Exhibit 28(h)(8)
Form of
FUND PARTICIPATION AGREEMENT
(Fund of Funds)
THIS AGREEMENT is entered into as of this __ day of ___________, 2010 among
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY on behalf of itself and certain of
its separate accounts; LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK (together
with The Lincoln National Life Insurance Company "Insurance Company"), on
behalf of itself and certain of its separate accounts; LINCOLN INVESTMENT
ADVISERS CORPORATION ("LIAC"); LINCOLN VARIABLE INSURANCE PRODUCTS TRUST
("Trust"), an open-end investment company organized under the laws of Delaware;
AMERICAN FUNDS INSURANCE SERIES ("Series"), an open-end management investment
company organized under the laws of the Commonwealth of Massachusetts; CAPITAL
RESEARCH AND MANAGEMENT COMPANY ("CRMC"), a corporation organized under the
laws of the State of Delaware, on behalf of itself and the Retail Funds (as
defined below); and AMERICAN FUNDS SERVICE COMPANY (the "Transfer Agent"), a
corporation organized under the laws of the State of California.
WITNESSETH:
WHEREAS, Insurance Company proposes to issue, now and in the future, certain
multi-manager variable annuity contracts and/or variable life policies (the
"Contracts") for which the Trust is one of the underlying investment vehicles;
WHEREAS, Insurance Company has established pursuant to applicable insurance
law one or more separate accounts (each, an "Account") for purposes of issuing
the Contracts and has or will register each Account (unless the Account is
exempt from such registration) with the United States Securities and Exchange
Commission (the "Commission") as a unit investment trust under the Securities
Act of 1933, as amended (the "1933 Act") and the Investment Company Act of
1940, as amended (the "1940 Act");
WHEREAS, the Contracts, which are or will be registered by Insurance Company
(unless exempt from such registration) with the Commission for offer and sale,
will be in compliance with all applicable laws prior to being offered for sale;
WHEREAS, the Series has received a "Mixed and Shared Funding Order" from the
Commission granting relief from certain provisions of the 1940 Act and the
rules thereunder to the extent necessary to permit shares of the Series to be
sold to variable annuity and life insurance separate accounts of unaffiliated
insurance companies;
WHEREAS, the Series is divided into various funds (the "Series Funds"), and
each Series Fund is subject to certain fundamental investment policies which
may not be changed without a majority vote of the shareholders of such Series
Fund;
WHEREAS, the Trust is divided into various series (the "Funds"), and each
Fund has its own assets and liabilities and invests in securities in accordance
with its investment objectives and policies, as described in the registration
statement for the Funds;
WHEREAS, certain Funds set forth in Attachment A propose to hold as their
only investment shares of the Series Funds and certain American Funds listed on
Attachment B (the "Retail Funds" and together with the Series Funds, the
"Underlying Funds"), and such Funds will serve as certain of the underlying
investment mediums for the Contracts issued with respect to the Accounts listed
on Attachment C;
WHEREAS, the Trust and LIAC have received an Order from the Commission dated
March 31, 2010 (Release No. 29196, File No. 812-13660) granting exemption from
Section 12(d)(1)(A) and (B), Rule 12d1-2(a) and Section 17(a)(1) and (2) of the
1940 Act (the "Order");
WHEREAS, CRMC is the investment adviser for the Series and the Retail Funds;
and
WHEREAS, LIAC is the investment adviser for the Trust.
NOW, THEREFORE, in consideration of the foregoing and of mutual covenants
and conditions set forth herein and for other good and valuable consideration,
Insurance Company, LIAC, the Trust, the Series, CRMC and the Transfer Agent
hereby agree as follows:
1. (a) The Series, each Retail Fund and CRMC each represents and warrants to
Insurance Company and the Trust that: (i) a registration statement
under the 1933 Act and under the 1940 Act (collectively, the "SEC
Filings") with respect to the Series and each Retail Fund has been
filed with the Commission in the form previously delivered to LIAC,
and copies of any and all amendments thereto will be forwarded to
LIAC at the time that they are filed with the Commission; (ii) the
Series and each Retail Fund is, and shall be at all times while this
Agreement is in force, lawfully organized, validly existing, and
properly qualified in accordance with the laws of the state of its
organization; (iii) the shares of the Underlying Funds sold pursuant
to this Agreement will be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that
the Series and each Retail Fund will remain registered as an open-end
management investment company under the 1940 Act for as long as such
shares of the Series Funds and the Retail Funds are sold; (iv) the
Series and each Retail Fund will 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 and
the Series' and each Retail Fund's registration statement and any
further amendments thereto will, when they become effective, and all
definitive prospectuses and statements of additional information and
any further supplements thereto (the "Prospectus") shall, 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 any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statement therein not misleading; provided, however, that
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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 the Series, the Retail Funds or CRMC by
Insurance Company, LIAC and the Trust expressly for use therein; and
(v) the Series, the Retail Funds and CRMC will comply in all material
respects with all applicable laws and regulations, including, without
limitation, the 1933 Act and the 1940 Act and the rules and
regulations thereunder.
(b) The Series, each Retail Fund and CRMC represent and warrant that all
of the Series and Retail Fund trustees or directors, and officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Series or a Retail Fund
are and continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Series or Retail Fund
in an amount not less than the minimal coverage as required currently
by Rule 17g-(1) of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond includes coverage
for larceny and embezzlement and is issued by a reputable bonding
company.
(c) CRMC represents and warrants that it is lawfully organized and
validly existing under the laws of its state of organization; it is
duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and will remain duly registered
under all applicable federal and state securities laws; and that it
will perform its obligations for the Series and the Retail Funds in
accordance in all material respects with the laws of the applicable
state of organization of the Series and each Retail Fund and any
applicable state and federal securities laws.
(d) The Series, each Retail Fund and CRMC represent that each has
received a copy the Order, and that CRMC and the board of directors
or trustees of the Series and each Retail Fund understand the terms
and conditions of the Order. The Series, each Retail Fund and CRMC
each hereby agree to fulfill their responsibilities under the Order
as set forth in the Order and in this agreement.
(e) The Series and each Retail Fund represents and warrants that the
board of the Series and each Retail Fund, as applicable, including a
majority of its independent directors or trustees, has been informed
that no consideration will be paid by the Series or a Series Fund or
by a Retail Fund to the Trust or a Fund in connection with any
services or transactions (other than services or transactions between
the Series or a Retail Fund and CRMC or any of CRMC's affiliates and
an administrative services fee ("Administrative Services Fee") paid
by a Retail Fund to a Fund). In the event that any such consideration
will be paid by an Underlying Fund to the Trust or a Fund and a
Fund's investment in the Underlying Fund exceeds the limit of
Section 12(d)(1)(A)(i) of the 1940 Act, the Series or the applicable
Retail Fund shall seek a determination by its board of trustees or
directors that the consideration (i) is reasonable in relation to the
nature and quality of services received by the Underlying Fund;
(ii) is within the range of consideration that the Underlying Fund
would be required to pay to another unaffiliated entity in connection
with the same services or transactions; and (iii)
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does not involve overreaching on the part of any person concerned.
