Common use of Mixed and Shared Funding Clause in Contracts

Mixed and Shared Funding. 5.1 During such time as the Fund engages in Mixed Funding or Shared Funding, the parties hereto shall comply with the conditions in this Article V. 5.2 The Fund’s Board of Trustees shall monitor the Fund for the existence of any material irreconcilable conflict (1) between the interests of owners of variable annuity contracts and variable life insurance policies, and (2) between the interests of owners of Variable Contracts (“Variable Contract Owners”) issued by different Participating Life Insurance Companies that invest in the Fund. A material irreconcilable conflict may arise for a variety of reasons, including: (a) an action by any state insurance regulatory authority; (b) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretive letter, or any similar action by insurance, tax, or securities regulatory authorities; (c) an administrative or judicial decision in any relevant proceeding; (d) the manner in which the investments of any Portfolio of the Fund are being managed; (e) a difference in voting instructions given by variable annuity and variable life insurance contract owners; or (f) a decision by a Participating Insurance Company to disregard the voting instructions of Variable Contract Owners. 5.3 Fortis Benefits agrees that it shall report any potential or existing conflicts of which it is aware to the Fund’s Board of Trustees. Fortis Benefits will be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order, or, if the Fund is engaged in Mixed Funding or Shared Funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, Fortis Benefits will be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under such regulation, by providing the Board with all information reasonably necessary for the Board to consider any issues raised. This includes, but is not limited to, an obligation by Fortis Benefits to inform the Board whenever Variable Contract Owner voting instructions are disregarded. Fortis Benefits shall carry out its responsibility under this Section 5.3 with a view only to the interests of the Variable Contract Owners.

Mixed and Shared Funding. 5.1 During a. The Parties acknowledge that shares of the Invesco Fund may be made available for investment to other participating insurance companies. In such time as the Fund engages in Mixed Funding or Shared Fundingevent, the parties hereto shall comply with the conditions in this Article V. 5.2 The Fund’s Board of Trustees shall AVIF will monitor the Invesco Fund for the existence of any material irreconcilable conflict (1) between the interests of the contract owners of variable annuity contracts and variable life all participating insurance policies, and (2) between the interests of owners of Variable Contracts (“Variable Contract Owners”) issued by different Participating Life Insurance Companies that invest in the Fundcompanies. A material irreconcilable conflict may arise for a variety of reasons, including: (a) an action by any state insurance regulatory authority; (b) a change in applicable federal or state insurance, tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretive interpretative letter, or any similar action by insurance, tax, or securities regulatory authorities; (c) an administrative or judicial decision in any relevant proceeding; (d) the manner in which the investments of any Portfolio of the Lincoln Fund are being managed; (e) a difference in voting instructions given by variable annuity contract and variable life insurance contract owners; or (f) a decision by a Participating Insurance Company participating insurance company to disregard the voting instructions of Variable Contract Ownerscontract owners. The Board of AVIF shall promptly inform the Insurance Company in writing if it determines that an irreconcilable material conflict exists and the implications thereof. 5.3 Fortis Benefits b. The Insurance Company agrees that it shall to promptly report any potential or existing conflicts of which it is aware to the Fund’s Board of TrusteesAVIF. Fortis Benefits The Insurance Company will be responsible for assisting assist the Board of Trustees of the Fund AVIF in carrying out its responsibilities under the Mixed and Shared Funding Exemptive Order, or, if the Fund is engaged in Mixed Funding or Shared Funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, Fortis Benefits will be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under such regulation, Order by providing the Board of AVIF with all information reasonably necessary for the Board it to consider any issues raised. This includesraised including, but is not limited to, an obligation information as to a decision by Fortis Benefits the Insurance Company to inform disregard Contract owner voting instructions. c. If it is determined by a majority of the Board whenever Variable Contract Owner voting instructions of AVIF, or a majority of the Board of AVIF who are disregarded. Fortis Benefits shall carry out its responsibility under this Section 5.3 not affiliated with Invesco Advisers or Invesco Distributor (the “Disinterested Trustees”), that a view only to material irreconcilable conflict exists that affects the