proceeding, investigation or hearing involving
the offer or sale of the Policies or the Series of which it becomes aware;
or
(d) the occurrence of any material event, if known, which makes untrue any
statement made in the registration statement of the Policies or the Fund or
which requires the making of a change therein in order to make any
statement made therein not misleading.
7. AFD will use reasonable efforts to have the Series register for sale
under the 1933 Act and, if required, under any applicable state laws, from time
to time as necessary, such additional shares of the Series as may reasonably be
necessary for use as the funding vehicle for Separate Account J.
Duties of LNL
-------------
8. LNL or its agent will receive and process applications and premium
payments in accordance with the terms of the Policies and the current
Prospectuses. All applications for Policies are subject to acceptance or
rejection by LNL in its sole discretion. LNL will inform AFD of any such
rejection.
9. LNL will be responsible for filing with appropriate insurance
regulatory authorities, all materials required to permit the sale and
maintenance of the Policies, including the Policy Prospectus, Policies, forms,
sales literature andadvertising material, where necessary.
10. LNL will furnish to AFD such information with respect to Separate
Account J and the Policies in such form and signed by such of its officers as
AFD may reasonably request, and will warrant that the statements therein
contained, when so signed, are true and correct. LNL will advise AFD immediately
of:
(a) any request by the Commission or by any state insurance regulatory
authority (i) for amendment of the registration statement relating to
the Policies or the Series or (ii) for additional information;
(b) the issuance by the Commission or by any state insurance regulatory
authority of any stop order suspending the effectiveness of the
registration statement of the Policies or the Series or the initiation of
any proceedings for that purpose;
(c) the institution of any proceeding, investigation, hearing or other
action involving the offer or sale of the Policies or of shares of the
Series, of which it becomes aware;
(d) the occurrence of any material event, if known, which makes untrue any
statement made in the registration statement of the Policies or the Series
or which requires the making of a change therein in order to make any
statement made therein not misleading.
00. XXX will use reasonable efforts to register for sale, from time to
time as necessary, additional dollar amounts of the Policies under the 1933 Act
and, should it ever be required, under state securities laws; and to file for
approval under state insurance laws, when necessary; and will maintain
registration of Separate Account J under the 1940 Act.
12. LNL will pay on behalf of and as agent for AFD to Members of AFD's
selling group such commissions as are from time to time set forth in the selling
group agreements furnished to LNL by AFD. Such selling group agreements shall
provide for the return of sales commissions by the Members to LNL if the
Policies are tendered for redemption to LNL in accordance with the "right to
examine policy" provisions in the Policy. AFD shall also return to LNL any
remuneration paid to AFD for policies so tendered.
13. (a) LNL will bear its expenses of providing services under this
Agreement, including:
1. the cost of preparing, printing and mailing advertising and sales
literature used by LNL, LNESCO or any other broker-dealer listed in the Broker
Schedule;
2. the cost of preparing the Prospectus for the Policies;
3. the cost of printing and mailing the Prospectuses for the Policies
and the Series to Policy owners;
4. the cost of printing and mailing Policy and Series Prospectuses
which are used for sales purposes by LNL, LNESCO or any other broker-dealer
listed in the Broker Schedule;
5. expenses and fees of registering or qualifying the Policies and
Separate Account J under federal or state laws; and
6. any expenses incurred by its employees in assisting AFD in
performing its duties hereunder.
(b) Until AFD forms a selling group under this agreement, decisions
regarding selection of a financial printer for the printing of Policy
prospectuses shall be in the sole discretion of LNL. Thereafter, those
decisions
shall be in the sole discretion of AFD.
(c) LNL will pay to AFD such remuneration as may be contained in the
particular Schedule of Commissions to Dealers and Remuneration to AFD
("Commissions/Remuneration Schedule") which has been adopted and appended to
this Agreement and which is in force when the remuneration or reimbursement is
earned. That Schedule may be amended from time to time in the manner set forth
in Paragraph 26.