(f) The Series and each Retail Fund represents and warrants that the
board of the Series and each Retail Fund, including a majority of its
independent directors or trustees, has adopted or will adopt
procedures (the "Affiliated Underwriting Procedures") reasonably
designed to monitor any purchases of securities by Series Funds or
the applicable Retail Fund in an offering of securities during the
existence of an Affiliated Underwriting (as defined in the Order).
The Series and each Retail Fund further represents and warrants that
it will maintain and preserve permanently in an easily accessible
place, a written copy of the Affiliated Underwriting Procedures and
any modifications to the Affiliated Underwriting Procedures. Further,
the Series and each Retail Fund represents and warrants that the
board of the Series and each Retail Fund shall review these
procedures periodically, but no less frequently than annually, to
determine whether purchases were influenced by the investment by the
Trust in the Series or the applicable Retail Fund. Specific
considerations for the board of the Series and the Retail Funds are
detailed in condition 6 of Order.
(g) The Series and each Retail Fund represents and warrants that it shall
not and CRMC represents and warrants that it shall not direct an
Underlying Fund in which a Fund invests to acquire securities of any
other entity that would meet the definition of "investment company"
in the 1940 Act but for the exception provided in Section 3(c)(1) or
3(c)(7) of the Act, in excess of the limits contained in
Section 12(d)(1)(A) of the Act, except to the extent that such
Underlying Fund: (a) receives such securities as a dividend or as a
result of a plan of reorganization of a company (other than a plan
devised for the purpose of evading Section 12(d)(1) of the Act);
(b) acquires (or is deemed to have acquired) such securities pursuant
to exemptive relief from the Commission permitting the Underlying
Fund to: (i) acquire securities of one or more affiliated investment
companies, for short-term cash management purposes or (ii) engage in
inter-fund borrowing and lending transactions.
2. (a) The Trust represents and warrants to the Series, each Retail Fund and
CRMC that (i) the shares of the Funds are or will be registered under
the 1933 Act and that the shares will be issued, sold and distributed
in compliance in all material respects with all applicable federal
securities laws; (ii) the Trust is, and shall be at all times while
this Agreement is in force, lawfully organized and validly existing
under the laws of Delaware; (iii) the Trust is and shall remain at
all times while this Agreement is in force, registered as an open-end
management investment company under the 1940 Act; (d) the SEC Filings
(including the registration statement) of the Trust conform or, when
they become effective, will 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 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; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with
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information furnished in writing to the Trust by CRMC, the Series or
a Retail Fund expressly for use therein; and the Trust will comply in
all material respects with all applicable laws and regulations,
including, without limitation, the 1933 Act and the 1940 Act and the
rules and regulations thereunder.
(b) Insurance Company represents and warrants to the Series, each Retail
Fund and CRMC that:
(i) it has the corporate power and the authority to enter into and
perform all of its duties and obligations under this Agreement;
(ii) this Agreement constitutes its legal, valid and binding obligation,
enforceable against each above-named party in accordance with its
terms;
(iii) no consent or authorization of, filing with, or other act by or in
respect of any governmental authority is required in connection with
the execution, delivery, performance, validity or enforceability of
this Agreement;
(iv) The Lincoln National Life Insurance Company will or has established
the Accounts as separate accounts under Indiana law;
(v) Lincoln Life & Annuity Company of New York will or has established
the Accounts as separate accounts under New York law;
(vi) it has registered the Accounts as unit investment trusts under the
1940 Act to serve as investment vehicles for certain Contracts or,
alternatively, has not registered one or more of the Accounts in
proper reliance upon an exclusion from registration under the 1940
Act;
(vii) the Contracts are or will be and at the time of issuance will be
treated as annuity contracts and life insurance policies, as
applicable, under applicable provisions of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder (the "Code"),
that Insurance Company will maintain such treatment and that it will
notify the Series 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;
(viii) the offer of the Contracts has been registered with the SEC under the
Securities Act of 1933, unless exempt from registration, and each
such 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 rules and
regulations of the Commission thereunder, and 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; provided, however, that this representation
and warranty shall not apply to any
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statement or omission made in reliance upon and in conformity with the
information furnished in writing to Insurance Company by CRMC, the
Series or a Retail Fund expressly for use therein;
(ix)any information furnished in writing by Insurance Company for use in the
registration statement or annual report of the Series or a Retail Fund
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 Series' or a
Retail Fund's registration statement's failing to materially conform in
all respects to the requirements of the 1933 Act and 1940 Act and the
rules and regulations thereunder;
(x)investment by each Account in a Fund is in reliance on and consistent
with the terms of the Series' Mixed and Shared Funding Order; and
(xi)the Accounts invest in the Funds in reliance on the status of each
Account as a "Permitted Investor" within the meaning of
Section 817(h)(4)(A) of the Internal Revenue Code of 1986, as amended.
(c)LIAC represents and warrants that it is lawfully organized and validly
existing under the laws of its state of organization; it is duly registered
as an investment adviser under the Investment Advisers Act of 1940, as
amended, and will remain duly registered under all applicable federal and
state securities laws; and that it will perform its obligations for the
Trust in accordance in all material respects with the laws of the State of
Tennessee and any applicable state and federal securities laws.
(d)The Trust agrees that, if the Series offers a new Series Fund that is
substantially similar to a Retail Fund, the Trust will undertake to move the
Trust's assets invested in such Retail Fund to the new Series Fund and place
all new orders in such new Series Fund as soon as reasonably practical after
the new Series Fund is offered, subject to LIAC's fiduciary duty
requirements. At such time as all Trust assets allocated to a Retail Fund
are moved to a new Series Fund, such Retail Fund will no longer be a "Retail
Fund" under this Agreement.
(e)The Trust and LIAC hereby agree that they will adhere to allocation
limitations placed on the Retail Funds by CRMC or the Series.
(f)LIAC represents and warrants that it will offset the management fee it
charges a Fund by the amount of any Administrative Services Fees paid to
such Fund by the Retail Funds.
(g)Insurance Company, LIAC and the Trust represent that Insurance Company, LIAC
and the board of the Trust each understand the terms and conditions of the
Order; and Insurance Company, LIAC and the Trust each hereby agree to
fulfill their responsibilities under the Order as set forth in the Order and
in this
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agreement.