interests of Contract owners, the Variable Insurance Company shall, in cooperation with other participating insurance companies whose contract owners are also affected, at its expense and to the extent reasonably practicable (as determined by the Disinterested Trustees of AVIF) take whatever steps are necessary to remedy or eliminate the material irreconcilable conflict, which steps may include, but are not limited to: (a) withdrawing the assets allocable to the Lincoln Fund from the Invesco Fund and reinvesting such assets in a different investment medium, including (but not limited to) another series of AVIF, or submitting the question of whether or not such segregation should be implemented to a vote of all affected Contract Ownersowners and, as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more participating insurance companies) that votes in favor of such segregation, or offering to the affected Contract owners the option of making such a change; and (b) establishing a new registered management investment company or managed separate account. d. If a material irreconcilable conflict arises because of a decision by the Insurance Company to disregard Contract owner voting instructions and that decision represents a minority position or would preclude a majority vote, the Insurance Company may be required, at the Invesco Fund’s election, to withdraw the Lincoln Fund’s investment in the Invesco Fund and terminate this Agreement; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the Disinterested Trustees. Any such withdrawal and termination must take place within 30 days after the Invesco Fund gives written notice that this provision is being implemented, subject to applicable law but in any event consistent with the terms of the Mixed and Shared Funding Order. Until the end of such 30 day period, the Invesco Fund shall continue to accept and implement orders by the Lincoln Fund for the purchase and redemption of shares. e. If a material irreconcilable conflict arises because a particular state insurance regulator’s decision applicable to the Insurance Company conflicts with the majority of other state regulators, then the Insurance Company will withdraw the Lincoln Fund’s investment in the Invesco Fund and terminate this Agreement within 30 days after AVIF on behalf of the Invesco Fund informs the Insurance Company in writing that it has determined that such decision has created an irreconcilable material conflict; provided, however, that such withdrawal and termination shall be limited to the extent required by the foregoing material irreconcilable conflict as determined by a majority of the Disinterested Trustees. Until the end of such 30 day period, the Invesco Fund shall continue to accept and implement orders by the Lincoln Fund for the purchase and redemption of shares. f. For purposes of Sections 11(c) through 11(e) of this Agreement, a majority of the Disinterested Trustees shall determine whether any proposed action adequately remedies any irreconcilable material conflict, but in no event will the Insurance Company be required to establish a new funding medium for the Contracts if an offer to do so has been declined by vote of a majority of Contract owners materially adversely affected by the irreconcilable material conflict. In the event that the Board determines that any proposed action does not adequately remedy any irreconcilable material conflict, then the Insurance Company will withdraw the Lincoln Fund’s investment in the Invesco Fund and terminate this Agreement within 30 days after the Board of AVIF informs the Insurance Company in writing of the foregoing determination; provided, however, that such withdrawal and termination shall be limited to the extent required by any such material irreconcilable conflict as determined by a majority of the Disinterested Trustees. g. Upon request, the Insurance Company shall submit to the Board of AVIF such reports, materials or data as the Board of AVIF may reasonably request so that the Board of AVIF may fully carry out the duties imposed upon it by the Mixed and Shared Funding Order, and said reports, materials and data shall be submitted more frequently if deemed appropriate by the Board of AVIF. h. If and to the extent that (a) Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder with respect to mixed or shared funding (as defined in the application for the Mixed and Shared Funding Order) on terms and conditions materially different from those contained in the application for the Mixed and Shared Funding Order, or (b) the Mixed and Shared Funding Order is granted on terms and conditions that differ from those set forth in this Section 11, then AVIF and/or the participating insurance companies, as appropriate, shall take such steps as may be necessary (a) to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable, or (b) to conform this Section 11 to the terms and conditions contained in the Mixed and Shared Funding Order, as the case may be. i. Insurance Company or LVIP shall be responsible for assuring that the Accounts calculate pass-through voting privileges of the Contract owners in a manner consistent with the Mixed and Shared Funding Order and the Section 12 Order.