Warranties
---------
14. LNL represents and warrants to AFD that:
(i) a registration statement under the 1933 Act (File No. 33-76434) and
under the 1940 Act (File No. 811-8410) with respect to the Policies and
Separate Account J has been filed with Commission (a copy of which has been
delivered to AFD), and copies of any and all amendments thereto will be
forwarded to AFD at the time that they are filed with the Commission;
(ii) the registration statement and any further amendments or supplements
thereto will, when they become effective, conform in all material respects
to the requirements of the 1933 Act and the 1940 Act, and the rules and
regulations of the Commission thereunder, and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statement or omission made in reliance upon and in
conformity with information furnished in writing to LNL by AFD expressly
for use therein;
(iii) LNL is validly existing as a stock life insurance company under the
laws of the State of Indiana, with power (corporate or other) to own its
properties and conduct its business, as described in the Prospectus for the
policies, and has been duly qualified for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business to the extent such
qualification is required;
(iv) the Policies to be issued through Separate Account J have been duly
and validly authorized and, when issued and delivered against payment
therefor as provided in the Prospectuses and in the Policies, will be duly
and validly issued, and will conform to the description of the Policies
contained in the Prospectuses relating thereto;
(v) the performance of this Agreement and the consummation of the transactions
herein contemplated will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any statute, any indenture,
mortgage, deed of trust, note agreement or other agreement or instrument to
which LNL is a party or by which LNL is bound, LNL's Charter as a stock life
insurance company or By-Laws, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over LNL or any of its
properties; and no consent, approval, authorization or order of any court or
governmental agency or body which has not been obtained by the effective date of
this Agreement is required for the consummation by LNL of the transactions
contemplated by this Agreement; and
(vi) there are no material legal or governmenetal proceedings pending to which
LNL or Separate Account J is a party or of which any property of LNL or Separate
Acount J is subject, other than as set forth in the Prospectus relating to the
Policies, and other than litigation incidential to the kind of business
conducted by LNL which, if determined adversely to LNL, would not individually
or in the aggregate have a material adverse effect on the financial position,
surplus or operations of LNL;
(vii) any information furnished in writing by LNL to AFD for use in the
registration statement of the Series will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, nor result in the
registraion statement's failing to conform in all respects to the requirements
of the 1933 Act and the rules and regulations thereunder;
(viii) LNL will comply with all applicable requirements of state insurance laws
and regulations; and
(ix) LNL will not pay commissions to persons who, to the best of LNL's
knowledge, are not appropriately licensed in a manner as to comply with
applicable state insurance laws and regulations.
15. AFD represents and warrants to LNL that:
(i) a registration statement under the 1933 Act (File No. 2-86838), and under
the 1940 Act (File No. 811-3857) with respect to the Series has been filed with
the Commision in the form previously delivered to LNL, and copies of any and all
amendments thereto will be forwarded to LNL at the time that they are filed with
the Commission;
(ii) the registration statement for the Series and any further amendments
or supplements thereto will, when they become effective, conform in all
material respects to the requirements of the 1933 Act and the 1940 Act, and
the rules and regulations of the Commission thereunder, and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to AFD by LNL
expressly for use therein;
(iii) it is validly existing as a corporation in good standing under the
laws of California and it is a broker-dealer duly registered with the
Commission pursuant to the 1934 Act and is a member in good standing of the
NASD, with power (corporate or other) to own its properties and conduct its
business, and has been duly qualified for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business, to the extent such
qualification is required;
(iv) the shares to be issued by the Series have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided in the Series Prospectus, will be duly and validly issued and will
conform to the description of such shares contained in that Prospectus;
(v) the performance of its duties under this Agreement by AFD will not
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument to which AFD is a
party or by which AFD is bound, the Articles of Incorporation or By-Laws of
AFD, or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over AFD or its property;
(vi) there are no material legal or governmental proceedings pending to
which AFD or the Series is a party or of which any property of AFD or the
Series is the subject which are required to be described in the
registration statement of the Series and/or the Policies;
(vii) it will use reasonable efforts to ensure that no offering, sale or
other disposition of the Policies will be made until it has been notified
by LNL that the subject registration statements have been declared
effective and the Policies have been released for sale by LNL, and that
such offering, sale or other disposition shall be limited to those
jurisdictions that have approved or otherwise permit the offer and sale of
the Policies by LNL;
(viii) any information furnished in writing by AFD to LNL for use in the
registration statement for the Policies will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, nor result in the registration statement's failing to conform
in all respects to the requirements of the 1933 Act and the rules and
regulations thereunder; and
(ix) it will comply with the requirements of state broker-dealer
regulations and the 1934 Act as each applies to AFD and shall conduct its
affairs in accordance with the rules of Fair Practice of the NASD.