(h) LIAC represents and warrants that, at the time of investing in the shares of an Underlying Fund in
excess of three percent of the total outstanding voting stock of the Underlying Fund, it shall
notify the Series or the applicable Retail Fund and CRMC of the investment and transmit to CRMC on
behalf of the Series or Retail Fund, a list of the names of each Fund of Funds Affiliate (as
defined in the Order) and Underwriting Affiliates (as defined in the Order). In the case of a
subadvised Fund, LIAC represents and warrants that it shall notify the Series or the applicable
Retail Fund and CRMC of the investment and cause the Fund's subadviser to transmit to CRMC on
behalf of the Series or the applicable Retail Fund, a list of the names of each Fund of Funds
Affiliate and Underwriting Affiliates with respect to the subadviser.
CRMC and Transfer Agent agree that Transfer Agent will provide LIAC with the amount of the total
outstanding shares of each Underlying Fund on a monthly basis (or more frequently if needed) so
that LIAC can perform such calculations.
3. (a) The Series and each Retail Fund will furnish to LIAC and the Trust such information with respect to
the Series or Retail Fund in such form and signed by such of its officers as LIAC and the Trust may
reasonably request, and will warrant that the statements therein contained when so signed will be
true and correct. The Series or the applicable Retail Fund will advise LIAC and the Trust
immediately of: (i) the issuance by the Commission of any stop order suspending the effectiveness
of the registration statement of the Series or the Retail Fund or the initiation of any proceeding
for that purpose; (ii) the institution of any proceeding, investigation or hearing involving the
offer or sale of the Contracts or the Series or Retail Fund of which it becomes aware; or (iii) the
happening of any material event, if known, which makes untrue any statement made in the
registration statement of the Series or a Retail Fund or which requires the making of a change
therein in order to make any statement made therein not misleading.
(b) The Series and each Retail Fund will register for sale under the 1933 Act and, if required, under
state securities laws, such additional shares of the Series Funds or Retail Funds as may reasonably
be necessary for use as the funding vehicle for the Contracts.
(c) The parties agree that with regard to shares of the Underlying Funds subject to this agreement, the
Insurance Company, Trust and/or their affiliates do not control the management or policies of the
Series, the Retail Funds or CRMC.
(d) The Series agrees to make Class 1 shares of the Series Funds and each Retail Fund agrees to make
Class F-2 shares of such Retail Fund specified in Attachment B available for investment by the
Funds.
4. The Series and each Retail Fund or the Transfer Agent will compute the closing net asset value, and
any distribution information (including the applicable ex-date,
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record date, payable date, distribution rate per share, income accrual and
capital gains information) for each Underlying Fund as of the close of
regular trading on the New York Stock Exchange (normally 4:00 p.m. Eastern
Time) on each day the New York Stock Exchange is open for business (a
"Business Day") or at such other time as the net asset value of an
Underlying Fund is calculated, as disclosed in the relevant Underlying
Funds' current prospectuses. The Series, the applicable Retail Fund or the
Transfer Agent will use commercially reasonable efforts to communicate to
the Trust such information by 6:30 p.m. Eastern Time on each Business Day.
Such information shall be accurate and true in all respects and updated
continuously. Such information shall be communicated by electronic
transmission acceptable to the parties or other mutually agreeable method.
5. In the event an adjustment is made to the computation of the net asset
value of Underlying Fund shares as reported to the Trust under paragraph
4, the correction will be handled in a manner consistent with SEC
guidelines and the 1940 Act and the Series, the applicable Retail Fund or
Transfer Agent shall notify the Trust as soon as practicable after
discovering the need for any such adjustment. Notification may be made by
electronic transmission acceptable to the parties or other mutually
agreeable method.
6. To the extent a price adjustment results in a deficiency or excess to a
Fund's account, LIAC and Transfer Agent agree to evaluate the situation
together on a case-by-case basis with the goal towards pursuing an
appropriate course of action. To the extent the price adjustment was due
to Transfer Agent's error, Transfer Agent shall reimburse such Fund's
account. Any administrative costs incurred for correcting Fund accounts
will be at Trust's expense.
7. Purchases and redemptions of shares shall be handled in the following
manner:
(a)Manual Transactions. The Trust will use the NSCC's Fund/SERV system and
other such NSCC systems as soon as reasonably practicable. The Trust will
use its best efforts to use NSCC systems by October 1, 2010, for
transmission and settlement of orders. Additionally, once the Trust has
adopted the use of the NSCC's Fund/SERV and related systems for submitting
transactions, manual transactions may be submitted by the Trust only in
the event that the Trust is in receipt of orders for purchase and
redemption of shares and is unable to transmit the orders to Transfer
Agent via the NSCC due to unforeseen circumstances such as system wide
computer failures experienced by the Trust or the NSCC or other events
beyond the Trust's reasonable control. In the event manual transactions
are used, the following provisions shall apply:
(i)Prior to 4 p.m. Eastern time each Business Day ("Trade Date"), LIAC
and the Funds shall provide CRMC, the Series and the Retail Funds with
the percentage of the net assets of the Fund that they desire to
invest in each Underlying Fund (the "Target Allocation"), or
alternatively, LIAC and the Funds may have a standing order with the
Series and the Retail Funds
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stating the Target Allocation. To maintain the Target Allocation, LIAC
and the Trust will give instructions to the Transfer Agent by 8:00
a.m. Eastern Time, on the next Business Day, setting forth the net
purchases or redemptions for each Fund to be directed to an Underlying
Fund (the "Transaction Amount"). Provided LIAC and the Trust provide
the Transaction Amount to the Series no later than 8:00 a.m. the
Business Day following Trade Date, the purchase or redemption order
shall be deemed to be received prior to 4:00 p.m. Eastern time on
Trade Date and the Transfer Agent will therefore execute orders at the
net asset values determined as of the close of trading on the Trade
Date. Transfer Agent may process orders it receives after the 8:00
a.m. deadline using the following Business Day's net asset value.
None of CRMC, the Series or any Retail Fund shall have any
responsibility for calculating or verifying the Target Allocation or
the Transaction Amount.
(ii)The Trust will initiate payment by wire transfer to a custodial
account designated by the Series and/or the applicable Retail Fund(s)
for the aggregate purchase amounts prior to 4:00 p.m. Eastern time on
the next Business Day following Trade Date. Dividends and capital gain
distributions shall be automatically reinvested in additional shares
at the ex-dividend-date net asset value.