Mixed and Shared Funding. 5.1 During a. The Acquiring Fund represents that: i. to the best of its knowledge and except as otherwise permitted by Section 1.817-5(f)(3) of the Treasury Regulations, all the beneficial interests in the Acquiring Fund are held by one or more segregated asset accounts of one or more “life insurance companies” within the meaning of Section 816(a) of the Internal Revenue Code of 1986, as amended (the “Code”) and that public access to the Acquiring Fund is available exclusively through the purchase of the Contracts, which are treated as variable life insurance or variable annuity contracts under the Code; and ii. the Acquiring Fund has or shall elect and qualify to be taxed as a “regulated investment company” under Subchapter M of the Code, and that it will take all reasonable steps to maintain such time as qualification. The Acquiring Fund shall notify the Acquired Fund engages promptly upon having a reasonable basis for believing that the Acquiring Fund is out of compliance with Subchapter M or not all beneficial interests in Mixed Funding the Acquiring Fund are held by one or Shared Fundingmore segregated accounts of one or more such life insurance companies and other investors permitted by Section 1.817-5(f)(3) of the Treasury Regulations. In addition, the parties hereto Acquiring Fund will not rely on the “look through” provisions of Section 817(h)(4) of the Code and Section 1.817-5(f) of the Treasury Regulations with respect to any investment by the Acquiring Fund in an investment company the shares of which are offered to the general public pursuant to its prospectus and registration statement. b. The Acquired Fund represents that it has or shall comply elect and qualify to be taxed as a “regulated investment company” under Subchapter M of the Code, and that it will take all reasonable steps to maintain such qualification. The Acquired Fund further represents that to the best of its knowledge and except as otherwise permitted by Section 1.817-5(f)(3) of the Treasury Regulations, all of the beneficial interests in the Acquired Fund are held by one or more segregated asset accounts of one or more “life insurance companies” within the meaning of Section 816(a) of the Code and that public access to the Acquired Fund is available exclusively through the purchase of the Contracts, which are treated as variable life insurance or variable annuity contracts under the Code. The Acquired Fund shall notify the Acquiring Fund promptly upon having a reasonable basis for believing that (i) the Acquired Fund is out of compliance with Subchapter M or (ii) not all beneficial interests in the conditions in this Article V.Acquired Fund are held by one or more segregated accounts of one or more such life insurance companies and other investors permitted by Section 1.817-5(f)(3) of the Treasury Regulations. 5.2 The c. To the extent required by applicable provisions of the federal securities laws and/or any exemptive orders granted by the SEC to the Acquired Fund’s , including the BlackRock Mixed and Shared Funding Order, the Board of Trustees shall Directors of the Acquired Fund (“Acquired Fund Board”) will monitor the Acquired Fund for the existence of any material irreconcilable conflict (1) between the interests of owners the Acquired Fund and those of variable annuity contracts the Acquiring Fund and variable life insurance policies, Contract holders of all Registered Separate Accounts and Unregistered Separate Accounts (2) between the interests of owners of Variable Contracts (“Variable Contract Owners”) issued by different Participating Life Insurance Companies that invest as defined in the BlackRock Mixed and Shared Funding Order) investing in the Acquired Fund. A material irreconcilable conflict may arise for a variety of reasons, including: (a) an action by any state insurance regulatory authority; (b) a change in applicable federal insurance (including federal, state, or state insuranceother jurisdiction), tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or interpretive letter, or any similar action by insurance, tax, or securities regulatory authorities; (c) an administrative or judicial decision in any relevant proceeding; (d) the manner in which the investments of any Portfolio of the Acquired Fund are being managed; (e) a difference in voting instructions given by variable annuity contract and variable life insurance contract ownersholders; or (f) a decision by a Participating Insurance Company an insurance company to disregard the voting instructions of Variable Contract Ownersholders. The Acquired Fund Board shall promptly inform the Acquiring Fund if the Acquired Fund Board determines that a material irreconcilable conflict exists and the implications thereof. 5.3 Fortis Benefits agrees that it shall d. The Acquiring Fund (or its investment adviser) will report any potential or existing conflicts in the Acquired Fund of which it the Acquiring Fund is aware to the Acquired Fund Board and, on an annual basis or as requested by the Acquired Fund from time to time, shall provide the Acquired Fund with written notification, on the Acquired Fund’s form, that the Acquiring Fund is not aware of any conflict, if such is the case. The Acquiring Fund will assist the Acquired Fund Board of Trustees. Fortis Benefits will be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under any applicable provisions of the federal securities laws and/or the BlackRock Mixed and Shared Funding Exemptive Order, or, if the Fund is engaged in Mixed Funding or Shared Funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act, Fortis Benefits will be responsible for assisting the Board of Trustees of the Fund in carrying out its responsibilities under such regulation, by providing the Acquired Fund Board with all information reasonably necessary for the Board Directors to consider any issues raised. e. If it is determined by a majority of the Directors of the Acquired Fund Board, or a majority of the Acquired Fund Independent Directors, that a material irreconcilable conflict exists, the Acquiring Fund shall at the request of the Acquired Fund Board, redeem the Shares of the Acquired Fund held by the Acquiring Fund. f. The Acquired Fund reserves the right to temporarily suspend sales if the Acquired Fund Board, 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. This includesFurther, the Acquired Fund Board may refuse to sell shares of the Acquired Fund to any person, or suspend or terminate the offering of shares of the Acquired 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 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 the Acquired Fund, and as consistent with its anti market-timing and late-trading policies and procedures. g. The Acquiring Fund 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. The Acquiring Fund reserves the right to refuse, an obligation by Fortis Benefits to inform impose limitations on, or to limit any transaction request if the Board whenever Variable request would tend to disrupt Contract Owner voting instructions are disregarded. Fortis Benefits shall carry out its responsibility under this Section 5.3 with a view only to administration or is not in the interests best interest of the Variable Contract Ownersholders or a separate account or any subaccount thereof.