EXHIBIT 28(e)
PRINCIPAL UNDERWRITING AGREEMENT
Between
LINCOLN VARIABLE INSURANCE PRODUCTS TRUST
and
LINCOLN FINANCIAL DISTRIBUTORS, INC.
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Table of Contents
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1. Appointment of the Distributor ......................................... 3
2. Exclusive Nature of Trust .............................................. 4
3. Sale and Redemption of Shares of the Trust ............................. 4
4. Duties of the Trust .................................................... 4
5. Duties of the Distributor .............................................. 5
6. Independent Contractor ................................................. 5
7. Payment of Expenses .................................................... 5
8. Duration and Termination of This Agreement ............................. 6
9. Governing Law .......................................................... 6
10. Miscellaneous .......................................................... 6
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PRINCIPAL UNDERWRITING AGREEMENT
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AGREEMENT made this 1st day of January, 2012, between LINCOLN VARIABLE
INSURANCE PRODUCTS TRUST, a business trust organized under the laws of Delaware
(the "Trust"), and Lincoln Financial Distributors, Inc. a Connecticut
corporation, (the "Distributor");
WITNESSETH:
WHEREAS, the Trust is registered under the Investment Company Act of 1940
(the "Investment Company Act") as an open-end management investment company;
WHEREAS, the Trust is comprised of separate series, listed on the attached
Schedule A (each, a "Fund") as it may be amended from time to time, each of
which pursues its investment objectives through separate investment policies;
WHEREAS, it is in the interest of the Trust to offer Fund shares for sale
continuously pursuant to a prospectus and statement of additional information,
as now and hereafter amended or supplemented (the "Prospectus") which is
currently effective under the Securities Act of 1933 (the "Securities Act"), to
(i) directly or indirectly to separate accounts of The Lincoln National Life
Insurance Company ("Lincoln Life"), any of its affiliated insurance companies,
or unaffiliated insurance companies that have entered into a Participation
Agreement with the Trust, or (ii) to one or more employer-sponsored products
issued or administered by Lincoln Life or its affiliates (all eligible
purchasers of such shares being referred to collectively as the "Purchasers");
and
WHEREAS, the Distributor is a broker-dealer registered with the Securities
and Exchange Commission;
WHEREAS, the Distributor is also the principal underwriter and distributor
of variable life insurance policies and variable annuities issued by Lincoln
Life and funded by various separate accounts; and
WHEREAS, the Trust and the Distributor wish to enter into an agreement with
each other with respect to the continuous offering to the Purchasers of the
shares of each class of each Fund (the "Shares"), in order to promote the growth
of the Trust and the Funds and facilitate the distribution of Shares.
NOW, THEREFORE, the parties agree as follows:
1. Appointment of the Distributor. The Trust hereby appoints the
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Distributor as the principal underwriter and distributor of the Trust to sell
the Shares to the Purchasers, and the Distributor hereby accepts such
appointment. The Trust during the term of this Agreement shall sell the Shares
to the Purchasers at net asset value for each Portfolio determined in the manner
set forth in the Prospectus, and upon the terms and conditions set forth below.
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2. Exclusive Nature of Duties. The Distributor shall be the exclusive
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representative of the Trust to act as principal underwriter and distributor.
3. Sale and Redemption of Shares of the Fund.
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(a) Orders for the sale, redemption or repurchase of the Shares shall
be transmitted directly from the Purchasers to the Trust or its agent, and
payments for Shares shall be transmitted by the Purchasers directly to the
Trust's custodian or to an account designated by the Trust.
(b) The Trust shall have the right to suspend the redemption of Shares
of any of the Funds pursuant to the conditions set forth in the Prospectus. The
Trust shall also have the right to suspend the sale of Shares of any or all of
its Funds at any time when it is authorized to suspend redemption of such
Shares, or at any time when there shall have occurred an extraordinary event or
circumstance which, in the reasonable judgment of the Trust, makes it
impracticable or inadvisable to continue to sell any such shares.
(c) The Trust will give the Distributor prompt notice of any such
suspension and shall promptly furnish such other information in connection with
the sale and redemption of Shares as the Distributor reasonably requests.
On behalf of the Distributor, if requested, the Trust, or its agent,
in issuing Shares and processing redemptions and repurchase of Shares, shall
maintain a record of the time when a proper and complete order for each such
transaction was received by it and, to the extent legally required, confirm to
all Trust shareholders all transactions in the manner required by law, and shall
keep records of confirmations and all other records in connection with the sale,
redemption or repurchase of Trust shares required by, and subject to, all the
terms and conditions of Rules 17a-3 and 17a-4 under the Securities Exchange Act
of 1934. All records required by this paragraph to be maintained by the Trust or
its agent shall (i) be and remain the property of the Trust's Distributor and
(ii) be at all times subject to inspection by the Securities and Exchange
Commission in accordance with Section 17(a) of said Act. The Trust shall have
access to all records maintained hereunder and, upon reasonable request, copies
shall be furnished to the Trust.
4. Duties of the Trust.
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(a) The Trust shall furnish to the Distributor copies of all
information, financial statements and other papers which the Distributor may
reasonably request for use in connection with the distribution of Shares. The
Trust shall also make available to the Distributor such number of copies of its
Prospectus as the Distributor shall reasonably request.