(iii)Aggregate orders for redemption of shares of the Underlying Funds will
be paid in cash and wired from the Underlying Funds' custodial account
to an account designated by the Trust. From the effective date of this
Agreement through September 30, 2010 and thereafter if the Trust
regularly uses Fund/SERV but submits manual trades pursuant to
paragraph 7(a) above: (i) for orders received by the Transfer Agent by
the 8:00 a.m. deadline Transfer Agent will use commercially reasonable
efforts to initiate payment by wire to the Trust or its designee of
proceeds of such redemptions on the next Business Day following Trade
Date, but in no event shall such payment be initiated later than two
Business Days following Trade Date (T+2) and (ii) for orders received
after the 8:00 a.m. deadline Transfer Agent will initiate payment by
wire to the Trust or its designee of proceeds of such redemptions two
Business Day following Trade Date (T+2). On or after October 1, 2010,
if the Trust does not regularly use Fund/SERV to submit transactions
and regularly submits trades manually, Transfer Agent will initiate
payments by wire of such redemption proceeds two Business Days
following Trade Date (T+2).
(b)For transactions via the Fund/SERV system, the following provisions shall
apply:
(i)The Trust and Transfer Agent will be bound by the terms of the
Fund/SERV Agreement filed by each with the NSCC. Without limiting
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the generality of the following provisions of this section, the Trust
and Transfer Agent each will perform any and all duties, functions,
procedures and responsibilities assigned to it and as otherwise
established by the NSCC applicable to Fund/SERV and the Networking
Matrix Level utilized.
(ii)Any information transmitted through Networking by any party to the
other and pursuant to this Agreement will be accurate, complete, and
in the format prescribed by the NSCC. Each party will adopt, implement
and maintain procedures reasonably designed to ensure the accuracy of
all transmissions through Networking and to limit the access to, and
the inputting of data into, Networking to persons specifically
authorized by such party.
(iii)To maintain the Target Allocation on each Business Day, LIAC and the
Trust shall communicate to Transfer Agent by Fund/SERV the aggregate
purchase orders and redemption orders (if any) of each Underlying Fund
by each Fund by the NSCC's Defined Contribution Clearance & Settlement
("DCC&S") Cycle 8 (generally, 6:30 a.m. Eastern time) on the following
Business Day. Transfer Agent shall treat all trades communicated to
Transfer Agent in accordance with the foregoing as if received prior
to the close of trading on the Trade Date. Target Allocations or, if
Allocations are conveyed by a standing order, changes to a standing
order not communicated to CRMC and the Series by 4 p.m. Eastern time
on a Business Day, shall not be transmitted to NSCC prior to the
conclusion of the DCC&S Cycle 8 on the following Business Day.
Transfer Agent may process orders it receives after the DCC&S Cycle 8
deadline using the net asset value determined on the Business Day
following the Trade Date.
(c)All orders are subject to acceptance by Transfer Agent and become
effective only upon confirmation by Transfer Agent. Upon confirmation, the
Transfer Agent will verify total purchases and redemptions and the closing
share position for each Fund/account. In the case of delayed settlement,
Transfer Agent and the Trust shall make arrangements for the settlement of
redemptions by wire no later than the time permitted for settlement of
redemption orders by the 1940 Act. If payment for the shares redeemed is
not received within the time permitted for settlement of redemption orders
by the 1940 Act, Trust may hold Transfer Agent responsible for any loss,
expense, liability or damage including loss of profit suffered by the
Trust or Insurance Company resulting from the delay or failure to make
payment as aforesaid. Such wires for the Trust will be communicated
separately.
Such wires for Transfer Agent for Series Funds should be sent to:
Xxxxx Fargo Bank
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ABA#: 000000000
Account#: 4100060532
AFS Account # and Fund #
FBO Lincoln Variable Ins Prod Trust
000 Xxxxxxxx Xxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Such wires for Transfer Agent for Retail Funds should be sent to:
Xxxxx Fargo Bank
ABA#: 000000000
Account #: 4600-076178
For credit to the account of American Funds Service Company
FBO Lincoln Variable Ins Prod Trust
FFC (American Funds account number)
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
(d)Processing errors which result from any delay or error caused by the Trust
may be adjusted through the NSCC System by Trust by the necessary
transactions on a current basis.
(e)If applicable, orders for the purchase of Fund shares shall include the
appropriate coding to enable Transfer Agent to properly calculate
commission payments to any broker-dealer firm assigned to the Trust.
(f)Trust shall reconcile share positions with respect to each Underlying Fund
for each Fund as reflected on its records to those reflected on statements
from Transfer Agent and shall, on request, certify that each Fund's share
positions with respect to each Underlying Fund reported by Transfer Agent
reconcile with Trust's share positions for that Fund. Trust shall promptly
inform Transfer Agent of any record differences and shall identify and
resolve all non-reconciling items within five business days.
(g)Within a reasonable period of time after receipt of a confirmation
relating to an instruction, Trust shall verify its accuracy in terms of
such instruction and shall notify Transfer Agent of any errors appearing
on such confirmation.
(h)Any order by the Trust for the purchase of shares of an Underlying Fund
through Transfer Agent shall be accepted at the time when it is received
by the Transfer Agent (or any clearinghouse agency that Transfer Agent may
designate from time to time), and at the offering and sale price
determined in accordance with this Agreement, unless rejected by Transfer
Agent or the respective Underlying Fund. In addition to the right to
reject any order, the Series and each Retail Fund has reserved the right
to withhold shares from sale temporarily or permanently. Transfer Agent
will not accept any order from the Trust that is placed on a
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conditional basis or subject to any delay or contingency prior to
execution. The procedure relating to the handling of orders shall be
subject to instructions that Transfer Agent shall forward from time
to time to the Trust. The shares purchased will be issued by the
respective Underlying Funds only against receipt of the purchase
price, in collected New York or Los Angeles Clearing House funds. If
payment for the shares purchased is not received within three days
after the date of confirmation, the sale may be cancelled by Transfer
Agent or by the respective Underlying Funds without any
responsibility or liability on the part of the Transfer Agent or the
Underlying Funds, and the Transfer Agent and/or the respective
Underlying Funds may hold the Trust or the Insurance Company
responsible for any loss, expense, liability or damage, including
loss of profit suffered by the Transfer Agent and/or the respective
Underlying Funds, resulting from the delay or failure to make payment
as aforesaid.
8. (a) The Series and each Retail Fund reserves the right to temporarily
suspend sales if the board of trustees or directors of the Series or
applicable Retail Fund, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, deems
it appropriate and in the best interests of shareholders or in
response to the order of an appropriate regulatory authority.
Further, the board of trustees or directors of the Series or a Retail
Fund may refuse to sell shares of any Series Fund or the applicable
Retail Fund to any person, or suspend or terminate the offering of
shares of any Series Fund or the applicable Retail Fund if such
action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the applicable board of
trustees or directors, acting in good faith and in light of its
fiduciary duties under federal and any applicable state law,
necessary in the best interests of the shareholders of such Series
Fund or Retail Fund, and as consistent with its anti market-timing
and late-trading policies and procedures.