Miscellaneous
-------------
16. AFD makes no representation or warranty regarding the number of
Policies to be sold by licensed broker-dealers and insurance agents or the
amount to be paid thereunder. AFD does, however, represent that once the parties
agree to begin forming the selling group it will actively engage in its duty to
market the Policies under this Agreement on a continuous basis while the
Agreement is in effect and there is an effective registration of the Policies
and the Series with the Commission. This duty to actively market the Policies
will commence when the parties agree in writing upon the terms of Part A of the
Commission/Remuneration Schedule. (See paragraph 13.)
17. The parties shall coordinate with each other in the filing with the
Commission of amendments to the registration statements for the Policies and for
the Series, respectively.
18. (a) AFD may act as principal underwriter, co-underwriter, sponsor,
distributor or dealer for issuers other than LNL or its affiliates in
connection with mutual funds or insurance products; except that AFD shall not,
while this Agreement is in effect, act as principal underwriter, co-underwriter,
sponsor, distributor or dealer with respect to insurance policies which are
issued by insurance companies other than LNL or its affiliates that are similar
to the Policies. (However, nothing in the previous sentence shall diminish any
restriction upon AFD's activities imposed under any agreement between AFD and
LNL relating to variable annuity contracts.)
(b) While this Agreement is in effect, LNL will not:
(i) issue through broker-dealers (except itself, LNESCO and any other
broker-dealers listed in the Broker Schedule) any insurance policy
similar to the Policies unless agreed upon in writing by AFD and LNL.
(ii) enter into an agreement with any other organization for the
purpose of distributing the Policies, unless agreed to in writing by
AFD and LNL.
(iii) pay commissions or remuneration to AFD for Policies sold by
broker-dealers listed in that schedule.
(c) It is understood that shares of the Series may be sold to fund
insurance policies of issuers other than LNL or its affiliates or to
other shareholders, as long as that activity is in accordance with
Internal Revenue Code Section 817(h) and the regulations thereunder.
19. Nothing in this Agreement shall obligate LNL to appoint any Member or
registered representative of a Member its agent for purposes of the distribution
of the Policies. Nothing in this Agreement shall be construed as requiring AFD
to effect sales of the Policies directly to the public or to act as an insurance
agent or insurance broker on behalf of LNL for purposes of state insurance laws.
20. AFD agrees to indemnify LNL (or any affiliate, control person,
shareholder, director, officer or employee of LNL) for any liability incurred
(including reasonable costs relating to defense of any action) arising out of
any act or omission of AFD (or those of its affiliates) relating to
(i) rendering services under this Agreement or;
(ii) the purchase, retention or surrender of a Policy by any person or
entity;
provided, however, that indemnification will not be provided hereunder for
any such liability that results from the willful misfeasance, bad faith or
gross negligence of LNL or from the reckless disregard by LNL of the duties
and obligations arising under this Agreement.
21. LNL agrees to indemnify AFD (or any affiliate, control person,
shareholder, director, officer or employee of AFD) for any liability incurred
(including reasonable costs
relating to defense of any action) arising out of any act or omission of LNL (or
those of its affiliates) relating to
(i) rendering services under this Agreement or;
(ii) the purchase, retention or surrender of a Policy by any person or
entity;
provided, however, that indemnification will not be provided hereunder for any
such liability that results from the willful misfeasance, bad faith or gross
negligence of AFD or from the reckless disregard by AFD of the duties and
obligations arising under this Agreement.
22. This Agreement will terminate automatically upon its assignment, as
that term is defined in the 1940 Act. The parties understand that there is no
intention to create a joint venture in the subject matter of this Agreement.