(b) The Trust shall take, from time to time, but subject to the
necessary approval of its shareholders, all necessary action to fix the number
of its authorized Shares of each Fund and to register Shares under the
Securities Act, to the end that there will be available for sale such number of
Shares of each Fund as may reasonably be expected to be sold and issued.
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(c) The Trust shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Shares of each Fund for sale under the
securities laws of such states as the Distributor and the Trust may approve, if
such qualification is required by such securities laws. Any such qualification
may be withheld, terminated or withdrawn by the Trust at any time in its
discretion. The Distributor shall furnish such information and other material
relating to its affairs and activities as may be required by the Trust in
connection with such qualification and with registration under the Securities
Act.
(d) The Trust will furnish, in reasonable quantities upon request by
the Distributor, copies of annual and interim reports of the Funds.
(e) The Trust shall promptly notify the Distributor if the
registration or qualification of any Shares under any state or Federal
securities laws, or the Trust's registration under the Investment Company Act,
is suspended or terminated, or if any governmental body or agency institutes
proceedings to terminate the offer and sale of any Shares in any jurisdiction.
5. Duties of the Distributor. The Distributor shall be subject to the
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direction and control of the Trust in the sale of Shares and shall not be
obligated to sell any specific number of Shares of any Fund. In offering or
selling the Shares, the Distributor shall in all respects duly conform with the
requirements of all federal and state laws and regulations and the regulations
of the National Association of Securities Dealers, Inc. (the "NASD"), relating
to the offer and sale of such securities. Neither the Distributor nor any other
person is authorized by the Trust to give any information or to make any
representations, other than those contained in the registration statement with
respect to the Shares which is effective under the Securities Act, including any
amendment thereto, or related Prospectus and any advertising or sales literature
authorized by responsible officers of Lincoln Life. The Distributor, directly or
through the Trust, as its agent, shall cause any sales literature, advertising,
or other similar materials to be filed and, if necessary, approved by the NASD,
the Securities and Exchange Commission, or any other required securities
regulatory body, as appropriate.
6. Independent Contractor. The Distributor shall act as an independent
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contractor and nothing herein contained shall constitute the Distributor, its
agents or representatives, or any employees thereof, as employees of the Trust
in connection with the sale of Shares. The Distributor is responsible for its
own conduct and the employment, control and conduct of its agents and employees
and for injury to such agents or employees or to others through its agents or
employees. The Distributor assumes full responsibility for its agents and
employees under applicable statutes and agrees to pay all employer taxes
thereunder. The Distributor will maintain at its own expense insurance against
public liability in such an amount as the Trust and the Distributor may from
time to time agree.
7. Payment of Expenses. The Distributor will, from its own resources, pay
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or cause to be paid all of the following Trust expenses and costs:
(a) The preparation, printing and distribution of other sales
literature, and
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(b) All other expenses which are primarily for the purpose of
promoting sales of the Shares to new beneficial owners.
Other than as aforesaid, the Distributor shall not be responsible for
paying any expenses of the Trust under this Agreement. Notwithstanding anything
else in this Agreement, the Principal Underwriter may receive payments relating
to the Service Class shares of each Fund under the Service Class Plan
(12b-1Plan) adopted by the Trust's Board of Trustees for the Service Class
shares of the Funds, as such Service Class Plan (12b-1 Plan) may be amended from
time to time. In addition to the expenditures specifically authorized herein,
the Principal Underwriter may spend with respect to the Service Class shares
such amounts as it deems appropriate for any purpose consistent with the Service
Class Plan, as amended from time to time.
8. Duration and Termination of This Agreement. This Agreement shall become
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effective as of the date first above written and shall remain in force
continuously thereafter, but only so long as such continuance is specifically
approved at least annually (as defined in the Investment Company Act) by (a) the
Board of Trustees of the Trust, or, with respect to each Fund, by the vote of a
majority of the outstanding voting securities of that Fund cast in person or by
proxy, and (b) a majority of those directors who are not parties to this
Agreement, or interested persons of any such party, cast in person at a meeting
called for the purpose of voting upon such approval.
This Agreement may be terminated at any time without the payment of any
penalty, by the Board of Trustees of the Trust or, with respect to each Fund, by
vote of a majority of the outstanding voting securities of that Fund, or by the
Distributor, on sixty days' written notice to the other party. This Agreement
shall automatically terminate in the event of its assignment by either party.
The terms "vote of a majority of the outstanding voting securities" and
"interested person," when used in this Agreement, shall have the respective
meanings specified in the Investment Company Act and rules thereunder.
9. Governing Law. This Agreement shall be construed in accordance with the
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laws of the State of Delaware and the applicable provisions of the Investment
Company Act and rules thereunder. To the extent the applicable law of the State
of Delaware, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act or rules thereunder, the latter shall control.
10. Miscellaneous. The Distributor shall not disclose or use any records or
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information obtained hereunder and, further, it shall keep confidential any
information obtained pursuant to its relationship with the Trust set forth
herein, and disclose such information only if the Trust has authorized such
disclosure, or if such disclosure is expressly required by appropriate Federal
or state regulatory authorities. The Distributor shall furnish state insurance
regulatory authorities with any information or reports in connection with the
services it provides to the Trust hereunder, which such authorities may request
in order to ascertain whether the
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variable life insurance operations of any insurance company are being conducted
in a manner consistent with applicable laws or regulations.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
LINCOLN VARIABLE INSURANCE PRODUCTS TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
LINCOLN FINANCIAL DISTRIBUTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
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