(b) The Trust has policies and procedures in place to detect and
discourage short-term or disruptive trading practices, which may
include (but is not limited to) monitoring Contract holder trading
activity. Insurance Company and the Trust reserve the right to
refuse, to impose limitations on, or to limit any transaction request
if the request would tend to disrupt Contract administration or is
not in the best interest of the Contract holders or an Account or
Subaccount.
9. The Trust will make shares of the Funds listed on Attachment A
available only to Insurance Company and will register for sale under
the 1933 Act and, if required, under state securities laws, such
additional shares of the Funds as may reasonably be necessary for use
as the funding vehicle for the Contracts and to maintain a continuous
offering of the shares of the Funds.
10. The Contracts funded through each Account will provide for the
allocation of net amounts among certain Subaccounts corresponding to
the Fund investing in Class 1 shares of the Series Funds and/or Class
F-2 shares of the Retail Funds (each, a "Subaccount") for investment
in shares of the Funds as may be offered from time to time in the
Contracts. The selection of the particular Subaccount is to be made
12
by the Contract owner and such selection may be changed in accordance
with the terms of the Contracts.
11. Transfer of the Underlying Funds' shares will be by book entry only.
No stock certificates will be issued to the Funds. Shares ordered
from a particular Underlying Fund will be recorded by the Series or
the applicable Retail Fund as instructed by the Trust in an
appropriate title for the appropriate Fund. Shares ordered from a
particular Fund will be recorded by the Trust or the Trust's transfer
agent as instructed by Insurance Company in an appropriate title for
the corresponding Account or Subaccount.
12. The Series and each Retail Fund shall furnish notice of the dividend
rate to the Trust of any dividend or distribution payable on any
shares of the Series Funds or the applicable Retail Fund held by the
Funds prior to the close of business on the ex-dividend date. The
Trust hereby elects to receive all such dividends and distributions
as are payable on shares of an Underlying Fund recorded in the title
for the corresponding Fund in additional shares of that Underlying
Fund. The Series or the applicable Retail Fund shall notify the Trust
of the number of shares so issued. The Trust reserves the right to
revoke this election and to receive all such income dividends and
capital gain distributions in cash.
13. The Series and each Retail Fund shall pay all expenses incidental to
its performance under this Agreement. The Series and each Retail Fund
shall see to it that all of its shares are registered and authorized
for issue in accordance with applicable federal and state laws prior
to their purchase. The Series and each Retail Fund shall bear the
expenses for the cost of registration of its shares, preparation of
prospectuses (which in this Agreement shall include any summary
prospectuses unless the context otherwise requires) and statements of
additional information to be sent to existing Contract owners (upon
request), proxy statements and related materials and annual and
semi-annual shareholder reports, the printing and distribution of
such items to each Contract owner who has requested such information,
the preparation of all statements and notices required from it by any
federal or state law, and taxes on the issue or transfer of the
Series' or a Retail Fund's shares subject to this Agreement. The
Series and each Retail Fund will provide Insurance Company, at least
once a year, with enough copies of its Statement of Additional
Information to be able to distribute one to each Contract owner or
prospective Contract owner who requests such Statement of Additional
Information.
With respect to any prospectus and annual and semi-annual reports
(the "Reports") of the Series and each Retail Fund that are printed
in combination with any one or more such Reports of other investment
options for the Contracts (the "Booklet"), the Series or the
applicable Retail Fund shall bear the costs of printing and mailing
the Booklet to existing Contract owners based on the ratio of the
number of pages of the Series' or the applicable Retail Fund's
Reports included in the Booklet to the number of pages in the Booklet
as a whole.
13
14. (a) Insurance Company shall bear the expenses for the cost of preparation
and delivery of any Series or Retail Fund prospectuses (and
supplements thereto) to be sent to prospective Contract owners. The
Series and each Retail Fund shall provide, at its expense, such
documentation, if any as may be required, (in camera-ready or other
mutually agreeable form) and other assistance as is reasonably
necessary in order for Insurance Company once each year (or more
frequently if the prospectus for the Series or a Retail Fund is
amended), and twice each year in the case of the annual and
semi-annual shareholder reports, to have the prospectus or
prospectuses, and the annual and semi-annual shareholder reports for
the Contracts and the Series or Retail Funds, printed together in one
or more documents (such printing to be done at Insurance Company's
expense with respect to prospective investors).
(b) The Series and each Retail Fund will provide to the Trust at least
one complete copy of all registration statements, prospectuses, SAIs,
reports, proxy statements, sales literature and other promotional
materials that pertain to the Trust, applications for exemptions,
requests for no-action letters, and all amendments to any of the
above, that relate to the Series or a Retail Fund or its shares,
within a reasonable time after filing of each such document with the
Commission or the Financial Industry Regulatory Authority.
(c) The Trust may distribute the prospectuses of the Underlying Funds
pursuant to Rule 498 of the Securities Act of 1933 ("Rule 498"). For
purposes of this Agreement, the terms Summary Prospectus and
Statutory Prospectus shall have the same meaning as set forth in Rule
498.
(i) The Series and each Retail Fund represents and warrants that the
Summary Prospectuses and the hosting of such Summary Prospectuses
will comply in all material respects with the requirements of Rule
498 applicable to the Series, the Series Funds and the Retail Funds.
(ii) The Series and each Retail Fund agrees that the URL indicated on
each Summary Prospectus will lead contract owners directly to the web
page used for hosting Summary Prospectuses and that such web page
will host the current Series and Series Fund documents or Retail Fund
documents required to be posted in compliance with Rule 498.
(iii) The Series, each Retail Fund and CRMC represent and warrant
that they will be responsible for compliance with the provisions of
Rule 498(f)(1) involving contract owner requests for additional
Underlying Fund documents made directly to the Series, a Retail Fund,
CRMC or one of their affiliates.
(iv) Insurance Company represents and warrants that any bundling of
Summary Prospectuses and Statutory Prospectuses will be done in
compliance with Rule 498.
14
(v) CRMC, the Series and the Retail Funds may provide web links or
URLs to the Insurance Company for use with Insurance Company's
electronic delivery of fund documents or on the Insurance Company's
website. Insurance Company will be solely responsible for the
maintenance of such web links. CRMC, the Series and the Retail Funds
will be responsible for maintaining the Series' and the Series Funds'
or Retail Funds' current documents on the site to which such web
links or URLs originally navigate to.
(vi) Each party agrees to notify the other party promptly upon its
discovery of a failure to comply with the provisions of Rule 498.
(vii) The parties agree that Insurance Company is not required to
distribute Summary Prospectuses to its Contract holders, but rather
use of the Summary Prospectus will be at the discretion of Insurance
Company.