Accordingly, the right to terminate this Agreement and to engage in any activity
not inconsistent with this Agreement is absolute. This Agreement will
terminate, without the payment of any penalty by either party:
(a) at the option of LNL upon six months' advance written notice to AFD;
or,
(b) at the option of AFD upon six months' advance written notice to LNL;
or,
(c) at the option of LNL upon institution of formal proceedings against AFD
by the NASD or by the Commission; or,
(d) at the option of AFD upon institution of formal proceedings against LNL
by the Commission or by the Department of Insurance of any state; or,
(e) as otherwise provided in the 1940 Act.
23. Each notice required by this Agreement shall be given in writing and
delivered by certified mail-return receipt requested.
24. This Agreement shall be controlled by the laws of the State of Indiana
and construed so as to interpret the Policies as insurance products written
within the business operation of LNL.
25. This Agreement, including the Broker Schedule and the
Commission/Remuneration Schedule, constitutes the entire agreement among the
parties pertaining to the marketing and distribution of the Policies, and
supersedes any and all prior agreements between the parties with respect to the
subject matter of this Agreement. This Agreement shall not affect the operation
of any previous
agreements entered into between LNL and AFD unrelated to the subject matter of
this Agreement.
26. (a) Amending the Agreement. This Agreement and any Schedule may be
amended from time to time only by agreement in writing of the parties.
(b) Amending the Schedules. For purposes of simplifying and expediting
amendments to the Broker Schedule and to the Commission/Remuneration Schedule,
the parties shall observe the rule that a Schedule shall be deemed amended as of
the date on which the parties have executed and signed a new Schedule which
explains the extent to which it supersedes any prior Schedule and which bears
the date as of which it shall take effect. One exception to this rule is that
with respect to any Commission/Remuneration Schedule, AFD in its sole discretion
may alter, upon written notice to LNL, the ratio of commissions paid to dealers
and remuneration paid to AFD. AFD agrees to reimburse LNL for any remuneration
previously received to the extent necessary to pay additional commissions to
dealers due to a retroactive change of this ratio.
27. No waiver of any provision nor consent to any exceptions to the terms
of this Agreement shall be effective unless that waiver or consent is executed
in writing by the parties and then only for the specific purpose, extent and
instance so provided.
28. This Agreement shall inure to the benefit of and be binding xxxx XXX
and AFD, and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person
or corporation, other than the parties hereto and their respective successors
and assigns, any legal or equitable right, remedy or claim in respect of this
agreement or any provision herein contained.
29. This Agreement and any amendment to it, including any amended
Schedule, may be executed in one or more counterparts. All of those counterparts
shall constitute one and the same agreement. Neither this Agreement nor any
amendment shall become effective until all conterparts have been fully executed
and delivered.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to
be duly executed and attested.
Lincoln National Life
Insurance Company on behalf
of itself and of Lincoln
National Flexible Premium
Variable Life Account J
Attest:
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------ --------------------------
Its: Vice President
-------------------------
American Funds Distributors,
Inc.
Attest:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxx
------------------------ --------------------------
Its: Senior Vice President
-------------------------
SCHEDULE OF COMMISSIONS TO
--------------------------
DEALERS AND REMUNERATION
------------------------
TO AFD
------
("Commission/Remuneration Schedule")
Effective Date: April 30, 1995
All Sales
---------
Lincoln National will make direct payment of commissions to dealers and
remuneration to AFD with respect to all sales of the Policies according to the
schedule set forth below. Where state law prohibits direct payment to AFD,
payment will be made in accordance with the applicable state law.
Part A: Commissions Remuneration
------- to Dealers to AFD
----------- ------------
All premiums eligible To be agreed To be agreed
for Commissions From upon upon
Policies Sold By
Member Dealers
Part B: Commissions to Remuneration
------- Lincoln National to AFD
----------------- ------------
All Premiums Eligible (As determined by 0.10%
for Commissions From Lincoln National)
Policies Sold by LNL
and LNESCO Agents and
Brokers
SCHEDULE OF EXCLUDED BROKER-DEALERS
-----------------------------------
("Broker Schedule")
1. The Lincoln National Life Insurance Company (LNL)
2. LNC Equity Sales Corporation (LNESCO)