(d) The Series, each Retail Fund and CRMC hereby consent to the Insurance
Company's, LIAC's and Trust's use of the names of the Series and
CRMC, as well as the names of the Series Funds and the Retail Funds
set forth in Attachment C of this Agreement, in connection with
marketing the Funds and Contracts, subject to the terms of this
Agreement and Sections 12, 13 and 14 of that certain Business
Agreement, by and among Insurance Company, CRMC, and American Funds
Distributors. The Insurance Company acknowledges and agrees that CRMC
and/or its affiliates own all right, title and interest in and to the
names Capital Research and Management Company, American Funds,
American Funds Distributors, American Funds Insurance Series,
American Funds Service Company and the name of each Retail Funds, and
covenants not, at any time, to challenge the rights of CRMC and/or
its affiliates to such name or design, or the validity or
distinctiveness thereof. The Series, each Retail Fund and CRMC hereby
consent to the use by the Insurance Company, LIAC and the Trust of
any trademark, trade name, service xxxx or logo used by the Series, a
Retail Fund and CRMC, subject to the Series', the applicable Retail
Fund's and CRMC's approval of such use and in accordance with
reasonable requirements of the Series, the Retail Fund or CRMC. Such
consent will terminate with the termination of this Agreement. The
Insurance Company, LIAC and Trust agree and acknowledge that all use
of any designation comprised in whole or in part of the name,
trademark, trade name, service xxxx and logo under this Agreement
shall inure to the benefit of the Series, the Retail Funds and/or
CRMC.
15. (a) Insurance Company, the Trust and LIAC represent and warrant to the
Series and each Retail Fund that any information furnished in writing
by Insurance Company, the Trust or LIAC to the Series or a Retail
Fund for use in the registration statement and financial statements
of the Series or applicable Retail Fund will not result in the
registration statement's failing to conform in all respects to the
requirements of the 1933 Act and the 1940 Act and the rules and
regulations thereunder or containing any untrue statement of a
material fact or
15
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(b) The Series, each Retail Fund and CRMC represent and warrant to
Insurance Company, the Trust and LIAC that any information furnished
in writing by the Series, a Retail Fund or CRMC to Insurance Company,
the Trust or LIAC for use in the registration statement and financial
statements of the Trust or the Contracts will not result in the
registration statement's failing to conform in all respects to the
requirements of the 1933 Act and the 1940 Act and the rules and
regulations thereunder or containing any untrue statement of a
material fact or omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
16. (a) Insurance Company, the Trust and their affiliates shall make no
representations concerning the Series' or a Retail Fund's shares
except those contained in the then current registration statement,
Prospectus, or statement of additional information of the Series or
applicable Retail Fund, in such printed information subsequently
issued on behalf of the Series, the Retail Funds or other funds
managed by CRMC as supplemental to the Series' or a Retail Fund's
Prospectus, in information published on the Series', the Retail
Funds' or CRMC's internet site, or in materials approved by CRMC or
its affiliates.
(b) The Series and each Retail Fund and their affiliates shall make no
representations concerning the Trust's shares or the Contracts except
those contained in the then current registration statement,
Prospectus or statement of additional information of the Trust or
Contract, in such printed information subsequently issued on behalf
of the Trust or Insurance Company as supplemental to the Trust's or
Contract's Prospectus, or in materials approved by the Insurance
Company, the Trust or its affiliates.
17. (a) Shares of the Series may be offered to separate accounts of various
insurance companies ("Participating Insurance Companies") in addition
to Insurance Company and the Trust. The Series and CRMC represent and
warrant that each Series Fund is currently qualified as a Regulated
Investment Company under Subchapter M of the Code, and that they will
maintain such qualification (under Subchapter M or any successor or
similar provision) and that no other Participating Insurance Company
will purchase shares in any Series Fund for any purpose or under any
circumstances that would preclude Insurance Company from "looking
through" to the investments of each Series Fund in which it invests,
pursuant to the "look through" rules found in Treasury Regulation
1.817-5. The Series or CRMC will notify the Company immediately upon
having a reasonable basis for believing that any Series Fund has
ceased to so qualify or that any might not so qualify in the future.
(b) The Series and CRMC represent and warrant that the Series will at all
times comply with the diversification requirements of Section 817(h)
of the Code and
16
any regulations thereunder applicable to variable contracts as
defined in Section 817(d) of the Code and any amendments or other
modifications or successor provisions to such Sections or regulations
(and any revenue rulings, revenue procedures, notices, and other
published announcements of the Internal Revenue Service interpreting
those Sections or regulations), as if those requirements applied
directly to each such Series Fund. The Series will notify the Company
immediately upon having a reasonable basis for believing that the
Series or a Series Fund thereunder has ceased to comply with the
diversification requirements or that the Series or Series Fund might
not comply with the diversification requirements in the future. In
the event of a breach of this representation and warranty the Series
will take all reasonable necessary steps to adequately diversify the
Series so as to achieve compliance within the grace period afforded
by Treasury Regulation 1.817-5.
18. The parties to this Agreement recognize that due to differences in
tax treatment or other considerations, the interests of various
Contract owners participating in one or more of the Funds or
Underlying Funds might, at some time, be in conflict. Each party
shall report to the other party any potential or existing conflict of
which it becomes aware. The board of trustees or directors of the
Series or applicable Retail Fund shall promptly notify Insurance
Company and the Trust of the existence of irreconcilable material
conflict and its implications. If such a conflict exists, Insurance
Company or the Trust will, at its own expense, take whatever action
it deems necessary to remedy such conflict; in any case, Contract
owners will not be required to bear such expenses.
The Series hereby notifies Insurance Company and the Trust that it
may be appropriate to include in the Prospectus pursuant to which a
Contract is offered disclosure regarding the risks of mixed and
shared funding.
19. (a) Insurance Company, the Trust and LIAC, as applicable, shall each
indemnify and hold harmless CRMC, each of the Series Funds, each
Retail Fund, and each of its affiliates, directors, officers,
employees and agents and each person who controls them within the
meaning of the Securities Act of 1933, as amended, from and against
any and all losses, claims, damages, liabilities and expenses,
including reasonable attorneys' fees ("Losses"), they may incur,
insofar as such Losses arise out of or are based upon (i) Insurance
Company's, the Trust's or LIAC's negligence or willful misconduct in
the performance of its duties and obligations under this Agreement,
(ii) Insurance Company's, the Trust's or LIAC's violation of any
Applicable Law in connection with the performance of its duties and
obligations under this Agreement, and (iii) any breach by Insurance
Company, the Trust or LIAC of any provision of this Agreement,
including any representation, warranty or covenant made in the
Agreement. Insurance Company or the Trust, as applicable, shall also
reimburse CRMC, the Series Funds, the Retail Funds and their
respective affiliates for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending
against such Losses. This indemnity provision is in addition to any
other liability which Insurance
17
Company, the Trust or LIAC may otherwise have to CRMC, the Series
Funds, the Retail Funds or their respective affiliates.
(b) CRMC, the Series and each Retail Fund, as applicable, shall each
indemnify and hold harmless, Insurance Company and its directors,
officers, employees and agents and each person who controls them
within the meaning of the Securities Act of 1933, as amended (the
"1933 Act"), LIAC and its directors, officers, employees and agents
and each person who controls them within the meaning of the 1933 Act
and the Trust and its directors, officers, employees and agents and
each person who controls them within the meaning of the 1933 Act from
and against any and all Losses they may incur, insofar as such Losses
arise out of or are based upon (i) CRMC, the Series' or the
applicable Retail Fund's negligence or willful misconduct in the
performance of its duties and obligations under this Agreement,
(ii) CRMC, the Series' or the applicable Retail Fund's violation of
Applicable Law in connection with the performance of its duties and
obligations under this Agreement, and (iii) any breach by CRMC, the
Series or a Retail Fund of any provision of this Agreement, including
any representation, warranty or covenant made in the Agreement by
CRMC, the Series or applicable Retail Fund. CRMC, the Series and each
Retail Fund, as applicable, shall also reimburse Insurance Company
for any legal or other expenses reasonably incurred in connection
with investigating or defending against such Losses. This indemnity
provision is in addition to any other liability which CRMC, the
Series or a Retail Fund may otherwise have to Insurance Company.
(c) Promptly after receipt by a party entitled to indemnification under
this paragraph 19 (an "Indemnified Party") of notice of the
commencement of an investigation, action, claim or proceeding, such
Indemnified Party will, if a claim in respect thereof is to be made
against the indemnifying party under this paragraph 19, notify the
indemnifying party of the commencement thereof. The indemnifying
party will be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnified Party. After notice from the
indemnifying party of its intention to assume the defense of an
action and the appointment of satisfactory counsel, Indemnified Party
shall bear the expenses of any additional counsel obtained by it, and
the indemnifying party shall not be liable to such Indemnified Party
under this paragraph for any legal expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation. The indemnifying party shall
not, without the prior written consent of the Indemnified Party,
settle or compromise the liability of the Indemnified Party;
provided, however, that in the event that the Indemnified Party fails
to provide its written consent, the indemnifying party shall
thereafter be liable to provide indemnification only to the extent of
the amount for which the action could otherwise have been settled or
compromised.
20. The Trust shall be responsible for voting shares of the Underlying
Funds in a manner consistent with Section 12(d)(1)(E) of the 1940 Act
and the terms of the Order.
18
21. Insurance Company, the Trust, LIAC, the Series, the Retail Funds and
CRMC each acknowledge that it understands the terms and conditions of
the Order, a copy of which is attached as Attachment D, and that each
shall each comply with the terms and conditions of the Order and
adopt such procedures as may be necessary to comply with such terms
and conditions.
22. 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:
(a) by mutual agreement at any time; or
(b) any party at any time, with respect to one, some or all of the
Underlying Funds, upon sixty (60) days written notice to the other
parties; or
(c) at the option of Insurance Company, the Trust, CRMC, the Series or
each Retail Fund (with respect to that Retail Fund) upon ten calendar
days' prior written notice to the other party if a final
non-appealable administrative or judicial decision is entered against
the other party which has a material impact on the Contracts; or
(d) at the option of the Trust, upon ten calendar days' prior written
notice, if shares of the Series are not reasonably available or with
respect to a Retail Fund if shares of that Retail Fund are not
reasonably available; or
(e) at the option of the Trust, immediately upon written notice, if the
Series or CRMC fails to meet the requirements for diversification
under Section 817 (or any successor or similar provision) or to
qualify as a RIC under the Code or if the Trust reasonably and in
good faith believes a Series Fund may fail to meet such requirements
or qualify; or
(f) in the event the Series' or a Retail Fund'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 an
underlying investment for the Funds; in such event prompt notice
shall be given by the Trust, the Series or the Retail Fund to each of
the other parties; or
(g) at the Trust's option by written notice to the Series or the
applicable Retail Fund and CRMC if the Trust shall determine in its
sole judgment exercised in good faith, to stop offering a Fund
because either the Series, a Retail Fund or CRMC 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 such termination to be
effective sixty (60) days' after
19
receipt by the other parties of written notice of the election to
terminate; or
(h) at Insurance Company's option by written notice to the Series or the
applicable Retail Fund and CRMC if Insurance Company shall determine
in its sole judgment exercised in good faith, that investment in the
Funds is no longer an appropriate investment under the Contracts or
no longer in the best interests of Contract owners, such termination
to be effective sixty (60) days' after receipt by the other parties
of written notice of the election to terminate; or
(i) at the option of the Series, each Retail Fund (with respect to that
Retail Fund) or CRMC by written notice to Insurance Company and the
Trust if the Series, the applicable Retail Fund or CRMC shall
determine in its sole judgment exercised in good faith, that
Insurance Company or the Trust 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, such termination to be effective sixty (60) days' after
receipt by the other parties of written notice of the election to
terminate.
The effective date for termination pursuant to any notice given under
this Paragraph shall be calculated beginning with the date of receipt
of such notice.
23. All notices, consents, waivers, and other communications under this
Agreement must be in writing, and will be deemed to have been duly
received: (a) when delivered by hand (with written confirmation of
receipt); (b) when sent by telecopier (with written confirmation of
receipt), provided that a copy is mailed by registered mail, return
receipt requested; or (c) the day after it is sent by a nationally
recognized overnight delivery service, in each case to the
appropriate addresses and telecopier numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate
by notice to the other parties):
If to Insurance Company:
The Lincoln National Life Insurance Company
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Second Vice President
If to the Trust or LIAC:
Lincoln Variable Insurance Products Trust
0000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
President
20
If to Series:
American Funds Insurance Series
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Executive Vice President
Facsimile No.: 000-000-0000
with a copy to:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention:Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior Counsel, Fund
Business Management Group
Facsimile No.: 000-000-0000
If to a Retail Fund or CRMC:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention:Xxxxxxx X. Xxxxxx, Senior Vice President, Fund Business Management
Group and Secretary
Facsimile No.: 000-000-0000
with a copy to:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention:Xxxxxxx X. Xxxxxxxxxx, Senior Vice President and Senior Counsel, Fund
Business Management Group
Facsimile No.: 000-000-0000
If to the Transfer Agent:
American Funds Service Company
000 Xxxxx Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention:Xxxxxxx X. Xxxxxxxxxx, Chairman
Facsimile No.: 000-000-0000
with a copy to:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention:Xxxxxxx X. Xxxxxx, Senior Vice President, Fund Business Management
Group and Secretary
21
Facsimile No.: 000-000-0000
and
American Funds Service Company
Attn: HOST--Contract Administration Team
0000 Xxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000-0000
Facsimile No.: 000-000-0000
24. If this Agreement terminates, any provision of this Agreement
necessary to the orderly windup of business under it will remain in
effect as to that business, after termination.
25. If this Agreement terminates, the Series and each Retail Fund, at the
Trust's option, will continue to make additional shares of the Series
or the applicable Retail Fund available for all existing Contracts as
of the effective date of termination (under the same terms and
conditions as were in effect prior to termination of this Agreement
with respect to existing Contract owners), unless the Series or the
applicable Retail Fund liquidates or applicable laws prohibit further
sales. The Trust agrees not to redeem shares of the Series and each
Retail Fund unless: (a) the Agreement is terminated; (b) legitimately
doing so to meet Target Allocations; (c) under an order from the
Commission or pursuant to exemptive relief granted by the Commission
or pursuant to a vote of Contract owners; (d) as otherwise agreed to
or permitted among the parties; or (e) Insurance Company or the Trust
provides at least sixty (60) days advance written notice.
26. The obligations of the Series and the Retail Funds under this
Agreement are not binding upon any of the trustees, directors,
officers, employees or shareholders (except CRMC if it is a
shareholder) of the Series and each Retail Fund individually, but
bind only the Series' and the Retail Funds' assets. When seeking
satisfaction for any liability of the Series or a Retail Fund in
respect of this Agreement, the Trust, LIAC, Insurance Company and the
Account agree not to seek recourse against said trustees, directors,
officers, employees or shareholders, or any of them, or any of their
personal assets for such satisfaction. Notwithstanding the foregoing,
if Insurance Company or the Trust seek satisfaction for any liability
of the Series or a Retail Fund in respect of this Agreement,
Insurance Company (on behalf of itself or any Account) and/or the
Trust may seek recourse against CRMC. All obligations of the Trust
hereunder shall be binding only upon the assets of Trust and shall
not be binding on any other series of the Trust or on the trustees,
officers or shareholders of the Trust or of any other series of the
Trust.
27. This Agreement shall be construed in accordance with the laws of the
State of
22
New York without reference to its conflicts of law provisions.
28. This Agreement and the parties' rights, duties and obligations under
this Agreement are not transferable or assignable by any of them
without the express, prior written consent of the other parties
hereto. Any attempt by a party to transfer or assign this Agreement
or any of its rights, duties or obligations under this Agreement
without such consent is void; provided, however, that a merger of,
reinsurance arrangement by, or change of control of a party shall not
be deemed to be an assignment for purposes of this Agreement.
29. CRMC, the Series and the Retail Funds agree that the names,
addresses, and other information relating to the Contractholders or
prospects for the sale of the Contracts developed by Insurance
Company are the exclusive property of the Insurance Company and may
not be used by CRMC, the Series, the Retail Funds or their affiliates
or agents without the written consent of the Insurance Company except
for carrying out the terms of this Agreement or as otherwise provided
for in this Agreement and any amendments thereto. Each party to this
Agreement agrees to maintain the confidentiality of all information
(including personal financial information of the customers of either
party) received from the other party pursuant to this Agreement. Each
party agrees not to use any such information for any purpose, or
disclose any such information to any person, except as permitted or
required by applicable laws, rules and regulations, including the
Xxxxx-Xxxxx-Xxxxxx Act and any regulations promulgated thereunder.
30. Each party hereto shall cooperate with the other parties and all
appropriate governmental authorities and shall permit authorities
reasonable access to its books and records upon proper notice in
connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby. Each party shall
maintain and preserve all records in its possession as required by
law to be maintained and preserved in connection with the provision
of the services contemplated hereunder. Upon the request of a party,
the other party shall provide copies of all records as may be
necessary to (a) monitor and review the performance of either party's
activities, (b) assist either party in resolving disputes,
reconciling records or responding to auditor's inquiries, (c) comply
with any request of a governmental body or self-regulatory
organization, (d) verify compliance by a party with the terms of this
Agreement, (e) make required regulatory reports, or (f) perform
general customer service. The parties agree to cooperate in good
faith in providing records to one another under this provision.
31. The following Sections shall survive any termination of this
Agreement: 4-7, 19, 24-32.
32. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary corporate or board
action, as applicable, by such party and when
23
so executed and delivered this Agreement will be the valid and
binding obligation of such party enforceable in accordance with its
terms, and will not result in its violating any applicable law or
breaching or otherwise impairing any of its contractual obligations.
33. 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.
34. This Agreement and any amendment to it may be executed in one or more
counterparts. All of those counterparts shall constitute one and the
same agreement.
35. In the event of a dispute between the parties with respect to this
Agreement, and in the event the parties are unable to resolve the
dispute between them, such dispute shall be settled by arbitration;
one arbitrator to be named by each party to the disagreement and a
third arbitrator to be selected by the two arbitrators named by the
parties. The decision of a majority of the arbitrators shall be final
and binding on all parties to the arbitration. The expenses of such
arbitration shall be paid by the non-prevailing party.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and attested as of the date first above written.
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY (on behalf of itself
and each Account)
Attest:
By:
---------------------------------
Its:
-------------------------
LINCOLN VARIABLE INSURANCE
PRODUCTS TRUST
Attest:
By:
---------------------------------
Its:
-------------------------
LINCOLN LIFE & ANNUITY COMPANY
OF NEW YORK (on behalf of itself and each
Account)
Attest:
By:
---------------------------------
Its:
------------------------- ---------------------------------
LINCOLN INVESTMENT ADVISERS
CORPORATION
Attest:
By:
---------------------------------
Its:
-------------------------
AMERICAN FUNDS INSURANCE SERIES
Attest:
By:
---------------------------------
Its: Executive Vice President and
Principal Executive Officer
-----------------------------
25
CAPITAL RESEARCH AND
MANAGEMENT COMPANY
(on behalf of itself and each Retail
Fund)
Attest:
By:
-------------------------
Senior Vice President and
Its: Secretary
-------------------------
AMERICAN FUNDS SERVICE
COMPANY
Attest:
By:
-------------------------
Its: Secretary
-------------------------
26
Attachment A
Trust Funds
Trust Funds:
------------
[_] LVIP American Balanced Allocation Fund
[_] LVIP American Growth Allocation Fund
[_] LVIP American Income Allocation Fund
27
Attachment B
Retail Funds
Retail Funds:
-------------
[_] Capital Income Builder
[_] Intermediate Bond Fund of America
[_] Short-Term Bond Fund of America
28
Attachment C
List of Accounts:
Accounts:
---------
[_] Lincoln National Variable Annuity Account E
[_] Lincoln National Variable Annuity Account H
[_] Lincoln Life & Annuity Variable Annuity Account H
29
Attachment D
The Order
30